CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 janvier 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } SECOND SECTION Application nos. 26278/07 and 31185/08 Nebojša OBRADOVIĆ against Serbia and Obrad JOSIFOVIĆ against Serbia lodged on 4 June 2007 and 11 June 2008 respectively   STATEMENT OF FACTS THE FACTS 1.     The applicants, Mr Nebojša Obradović (“the first applicant”) and Mr   Obrad Josifović (“the second applicant”) are both Serbian nationals who were born in 1977 and 1983 and live in Arilje and Belgrade respectively. The first applicant is represented before the Court by Mr M. Dimitrijević and Mr N. Mrvošević, lawyers practising in Ivanjica, and the second applicant by Mr G. Otović, a lawyer practising in Belgrade. A.     The circumstances of the case 2.     The facts of the cases, as submitted by the applicants, may be summarised as follows. 3.     The applicants are employed as police officers by the Ministry of Internal Affairs of the Republic of Serbia ( Ministarstvo unutrašnjih poslova Republike Srbije , hereinafter “the Ministry”). They work at the police stations in Arilje and Belgrade respectively. 1.     As regards the first applicant 4.     On an unspecified date in 2006 the applicant filed a civil claim against the Ministry with the Arilje Municipal Court ( Opštinski sud ; hereinafter “the Municipal Court”), seeking payment for overtime and work performed on night shifts and public holidays due from 1 January 2003 to 31 December 2005, plus statutory interest and legal costs. In arguing his claim, the applicant referred to the Labour Act as the applicable law in his case, claiming that the Internal Affairs Act and the Police Act failed to regulate this particular issue. 5.     On an unspecified date the Municipal Court held the main hearing, for which it provided an expert report and certain Ministry documents on the applicant’s tasks, performed working hours and salaries. Following the examination of this evidence at the hearing, it would appear that both parties to the proceedings agreed that the court would obtain and examine the Regulation on the Salaries of Officials of the Ministry of Internal Affairs (hereinafter “the Regulation”), issued by the Minister, and subsequently close the main hearing. 6.     On 1 August 2006 the Municipal Court examined this Regulation. 7.     On the same date the Municipal Court ruled against the applicant. In doing so, it found, inter alia , that the applicable domestic regulation was contained in the Internal Affairs Act and the Police Act, as well as in the said Regulation, as they were considered to be lex specialis in relation to the general labour law. The court finally ordered the applicant to cover the legal costs of the Ministry. 8.     The applicant appealed, claiming that the first-instance court had made errors of fact and law. He also drew the court’s attention to the opposite practice of other municipal and district courts, and claimed that the first-instance court had breached the principle of an adversarial hearing on account of failing to give him an opportunity to access and comment on the Ministry’s Regulation. 9.     On 9 November 2006 the Užice District Court ( Okružni sud ; hereinafter “the District Court”) endorsed the reasoning of the first-instance court on the merits, but reversed the decision on costs and ordered each party to cover its own costs. In doing so, the court: (a) found the reasoning of the first-instance decision to be clear, concise and convincing; (b) found the decisions of the other domestic courts which had granted the same kind of payments to a certain number of the applicant’s colleagues to be inconclusive and uncomprehensive; (c) reiterated that the judgment of the Supreme Court of Serbia of 6 May 2004 (Rev. II. 1676/03), adjudicating on the same legal issue, had found that the Ministry’s employees were not entitled to overtime benefits; and finally, (d) rejected the applicant’s last complaint as ill-founded, as, according to the minutes of the main hearing before the Municipal Court, both parties had explicitly entrusted the court with the examination of this “evidence” after the main hearing had finished and had thus waived their right in this respect. This conclusion was derived particularly from the fact that the Regulation “concerned in any event legal issues and the application of the material law at stake”. 10.     The applicant received this judgment on 4 December 2006. 11.     On 31 January 2007 the Municipal Court rejected the applicant’s request for the reopening of the impugned proceedings. 12.     On 5 April 2007 the District Court upheld this decision. 13.     In the meantime, on 2 March 2007 the Chief Public Prosecutor ( Republičko javno tužilaštvo ) informed the applicant that his request for the protection of legality ( inicijativa za podizanje zahteva za zaštitu zakonitosti ) had been rejected. 2.     As regards the second applicant 14.     On 22 May 2006 the applicant filed a civil claim against the Ministry with the Belgrade Municipal Court ( Opštinski sud ; hereinafter “the Municipal Court”), seeking payment for overtime and work performed on night shifts and public holidays due from 25 May 2004 to November 2005, plus statutory interest and legal costs. 15.     In his written pleadings of 19 September and 14 November 2006, the applicant called on the Municipal Court to request the Ministry to submit a copy of the Regulation. In its submissions, the Ministry relied on the Regulation among other documents, but it would appear that a copy was not made available to the applicant. 16.     On 13 February 2007 the Municipal Court ruled against the applicant, finding the applicable domestic regulation to be contained in the Internal Affairs Act, the Police Act and in the said Regulation. 17.     On 26 February 2007 the applicant appealed arguing, inter alia , that the Municipal Court had failed to make available or examine the Regulation, or to open it to discussion. 18.     On 6 June 2007 the Belgrade District Court (hereinafter “the District Court”) returned the case to the Municipal Court without examination, requesting it to add the missing copy of the impugned Regulation to the case file, as well as the Minister’s decision on the applicant’s salary, which the applicant had referred to in his appeal. 19.     On 27 August 2007 the Ministry sent a copy of certain extracts from the Regulation. It appears that a copy of this document was not sent to the applicant by the court. 20.     On 17 October 2007 the District Court upheld the judgment of 13   February 2007. It found the applicant’s complaint of the lower court’s failure to make available or examine the Regulation to be irrelevant for the dispute, as the lower court had in any event concluded from examining other evidence that the applicant could not have benefited from the additional salary supplements. This judgment was served on the applicant on 11 December 2007. 21.     On 2 July 2009 the Constitutional Court dismissed the applicant’s subsequent constitutional complaint as unsubstantiated. 3.     Other relevant facts 22.     It would appear that in hundreds of other judgments, rendered between 3 November 2005 and 9 February 2010, appellate courts in Serbia ruled concurrently in favour of and against the applicants’ colleagues. B.     Relevant domestic law and practice 1.     The Constitution of the Republic of Serbia 1990 (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia - OG RS - no. 1/90) 23.     Article 22 § 1 of the Constitution provided, inter alia , that everyone “shall be entitled to the equal protection of his or her rights in proceedings before a court of law”. 24.     This Constitution was repealed in November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force. 2.     The Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in OG RS no. 98/06) 25.     The relevant provisions of the Constitution read as follows: Article 21 §§ 2 and 3 “Everyone shall have the right to equal legal protection, without discrimination.” Article 32 § 1 “Everyone shall have the right to a public hearing before an independent and impartial tribunal established by law within a reasonable time... [in the determination] ... of his [or her] rights and obligations ...” Article 36§ 1 “Equal protection of rights before courts and other state bodies, entities exercising public powers and bodies of the autonomous province or local self-government shall be guaranteed.” Article 142 § 2 and 3 “Courts ... shall adjudicate in accordance with the Constitution, Law and other general acts, when stipulated by the law, generally accepted rules of international law and ratified international contracts. The hearing before the court shall be public and may be restricted only in accordance with the Constitution.” 3.     The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Serbia - OG RS - no. 125/04) 26.     Article 2(1) provides, inter alia , that all parties shall be entitled to the equal protection of their rights. 27.     Article 176 provides that when there are many cases pending at first instance raising the same preliminary legal issue, the court of first instance shall, either of its own motion or at the request of one of the parties, be entitled to institute separate proceedings before the Supreme Court, petitioning the latter to resolve the issue in question. The actions pending at first instance shall be stayed in the meantime. 28.     Article 232(3) provides that if a document [which contains the proof of a party’s argument] is held by a State authority or enterprise or other organisation with delegated public authority, and a party is unable to provide it or draw up its submission, the court shall obtain such document following a party’s request or of its own motion. 29.     Article 288 provides that in the summons for a preliminary hearing the parties will be instructed to bring to the hearing all documents they will use as evidence, as well as all objects that should be examined by the court. If it is necessary to acquire files, documents or objects for the preliminary hearing which are in the possession of the court or any other government authority or enterprise or other organisation with public competence, the court will ensure that these objects or documents are acquired in due time. 30.     Article 298(4) provides that [in the course of proceedings] the parties may present courts with their legal opinions related to the subject matter of the dispute. 31.     Article 305(1) provides that when the panel deems that the case has been discussed to the extent that a decision can be made, the court shall announce that the main hearing is closed. 32.     Article 305(2) provides that the court may decide to close the main hearing where certain documents containing evidence necessary for adjudication still need to be obtained or if the evidence taken by another authorised judge (by delegation)   is yet to arrive, if the parties to the proceedings waive their right to discuss them or if the court deems that a discussion is not necessary. 33.     Article 422(10) provides that a case may be reopened if the European Court of Human Rights has in the meantime rendered a decision in respect of Serbia concerning the same or a similar legal issue. COMPLAINTS Referring to various Articles of the Convention and Protocol No. 12, the applicants complain that their rights were breached on two counts: firstly, on account of the alleged inconsistent case-law of various Serbian courts concerning the payment of police officers; and secondly, owing to the lack of disclosure of and their inability to comment on an otherwise inaccessible Regulation enacted by their opponent in the proceedings (namely the Ministry of Internal Affairs), which was relied upon by the domestic courts in their decisions. QUESTIONS TO THE PARTIES 1.     The Government are invited to clarify and document the legal nature of the Regulation on the salaries of employees of the Ministry of Internal Affairs ( Pravilnik o platama radnika Ministartsva unutrašnjih poslova ), namely whether is it to be considered as evidence or law.   2.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?   (a)     If the Regulation is considered to be a general legal act, does it comply with the quality-of-law requirement of the Convention and, notably, with the requirement of accessibility (see, mutatis mutandis , Rotaru v.   Romania [GC], no.   28341/95, §   55, ECHR 2000-V, and S. and Marper v.   the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR   2008-...)?   (b)     With regard to the first case (no. 26278/07 ), was Article 305 of the Civil Procedure Act appropriately applied? If it is to be considered as a waiver of the right to a fair hearing, -     what is its scope, -     was any such waiver made in an unequivocal manner (see, Zumtobel v.   Austria , 21 September 1993, § 34, Series A no. 268 ‑ A, and Schuler ‑ Zgraggen v. Switzerland , 24 June 1993, § 58, Series A no. 263), and -     was it attended by minimum safeguards commensurate with its importance (see, mutatis mutandis , Poitrimol v. France , 23 November 1993, § 31, Series A no. 277 ‑ A, and Jones v. the United Kingdom (dec.), no.   30900/02, 9 September 2003)?   (c)     In the light of the applicants’ allegation that the Serbian courts have applied different case-law to identical civil claims and noting their different approach to the legal characterisation of the Regulation, has the principle of legal certainty been complied with (see, mutatis mutandis , Živić v. Serbia , no. 37204/08, § 47, 13 September 2011, with further references)?   The Government are further invited to clarify and document whether the Serbian courts have to date formally and/or effectively harmonised their approach to the two issues and, if so, since when exactly.   (d)     Were the right to an adversarial hearing and the principles of equality of arms and legal certainty respected in the proceedings before the competent domestic courts, given the alleged hindrance of the applicants’ access to and inability to comment on the Regulation at any stage of the proceedings (see Borgers v. Belgium , 30 October 1991, Series A no. 214 ‑ B; Dombo Beheer B.V. v. the Netherlands , 27 October 1993, Series A no. 274; Ruiz-Mateos v. Spain , 23 June 1993, Series A no. 262; Bulut v. Austria , 22   February 1996, Reports of Judgments and Decisions 1996 ‑ I; Krčmář and Others v. the Czech Republic , no. 35376/97, 3 March 2000; and Göç v.   Turkey [GC], no. 36590/97, ECHR 2002 ‑ V)?