CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 septembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s1CBBD6E0 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     Communicated on 30 September 2014   THIRD SECTION Applications nos 37194/08 and 37260/08 Slobodanka STANKOVIĆ against Serbia and Sonja TRAJKOVIĆ against Serbia lodged on 28 July 2008 and 28 July 2008 respectively STATEMENT OF FACTS 1.     The applicants, Ms Slobodanka Stanković and Ms Sonja Trajković, are Serbian nationals who were born in 1948 and 1970 respectively. They are both represented before the Court by Mr G. Stanišić, a lawyer practising in Belgrade. A.     The circumstances of the cases 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     The relevant context 3.     Following the North Atlantic Treaty Organisation’s intervention in Kosovo [1] , on 9 June 1999 the Yugoslav and Serbian Governments agreed to a phased withdrawal of their military and police forces from the territory and a transfer of all effective control to an international security force (“KFOR”). Concerning a number of municipalities, including the municipality of Suva Reka, the transfer was to take place on 15 June 1999. It was further envisaged that it would thereafter be up to KFOR to “maintain a secure environment for all citizens of Kosovo”. 2.     As regards the first applicant (Ms Slobodanka Stanković, application no. 37194/08) 4.     On 13 June 1999 the first applicant’s husband was kidnapped by the Kosovo Liberation Army in the municipality of Suva Reka. 5.     On 12 March 2002 the Bujanovac Municipal Court declared the first applicant’s husband dead. This ruling became final by 3 April 2002. 6.     On 19 May 2005 the first applicant, together with her children, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for the mental anguish suffered as a consequence of the incident. 7.     On 19 May 2006 the said court ruled against the plaintiffs. 8.     On 21 November 2007 the first instance judgment was upheld by the Belgrade District Court on appeal. The first applicant was served with the District Court’s judgment on 23 May 2008. 9.     In their reasoning the First Municipal Court and the District Court both opined, inter alia , that whilst the first applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable, within the meaning of Article 180 § 1 of the Obligations Act (see paragraph 19 below), since it was up to KFOR to provide for the safety of all citizens of Kosovo as of 9 June 1999 (see paragraph 3 above). 10.     The first applicant could not have lodged a further appeal on points of law ( revizija ) given that the value of the dispute in question was below the statutory threshold. 3.     As regards the second applicant (Ms Sonja Trajković, application no. 37260/08) 11.     On 13 June 1999 the second applicant’s husband was kidnapped by the Kosovo Liberation Army in the municipality of Suva Reka. 12.     On 24 June 2002 the Bujanovac Municipal Court declared the second applicant’s husband dead. This ruling became final by 16 July 2002. 13.     On 31 May 2005 the second applicant, together with her children and other family members, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for the mental anguish suffered as a consequence of the incident. 14.     On 19 May 2006 the said court ruled against the plaintiffs. 15.     On 3 April 2008 the first instance judgment was upheld by the Belgrade District Court on appeal. 16.     In their reasoning the First Municipal Court and the District Court both opined, inter alia , that whilst the second applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable, within the meaning of Article 180 § 1 of the Obligations Act, since it was up to KFOR to provide for the safety of all citizens of Kosovo as of 9 June 1999. 17.     The second applicant could not have lodged a further appeal on points of law given that the value of the dispute in question was below the statutory threshold. 4.     Other relevant facts 18.     In dozens of other judgments, rendered between 2006 and 2010, the Belgrade District Court and subsequently the Belgrade Appeals Court, as well as the Supreme Court at third instance, ruled in favour of and against other plaintiffs, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues. In their reasoning in those cases where the said courts/different benches of the same court ruled in favour of the plaintiffs, the Serbian authorities were deemed responsible for the lives and safety of all persons residing in Kosovo up until the very transfer of effective control to KFOR in respect of each of the municipalities considered separately (see, for example, judgments of the First Municipal Court in Belgrade P. 9898/05 and 431/07 of 16 June 2006 and 24 February 2009, upheld on appeal by the Belgrade District Court by 6 September 2006 and 16 April 2009 respectively; judgments of the Belgrade District Court Gž. 10832/06, 13799/06, and 11483/08 of 26 December 2006, 5 June 2007 and 14 October 2008 respectively; judgments of the Belgrade Appeals Court Gž.   2005/10 and 605/10 of 17 March 2010 and 10 June 2010 respectively; and judgments of the Supreme Court Rev. 1092/08 and 939/08 of 24 April 2008 and 7 May 2008 respectively). B.     Relevant domestic law 1.       The Obligations Act (Zakon o obligacionim odnosima, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89, as well as in the Official Gazette of the Federal Republic of Yugoslavia no.   31/93) 19.     Article 180 § 1 of this Act reads as follows:   “Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 2.     The Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Serbia – OG RS – no. 125/04) 20.     Article 2 § 1 provides, inter alia , that all parties shall be entitled to the equal protection of their rights. 3.     The Courts Organisation Act (Zakon o uređenju sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06) 21.     Article 40 §§ 2 and 3 provides, inter alia , that a meeting of a division ( sednica odeljenja ) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for the panels ( veća ) of the division in question. 4.     The Rules of Court (Sudski poslovnik; published in OG RS nos. 65/03, 115/05, 4/06 and 50/06) 22.     Article 28 § 1 provides that all courts shall be obliged to harmonise their own case-law on any given issue, and shall do so by means of adopting specific opinions. COMPLAINTS 23.     Under Article 6 § 1 of the Convention, the applicants complain about the rejection of their own civil claims by the domestic courts and the simultaneous acceptance by the same courts of identical claims filed by other plaintiffs. QUESTIONS TO THE PARTIES   1.     In the light of the applicants’ allegation that the Serbian appellate courts ( okružni i apelacioni sudovi ), as well as the Supreme Court/Supreme Court of Cassation, have applied patently different case-law to identical civil claims, 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? In particular, was the principle of legal certainty implicit in this provision complied with (see, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-58, 20 October 2011)? 2.     The Government are further invited to clarify and document as to whether the Serbian courts referred to above have ever formally and/or effectively harmonised their approach in the determination of claims such as the applicants’ and, if so, as of when exactly. 3.     Lastly, do the facts of the present applications disclose the existence of an endemic problem which gives or may give rise to other similar applications? In their reply to this question, the Government are invited to make their comments in view of the Court’s judgments in the cases of Vinčić and Others v. Serbia (nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, 1 December 2009), Rakić and Others v. Serbia (nos. 47460/07, 49257/07, 49265/07, 1028/08, 11746/08, 14387/08, 15094/08, 16159/08, 18876/08, 18882/08, 18997/08, 22997/08, 23007/08, 23100/08, 23102/08, 26892/08, 26908/08, 29305/08, 29306/08, 29323/08, 29389/08, 30792/08, 30795/08, 31202/08, 31968/08, 32120/08, 32537/08, 32661/08, 32666/08 and 36079/08, 5 October 2010) and Živić v. Serbia (no. 37204/08, 13 September 2011), wherein it found violations of Article 6 § 1 of the Convention on account of the divergent national case-law, albeit in different factual and legal contexts.   [1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with the United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.