CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 septembre 2016

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Cvetković, a lawyer practising in Belgrade. For additional personal details and the dates of introduction of their complaints see the annex. A.     The circumstances of the case 2.     The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     The context 3.     The applicants are active, former or retired professional or civilian officers of the Yugoslav/Serbian Armed Forces (at the time the Armed Forces of the State Union of Serbia and Montenegro). 4.     At the relevant time, the Federal Assembly of Serbia and Montenegro determined the budget for defence, including military salaries, in the Budget Act. 5.     The individual salaries of professional or civilian military personnel were determined by multiplication of the base for salary calculation ( bodovi/koeficijenati ) by the coefficient for salary calculation ( novčana vrednost boda/koeficijenta ). The salary bases were determined by administrative employment decisions ( naredba / rešenje o postavljenju ) by the relevant superiors in accordance with the determining factors/bases fixed by the Federal Government for each position, rank, and so on. These decisions were communicated to the staff only verbally. The Minister of Defence was to determine regularly the coefficient for salary calculation within the resources for salaries provided by the above-mentioned Government defence budget. 6.     The local unit ( vojna pošta ) of a personnel was to submit to the Ministry’s calculation unit ( Vojno-računovodstveni centar MO u Beogradu ) a monthly list indicating the number of hours worked ( radne liste s brojem radnih sati; podaci o oceni rezultata rada ); they did not apparently adopt separate decisions on the salary determination. Finally, on account of the previous parameters, the military calculation units determined, calculated and paid salaries ( sastavlja platne spiskove i isplaćuje plate preko tekuceg racuna ). The salary is not calculated by any decision, but by directly applying the Regulation on military salaries (see paragraph 28 below). 7.     The applicants apparently considered that the Minister of Defence had not properly and regularly determined the coefficient for salary calculation. As a result, the applicants had allegedly for years been receiving a monthly income which was significantly lower than that which had been approved by the Federal Government and had been stipulated by the law (see paragraphs   4 above and 28 below). 8.     In a submission of 10 September 2002, the Ministry of Finance explained that the funds allocated by the Federal Assembly in the budget for the military salaries had been reduced by the Ministry of Defence and transferred to the payment of pensions and other expenses. 2.     The civil proceedings brought by the applicants 9.     The applicants in the second, third, fifth, eight, ninth and tenth cases (see the annex below) brought administrative claims against the relevant military units, requesting the appropriate calculation and payment of salary. The relevant military units declined jurisdiction ( zaključak ). In so doing, they maintained that the matter in issue was not of an administrative nature, given that the military units had not issued any separate decision to determine and calculate the salary. 10.     It would appear that dozens of military officers appealed unsuccessfully against the same decisions in their respective cases. The two claimants had further initiated judicial review proceedings ( upravni spor ). The Supreme Military Court rejected their claims. Specifically, it declared that the lower military organs indeed lacked jurisdiction ratione materiae to consider the claimants’ requests, reiterating that the matter in issue should be considered a civil matter (see decisions Up. no. 864/2003 of 26   June 2003 (claimant Saša Veličković), and Up. No. 2161/2003 of 24   November 2003 (claimant Milan Vlatković)). 11.     In view of the above-mentioned decisions of the Supreme Military Court, the applicants did not pursue the administrative remedy further. 12.     Instead, on different dates between 2003 and 2007, the applicants filed separate civil claims against the respondent State with various courts, seeking pecuniary damage owing to improper and malfeasant acts on the part of the Minister of Defence, and payment of salary arrears by way of redress. 13.     At various points between 2005 and 2010 the applicants were successful before the respective municipal courts. In their reasoning, the courts stated that the Minister of Defence had failed to properly determine, as prescribed by law, the base relevant for the calculation of the salaries and to accurately calculate the salary. It found that the State should be liable for the damage caused to personnel by improper and malfeasant acts on the part of its officials, in accordance with Article 172 of the Obligations Act (see paragraph 37 below, under the Relevant domestic law). The courts relied on the experts’ opinions which had found that there had been sufficient means in the military budget to comply with the Armed Forces Act (see paragraph   4 above). There were apparently 910 first-instance judgments brought in favour of personnel in situations similar to those of the applicants. 14.     At various points between 2005 and 2010 the appellate courts ruled either in favour of or against the applicants in respect of the main request for pecuniary damage. Some of the lower courts applied to the Supreme Court for an opinion on the issue of jurisdiction in respect of the military salaries (see paragraphs 33-36 below, under Relevant domestic law and practice). 15.     Either the Government or the unsuccessful applicants appealed on points of law. All the applicants were unsuccessful before the Supreme Court, which pointed out that the present disputes could not be characterised as civil-law disputes coming within the competence ratione materiae of the civil courts to hear the applicants’ cases. In its reasoning, it stated that the disputes between the Ministry of Defence and their employees had concerned the improper calculation of salaries as determined by the decisions of the military units, which should have been regarded as a public-law matter and been brought before administrative organs and courts. 16.     It would appear that more than 20,000 military personnel brought civil actions, of which at least 6,000 pending cases before municipal or appellate courts were suspended ( prekinuti ). 17.     According to media reports, Defence Ministry representatives said that there were between fifty and seventy thousand people in Serbia who could have decided to sue the army on the same basis. 3.     The meeting between the Supreme Court and the representative of the Ministry of Defence concerning the matter in issue 18.     In its submission to the Užice Municipal Court on 16 March 2004, the representative of the Ministry of Defence requested the court to suspend the relevant civil proceedings, awaiting the outcome of a pending case before the Supreme Court. In so doing, it stated that then President of the Supreme Court, S.B., and the President of its Civil Division, P.T., had met with a representative of the Ministry of Defence, M.B., to discuss the matter in question and that the Supreme Court was to issue an appropriate ruling. A similar letter was sent on 25 October 2004 in proceedings of the same kind. 19.     In the eighth applicant’s suit, wherein the lower courts ruled in his favour (P.br. 231/06; afterwards an appeal rejected as out of time), on 28   October 2008 the Ministry, as the defendant, appealed to the Supreme Court. On 15 December 2008 the Ministry, by letter, also urged the Supreme Court to take decisions in that particular case as a priority (before the others), as well as upon the two other Ministry’s appeals on points of law, in order to prevent the execution of the judgment and thus irreparable damage to the military budget. They also requested to be served by the final judgment directly and not via the lower courts in accordance with law. On 4   February 2009, the Supreme Court apparently ordered a re-trial at the second level of jurisdiction. 4.     The constitutional avenue 20.     In 2012, a constitutional appeal was lodged with the Constitutional Court ( Ustavni sud ) on behalf of each applicant. 21.     Relying on Articles 32 and 36 of the Constitution (see paragraph 32 below) and Article 6 of the Convention, the third applicant complained that the civil proceedings were unfair, in particular that the Supreme Court of Serbia lacked impartiality. 22.     The Constitutional Court summarily dismissed the applicant’s complaint of partiality as ill-founded, stating that his allegations represented only his subjective impression and that he had failed to procure evidence to prove partiality. The Constitutional Court also held that the dispute in issue had been an “administrative” matter to be decided by the administrative authorities rather than a civil matter for the civil courts, given that it concerns the legality of a decision on salary calculations and payment. 23.     The other nine applicants lodged the same or very similar constitutional appeals as the third applicant. The Constitutional Court’s decisions in their cases were the same or summarised versions of its lead decision in the third applicant’s case. B.     Relevant domestic law and practice 1.     The Constitution of the Republic of Serbia (Ustav Republike Srbije, published in the Official Gazette of the Republic of Serbia – OG RS – no. 98⁄06) 24.     The relevant provisions of the Constitution read as follows: Article 32 § 1 “Everyone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his [or her] rights and obligations ...” Article 36 § 1 “Equal protection of rights before the courts of law ... shall be guaranteed.” 2.     Yugoslav Armed Forces Act (Zakon o vojsci Jugoslavije; published in the Official Gazette of the Federal Republic of Yugoslavia – OG   FRY – nos. 43/94, 28/96, 44/99, 74/99, 3/02 and 37/02, as well as the Official Gazette of Serbia and Montenegro – OG SCG – nos.   7/05 and 44/05 ) 25.     Article 7 of the present Act prescribes that the professional members of armed forces are professional and civilian personnel. 26.     The individual salaries of professional or civilian military personnel are determined by multiplication of the base for salary calculation ( bodovi/koeficijenati ) by the coefficient for salary calculation ( novčana vrednost boda/koeficijenta ). 27.     The Federal Government, as stated by Article 87, fixes various determining factors for salaries. According to Article 71, the salary base of military personnel depends on the position, rank, specific military service, responsibilities, conditions and complexity of work, pension scheme, and so on. Article 132 states that the salary base of civilian personnel depends on the position, education, results, career stage and particular conditions of work. The salary bases are determined by the administrative employment decisions ( rešenje o postavljenju ) taken by the relevant superiors ( načelnik Generalštaba ili starešina jedinice ) in accordance with the determining factors fixed by the Government. 28.     The Minister of Defence regularly determines the coefficient for salary calculation within the resources for salaries provided by the Government defence budget (section 52 of the Regulation ( Uredbe o platama i drugim novcanim primanjima profesionalnih vojnika i civilnih lica u Vojsci Jugoslavije, Sl list SRJ br. 35/94, 9/96, 1/00, 54/02 )). According to Article 137 § 1, the average basic salary of civil personnel in the army is not to be less than the national monthly average wage, and no higher than four times the national monthly average wage, which is used as a basis for calculations of salaries in general. 29.     Article 154 § 3 of the Act prescribes that no judicial review proceedings ( upravni spor ) can be initiated against an administrative employment or mobility-related decision ( akt o postavljenju i premeštanju ) in respect of professional solders nor against a decision on extraordinary promotion. Article 149 does not mention that Article 154 § 3 is applicable to civilian personnel. 3.     Legal opinion (pravni stav) of the Court of Serbia and Montenegro br. 29/2005, issued at the Plenary Session on 24 June 2005 (published in the OG SCG no. 29/05) 30.     While determining the coefficient for salary calculation, the Defence Minister is limited by the financial means provided by the Government defence budget and the salary basis fixed by the Federal Government in view of each determining factor ( visina plata iz člana 87 izraženih u bodovima ). Therefore, this determination of the coefficient for salary calculation does not affect the increase or decrease of salary, but is confined to payroll accounting purposes. 4.     The Practice Direction adopted by the Supreme Court’s Civil Division on 6 April 2004 (Pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije, sa obrazloženjem, utvrđeno na sednici od 6.   aprila 2004. godine) 31.     The Supreme Court of Serbia adopted a practice direction, in response to the lower courts’ request for guidance as to which domestic authorities, judicial or administrative, are invested with jurisdiction in cases concerning rights to remuneration governed by the Veterans, Military Invalids and Veterans’ Families (Rights) Act, as well as by the Armed Forces Act. 32.     The practice direction states that the competence of the administrative bodies in respect of claims seeking determination in respect of the above-mentioned rights does not limit the jurisdiction of civil courts to adjudicating claims for damages based on the State’s alleged malfeasance ( nezakonit i nepravilan rad ). It clarifies that, if the competent administrative body fully or partially withholds payments, pays selectively, or acts in any other malfeasant manner while there is sufficient allocation in the budget for those remunerations, civil courts shall have jurisdiction to rule on the merits in those cases. Damages would equate to the amount of outstanding remuneration. 5.     The Practice Direction adopted by the Supreme Court’s Civil Division on 31 May 2005 (Pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije, sa obrazloženjem, utvrđeno na sednici od 31.   maja 2005. godine) 33.   The Supreme Court of Serbia adopted this practice direction following the lower courts’ requests for an opinion in order to harmonise the domestic case-law on the issue of jurisdiction in respect of military salaries. 34.     The practice direction states that the individual salaries of professional members of the Yugoslav Armed Forces, as well as pensions of military seniors, are to be determined by an individual administrative act. 35.     It further explains that administrative proceedings ( upravni postupak ) and, if need be, judicial review proceedings ( upravni spor ) would be the appropriate avenue to challenge the legality of those administrative decisions establishing rights or the amount of salary or pension to be paid. 36.     Lastly, the practice direction also notes that the civil courts are, in this regard, competent to adjudicate cases involving claims for damages caused by malfeasance ( nezakonit i nepravilan rad ) on the part of State bodies. 6.     Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos.29/78, 39/85, 45/89 and 57/89, as well as in OG   FRY no.31/93) 37.     Article 172 § 1 provides that a legal entity is liable for any damage caused by one of “its own bodies”. COMPLAINTS The applicants complain under Articles 6, 13, 14 and/or 17 of the Convention that the Supreme Court of Serbia could not be regarded as independent or impartial. In particular, after meeting the representative of the Ministry of Defence, the opponent party in the proceedings, the Supreme Court allegedly changed its practice on the matter in issue and influenced the other courts in how to adjudicate. The applicants further allege inconsistent case-law of the Serbian courts, concerning the competence ratione materiae of civil courts to examine this kind of pension-related claims. Lastly, the eighth applicant also complains about the length of the relevant labour-related proceedings.   QUESTIONS 1.     Does the same legal regime apply to professional and civilian personnel in respect of the determination and calculation of their salaries?   2.     Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present cases?   3.     Have the applicants exhausted properly all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was an administrative or civil avenue, or both, an effective remedy in respect of their complaints under Article 6 § 1 of the Convention? In this respect, the Government are requested to provide documentary evidence in support of their answers to the issues above.   4.     If so, 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 Supreme Court independent and impartial, as required by Article 6 § 1 of the Convention (see, for example, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009, and Morice v.   France [GC], no.   29369/10, § 76, 23 April 2015)?   5.     In the light of the applicant’s allegation that the domestic courts applied different case-law to identical civil claims, was the principle of judicial certainty contained in Article 6 of the Convention complied with by the domestic courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no.   13279/05, §§ 49-58, 20 October 2011, and Santos Pinto v. Portugal , no.   39005/04, §§   43-45, 20 May 2008)?   Noting the relevance of the “profound and long-standing differences” criterion (see, mutatis mutandis , Iordan Iordanov and Others v. Bulgaria , no. 23530/02, § 4, 2 July 2009), the Government are further requested to clarify and document relevant domestic case-law and inform the Court whether the domestic law provided for a mechanism capable of removing the alleged inconsistency, if any, as well as whether the Serbian courts have taken the steps necessary to ensure the consistent determination of claims such as those of the applicants, and, if so, as of what date exactly (see, mutatis mutandis , Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999 ‑ VII, and Iordan Iordanov and Others v. Bulgaria , no. 23530/02, § 4, 2 July 2009). APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Date of submission of civil claims and the relevant domestic decisions   50104/10 16/08/2010 Ninoslav SVILENGACANIN 20/10/1979 Ruma Veljko IVANOVIC 23/08/1978 Vučak   25/09/2003 (civil claim) 23/11/2005 (Ruma Municipal Court) 24/08/2006 (Novi Sad Appelate Court) 07/02/2008 (Supreme Court of Serbia) 17/05/2010 (Constitutional Court)   50673/10 16/08/2010 Ivica MILENKOVIC 01/05/1964 Banjaluka   29/7/2003 (Vojna posta Beograd 2977) 23/04/2003 (civil claim) 05/12/2006 (Belgrade Second Municipal Court) 20/09/2007 (Belgrade District Court) 01/10//2008 (Supreme Court of Serbia) 06/04/2010 (Constitutional Court)     50714/10 16/08/2010 Ljubisa KOCIC 22/08/1958 Ćuprija   26/10/2004 (civil claim) 18/05/2006 (Ćuprija Municipal Court) 19/12/2006 (Jagodina District Court) nejavna sednica 1/11/2007 (Supreme Court of Serbia) 15/04/2010 (Constitutional Court)     13078/11 19/01/2011 Dnjepar ZEČEVIĆ 01/02/1995 Leskovac   26/10/2004 (civil claim) 31/03/2006 (Ćuprija Municipal Court) 2/8/2006 (Jagodina District Court) 21/2/2008 (Supreme Court of Serbia) 7/5/2010 (Constitutional Court, served on 27/7/10)   15596/11 21/01/2011 Zoran JOVANOVIĆ 01/03/1957 Ćuprija   (Vojna posta Cuprija 9932) 26/07/2005 (civil claim) 07/03/2006 (Ćuprija Municipal Court) 18/08/2006 (Jagodina District Court) 06/12/2007 (Supreme Court of Serbia) 27/07/2010 (Constitutional Court, served on 28//7/10)   8024/12 20/07/2011 Ivan CVETKOVIĆ 18/06/1969 Ćuprija   23/08/2005 Ćuprija 4418 23/08/2005 (civil claim) 06/02/2006 (Ćuprija Municipal Court) 29/12/2006 (Jagodina District Court) 14/10/2008 (Supreme Court of Serbia)(menjali vece) 01/02/2011 (Constitutional Court)     1404/13 11/12/2012 Nikola KOPANJA 29/04/1957 Backa Palanka     10/10/2007 (civil claim) 5/9/2009 (Bačka Palanka Municipal Court) 10/02/2010 (Novi sad Appelate Court) 7/7/2010 (Supreme Cassation Court) 21/06/2012 (Constitutional Court)     3603/13 08/01/2013 Dragan MILOJEVIĆ II 18/06/1963 Jagodina   09/2003 (Vojna posta 4418/1 Ćuprija) 29/08/2003 (Ćuprija Municipal Court) 29/04/2009 (Jagodina District Court) 30/09/2010 (Supreme Cassation Court) 6/12/2012 (Constitutional Court)     7444/13 08/01/2013 Dejan LUKIĆ 12/02/1974 Niš   (Vojna posta 9650 Prokuplje) 27/8/05 (civil claim) 31/07/2006 (Prokuplje Municipal Court) 22/11/2006 (Prokuplje District Court) 25/06/2008 (Supreme Court of Serbia) 12/07/2012 (Constitutional Court)     7452/13 08/01/2013 Dragan JOVANOVIĆ 23/08/1970 Niš   (Vojna posta 9650 Prokuplje) 27/8/05 (civil claim) 31/07/2006 (Prokuplje Municipal Court) 22/11/2006 (Prokuplje District Court) 25/06/2008 (Supreme Court of Serbia) 12/07/2012 (Constitutional Court)