THIRD SECTION
CASE OF STANKOVIĆ AND TRAJKOVIĆ v. SERBIA
(Applications no. 37194/08 and 37260/08)
JUDGMENT
STRASBOURG
22 December 2015
FINAL
22/03/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stanković and Trajković v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 1 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two separate applications (nos. 37194/08 and 37260/08) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Serbian nationals, Ms Slobodanka Stanković (“the first applicant”) and Ms Sonja Trajković (“the second applicant”). Both applications were lodged on 28 July 2008.
2. The applicants were represented by Mr G. Stanišić, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.
3. The applicants’ allegations concern inconsistent domestic case-law as regards the payment of non-pecuniary damages to individuals whose family members had disappeared or been kidnapped in the aftermath of the North Atlantic Treaty Organisation’s intervention in Kosovo[1].
4. On 30 September 2014 the applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The first and second applicants were born in 1948 and 1970 respectively and live in Bujanovac Municipality.
A. The relevant context
6. Following the North Atlantic Treaty Organisation’s intervention in Kosovo, 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 Suva Reka, the transfer, according to the Military Technical Agreement, was to take place by 15 June 1999. It was further envisaged that it would be up to KFOR to “maintain a secure environment for all citizens of Kosovo”. Pursuant to their own phased withdrawal plan, which was to be synchronised with the Yugoslav Army plan, the Serbian police forces envisaged that a transfer of all effective control in Suva Reka Municipality would in fact take place on 13 June 1999.
B. As regards the first applicant (Ms Slobodanka Stanković, application no. 37194/08)
7. On 13 June 1999 the first applicant’s husband was kidnapped by the Kosovo Liberation Army (“KLA”) in Suva Reka Municipality.
8. On 12 March 2002 the Bujanovac Municipal Court declared the first applicant’s husband dead. This ruling became final by 3 April 2002.
9. 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.
10. On 19 May 2006 the said court ruled against the plaintiffs.
11. 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 judgment on 23 May 2008.
12. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while 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 26 below), since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards (see paragraph 6 above). The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.
13. The first applicant could not have lodged a further appeal on points of law (revizija), given that the amount of compensation claimed was below the statutory threshold.
C. As regards the second applicant (Ms Sonja Trajković, application no. 37260/08)
14. On 13 June 1999 the second applicant’s husband was kidnapped by the KLA in Suva Reka Municipality.
15. On 24 June 2002 the Bujanovac Municipal Court declared the second applicant’s husband dead. This ruling became final by 16 July 2002.
16. 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 mental anguish suffered as a consequence of the incident.
17. On 19 May 2006 the said court ruled against the plaintiffs.
18. On 3 April 2008 the first-instance judgment was upheld by the Belgrade District Court on appeal.
19. In their reasoning the First Municipal Court and the District Court opined, inter alia, that while 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 from 9 June 1999 onwards. The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.
20. The second applicant could not have lodged a further appeal on points of law, given that the amount of compensation claimed was below the statutory threshold.
D. Other relevant facts
21. The applicants maintained that in 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, had ruled in favour of other plaintiffs, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues.
22. Given the case-law provided by the parties, in their reasoning in those judgments where the said courts/different benches of the same court had indeed 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 actual transfer of effective control to KFOR in respect of each of the municipalities considered separately (see, for example, the judgment of the First Municipal Court in Belgrade P. 431/07 of 24 February 2009, upheld on appeal by the Belgrade District Court; the 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; the judgments of the Belgrade Appeals Court Gž. 2005/10 and 605/10 of 17 March 2010 and 10 June 2010 respectively; and the judgments of the Supreme Court Rev. 1551/07, 1092/08 and 939/08 of 5 September 2007, 24 April 2008 and 7 May 2008 respectively).
23. On 18 March 2008, according to the Government, the Supreme Court’s Civil Division endorsed this line of reasoning, specifically the reasons given in the same court’s ruling Rev. 1551/07 of 5 September 2007 (cited in paragraph 22 above).
24. On 10 March 2010, in Rev. 1540/10, the Supreme Court of Cassation ruled against other plaintiffs on the same basis as in the applicants’ case, but in its decision Už. 2786/10 of 28 June 2012 the Constitutional Court quashed this ruling and ordered the re-examination of the matter. On 19 April 2013 the Supreme Court of Cassation apparently ruled in favour of the plaintiffs, this time holding that the Serbian authorities were responsible for the lives and safety of all persons residing in Kosovo until the actual transfer of effective control to KFOR in respect of the municipality in question.
25. On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. This plan contained a series of measures to be undertaken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the jurisprudence of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases.
II. R
