SECOND SECTION
Application no. 10044/11
Slavko GOLUBOVIĆ against Serbia
and 8 other applications
(see list appended)
STATEMENT OF FACTS
All applicants are Serbian nationals. For additional personal details, the dates of introduction of their complaints before the Court, and the information concerning their legal counsel, respectively, see the attached Annex.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants were all reservists who had been drafted by the Yugoslav Army in connection with the North Atlantic Treaty Organisation’s intervention in Serbia. They remained in military service between March and June 1999.
At various points following their demobilisation they were all formally diagnosed as suffering from Post-traumatic Stress Disorder as a result of their military service.
In 2007, therefore, they filed separate civil claims against the respondent State with the Municipal Court (Opštinski sud) in Niš, seeking payment of non-pecuniary damages.
Between 2008 and 2010 the applicants were all unsuccessful before the Municipal Court and the appellate courts (okružni i apelacioni sudovi) in Niš, as well as the Supreme Court (Vrhovni sud Srbije), subsequently renamed as the Supreme Court of Cassation (Vrhovni kasacioni sud), at third instance (except for the second, third and fifth applicants, who were not entitled to bring their cases before the Supreme Court/Supreme Court of Cassation since the values of their respective claims were below the statutory threshold). The said courts opined, inter alia, that the applicable negative prescription period was three years as of the applicants’ demobilisation, which was when they had “learned” about their medical condition, and further noted that in any event the absolute deadline was five years as of when the damage itself had occurred, all in accordance with Article 376 of the Obligations Act. The applicants’ claims had thus been filed out of time.
However, in hundreds of other judgments, rendered between 2007 and 2011 the appellate courts in Niš, Kragujevac, Jagodina, Kraljevo, Leskovac and Belgrade, as well as the Supreme Court and the Supreme Court of Cassation, ruled in favour of other reservists, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues. In their reasoning in these other cases, the said courts/different benches of the same court held, inter alia, that a plaintiff shall have “learned” of the full extent of the non-pecuniary “damage in question”, within the meaning of Article 376 § 1 of the Obligations Act, only once his medical treatment has been concluded. Until such time, the relevant prescription period could not start running.
The applicants thereafter lodged their respective appeals with the Constitutional Court complaining about, inter alia, inconsistent case-law as well as the absence of an effective remedy in this respect. The applicants specifically noted that, for example, the appellate courts in Niš alone had rendered more than fifty judgments in favour of the reservists whilst the Supreme Court and, subsequently, the Supreme Court of Cassation had upheld such rulings at third instance.
The Constitutional Court ultimately rejected the applicants’ appeals as being of a third/fourth instance nature and/or ill-founded, without offering any substantive assessment of the complaints raised therein. The Constitutional Court’s decisions were delivered on 19 October 2010, 22 October 2010, 19 October 2010, 11 October 2010, 29 July 2010, 17 December 2010, 23 February 2011, 7 March 2011 and 11 February 2011 as regards the first, second, third, fourth, fifth, sixth, seventh, eight and ninth applicants respectively.
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)
The relevant provisions of the Constitution read as follows:
Article 21 § 2
“Everyone shall have the right to equal legal protection ...”
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. The Civil Procedure Act (Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09)
Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights.
Article 176 provides, inter alia, that when there are many cases pending at first instance raising the same preliminary legal issue, the court of first instance shall be entitled to institute separate proceedings before the Supreme Court, petitioning the latter to resolve the issue in question. The lawsuits pending at first instance shall be stayed in the meantime.
3. The Courts Organisation Act 2001 (Zakon o uređenju sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06)
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 Courts Organisation Act 2008 (Zakon o uređenju sudova; published in OG RS nos. 116/08 and 104/09)
The Courts Organisation Act 2008 entered into force on 1 January 2010, thus repealing the Courts Organisation Act 2001.
Article 43 §§ 2 and 3 of the 2008 Act substantively corresponds to Article 40 §§ 2 and 3 of the 2001 Act.
5. The Rules of Court (Sudski poslovnik; published in OG RS nos. 110/09 and 70/11)
Article 31 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 (zauzimanjem određenog stava).
6. 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, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31/93)
Article 376 §§ 1 and 2 provides, inter alia, that the negative prescription period for seeking civil compensation shall be three years as of when the claimant learned of the damage in question, but that, in any event, the absolute deadline shall be five years as of when the damage occurred.
Articles 387 and 388 provide, inter alia, that the running of a negative prescription period shall be interrupted by the debtor’s acceptance of the claim at issue, directly or indirectly, as well as by the claimant’s lodging of a civil action in this respect.
Article 392 §§ 1-3 provides, inter alia, that the effect of such an interruption shall be that the applicable period shall start running anew as of the debtor’s acceptance of the claim in question and the conclusion of the civil suit, respectively.
COMPLAINTS
Under Article 6 § 1 of the Convention, the applicants complain about the rejection of their own claims by the domestic courts, based on the “erroneous application of the relevant domestic legislation”, and the simultaneous acceptance by the same courts of identical claims filed by their fellow reservists.
Under Article 13 of the Convention the applicants further complain about the absence of an effective domestic remedy in this regard.
QUESTIONS
1. In the light of the applicants’ allegation that the Serbian appellate courts (okružni, viši i apelacioni sudovi), as well as the Supreme Court/Supreme Court of Cassation, have applied flagrantly 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 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 to date 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.
APPENDIX
No.
Application
nos.
Lodged on
Applicant name
Date of birth
Place of residence
Represented by
a lawyer practising in
10044/11
20/12/2010
Slavko GOLUBOVIĆ
08/10/1954
Leskovac
Žarko VUJOVIĆ
Niš
10048/11
20/12/2010
Slobodan ĆOROVIC
16/02/1959
Jošanička Banja
Žarko VUJOVIĆ
Niš
10050/11
20/12/2010
Srđan CVETKOVIĆ
02/09/1971
Niš
Žarko VUJOVIĆ
Niš
10051/11
20/12/2010
Dejan MILENKOVIĆ
07/06/1974
Niš
Žarko VUJOVIĆ
10052/11
20/12/2010
Goran DIMITRIJEVIĆ
11/08/1979
Ravna Dubrava
Žarko VUJOVIĆ
Niš
13180/11
24/12/2010
Goran MILOŠEVIĆ
27/04/1961
Gadžin Han
Žarko VUJOVIĆ
Niš
30787/11
05/04/2011
Dragan ILIĆ
25/08/1976
Selo Živkovo
Žarko VUJOVIĆ
Niš
30793/11
05/04/2011
Gradimir MAKSIMOVIĆ
21/03/1953
Jošanička Banja
Žarko VUJOVIĆ
Niš
33413/11
21/03/2011
Zoran BLAGOJEVIĆ
27/07/1961
Selo Suvi Do
Žarko VUJOVIĆ
Niš
Full & Egal Universal Law Academy