SECOND SECTION

Application no. 34683/08 Dragomir CUPARA against Serbia lodged on 4 July 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Dragomir Cupara , is a Serbian national who was born in 1950 and lives in Užice . He was represented before the Court by Mr Ð. Drobac , a lawyer practising in the same town.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Proceedings concerning the applicant ’ s unemployment benefits

On 30 May 2001 the Central Employment Office – Užice department ( Republicki fond za tržiste rada – Nacionalna služba za zaposljavanje – Organizaciona jedinica Užice , hereinafter the “C.E.O.”) granted unemployment benefits to the applicant until he found a new job or became eligible for retirement ( n ovčana naknada do zaposlenja ili ispunjavanja uslova za starosnu penziju ).

On 1 June 2001 the Law on Changes and Amendments to the Law on Social Benefits (“the 2001 Law”) came into force. This law prescribed different coefficients and methodology for calculating those benefits. It also provided by Article 20 that administrative proceedings which had not been finally concluded by the date the law came into force should be finalised in accordance with the said law. [1]

By October 2001 the applicant had received only 70-80% of the unemployment benefit he was initially awarded, although he maintains that the decision of 30 May 2001 had not been amended or superseded by a new decision.

Consequently, on 12 November 2007 the applicant lodged a civil claim against the C.E.O. with the Municipal Court ( Opštinski sud ) in Užice , seeking payment of the difference between the benefits received and those granted by the C.E.O. ’ s decision and due from 1 November 2004 (the pursuit of any earlier sum was statute-barred), plus statutory interest and legal costs.

On 26 December 2007 the Municipal Court rejected the applicant ’ s claim, finding that his benefits had been correctly calculated in accordance with the 2001 Law, as the C.E.O. ’ s decision in his case was not yet final on the date that the relevant law had come into force.

On 18 March 2008 the District Court ( Okružni sud ) in Užice upheld this judgment following an appeal by the applicant.

2. The Municipal Court ’ s relevant case law

The applicant ’ s lawyer lodged separate claims on behalf of numerous individuals (hereinafter “the Plaintiffs”), seeking their outstanding benefits.

On 22 November 2007 the same Municipal Court ruled in favour of M.Ð., one of the Plaintiffs, even though his claim was factually and legally identical to the applicant ’ s claim ( M.Ð. ’ s administrative decision was also delivered on 30 May 2001) . This judgment became final on 19 December 2007.

The same Municipal Court ruled in favour of a certain number of the Plaintiffs in nine judgments rendered between 24 August 2007 and 17 April 2008, although it appears that the dates on which the respective administrative decisions came into force differ.

3. The relevant practice of the Constitutional Court

On 5 February 2009 the Municipal Court in Vranje ruled in favour of certain D.N. (P. 1305/08) who had filed the civil claim such as that of the applicant ’ s. On 8 September 2009 the District Court in Vranje reversed that judgment and rejected the plaintiff ’ s claim ( Gž . 406/09).

On 25 September 2009 D.N. lodged a constitutional complaint, claiming a violation of the right to a fair trial and equality before law, based on the District Court ’ s erroneous and divergent application of the relevant domestic legislation to the other plaintiffs ’ identical claims.

On 23 June 2011 the Constitutional Court accepted the plaintiff ’ s constitutional complaint. In so doing, it: (a) quoted the two judgments of the District Court in Vranje ( Gž . 1099/07 of 20 December 2007 and Gž . 130/08 of 4 April 2008) wherein that court ruled in favour of certain plaintiffs in the same factual and legal situation as the complainant ’ s; (b) held that the District Court in Vranje made an error in law in those civil proceedings and also breached its jurisdiction set up by the division of power between judiciary and administration; (c) found a violation of the right to fair trial guaranteed by Article 32 of the Serbian Constitution on that ground; (d) quashed the judgment of 8 September 2009 and ordered a new adjudication on appeal as a redress for the mentioned violation.

COMPLAINT

Referring to Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complains that he was discriminated against since his case was decided differently from other identical claims.

QUESTION

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), t he Government are further requested to supply relevant case-law and inform the Court whether the domestic law provided for a mechanism capable of removing the alleged inconsistency, as well as whether the Serbian courts have taken the steps necessary to ensure the consistent determination of claims such as those of the applicant.

[1] Article 17 of the 2001 Law provided that A rticle 20 was applicable as of 1 September 2001.