JOINT DISSENTING OPINION OF JUDGES POPOVIĆ, YUDKIVSKA AND DE GAETANO

1. We respectfully disagree with the majority ruling, expressed in paragraphs 82 and 83 of the judgment and repeated in paragraph 85, that the applicants in this case failed to exhaust domestic remedies.

On 11 January 2008 the respondent Government entered into an agreement with a group of persons who were in a substantially identical situation to that of the applicants, that is to say persons who were claiming per diems for the same period of military service. By doing so, the Government applied differential treatment to Army reservists on the basis of their municipality of residence (see paragraph 15 of the judgment).

On 26 March 2009 the applicants filed a civil claim against the State, pointing to the discrimination resulting from the agreement of 11 January 2008 (see paragraph 17).

As the applicants lost their case before the ordinary courts they lodged a constitutional complaint on 21 January 2011 (see paragraph 21) complaining of differential treatment of Army reservists. The differential treatment stemmed in the first place from the inconsistent rulings of the ordinary courts in identical cases, as well as from the agreement of 11 January 2008, which was referred to in the applicants ’ constitutional complaint.

2. The Constitutional Court of Serbia ruled on 5 December 2012 in favour of the applicants as regards their complaints of inconsistent domestic case-law, but made no mention whatsoever of the agreement of 11 January 2008 (see paragraphs 22 and 23 ). Besides, the Constitutional Court deemed the publication of its ruling in the Official Herald to be sufficient redress for the violation found. The Constitutional Court found a violation of Article 36 § 1 of the Constitution of Serbia (equal protection of rights), but rejected the applicants ’ complaint under Article 21 of the Constitution (prohibition of discrimination).

The majority ’ s position in respect of the facts as outlined above is that the applicants “did not raise their discrimination complaint before the Constitutional Court, either expressly or in substance” (see paragraph 82); at the same time and in the same paragraph, however, it is acknowledged that “the applicants mentioned the Agreement [of 11 January 2008] in their constitutional appeal”. It is therefore evident that the applicants did rely on the Agreement in question in their complaint before the Constitutional Court of Serbia. Moreover, the complaint as a whole and in its very essence was based on the discrimination issue. The complaint about inconsistent case-law was in substance also a complaint about discriminatory practices existing at the national level.

In our view, the core argument in support of the applicants ’ contention in this case is the fact that the Constitutional Court of Serbia found in their favour . The approach taken by the Constitutional Court, when finding a violation of the Constitution, was to base its decision on one ground or argument – supporting the applicants (inconsistent case-law) – and in effect hold that it was unnecessary to take cognisance of any other argument (in this case the argument based on the Agreement). In applying the Convention, our Court adopts the same practice in many cases, the formula generally being that “... it is not necessary to examine the complaint under Article ...”

3. Despite the above factors, the majority are of the view (see paragraph 85) that the applicants failed to exhaust civil and constitutional remedies. We disagree. In our view, the facts point in the opposite direction: the applicants filed a civil claim, and once they had lost their case before the ordinary courts they applied to the Constitutional Court for constitutional redress. The Constitutional Court ruled in their favour , but did not properly redress the violation, which explains why the applicants lodged an application with our Court. With all due respect, we believe that the majority judgment suffers from an excess of formalism: the majority appear to have taken the view that the applicants did not plead (before the domestic courts, including the Constitutional Court) in a “form” that the majority consider to be the only acceptable one.

4. Excessive formalism is frowned upon in the case-law of the Court. In a previous case (see D.H. and Others v. the Czech Republic ([GC], no. 57325/00, § 116, ECHR 2007 ‑ IV), where the principal complaint was one of discrimination, the Court ruled that

“... Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. [The Court] has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case.”

The Court has gone even further along the lines of the flexibility rule. On certain occasions it has dismissed the respondent Government ’ s objection of non-exhaustion of domestic remedies in a situation in which some of the applicants had not availed themselves of the possibility of lodging a constitutional complaint (see S.H. and Others v. Austria, 57813 [GC], no. 57813/00, § 47, ECHR 2011).

In connection with an Article 6 complaint, in M.D. and Others v. Malta (no. 64791/10 , §§ 34-38, 17 July 2012 ), the Court castigated the very formalistic and blinkered approach of the Constitutional Court in handling an application for constitutional redress. In that judgment, the Court reproduced the quotation from D.H. and Others , without referring to it expressly, and provided further references in support of the same rule of flexibility, a rule firmly rooted in the Court ’ s case-law. In the context of the fairness of proceedings at domestic level, in Kadlec v. the Czech Republic (no. 49478/99, § 26, 25 May 2004) – a case concerning access to, and pleadings before, the Constitutional Court – the Court found a violation of Article 6 of the Convention, stating, inter alia, that

“The courts must, in applying the rules of procedure, avoid both excessive formalism which would affect the fairness of the procedure, and excessive flexibility that would result in removing the procedural requirements established by law.”

We see no reason why the Court ’ s approach should have been different in the instant case.

The Court also held, in Walchli v. France (no. 35787/03, § 32, 26 July 2007), that there had been a violation of Article 6 of the Convention because of the excessive formalism in the position taken by the national court on the issue at stake.

The Court has recently reiterated its stance in the case of Ateş Mimarlik Mühendislik A.Ş. v. Turkey (no. 33275/05, § 39, 25 September 2012), stating that excessive formalism must not represent a barrier to a claim being considered on the merits. It referred to its previous case-law on the subject, including Walchli .

5. The Court has unswervingly favoured a flexible application of Article 35 § 1 of the Convention. We therefore find it difficult to subscribe to the majority finding in this case, which basically amounts to telling the applicants that they should have pleaded their case at domestic level in one particular and specific way and not another.

6. Even if – which we do not believe should be the case – one were to hold that the applicants should have pleaded in a particular manner before the Constitutional Court, we wonder whether a more explicit reference to the agreement and to Article 21 of the Constitution would have had any reasonable prospect of success. The Constitutional Court, in its decision of 7 November 2012 (see paragraph 23), held in effect that discrimination on the basis of personal qualities was a precondition for determining the existence of a violation of the principle of non-discrimination. Since the applicants ’ claim is in essence that they were discriminated against on the basis of their place of residence – which cannot be considered a “personal quality” – such a claim, no matter how it were pleaded before that domestic court, would have been dismissed.

7. For the above reasons, and in the light of the clear and constant case ‑ law of the Court, we disagree with the majority finding that the applicants did not exhaust domestic remedies. In our opinion, such a finding can be drawn from the facts only by way of an excessively formalistic approach to Article 35 § 1, which is not allowed by the Court ’ s case-law. Accordingly, we find that the Grand Chamber should have considered the merits of the case.