JOINT PARTLY DISSENTING OPINION OF JUDGES KARAKA ş, VU ČINIĆ AND LAFFRANQUE

We do not agree with the majority that there has been no violation of Article 6 § 1 of the Convention.

It is clear that it is not the primary task of the Court to interpret domestic law, but it will examine whether the proceedings as a whole complied with the requirements of Article 6 of the Convention, including the obligation to give reasons for the judgments given. According to the established case-law, the judgments of courts and tribunals should adequately state the reasons on which they are based (see Tatishvili v. Russia , no. 1509/02, § 58, ECHR 2007 ‑ I).

The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 - A). Without requiring a detailed answer to every argument put forward by a complainant, this obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (ibid., § 30; see also , Hiro Balani v. Spain , 9 December 1994, § 28, Series A no. 303 - B; Gheorghe v. Romania , no. 19215/04, § 43, 15 March 2007; and Deryan v. Turkey , no. 41721/04 , § 33, 21 July 2015 ).

In the present case, the first-instance court established certain facts by seeking a detailed expert opinion on three occasions, and found that the applicants had a right to overtime pay. Among those facts, it was undisputed that the applicable collective bargaining agreement had expressly provided for the inclusion of rest periods as working time and their remuneration as such. This provision, which was in accordance with the domestic law, was relevant to the facts of the applicants ’ case (see paragraph 33 of the judgment).

The Ministry of Labour ’ s official audit report, which was mentioned in the expert opinion, remarked on and criticised the impugned practice of a working time of twenty-four hours and contained a recommendation that workers should be paid for those overtime hours. Furthermore, the defendant employer did not contest the fact that the workers at the place of work in question had been employed on the basis of twenty-four-hour shifts and that the business remained fully operational during that time. In fact, the employer ’ s submissions attributed the inability to compensate workers for overtime in full to a lack of funds from the State budget. Finally, domestic law provided that time spent by employees waiting for work, when they were still at the disposal of their employer, should be counted as working time (see paragraph 31 of the judgment).

The Court of Cassation quashed the first-instance court ’ s decision on technical grounds on 17 April 2006, without applying its existing and well ‑ established case-law. It then overturned on 28 October 2008 the first ‑ instance judgment, which was based on the new expert report recalculating the amounts following the Court of Cassation decision of 17 April 2006, without referring to the established facts, the parties ’ submissions or the applicable collective agreement. This time the decision was based solely on what appears to be a conclusive presumption formulated in the Court of Cassation ’ s recent case-law in a series of cases that involved w orkers at radio relay stations.

In that regard, the Court of Cassation failed to justify why such a presumption of fact counted for more than the actual facts of the case which had already been established by the first-instance court. Nor did it explain why the express provisions of the collective agreement, providing for rest periods to be included as working time, did not apply to the applicants ’ situation, although the relevant domestic legal framework allowed the parties to an employment contract to designate rules that were more favourable for employees than those in the Labour Code (see paragraph 33 of the judgment). The majority, like the Court of Cassation, did not take into consideration the collective bargaining agreement providing for the remuneration of rest periods as working time (see paragraph 10 and the reasoning in that regard in paragraph 53), although this was a relevant la w in the applicant ’ s situation.

Moreover, the applicants ’ case concerned a situation that was different from that of the radio relay station workers. Given that the proper facts of the applicants ’ case ha d been established by the first ‑ instance court, and that their entitlement to remuneration for rest periods under their collective bargaining agreement was not contested, the Court of Cassation was required to justify why the presumption, which had been developed in a different factual context, would also apply to the applicants ’ case. The merits of their case should therefore have been distinguished and determined on the specific facts of that case rather than on the ba sis of unsupported assumptions.

In that regard, we see no necessity to examine whether the principles enunciated in the presumption itself were fair or not. The automatic application of this presumption to the applicants ’ situation, without any additional details or reasons specific to that judgment being provided, deprived the applicants of fair proceedings.

In our view there has been a violation of Article 6 § 1 of the Convention.

We also voted against point 4 of the operative provisions concerning the inadmissibility of the complaint under Article 1 of Pr otocol No. 1 to the Convention.

We think that the applicants had an enforceable claim such as to constitute a possession falling within the ambit of Article 1 of Protocol No. 1.

[1] In my opinion, this part of the appl ication could even be declared manifestly ill-founded.