CASE OF VUČKOVIĆ AND OTHERS v. SERBIAPARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE SAJÃ’
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Document date: August 28, 2012
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PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE SAJÃ’
I am in full agreement with my colleagues regarding their conclusion that the complaints with regard to the alleged violation of Article 6 § 1 of the Convention must be rejected. However, to my regret I have to dissent regarding the finding of a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. I voted against the admissibility of the complaint submitted in that regard, partly in view of the facts established in the context of the admissibility of the Article 6 § 1 complaint.
The applicant’s appeal is pending before the Constitutional Court. In respect of Serbia a constitutional appeal is considered a generally effective remedy to be exhausted ( Vinčić and Others v. Serbia , nos. 44698/06 and others, December 2009). In that case the Court stated that “a constitutional appeal should, in principle, be considered an effective domestic remedy ... in respect of all applications” (paragraph 51). The present judgment argues that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one at the relevant time. This position disregards the fact that Vinčić reversed that burden. Moreover, one cannot prove a negative. As the Government have demonstrated, the Constitutional Court dealt with decisions concerning other reservists, considering inconsistencies in the case law. In a case decided on 17 February 2011 where the applicants also referred to discrimination (paragraph 29) the Constitutional Court accepted that the complaint could be related to the right to equal protection, but it stated that the issue was the statute of limitations. These considerations apply to the applicants’ claims both under Article 6 and under Article 14 in conjunction with Article 1 of Protocol No. 1.
It seems that the Court is of the opinion that the 2008 Agreement on the payment to some groups of reservists created a right that is not subject to the statute of limitations. Of course, the legal nature of the Agreement and its applicability to the applicants are matters intimately related to the interpretation of domestic law. It is not for an international court to offer its interpretation of this law in the absence of domestic interpretation, especially where the Constitutional Court is considering the matter.
Even assuming that the application is admissible, I am not convinced that Article 14 is applicable as there is no possession right in the present case that would trigger the applicability of Article 14. The Court notes, in paragraph 82 of the judgment, that “the applicants’ per diems had been formally recognised as the respondent State’s outstanding pecuniary obligation as of 1999 (see paragraph 6 above)”, and states that the applicants’ complaints concern rights which are of a “sufficiently pecuniary” nature to fall within the ambit of Article 1 of Protocol No. 1 (see, mutatis mutandis , Willis v. the United Kingdom , no. 36042/97, § 36, ECHR 2002 ‑ IV). In Willis , however, the amount and the conditions of applicability of a statutorily defined benefit were not contested, only that the applicant was not entitled to it on discriminatory grounds. The present case is different. A “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable ( Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301 ‑ B). No court ever established an enforceable claim in respect of the applicants, whose entitlement remains unrecognised; nor do they have a recognised specific claim that is not enforceable only because of the statute of limitations. No court ever recognised a specific claim. The court of first instance recognised the claim only in the sense that it had the legal nature of a damage compensation claim, but it could not rule on the merits (that is, whether the applicants were or were not entitled to a given amount of compensation) because it was barred from doing so by its correct finding that the statute of limitations applied. Therefore the applicants’ claim for damages remains speculative.
One could, of course, argue that the applicants had a legitimate expectation under the Agreement. In that context, at least arguably, the statute of limitations would not apply. In that case, however, the Court should have waited for the final judgment of the Constitutional Court, also in view of the fact that in so far as the Agreement was applicable to the applicants (a disputed matter) it was certainly to be implemented gradually. There is a working group tasked with addressing the requests of all reservists, though it is not clear that the group is charged to act ex gratia or in recognition of specific claims. Given the prima facie more favourable handling of the claims of some other reservists, I fully respect and understand the position of my colleagues, but I find that in the circumstances of the case, even in view of the troubling delays, considerations of subsidiarity should have prevailed.
Annex
No.
Application
nos.
Applicant’s name
Date of birth
Place of residence
17153/11
Boban VUČKOVIĆ
27/09/1971
Niš
17157/11
Ljubiša VELIČKOVIĆ
24/08/1954
Selo Prva Kutina
17160/11
Igor VELIČKOVIĆ
10/06/1979
Niš
17163/11
Saša GROZDANOVIĆ
29/04/1975
Niška Banja
17168/11
Dragan GROZDANOVIĆ
05/12/1967
Niška Banja
17173/11
Ljubiša MILOŠEVIĆ
03/10/1959
Niš
17178/11
Miodrag NIKOLIĆ
29/02/1956
Niška Banja
17181/11
Siniša MILOŠEVIĆ
03/10/1958
Niš
17182/11
Grujica MARKOVIĆ
25/06/1965
Niš
17186/11
Radomir TODOROVIĆ
15/07/1958
Niška Banja
17343/11
Dejan ZDRAVKOVIĆ
19/11/1971
Sićevo
17344/11
Marjan MITIĆ
10/02/1969
Niš
17362/11
Branislav MILIĆ
15/08/1944
Niš
17364/11
Miroslav STOJKOVIĆ
01/09/1947
Doljevac
17367/11
Dejan SEKULIĆ
09/08/1970
Niška Banja
17370/11
Slavoljub LUČKOVIĆ
24/06/1955
Niš
17372/11
Goran LAZAREVIĆ
17/08/1970
Niš
17377/11
Goran MITIĆ
15/02/1979
Niš
17380/11
Petar ADAMOVIĆ
02/08/1952
Niš
17382/11
Radisav ZLATKOVIĆ
12/04/1952
Niš
17386/11
Jovan RANĐELOVIĆ
25/02/1944
Niš
17421/11
Bratislav MARKOVIĆ
26/05/1949
Niška Banja
17424/11
Desimir MARKOVIĆ
08/07/1965
Niš
17428/11
Časlav SPASIĆ
21/02/1960
Niš
17431/11
Ljubiša NIKOLIĆ
05/12/1958
Selo Jelašnica
17435/11
Dragan ĐORĐEVIĆ
19/02/1957
Niška Banja
17438/11
Radiša ĆIRIĆ
10/02/1958
Niška Banja
17439/11
Siniša PEŠIĆ
31/10/1961
Niš
17440/11
Boban CVETKOVIĆ
28/08/1967
Niška Banja
17443/11
Goran JOVANOVIĆ
15/01/1965
Suvi Do