Svilengacanin and Others v. Serbia (European Court of Human Rights)

Information Note on the Court’s case-law 247
January 2021

Svilengaćanin and Others v. Serbia50104/10, 50673/10, 50714/10 et al.

Judgment 12.1.2021 [Section IV]

Article 6
Civil proceedings
Article 6-1
Impartial tribunal

Public meeting and agreement on procedural matters with Ministry of Defence, a future defendant in army salary dispute, not affecting objective impartiality of Supreme Court: no violation

Facts – The applicants are active, former or retired army officers who disputed the Minister of Defence’s calculation of their salaries at the domestic level. The applicants brough successful civil claims before municipal courts against the respondent State for malfeasance on the part of the Ministry and the payment of salary arrears by way of redress.

On an unspecified date before March 2004, a meeting was held between the President of the Supreme Court and the Civil Division President, a President of a first-instance court and a representative of the Ministry. During the meeting, the courts were given background information on the complex way in which military salaries were determined, but the conversation turned principally to procedural matters. In particular, according to the Ministry, it was agreed in principle that the lower court would adopt a partial decision as to the legal basis of the civil claim and that the Supreme Court would then give a final ruling on the admissibility and merits of the case. If the court accepted the civil claims, the Ministry intended to propose out-of-court settlements of all pending cases to avoid further litigation costs. In the meantime, several first-instance courts applied to the Supreme Court to seek an opinion and guidance, in light of the large number of cases being brought, on the issue of jurisdiction, in order to harmonise inconsistent domestic case-law on the issue. In May 2005 the Supreme Court adopted a legal opinion, finding that the administrative route should be pursued to challenge the legality of an administrative decision establishing rights or the amount of salary or pension to be paid, while the civil courts were competent to adjudicate cases involving claims for damages caused by malfeasance on the part of State bodies.

At various points, the appellate courts ruled either in favour of or against the applicants in respect of the request for pecuniary damage.

In the eighth applicant’s case, the Ministry appealed as a defendant to the Supreme Court and, in December 2008, sent a formal letter asking the Supreme Court to take a decision in the case as a priority and on two other appeals on points of law, as well as to serve its final judgment on the Ministry directly and not via the lower courts as required by law, in order to prevent execution of the lower judgments and thus irreparable damage to the military budget. Shortly afterwards, the Supreme Court ordered a retrial at second instance.

Ultimately, all of the applicants’ cases in respect of pecuniary damage were unsuccessful on appeal to the Supreme Court, which reaffirmed its reasoning in the legal opinion; namely, that disputes as to salary calculation should have been regarded as a public-law matter and brought before the administrative authorities and courts. The Ministry of Defence brought an action for unjust enrichment against the eighth applicant, requesting reimbursement of the amount paid to him in accordance with the lower judgments in his favour.

The applicants lodged unsuccessful appeals with the Constitutional court, arguing that the civil proceedings had been unfair, in particular, because the Supreme Court had lacked impartiality and adopted a judgment which had been the result of an agreement reached with the Ministry.

Law – Article 6 § 1: The central question raised was whether, in the circumstances of the present case, the holding of the meeting with the representative of the Ministry of Defence, which had later become a party to the proceedings, had been capable of casting doubt on the Supreme Court’s impartiality sufficiently to compromise the impartiality of the chambers, which had determined the appeals on points of law lodged in the applicants’ cases at a later stage. The Court had to determine whether the Supreme Court itself and its chambers had offered sufficient guarantees to exclude any legitimate doubt in respect of their partiality. While the standpoint of the applicants was important, the decisive factor was whether there were ascertainable facts which might raise doubts as to the court’s impartiality from the point of view of the external observer.

The cases before the domestic courts had involved a large number of litigants, including the applicants, against an executive authority (the Ministry of Defence), concerning a complex factual and legal issue, which could also have significantly affected the military budget. Against such a background, it was legitimate for the Supreme Court to seek methods to effectively deal with a large influx of cases at domestic level, particularly if they raised preliminary jurisdictional issues that fell within its competence, or if, for example, the outcome might lead to out-of-court settlements. In that regard, the courts may enter into institutional relations to the extent that it is consistent with the impartiality required of judges. In particular, they should strike an appropriate balance between the need to maintain the impartiality and appearance of impartiality on the one hand, and the courts’ interest in obtaining information relevant to adjudication or effectively dealing with an influx of cases on the other. Meetings with any interested party, even more so with a State body, on issues which are the subject of pending or foreseeable litigation, should be held in a way which does not undermine the decision-making process and the public confidence that the courts must inspire.

The meeting had not been a private communication on a pending case, but a public meeting which had occurred outside the framework of any proceedings before the Supreme Court itself. Had the cases been pending before the Supreme Court, the holding of the meeting with only one party to discuss matters, in these particular circumstances, could have possible raised an issue. However, at the time, neither the applicants’ cases nor the other cases of the same kind had been pending before the Supreme Court; most of the applicants’ claims had not even been lodged with a first-instance court.

Furthermore, the complaints concerned the court of last resort in ordinary judicial proceedings in Serbia, which was composed exclusively of professional judges with guaranteed tenure. There was no real reason to doubt the ability of the judges to ignore extraneous considerations, if any, in the present case. They were in principle expected and trusted to abide by the law until there were ascertainable facts which might raise doubts as to their impartiality from the point of view of an external observer. Extracting one case to be the lead for all the others did not in any way compromise the impartial decision-making process, as it was a regular procedural step when required, which might lead to a reduction in the number of pending cases by means of out-of-court settlements or their disposal by lower courts.

As to the influence on adjudication by the lower courts, they had made use of their statutory entitlement to seek a legal opinion from the highest court in view of apparently divergent practice on the impugned matter. The Supreme Court had provided a comprehensive interpretation of the relevant legislation causing ambiguities in this area and had given guidance to the lower courts on the subject matter, and had been confined to its proper judicial role of determining who was vested with which authority. There was also no indication that the Supreme Court had changed its interpretation of the law as a result of the meeting. Moreover, the Constitutional Court had subsequently upheld their legal interpretation.

Consequently, while emphasising the importance of “appearances” in this context, in light of all the circumstances of the case and the foregoing considerations, the holding of the meeting had not been such as to cast doubt on the objective impartiality of the Supreme Court in ruling on the applicants’ appeals on points of law against the lower courts’ decisions. There remained the issue that the applicants might not have seen the Supreme Court as having been totally free from bias after the meeting. However, the existence of such sentiments and fears on their part was not sufficient to establish that they had been objectively justified within the meaning of the Court’s case-law.

Conclusion: no violation (six votes to one).

(See also Procola v. Luxembourg, 14570/89, 28 September 1995, legal summary)

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