THIRD SECTION
\nCASE OF GRBI\u0106 v. SERBIA
\n(Application no. 5409\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n23 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Grbi\u0107 v. Serbia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Pere Pastor Vilanova, President, Having deliberated in private on 2 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 5409\/12) againstSerbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by aSerbian national, Mr Rajko Grbi\u0107 (\u201cthe applicant\u201d), on 3 October 2011.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr N. Kosanovi\u0107, a lawyer practising in Be\u010dej. The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms. N. Plav\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 1 December 2016 the complaint under Article 6 \u00a7 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1962 and lives in Be\u010dej, where he was employed as a police officer.<\/p>\n 6.\u00a0\u00a0On 24 January 2003 the Be\u010dej Municipal Court (\u201cthe Municipal Court\u201d) started judicial investigation proceedings against the applicant for the alleged commissionof a number of criminal offences concerning the performance of his duties.<\/p>\n 7.\u00a0\u00a0On 26 May 2003 the competent directorate of the Ministry of Interior dismissedthe applicant from the police force (effective as of 30 May 2003). The decision noted that the criminal proceedings had been instituted against the applicant and that Article 45, in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991, which was in force at the time of the dismissal, should be applied.According to this provision a police officer could be dismissed, at the discretion of the Ministry of Interior, if he no longer met the requirements for being a police officer, which included the requirementthat criminal proceedings of a particular type should not be pending against him. The applicant lodged an appeal against this decision, buton 30 June 2003 his appeal was rejected and the dismissal thus confirmed.<\/p>\n 8.\u00a0\u00a0On 23 July 2003 the applicant lodged a claim with the Municipal Court seeking his reinstatement.<\/p>\n 9.\u00a0\u00a0On 31 October 2003 theMunicipal Court partly discontinued the criminal proceedings against the applicant based on the applicable procedural prescription period.<\/p>\n 10.\u00a0\u00a0On 12 November 2003 the remainder of the criminal proceedings were discontinued because the public prosecutor had withdrawn the charges.<\/p>\n 11.\u00a0\u00a0On 30 December 2003 the Municipal Court annulled the decision on the applicant\u2019s dismissal of 26 May 2003 by partial judgment, establishing that everyone charged with a criminal offence should be presumed innocent until proven guilty by a court of law, and that a broad interpretation of Article 45 of the Ministry of Interior Act 1991 in regards to the persons who were not found guilty could be only to their detriment.<\/p>\n 12.\u00a0\u00a0On 17 June 2004 the Novi Sad District Court (\u201cthe District Court\u201d) upheld this judgment. The applicant\u2019s former employer thereafter submitted an appeal on points of law.<\/p>\n 13.\u00a0\u00a0In the meantime, the applicant was reinstated to his previous post by decision of the Ministry of Interior of 13 January 2005.The decisions of 26\u00a0May and 30 June 2003 werealso repealed.<\/p>\n 14.\u00a0\u00a0On 9 March 2005, however, the Supreme Courtupheld the appeal on points of law, reversed the judgments of 30December 2003 and 17\u00a0June 2004 and rejected the applicant\u2019s claim for reinstatement. It found that the dismissal of 26 May 2006 had been in accordance with the Article 45, read in conjunction with Article 34 (1)(2) of the Ministry of Interior Act\u00a01991, and that the mere fact that thecriminal proceedings had beenpending against the applicant was sufficient reason for the applicant\u2019s dismissal.<\/p>\n 15.\u00a0\u00a0On 4 July 2005 the applicant was thus again dismissed from his job, which decision was upheld on 11 August 2005 by the Minister of Interior.<\/p>\n 16.\u00a0\u00a0On 4 August 2005, the applicant brought another set of the proceedings for the annulment of hissecond dismissal. However, the Municipal Court, the District Court and the Supreme Court, by their judgments of 27\u00a0October 2005, 10 May 2007 and 18 December 2007, respectively, allruled against himand upheldhis dismissal on the basis of Article 45, read in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991.<\/p>\n 17.\u00a0\u00a0On 14 March 2008 the applicant lodged anappeal with the Constitutional Court concerning the outcome, fairness and the length of the civil proceedings concerning his dismissal, the right to be presumedinnocent until proven guilty and the \u201cright to work\u201d.<\/p>\n 18.\u00a0\u00a0On 17 February 2011 the Constitutional Court rejected the applicant\u2019s appeal. In regards to the court judgments of 31 October 2003, 17\u00a0June 2004 and 9 March 2005 the Constitutional Court established that the his complaints were inadmissible ratione temporis given that the Serbian Constitution had come into force on 8 November 2006, i.e. after the first set of the proceedings concerning the applicant\u2019s dismissal. On the other hand, with respect to the judgments of 27 October 2005, 10 May and 18\u00a0December 2007, the Constitutional Court found that they were not arbitrary, and upheld the legality of the applicant\u2019s second dismissal on the basis of Article 45, read in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991. In the Constitutional Court\u2019s view, the fact that the applicant was ultimately dismissed on 4 July 2005, instead of on 26\u00a0May 2003, was only in the applicant\u2019s favour, and that fact alone could not affect the legality of his \u201cdismissal as such\u201d.<\/p>\n 19.\u00a0\u00a0Before this on 19 January 2011, the Constitutional Court rendered a decision in the case of Stefanovi\u0107 v. Serbia (U\u017d 753\/2008), concerning the same legal issue in which it ruled in favour of the appelant in that case (see Milojevi\u0107 and Others v. Serbia, nos. 43519\/07 and 2 others, \u00a7\u00a7\u00a036-37, 12\u00a0January 2016).<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 20.\u00a0\u00a0The relevant domestic law and practice is set out in the Milojevi\u0107 case (see Milojevi\u0107, cited above, \u00a7\u00a7 31-37).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 21.\u00a0\u00a0The applicant complained that the decisions of the domestic authorities in civil proceedings regarding his dismissal were arbitrary and lacked sufficient reasons. He relied on Article 6 \u00a7 1 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0As regards the compatibility of the applicant\u2019s complaint ratione materiae<\/em><\/p>\n 22.\u00a0\u00a0The Government stated that the decision of 4 July 2005 and the courts\u2019 decisions adopted thereafterwere only of a declaratory character, as they only confirmed the legality of the original dismissal of 26 May 2003. As a consequence, the said decisions were not directly decisive for the civil rights and obligations of the applicant, and Article 6 \u00a7 1 could not be therefore applied in the present case.<\/p>\n 23.\u00a0\u00a0The applicant maintained that Article 6 \u00a7 1 was applicable.<\/p>\n 24.\u00a0\u00a0The Court observes that the applicant was dismissed from the police force only by decision of 4 July 2005, which outcome was thus decisive for the exercise of his civil rights and triggered the subsequent court proceeding, wherein the courts themselves never questioned this decisiveness even though they ultimately ruled against the applicant.The Court, therefore, dismisses the Government\u2019s objection in this regard.<\/p>\n 2.\u00a0\u00a0As regards the exhaustion of domestic remedies<\/em><\/p>\n 25.\u00a0\u00a0The Government submitted that neither the applicant\u2019s second claim (see paragraphs 15-16) nor the ensuing constitutional appeal constituted effective remedies in the present case. In the Government\u2019s view, the applicant should have submitted his application following the judgment of the Supreme Court of 9 March 2005, as the applicants did in the Milojevi\u0107 case (cited above), and that the applicant\u2019s failure to do so amounted to the application being submitted out of time.<\/p>\n 26.\u00a0\u00a0The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 \u00a7 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant\u2019s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia, T. v. the United Kingdom [GC], no. 24724\/94, \u00a7\u00a055, 16\u00a0December 1999; and Vin\u010di\u0107 and Others v. Serbia, nos. 44698\/06 and 30 others, \u00a7 49, 1 December 2009).<\/p>\n 27.\u00a0\u00a0As regards legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, the Court recalls that it is incumbent on the aggrieved individual to test the extent of that protection (see, inter alia, Mirazovi\u0107 v.\u00a0Bosnia and Hercegovina (dec.), no. 13628\/03, 16 May 2006; and Vin\u010di\u0107, cited above, \u00a7\u00a051). With this in mind, given the power of the Serbian Constitutional Court as evidenced through its case-law, the Court established that a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 \u00a7 1 of the Convention in respect of all applications introduced as of 7 August 2008, that being the date when the Constitutional Court\u2019s first decisions on the merits of the said appeals had been published in the respondent State\u2019s Official Gazette (see Vin\u010di\u0107, cited above, \u00a7 51).<\/p>\n 28.\u00a0\u00a0In any case, the Court reiterates, an individual is not required to try more than one avenue of redress when there are several available. It is for the applicant to choose the legal remedy that is most appropriate in the circumstances of the case (see, among other authorities, Airey v. Ireland, 9\u00a0October 1979, \u00a7 23, Series A no. 32, Boicenco v.\u00a0Moldova, no.\u00a041088\/05, \u00a7 80, 11 July 2006, and Borzhonov v. Russia, no. 18274\/04, \u00a7\u00a054, 22\u00a0January 2009).<\/p>\n 29.\u00a0\u00a0Turning to the facts of the present case, the Court firstly notes that the decision of 4 July 2005 contained an instruction on a legal remedy to be pursued(pouka o pravnom leku).According to this instruction the applicant could submit an objection against the decision within eight day from service, and he had in fact done so. Had the applicant not made use of thisopportunity, this omission would have amounted to the non-exhaustion of domestic remedies.<\/p>\n 30.\u00a0\u00a0Secondly, the Court notes that the applicant lodged his application with the Court on 3 October 2011. This was after 7 August 2008, and because the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged (see Vin\u010di\u0107, cited above, \u00a7 51), the Court considers that the applicant had indeed had an obligation to exhaust this particular avenue of redress before turning to Strasbourg and that he had effectively done so.<\/p>\n In these circumstances, as well as given the Court\u2019s finding in paragraph\u00a024 above, the Government\u2019s objection concerning the exhaustion of domestic remedies must be dismissed.<\/p>\n 3.\u00a0\u00a0Other admissibility issues<\/em><\/p>\n 31.\u00a0\u00a0The Court otherwise considers that the applicant\u2019s complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 32.\u00a0\u00a0The applicant submitted thatthe his former employer had misapplied the relevant domestic law, that the decision of 4 July 2005 had been unfounded, that the subsequent court judgments in the civil proceedings had been arbitrary and had lacked sufficient reasoning, and that the Constitutional Court had arbitrarily upheld such reasoning.The applicant pointed outthat his case had beenalmost identical, both factually and legally, ascertain other cases considered by the Constitutional Court (see paragraph18 above; also see Milojevi\u0107,cited above, \u00a7\u00a7 36-37) and that the same principles should have been applied in his case, as well.<\/p>\n 33.\u00a0\u00a0The Governmentdisagreed. They claimed that the applicant\u2019s dismissal was lawful andbased on the Ministry of Interior Act 1991, and that the impugned court judgments were clearly and sufficiently reasoned in regards to the applicant\u2019s dismissal. Further, the Government stated that the case-law referred to in the Milojevi\u0107case could not be appliedin the instant case, in view of different circumstances of this case and the different temporal context.<\/p>\n 34.\u00a0\u00a0The Court reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro\u00a0Balani v. Spain, 9 December 1994, \u00a7\u00a7 27, 29, Series A nos. 303-A and 303-B;Higgins and Others v. France, 19 February 1998, \u00a7\u00a042, Reports\u00a01998-I; and Milojevi\u0107, cited above, \u00a7 83). Although Article 6 \u00a7\u00a01 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument of the parties involved (see Van de Hurk v. the Netherlands, 19\u00a0April 1994, \u00a7 61, Series A no.\u00a0288; Milojevi\u0107, cited above). When applying legal rules lacking in precision, however, the domestic courts must show particular diligence in giving sufficient reasons as to why such a rule was applied in a particular manner, given the circumstances of each specific case. Merely citing the language of the imprecise provision cannot be regarded as sufficient reasoning (see H.\u00a0v.\u00a0Belgium, 30 November 1987, \u00a7 53, Series A no.\u00a0127\u2011B; and Milojevi\u0107, cited above).<\/p>\n 35.\u00a0\u00a0The Court has already dealt with the quality of the legal provision on the ground of which the applicant was dismissed and the conduct of the domestic courts in applying this provision (see Milojevi\u0107, cited above, \u00a7\u00a7\u00a032-33, 65-68, 84). Also, the Court established that the Constitutional Court had already had an opportunity to deal with cases raising substantially identical issues to those brought by the applicant before this Court wherein it concluded that both the law, on the basis of which the applicants had been dismissed, and the judicial decisions, which were identical to those rendered in the applicant\u2019s case, had been arbitrary and in violation of the right to a fair trial (seeMilojevi\u0107, cited above, \u00a7 84). In regards to the Government\u2019s objection as to the different temporal context, the Court notes that the only difference between this case and Milojevi\u0107 is that the applicants in Milojevi\u0107 referred to the Court immediately after being dismissed, whereas the applicant in present case tried and exhausted all domestic remedies he had at his disposal (see paragraph 29).The legal grounds on which the applicant got dismissed from the police force remain the same as in Milojevi\u0107 case. Therefore, in light of almost identical factual and legal circumstances of the cases, the Court sees no reason to depart from its findingsadopted in the Milojevi\u0107.<\/p>\n There has accordingly been a violation of Article 6 \u00a7 1 of the Convention of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 36.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 37.\u00a0\u00a0The applicant claimed 36,465 euros (EUR) in respect of pecuniary damage, comprised of salary arrears and pensionswhich he \u201cwould have earned\u201d had he continued working as a police officer, and EUR 5,000 in respect of non-pecuniary damage.<\/p>\n 38.\u00a0\u00a0The Government maintained that the amounts claimed in respect of pecuniary and non-pecuniary damages were excessive. Also, the Government deemed that there was no causal link between a potential violation of Article 6 \u00a7 1 and the pecuniary damage.<\/p>\n 39.\u00a0\u00a0With regard to pecuniary damage, the Court finds that the applicant\u2019s just satisfaction claim is unsubstantiated. Specifically, the applicant failed to provide the Court with an adequate explanation as to why he was unable to find other employment or could not secure another source of labor-related income, which would have been of particular significance for the proper calculation of the pecuniary damage sought. The Court therefore rejects the applicant\u2019s claim for pecuniary damage.<\/p>\n 40.\u00a0\u00a0With regard to non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, it awards the applicant EUR 2,400 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 41.\u00a0\u00a0The applicant also claimed EUR 9,275 for the costs and expenses incurred before the domestic courts and the Courtitself.In support of these claims the applicant submitted a calculation sheet and requested that the award should be paid directly to his lawyer, Mr N. Kosanovi\u0107, whom he authorised to receive this sum.<\/p>\n 42.\u00a0\u00a0The Government contested this claim as unsubstantiated and insufficiently specified.<\/p>\n 43.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (Iatridis v. Greece (just satisfaction) [GC], no. 31107\/96, \u00a7\u00a054, ECHR 2000\u2011XI; Milojevi\u0107, cited above, \u00a7 98). That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,700 covering costs under all heads, to be paid directly to the applicant\u2019s legal representative Mr N. Kosanovi\u0107 (see Hajnal v. Serbia, no. 36937\/06, \u00a7 154, 19 June 2012).<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 44.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay, within three months, the following amounts:<\/p>\n (i)\u00a0\u00a0to the applicant EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and<\/p>\n (ii)\u00a0\u00a0directly to the applicant\u2019s representative EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable on this amount, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that the amounts specified above shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (c)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 23 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Pere Pastor Vilanova
\nBranko Lubarda,
\nGeorgios A. Serghides, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n