ŠABANOVIC and others against Serbia

On September 9, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on October 7 of the same year, published its judgment in the caseŠabanović et al. against Serbia, number 39819/16.

The verdict was unanimousbrought More.

THE CIRCUMSTANCES CASES

The applicants, Mr. Safet Šabanović (hereinafter: the first applicant), Mr Dragan Boričić (hereinafter: the second applicant), Mr. Zoran Tešić (hereinafter: the third applicant), Ms. Tijana Majstorović (hereinafter: the fourth applicant) and Mr. Zoran Pifar (hereinafter: the fifth applicant) were employed by the Ministry of Internal Affairs (hereinafter: MUP).

The first and second applicants were employed at the Špiljani border crossing towards Montenegro, the third applicant was employed at the Loznica Police Station - Šabac Police Department, and the remaining two applicants were employed at the border  crossings towards the Republic of Croatia (Bogojevo - Apatin and Danube - Bezdan).

All the applicants filed lawsuits against their employer to the competent basic courts for the payment of unpaid wages based on overtime work, night work and work during national and religious holidays. The first and second applicants filed complaints with the First Basic Court in Belgrade, the third applicant with the Basic Court in Šabac, and the remaining two applicants with the Basic Court in Sombor.

All first-instance courts rejected the applicants' claims as unfounded. The first-instance verdicts were confirmed by the competent appellate courts.

Dissatisfied with the outcome of the proceedings before the courts of general jurisdiction, the applicants filed constitutional appeals with the Constitutional Court (Už-10888/2013, Už-5540/2013, Už-667/14, Už-8223/14 and Už-7405/201515) which were rejected as unfounded.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicants submitted petitions to the Court in June 2015 and 2016, and in February and April 2017.

In the petitions, they complained about the violation of the right to a fair trial from Article 6, paragraph 1. Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) claiming that the rejection of their civil lawsuits and the alleged flagrantly uneven jurisprudence of domestic courts regarding the merits of their disputes created legal uncertainty and led to a denial of justice. Certain applicants complained about (1) inconsistent case law  of the Supreme Court and the Constitutional Court and/or their various chambers, especially with regard to the availability of appeals on legal issues (revision) in this type of disputes; (2) violation of their property rights under Article 1 of Protocol No. 1 (first and second applicants), and/or (3) lack of an effective legal remedy, as guaranteed by Article 13 of the Convention.

THE DECISION THE COURT

• Article 6, paragraph 1 of the Convention

First of all, the court noted that the applicants filed their lawsuits in the period between June 2010 and September 2011, and that their lawsuits were rejected by appeal court judgments between May 2013 and September 2015.

Furthermore, the Court noted that the appellate courts, during the period of passing second-instance judgments on the petitioners' claims, passed several judgments in which they confirmed the adoption of the petitions with the same requests of the petitioners, because they determined that the wages of those persons were not increased in accordance with Article 147, paragraph 1 of the Law on Police.

Finally, the Court stated that the then Supreme Court of Cassation adopted on November 10, 2015legal position according to which a "comparable employee" (the term "civil servant" from Article 147, paragraph 1 of the Law on Police) had to be an authorized officer who had the same level of education as the applicant, but who did not work outside regular working hours.

Following the above, the Court concluded that there were differences in judicial practice in the period of second-instance verdicts against the applicants and that the Supreme Court of Cassation also considered it necessary to issue a legal opinion in order to harmonize the judicial practice of lower-level courts.

However, the Court reminded that the existence of conflicting court decisions, in itself, cannot be considered a violation of the Convention, because the possibility of conflicting court decisions is a permanent feature of every legal system. Therefore, he further examined whether domestic law provided for a mechanism to overcome such inconsistencies, whether that mechanism was applied and with what effect.

In this regard, the Court established that after the adoption of the opinion of the Supreme (Cassation) Court of November 10, 2015, the courts in Serbia began to decide in accordance with that opinion, i.e. to rule in favor of the plaintiffs based on the method of comparing the salary coefficients of the plaintiffs with the coefficient of other civil servants of the same level of education, but who did not work outside working hours. Judgments passed contrary to that opinion were annulled by second-instance courts and sent back for retrial, or the Supreme Court of Cassation overturned such judgments on a special review.

Therefore, the Court concluded that the jurisprudence was harmonized in a reasonably short period of time, and that the fact that the second-instance verdicts in the applicants' cases were passed before the legal understanding of the Supreme Court of Cassation, in itself, is not sufficient to lead to a violation of the principle of legal certainty, especially bearing in mind that the Court has a subsidiary role and that the assessment of the domestic courts will be called into question only if it is arbitrary and obviously unreasonable, which was not the case in the specific cases.

Following the above, the Court assessed thatthere was no violation of Article 6, paragraph 1 of the Convention.

• Article 1 of Protocol No. 1 to the Convention

In connection with the complaints of the first two applicants that their right to property was violated, the Court pointed out that at the time of deciding on their claims there was a conflict regarding the interpretation of the provisions of Article 147, paragraph 1 of the Law on Police, so it cannot be claimed that the applicants had property in the senseArticle 1 of Protocol No. 1 to the Convention at the time of passing the contested verdicts, and before the opinion of the Supreme Court of Cassation of November 10, 2015.

Consequently, the Court assessed that the complaints were those of the first two applicantsincompatibleratione materiae with the provisions of the Convention and rejected them in accordance with Article 35, paragraph 4 of the Convention.