SECOND SECTION
DECISION
Application no. 50419/07
Branko BAKIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 27 March 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 August 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Branko Bakić, is a Montenegrin national, who was born in 1926 and lives in Melbourne, Australia. He was represented before the Court by Mr B. Minić and Mr R. Šuković lawyers practising in Kolašin.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
A. The circumstances of the case as presented by the applicant
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The first set of proceedings (no. R. 98/91)
4. On 3 December 1991 the applicant brought proceedings before the Kolašin First Instance Court, against two of his relatives, seeking division of their jointly owned property.
5. The proceedings are still pending.
2. The second set of proceedings (no. R. 13/04)
6. In 2004 one of the applicant’s relatives brought proceedings before the Kolašin First Instance Court, against the applicant and two of his relatives, seeking division of their jointly owned property, which issue was already being considered in another case (no. R. 98/91).
7. The proceedings are still pending.
3. The third set of proceedings (no. P. 208/04)
8. On 22 July 2004 the applicant and two of his relatives brought a claim before the Kolašin First Instance Court, against one of their relatives, seeking to establish their property rights on a certain piece of real estate, which issue was already being considered in other sets of proceedings (nos. R. 98/91 and R. 13/04).
9. On 29 September 2006 the Kolašin First Instance Court ruled in favour of the applicant.
10. On 20 January 2009 the High Court quashed the above judgment and remitted the case for a retrial.
11. On 6 November 2012 the Kolašin First Instance Court discontinued the proceedings because of the death of one of the parties. The court ruled that the proceedings would be continued when an heir or a trustee of the deceased’s property so requests or when the court invites them to do so.
12. This decision became final on the same date.
4. The fourth set of proceedings (no. R. 17/05)
13. On 30 May 2005 the applicant brought proceedings before the Kolašin First Instance Court, against three of his relatives, seeking division of their jointly owned property, different compared to the property which had already been the subject of the above mentioned lawsuits.
14. The proceedings are still pending.
5. The fifth set of proceedings (no. R. 26/05)
15. On 7 June 2005 one of the applicant’s relatives brought proceedings before the Kolašin First Instance Court, against the applicant and three of his relatives, seeking division of their jointly owned property, which property had not been the subject of the above mentioned lawsuits.
16. The proceedings are still pending.
6. The sixth set of proceedings (no. R. 27/05)
17. On 4 October 2005 the applicant and one of his relatives brought proceedings before the Kolašin First Instance Court, against two of their relatives, concerning the management and use of their jointly owned property, which property had already been the subject of proceedings nos. R. 13/04, P. 208/04 and R. 17/05.
18. Following three remittals, on 30 June 2011 the Kolašin First Instance Court discontinued the proceedings pending the outcome of proceedings no. P. 208/04.
19. On 8 November 2011 the Bijelo Polje High Court upheld that decision.
7. The seventh set of proceedings (no. P. 133/05)
20. On 20 June 2006 one of the applicant’s relative brought proceedings before the Kolašin First Instance Court, against the applicant and two of his relatives, seeking the annulment of their property division contract.
21. On 10 June 2006 the Kolašin First Instance Court ruled in favour of the applicant.
22. The appeal proceedings are pending before the Bijelo Polje High Court.
8. The eighth set of proceedings (no. P. 482/07)
23. On 29 January 2007 the applicant lodged a compensation claim against the respondent State, maintaining that his right to a trial within a reasonable time had been violated, as the above mentioned proceedings were still pending at the time.
24. On 26 June 2006 the Supreme Court issued a legal opinion specifying that the national legal system in Montenegro did not have a legal remedy for violations of the right to a trial within a reasonable time, that the courts in Montenegro had no jurisdiction to rule on the matter and that all those who considered that their right to a trial within a reasonable time had been violated could lodge an application with the European Court of Human Rights.
25. On 7 June 2007 the Bijelo Polje First Instance Court decided it had no jurisdiction to rule on the applicant’s compensation claim and rejected it, relying on the said legal opinion.
26. The applicant provided no information as to whether and when the said decision had become final.
B. The circumstances of the case as presented by the Government
27. On 2 February 2017 the applicant’s complaints were communicated to the respondent Government. In their observations of 2 June 2017 the Government disputed the facts as submitted by the applicant, describing them as incomplete and misleading. In so doing, the Government supplied the Court with the following information.
1. As regards the first set of proceedings (no. R. 98/91, see also paragraphs 4-5 above)
28. On 22 March 1993 the Kolašin First Instance Court rejected the applicant’s claim, since he had not appeared at a scheduled hearing even though he had been duly summoned.
29. This decision became final on 1 May 2005.
2. As regards the second set of proceedings (no. R. 13/04, see also paragraphs 6-7 above)
30. On 19 April 2004 the Kolašin First Instance Court discontinued the proceedings and instructed the applicant and two of his relatives to bring a separate civil case given a number of contentious issues. The court also stated that the suspended proceedings would be continued at the proposal of any party following the termination of the separate civil suit (no. P. 208/04).
31. This decision became final on 5 May 2004.
3. As regards the fourth and fifth set of proceedings (nos. R. 17/05 and R. 26/05, see also paragraphs 13-16 above)
32. On 23 June 2008 the Kolašin First Instance Court discontinued these proceedings because of the death of one of the parties and decided that they would be continued after the final completion of the inheritance proceedings or when the opposing party or the heirs of the deceased so request.
33. These decisions became final on the same date.
4. As regards the seventh set of proceedings (no. P. 133/05, see also paragraphs 20-22 above)
34. On 01 April 2009, following a remittal, the Kolašin First Instance Court rejected the claim brought against the applicant and two of his relatives.
35. This decision became final on 22 April 2009.
COMPLAINTS
36. The applicant complained under Articles 6 and 13 of the Convention about the length of seven sets of domestic proceedings brought by or against him and the lack of an effective domestic remedy in that respect. He further complained under Article 6 of the Convention about the refusal of domestic courts to examine the merits of his compensation claim, lodged in respect of the length of the other impugned proceedings.
THE LAW
37. The Government argued that the application should be declared inadmissible as an abuse of the right of application, given that the applicant had failed to provide all the facts relevant to his complaints. In particular, he omitted to inform the Court that: (a) proceedings no. R. 98/91 had been completed by 1 May 2005 (see paragraphs 4-5 and 28-29 above); (b) proceedings no. R. 13/04 had been discontinued on 5 May 2004 pending the outcome of proceedings no. P. 208/04 (see paragraphs 6-7 and 30‑31 above); (c) proceedings nos. R. 17/05 and R. 26/05 had been discontinued by two separate final decisions, both rendered on 23 June 2008 (see paragraphs 13-16 and 32-33 above); and (d) proceedings no. P. 133/05 had been completed by 22 April 2009 (see paragraphs 20-22 and 34-35 above). The Government submitted all of the relevant documents in support of their claims.
38. The applicant contested the Government’s submissions and maintained that he had never received the decision on the rejection of his claim rendered in proceedings no. R. 98/91, nor that had he been summoned to any hearing in those proceedings. Further, he argued that the decisions on the discontinuation of proceedings nos. R. 17/05 and R. 26/05 had been “forged” by the trial judge and that they had never been served on any of the parties to the proceedings or their lawyers.
39. The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, and S.A.S. v. France [GC], no. 43835/11, § 67, ECHR 2014) or if significant information and documents were deliberately omitted, either where they were known from the outset or where new significant developments occurred during the proceedings (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008, and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu, cited above, §§ 25-26, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
40. Turning to the present case, the Court notes that in his application lodged on 23 August 2007 the applicant complained about the excessive length of seven sets of domestic proceedings (see paragraphs 4-22 above) and the lack of an effective domestic remedy in that respect, as well as the refusal of domestic courts to examine the merits of his length related compensation claim (see paragraphs 23-26 above). The Court further notes that the applicant failed to inform that proceedings nos. R. 98/91 and P. 133/05 had been completed by 1 May 2005 and 22 April 2009 respectively (see paragraphs 28-29 and 34-35 above) and that proceedings nos. R. 13/04, R. 17/05 and R. 26/05 had been discontinued on 5 May 2004 and 23 June 2008, respectively (see paragraphs 30-33 above), as well as about the reasons for their discontinuation. Even though two of these decisions had become final before the application was lodged (see paragraphs 28-31 above), while the others had become final before the Court communicated the applicant’s complaints to the Government on 2 February 2017 (see paragraphs 32-35 above) their existence only came to light by the Government’s observations. In his letter of 19 July 2017, sent in response to the Government’s observations, the applicant merely stated that he had never received the decision on the rejection of his claim rendered in proceedings no. R. 98/91, and that the decisions of 23 June 2008 were forgeries (see paragraph 38 above), but did not submit any relevant evidence in support of his allegations. Moreover, the Court considers it highly improbable that the applicant was not aware of the existence of all these decisions, given the time of their rendering, the fact that they had been adopted in the proceedings brought by or against him and in respect of his property. At the same time the Court considers that the said decisions are clearly of particular significance for the proper assessment of the applicant’s complaints.
41. In the Court’s view, the applicant’s conduct cannot therefore be interpreted as anything but a failure to disclose information concerning the very core of the application.
42. The Court hence finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
43. In view of the above, it is appropriate to reject the application as a whole as an abuse of the right of individual petition pursuant to Article 35 §§ 3 and 4 of the Convention, there being no need for the Court to examine the remainder of the Government’s admissibility objections.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 April 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy