SECOND SECTION
DECISION
Application no. 1409/13
Mirko BOGOJEVIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 3 July 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 27 December 2012,
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 Mirko Bogojević, is a Montenegrin national, who was born in 1949 and lives in Podgorica. He was represented before the Court by Ms V. Čejović, a lawyer practising in Bar.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
The circumstances of the case
3. On 9 September 1998 the applicant and 30 other shareholders (hereinafter “plaintiffs”) of the joint-stock company “Mašinopromet rezervni djelovi” from Podgorica brought proceedings before the Podgorica First Instance Court, seeking the annulment of a shares-related sales contract, concluded between the limited liability company “Salex” from Podgorica on one side and the Development Fund, the Pensions and Disability Insurance Fund and the Employment Agency on the other.
4. On 17 March 2000 the Podgorica First Instance Court ruled in favour of the plaintiffs.
5. On 22 October 2002 the Podgorica High Court quashed the previous judgment and ordered a re-trial.
6. On an unspecified date the plaintiffs’ case was transferred to the jurisdiction of the Podgorica Commercial Court.
7. On 26 November 2010, following two remittals, the Podgorica Commercial Court ruled against the plaintiffs, which judgment was upheld by the Appellate Court and the Supreme Court on 29 April 2011 and 7 December 2011, respectively.
8. The Supreme Court’s judgment was served on the plaintiffs on 18 January 2012.
9. On 29 May 2012 the Constitutional Court rejected the applicant’s appeal. This decision was served on the applicant on 28 June 2012.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
10. The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings in question.
11. The Government argued that the applicant’s complaint should be rejected for non-observance of the six‑month rule. In particular, the impugned proceedings had ended by 18 January 2012, whereas the applicant had lodged the application with the Court on 27 December 2012. The Government furthermore maintained that a constitutional appeal had not been an effective domestic remedy in respect of complaints involving length at the relevant time.
12. The applicant disagreed.
13. In the present case, the Court observes that the applicant lodged his application with the Court on 27 December 2012, that is after the Constitutional Court’s decision had already been delivered to him.
14. It should be reiterated that, although there may be exceptions justified by the specific circumstances of each case, the effectiveness of a particular remedy is normally assessed with reference to the date on which the application was lodged (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)).
15. The Court notes in this regard that a constitutional appeal was not an effective remedy in respect of length of proceedings at the relevant time (see Boucke v. Montenegro, no. 26945/06, § 79, 21 February 2012, Živaljević v. Montenegro, no. 17229/04, § 68, 8 March 2011), and that it became effective on 20 March 2015 (see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, § 123, 24 November 2015, and Vučeljić v. Montenegro (dec.), no. 59129/15, § 31, 18 October 2016). Therefore, the applicant should have lodged this complaint with the Court within the six months after the judgment of the Supreme Court was served on him, that is no later than 18 July 2012.
16. In view of the above, the Court concludes that the complaint in question was introduced outside the six-month time‑limit and must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
17. The applicant further complained under Article 14 of the Convention about having been discriminated against.
18. The Court recalls that Article 14 of the Convention has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by other substantive provisions of the Convention. Although the application of Article 14 does not presuppose a breach of those provisions – to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, for example, Jantner v. Slovakia, no. 39050/97, § 40, 4 March 2003).
19. Given that the applicant’s main complaint under Article 6 of the Convention is inadmissible as submitted out of time (see paragraphs 15-16 above) it follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 thereof (see, mutatis mutandis, Mladost Turist A.D. v. Croatia, §§ 63-65, 30 January 2018).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 September 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy