Communicated on 7 December 2016
SECOND SECTION
Application no. 52529/12
Pava BRAJOVIĆ and Others
against Montenegro
lodged on 7 August 2012
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The criminal proceedings
The applicants, as injured party, intervened in criminal proceedings against X, in the course of which they sought 2.705,7 euros (EUR) as compensation for legal costs.
On 14 October 2008 the High Court (Viši sud) in Podgorica found X guilty and, inter alia, ordered him to pay the applicants 505.70 euros (EUR) for the costs of legal representation, without specifying what exactly was covered by this amount.
On 30 March 2009 the applicants appealed.
On 22 September 2009 the Court of Appeal (Apelacioni sud) in Podgorica ruled on the appeals lodged by the High State Prosecutor and X. The applicants learnt of this judgment on 27 May 2010 when checking the case-file at the High Court. It was served on them on 3 October 2013.
On 28 May 2010 the applicants complained to the President of the Supreme Court that the Court of Appeal had failed to rule on their appeal.
On 7 June 2010 the President of the Supreme Court notified them that she had been informed by the High Court President that the case file had been returned to the Court of Appeal “given that [their appeal] had not been ruled upon by the judgment of 22 September 2009”.
On 24 October 2011 the applicants requested the President of the High Court to transmit the case file to the Court of Appeal given that they had learnt that the file had been archived in the High Court, contrary to what that court had said to the President of the Supreme Court.
On 11 January 2012 the applicants complained again to the President of the Supreme Court.
By 3 October 2016 the Court of Appeal had not yet ruled on the applicants’ appeal.
2. The civil proceedings
On 14 March 2011, in the absence of any ruling by the Court of Appeal, the applicants filed a compensation claim against the State.
On 17 June 2011 the Court of First Instance (Osnovni sud) in Podgorica rejected the claim (odbacuje se) finding that the High Court had awarded them the costs, which judgment became final in the meantime, and that the issue was thus res iudicata.
On 7 July 2011 the High Court upheld this judgment.
On 12 July 2012 the Constitutional Court dismissed the applicants’ constitutional appeal considering that there was no violation of Article 6 as res iudicata was indeed a procedural obstacle which prevented further proceedings and that in any event the civil proceedings could not serve to correct the final decisions issued in criminal proceedings. It further held that the applicants’ dissatisfaction with the costs awarded in the criminal proceedings “[did] not mean that they could not claim them by a regular civil claim (putem redovne građanske tužbe)”.
B. Relevant domestic law
Article 32 of the Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro no. 01/07) provides that everyone shall have the right to a fair trial before a tribunal.
Articles 371 - 402 of the Criminal Procedure Code 2003 (Zakonik o krivičnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 71/03, 7/04 and 47/06) set out details as regards the appeals. Article 372, in particular, provided, inter alia, that an injured party was entitled to lodge an appeal against the first-instance judgment in respect of the costs of proceedings.
COMPLAINT
The applicants complain under Article 6 of the Convention about denial of access to court given that the Court of Appeal has not ruled to date on their appeal and that the civil courts rejected to examine their civil claim in that regard.
QUESTION TO THE PARTIES
Were the applicants denied, in breach of Article 6 § 1 of the Convention, the “right of access to a court” in the determination of their civil rights and obligations (see Baka v. Hungary [GC], no. 20261/12, § 120, ECHR 2016)?
Appendix
No.
First name
LAST NAME
Birth date
Nationality
Place of residence
Representative
1.
Pava BRAJOVIĆ
10/03/1931
Montenegrin
Golubovci
B. SIMOVIĆ
2.
Zoranka AJKOVIĆ
21/09/1972
Montenegrin
Golubovci
B. SIMOVIĆ
3.
Jelena BRAJOVIĆ
19/04/1948
Montenegrin
Golubovci
B. SIMOVIĆ
4.
Kastro BRAJOVIĆ
19/12/1965
Montenegrin
Golubovci
B. SIMOVIĆ
5.
Lindita VUČIĆ
10/07/1970
Montenegrin
Golubovci
B. SIMOVIĆ
6.
Nada ZLATIČANIN
21/01/1964
Montenegrin
Golubovci
B. SIMOVIĆ
Full & Egal Universal Law Academy