CASE OF BUJKOVIĆ v. MONTENEGRO

SECOND SECTION

CASE OF BUJKOVIĆ v. MONTENEGRO

(Application no. 40080/08)

JUDGMENT

STRASBOURG

10 March 2015

FINAL

06/07/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bujković v. Montenegro,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
András Sajó,
Nebojša Vučinić,
Paul Lemmens,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 10 February 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 40080/08) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Vladimir Bujković (“the applicant”), on 31 July 2008.

2. The applicant was represented by Mr J. Mićić, a lawyer practising in Belgrade (Serbia). The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.

3. On 30 November 2009 the application was communicated to the Government.

4. The application was transferred to the Second Section of the Court, following the re-composition of the Court’s sections on 1 November 2012.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1972 and lives in Sutomore.

1. The civil proceedings

6. On 24 April 2000 the applicant instituted civil proceedings against the Municipality of Bar concerning a plot of land.

7. Following a remittal, on 23 January 2003 the Court of First Instance (Osnovni sud) in Bar ruled partly in favour of the applicant.

8. On 27 April 2004 the High Court (Viši sud) in Podgorica upheld a part of this judgment but quashed the remainder.

9. On 16 September 2004 the applicant filed at the same time a request for reopening of the proceedings with the Court of First Instance and an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud), both in respect of the part of the judgment which had been upheld.

10. On 2 February 2005 the case-file was transmitted to the Supreme Court, which court returned the case-file to the Court of First Instance on 20 December 2005.

11. On 20 October 2006 the Court of First Instance dismissed the applicant’s request for reopening of the proceedings, which decision was upheld by the High Court on 9 May 2008.

12. On 13 June 2008 the Supreme Court dismissed the applicant’s appeal on points of law.

13. On 9 October 2008 the Court of First Instance joined the examination of the remainder of the applicant’s claim with other two claims previously lodged by the applicant.

14. On 27 October 2008 the applicant filed another submission to the court, in view of the joined proceedings.

15. On 5 May 2009 the applicant specified his claim, in substance repeating his earlier submissions.

16. On 18 June 2009 the hearing started anew given that the case had been assigned to a new judge. The applicant notified the court that he was withdrawing his submission of 27 October 2008. The court invited the applicant to specify his claim, which the applicant did the next day.

17. On 9 September 2009 the hearing started anew given that the case had been assigned to a new judge.

18. On 2 November 2009 the Court of First Instance declared it lacked competence to deal with the case (sud se oglašava nenadležnim) and rejected the claim. On an unspecified date thereafter this decision was quashed by the High Court and in March 2010 the proceedings were again pending before the Court of First Instance.

19. Between April and August 2010 the parties attempted to reach a friendly settlement but to no avail.

20. On 14 February 2011 the hearing started afresh given that the case had been assigned to another judge.

21. On 17 February 2011 the Court of First Instance ruled against the applicant, which decision was quashed by the High Court on 20 September 2011.

22. On 10 May 2012 the Court of First Instance again ruled against the applicant. This judgment was upheld by the High Court and the Supreme Court on 19 October 2012 and 7 February 2013 respectively.

2. Other relevant facts

23. In 2003 and 2004 the applicant proposed that another set of civil proceedings be suspended (prekid postupka) until the proceedings initiated upon the claim lodged in 2000 were concluded. On 6 November 2006 the applicant proposed that this other set of proceedings be continued.

24. On 20 March 2013 the applicant instituted another set of civil proceedings, which are currently pending before the High Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

25. The Right to a Trial within a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku; published in the Official Gazette of Montenegro no. 11/07) provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). In particular, section 33 provides, inter alia, that an action for fair redress can be lodged by a party who has previously made use of a request for review. The action for fair redress shall be filed with the Supreme Court no later than six months after the date of receipt of the final decision rendered in the impugned proceedings. This Act entered into force on 21 December 2007.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26. The applicant complained that the length of the proceedings, initiated in 2000, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

A. Admissibility

27. The Government submitted that the applicant had not exhausted all effective domestic remedies available to him. In particular, he had failed to lodge a request for review, an action for fair redress, and a constitutional appeal.

28. The applicant contested this objection.

29. The Court has already held that a request for review must, in principle and whenever available in accordance with the relevant legislation, be considered an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Montenegro after 4 September 2013 (see Vukelić v. Montenegro, no. 58258/09, § 85, 4 June 2013). As the application here at issue had been lodged with the Court on 31 July 2008, that is long before 4 September 2013, and in view of the Court’s earlier findings in this regard (see Boucke v. Montenegro, no. 26945/06, § 74, 21 February 2012), the Court considers that the applicant in the present case did not have to exhaust this particular avenue of redress. The Government’s objection in this regard must, therefore, be dismissed.

30. The Court further notes that the applicant’s action for fair redress, had he lodged one, would have been rejected for his failure to previously make use of a request for review (see paragraph 25 above), a remedy that was not considered to be effective at the relevant time. It is also observed that the applicant cannot be required to avail himself of this avenue of redress at this stage, as its use had long become time-barred in his case (see paragraphs 22 and 25 above; see also, mutatis mutandis, Novović v. Montenegro and Serbia, no. 13210/05, § 43, 23 October 2012, and Milić v. Montenegro and Serbia, no. 28359/05, § 57, 11 December 2012).

31. Having regard to the particular circumstances of the instant case as set out above, the Court considers that the applicant was not obliged to exhaust this particular avenue of redress. The Government’s objection must, therefore, be dismissed.

32. The Court has already held that a constitutional appeal cannot be considered an effective domestic remedy in respect of length of proceedings (see Boucke, cited above, §§ 76-79). It sees no reason to depart from its findings in the present case. The Government’s objection in this regard must, therefore, also be dismissed.

33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Arguments of the parties

34. The applicant reaffirmed his complaint that the length of the proceedings initiated in 2000 had been incompatible with the reasonable time requirement.

35. The Government maintained that the present case was complex, and that the applicant himself had been mainly responsible for the length of the proceedings. In particular, the applicant had submitted several civil claims. On 27 October 2008 he sought that all the proceedings be joined, and on 18 June 2009 he withdrew that request. He also requested that two other civil proceedings instituted by him be suspended on 9 September 2003 and 8 September 2004, respectively, which requests were immediately accepted. It was only on 6 November 2006 that the applicant sought that these latter proceedings be continued (see paragraph 23 above), that is two years and two months later, which period can only be attributed to the applicant. The applicant had also amended and further particularised his claim, which is the subject of the impugned proceedings, on four occasions, two of which after the Convention had entered into force in respect of Montenegro, notably in May and June 2009.

36. Furthermore, on 16 September 2004 the applicant submitted both a request for reopening of the proceedings before the Court of First Instance and an appeal on points of law before the Supreme Court, which prolonged the Supreme Court’s ruling on the appeal on points of law. The courts, for their part, acted with due diligence as they issued six decisions at three instances.

37. The Government also maintained that the impugned proceedings were of no vital importance to the applicant and, as such, did not require priority or any urgent action on the part of the courts. They concluded that there was no violation of Article 6 of the Convention.

2. The Court’s assessment

38. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

39. The Court also recalls that, in order to determine the reasonableness of the delay at issue, regard must be had to the state of the case on the date of ratification (see, mutatis mutandis, Styranowski v. Poland, 30 October 1998, § 46, Reports of Judgments and Decisions 1998‑VIII).

40. Turning to the present case, it is noted that the period to be taken into account began on 24 April 2000, when the applicant lodged his claim, and ended on 7 February 2013, by the Supreme Court’s decision. Since the Convention entered into force in respect of Montenegro on 3 March 2004 (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009), the proceedings in question fall within the Court’s competence ratione temporis for a period of more than eight years and eleven months. In addition, they had already been pending for more than three years and ten months before that date.

41. The Court firstly observes that the present case concerns civil proceedings relating to a plot of land. It further notes that the Government failed to prove that the case was of any exceptional complexity. Nor does the fact that the impugned proceedings did not require priority or urgent action justify such a procedural delay.

42. Secondly, the applicant indeed amended his claim in May and June 2009. The first time, however, he essentially repeated his earlier submissions and the second time he merely complied with the court’s request to that effect (see paragraphs 15 and 16 above). The Court certainly does not consider that this significantly contributed to the length of the impugned proceedings. It was also the domestic courts that joined the proceedings on their own motion and not upon the applicant’s proposal (see paragraph 13 above). The Government’s objections relating to other proceedings which are not subject of the present application are therefore irrelevant.

43. Thirdly, the Court further observes that it took the domestic courts nearly four years to rule on the applicant’s request for reopening of the proceedings. Even though Article 6 of the Convention does not in principle apply to the procedure upon a request for reopening of the proceedings, the Court notes that the applicant’s appeal on points of law could not be decided earlier, as acknowledged by the Government, precisely due to the time it took the domestic courts to rule on this request, which time can only be attributed to the State.

44. Lastly, the Court recalls that repeated re-examination of a single case following remittal may in itself disclose a serious deficiency in a given State’s judicial system (see Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005). It is noted, in this regard, that after the Convention had entered into force in respect of the respondent State, the first instance decision was quashed three times, and it was only after three remittals that the case was finally adjudicated.

45. In view of the criteria laid down in its jurisprudence and the relevant facts of the present case, the Court is of the opinion that the length of the proceedings complained of has failed to satisfy the reasonable time requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

46. The applicant also complained: (a) under Article 6 of the Convention about the outcome of the proceedings before the Supreme Court on 13 June 2008 (see paragraph 12 above), and (b) about the fairness and outcome of the civil proceedings currently pending before the High Court (see paragraph 24 above).

47. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I), nor is it its task to act as a court of appeal in respect of the decisions taken by domestic courts (see Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005‑IX). It follows that the complaint concerning the outcome of the proceedings before the Supreme Court is manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

48. As regards the applicant’s other complaint, given that the civil proceedings at issue are currently still pending before the High Court it follows that this complaint must be rejected as premature under Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. Article 41 of the Convention provides:

“If 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.”

A. Damage

50. The applicant claimed 9,489 euros (EUR) and accompanying interest in respect of pecuniary damage.

51. The Government contested the claim as unfounded.

52. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As the applicant made no claim in respect of non-pecuniary damage, no award is made in that regard.

B. Costs and expenses

53. The applicant claimed, in the course of the standard exchange of observations between the parties, EUR 2,500 for costs and expenses incurred before the Court. In another set of observations, which had not been requested by the Court, he claimed an additional EUR 1,000.

54. The Government made no comment in respect of the amount claimed in the first set of the applicant’s observations. Given that the second set of observations had not been requested by the Court the Government have not been invited to comment on the amount claimed therein.

55. According to the Court’s 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. 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 applicant the sum of EUR 1,020 under this head.

C. Default interest

56. The 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,020 (one thousand and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

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