SECOND SECTION
CASE OF RAJAK v. MONTENEGRO
(Application no. 71998/11)
JUDGMENT
STRASBOURG
27 February 2018
This judgment is final but it may be subject to editorial revision.
In the case of Rajak v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 6 February 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 71998/11) 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 Đorđe Rajak (“the applicant”), on 17 October 2011.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
3. On 12 January 2017 the applicant’s complaints about the non‑enforcement of a final domestic judgment concerning a re‑allocation of plots for the construction of apartments, the length of administrative proceedings, and the length of separate civil proceedings concerning the applicant’s reinstatement and damages, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
4. The applicant was born in 1961 and lives in Bijela, Montenegro.
A. The enforcement proceedings
5. On 1 March 2012 the Herceg Novi First Instance Court rendered a judgment in favour of the applicant and ordered the applicant’s employer “Vektra Boka” AD Herceg Novi (hereinafter “the debtor”) to carry out a re‑allocation of plots for the construction of apartments. This judgment became final on 21 December 2012.
6. On 15 January 2013 the applicant requested enforcement of the above judgment and the Herceg Novi First Instance Court issued an enforcement order on 31 January 2013.
7. On 12 June 2015 the Commercial Court opened insolvency proceedings in respect of the debtor.
8. On 28 January 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action.
9. On 22 March 2016 the Commercial Court suspended (obustavio) the enforcement due to the opening of the insolvency proceedings, which decision became final on 11 May 2016.
10. The judgement in question remains unenforced to the present day.
B. The administrative proceedings
11. On 8 February 2013 the applicant instituted administrative proceedings seeking, on the basis of the above judgment, the removal of competing titles from the Land Register.
12. On 29 July 2015 the Real Estate Directorate terminated (prekinuo) the administrative proceedings because the Commercial Court had commenced insolvency proceeding in respect of the debtor.
13. On 7 September 2015 the applicant submitted an objection against the above decision. This objection was rejected as being out of time by the Real Estate Directorate on 5 October 2015.
14. The administrative proceedings are still pending.
C. The civil proceedings
15. On an unspecified day in 2003, the applicant instituted separate civil proceedings against the debtor, as his former employer, seeking reinstatement and damages. Following three remittals, on 3 March 2014 the Herceg Novi First Instance Court rendered a judgment in the applicant’s favour.
16. On 22 September 2015 the High Court upheld this judgment on the merits, but quashed it as regards the costs.
17. On 31 October 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action due to the commencement of the insolvency proceedings in respect of the debtor.
18. On 22 February 2017 the Commercial Court ruled partly in favour of the applicant regarding the costs.
19. The parties did not inform the Court about when the Commercial Court’s decision became final and was served on the applicant.
THE LAW
I. THE GOVERNMENT’S OBJECTION BASED ON RULE 47 OF THE RULES OF COURT
20. The Government maintained that the applicant had not lodged the application in accordance with Rule 47 of the Rules of Court. In particular, they stated that the content of the application was for the most part illegible and confusing.
21. The Court notes that pursuant to the version of Rule 47 of the Rules of Court in force at the relevant time, an application under Article 34 of the Convention had to be made on the application form provided by the Registry, unless the Court decides otherwise (see Knick v. Turkey, no. 53138/09, § 36, 7 June 2016). The Court observes that the applicant made substantiated complaints about the alleged violations of Convention rights, and supported them with sufficient documentation. It further notes that the requirement in question is not one of the inadmissibility grounds set out in Article 35 of the Convention. Accordingly, the Government’s preliminary objection should be dismissed as the application cannot be rejected for failure to comply with the procedural rules of the Court (see Knick v. Turkey, cited above).
II. SCOPE OF THE CASE
22. In their observations, the Government submitted that the complaints relating to the proceedings concerning the applicant’s eviction from temporary accommodation should be declared inadmissible.
23. The Court notes that the President of the Section, sitting in a single‑judge formation, had already declared these complaints inadmissible on 12 January 2017, upon communication of the remainder of the application to the Government.
24. The Court recalls in this connection that it cannot examine the complaints which had already been declared inadmissible and that the scope of the case now before the Court is thus limited to those complaints which were communicated to the Government (see, mutatis mutandis, Stebnitskiy and Komfort v. Ukraine, no. 10687/02, § 39, 3 February 2011, and Terra Woningen B.V. v. the Netherlands, 17 December 1996, §§ 44-45, Reports of Judgments and Decisions 1996‑VI).
III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
25. The applicant complained about the non‑enforcement of a final domestic judgment concerning a re‑allocation of plots for the construction of apartments, the length of administrative proceedings which he had brought on the basis of the above judgment, and the length of separate civil proceedings concerning his reinstatement and damages. In so doing, the applicant relied on 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 ...”
26. The Government submitted that these complaints had not been included in the applicant’s initial application and that they should be rejected for non‑exhaustion of domestic remedies or non‑observance of the six‑month rule.
27. The applicant disagreed and reaffirmed his complaints.
A. As regards the length of the civil proceedings
1. Admissibility
28. The Court observes that this complaint was, in fact, raised in the applicant’s initial application of 17 October 2011.
29. The issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)).
30. The Court notes that at the time when the present application was lodged there were no effective remedies in Montenegro as regards complaints relating to the length of proceedings. In particular, a request for review (kontrolni zahtjev) became effective as of 4 September 2013 (see Vukelić v. Montenegro, no. 58258/09, § 85, 4 June 2013), an action for fair redress (tužba za pravično zadovoljenje) became effective as of 18 October 2016 (see Vučeljić v. Montenegro (dec.), no. 59129/15, § 30, 18 October 2016), while a constitutional appeal became effective as of 20 March 2015 (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 123, 24 November 2015, and Vučeljić, cited above, § 31). In view of that, the Court cannot but conclude that, since before the lodging of the application with the Court the applicant had had no effective remedy at his disposal, the Government’s objection in this regard must be dismissed.
31. As regards the Government’s plea on non‑observance of the six‑month rule, the Court observes that the application had been lodged with the Court before the impugned proceedings were finally completed on 22 February 2017 (see paragraphs 18 and 19 above). In these circumstances, the Court concludes that the applicant had complied with the six month requirement, as set out in Article 35 § 1 of the Convention. Therefore, the Government objection in this regard must also be dismissed.
32. Given that the complaint in question is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.
2. Merits
33. The proceedings at issue started on an unspecified day in 2003 (see paragraph 15 above) and ended on 22 February 2017 (see paragraphs 18 and 19 above). 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 impugned proceedings fall within the Court’s competence ratione temporis for a period of more than twelve years and eleven months.
34. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question 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).
35. The Court considers that neither the complexity of the case nor the applicant’s conduct explains the length of proceedings. The Government did not supply any explanation for the delay or provide any comment on this matter.
36. Having examined all the material submitted to it and in view of its case-law on the subject, the Court considers that, in the absence of any justification, the said length of proceedings of more than twelve years and eleven months at two levels of jurisdiction was excessive and failed to meet the “reasonable time” requirement.
37. There has accordingly been a breach of Article 6 § 1.
B. As regards the non-enforcement of a final domestic judgment and the length of the administrative proceedings
38. The Court observes that these complaints were indeed not included in the initial application, but were raised for the first time in the applicant’s letter to the Court of 9 April 2015.
39. The Court recalls that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see Tešić v. Serbia, nos. 4678/07 and 50591/12, § 55, 11 February 2014 and the authorities cited therein).
40. Since these complaints were raised before the Court on 9 April 2015, that is to say after the constitutional appeal became an effective domestic remedy in the respondent State (see paragraph 30 above) the applicant was under an obligation to avail himself of the constitutional appeal procedure before turning to Strasbourg.
41. Accordingly, these complaints must be declared inadmissible for non-exhaustion of domestic remedies and be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
42. In view of the above finding, the Court does not find it necessary to examine the Government’s objection in respect of the six month issue.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
43. In his observations dated 5 July 2017 the applicant complained, for the first time, about the outcome of separate civil proceedings concerning the payment of the severance and employment related taxes and contribution before the Commercial Court.
44. The Court observes that this complaint was not included in the initial application, but was raised in the applicant’s observations of 5 July 2017. The Court considers, therefore, that it is not appropriate to examine this complaint in the context of this application (see, Mugoša v. Montenegro, no. 76522/12, §§ 70-71, 21 June 2016, and Stanka Mirković and Others v. Montenegro, nos. 33781/15 and 3 others, §§ 64-66, 7 March 2017).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. 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
46. The applicant claimed 107,859 euros (EUR) in respect of pecuniary damage. He also claimed non-pecuniary damage, but left it to the Court’s discretion as to the exact amount.
47. The Government contested these claims.
48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in the Court view, it is clear that the applicant sustained some non‑pecuniary loss arising from the breach of his right under Article 6 of the Convention, for which he should be compensated. The Court therefore considers it reasonable to award the applicant EUR 4,800 for non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
49. The applicant further claimed EUR 4,005 for the costs and expenses incurred before the domestic courts. He did not claim anything in respect of the costs and expenses before the Court.
50. The Government contested this claim.
51. 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 rejects the applicant’s claim for costs and expenses before the domestic courts as they were not incurred in order to remedy the violation in issue.
52. Since the applicant made no claim in respect of costs and expenses before the Court, the latter considers that there is no call to award him any sum on that account.
C. Default interest
53. 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 about the length of civil proceedings concerning the applicant’s reinstatement and damages admissible;
2. Declares the complaints about the non-enforcement of a final domestic judgment of 1 March 2012 and the length of administrative proceedings inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the above civil proceedings;
4. Holds
(a) that the respondent State is to pay the applicant within three months EUR 4,800 less any amounts which may have already been paid in that connection at the domestic level, in respect of non-pecuniary damage plus any tax that may be chargeable to the applicant;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy