FIRST SECTION
CASE OF ŽIVALJEVIĆ AND OTHERS v. MONTENEGRO
(Application no. 55668/19)
JUDGMENT
STRASBOURG
18 July 2024
This judgment is final but it may be subject to editorial revision.
In the case of Živaljević and Others v. Montenegro,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Viktoriya Maradudina, Deputy Section Registrar,
Having deliberated in private on 27 June 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 October 2019.
2. The applicants were represented by Mr Lj. Marković, a lawyer practising in Podgorica.
3. The Montenegrin Government (“the Government”) were given notice of the application.
THE FACTS
4. The applicants’ details and information relevant to the application are set out in the appended table.
5. The applicants complained of the non-enforcement of domestic decisions given against socially/State-owned companies.
6. On 25 June 2019 the Constitutional Court found a violation of the applicants’ rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement. The applicants were awarded 2,000 euros (EUR) each in non-pecuniary damage.
7. In 2021, in the insolvency proceedings against a debtor, the insolvency administrator rendered decisions accepting the applicants’ claims. These decisions have not yet become final.
8. The domestic decisions under consideration remain unenforced.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 19. The applicants complained principally of the non-enforcement of domestic decisions given in their favour. They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1.
10. The Government submitted that the applicants had failed to inform the Court about the insolvency administrator’s decisions (see paragraph 7 above) and invited it to reject the application as an abuse of the right of individual application in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
11. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).
12. The Court further notes that the decisions in the present case ordered specific action to be taken. The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1.
13. In the leading cases of R. Kačapor and Others v. Serbia (nos. 2269/06 and 5 others, §§ 97-99, 106-16 and 119-20, 15 January 2008), and Mijanović v. Montenegro (no. 19580/06, §§ 81-91, 17 September 2013), the Court already found a violation in respect of issues similar to those in the present case.
14. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, as regards the Government’s argument (see paragraph 10 above), the Court notes that the insolvency administrator’s decisions have not yet become final and are thus not enforced. Therefore, the information in question did not concern the very core of the case as it is undisputed between the parties that the final decisions in the applicants’ favour under consideration remain unenforced (see paragraph 8 above). The Government’s objection must therefore be rejected.
15. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.
16. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
APPLICATION OF ARTICLE 41 OF THE CONVENTION17. Regard being had to the documents in its possession and its own case‑law (see, in particular, R. Kačapor and Others, cited above, §§ 123-26; Stošić v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013; and Mastilović and Others v. Montenegro, no. 28754/10, § 52, 24 February 2022) the Court considers it reasonable not to award the applicants compensation in respect of non‑pecuniary damage because it has already been awarded domestically (see paragraph 6 above), but to award them a sum for costs and expenses indicated in the appended table.
18. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that this application discloses a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non‑enforcement of domestic decisions given against socially/State-owned companies;Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;Holds(a) that the respondent State is to pay the applicants, within three months, the amount indicated in the appended table in respect of costs and expenses, at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 18 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Péter Paczolay
Deputy Registrar President
APPENDIX
Application raising complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions given against socially/State-owned companies)
The applicants are represented before the Court by Mr Ljubomir Marković, a lawyer practicing in Podgorica.
Application no.
Date of introduction
Applicant’s name
Year of birth
Relevant domestic decision
Start date of non-enforcement period
End date of non-enforcement period
Amount awarded for costs and expenses per application
(in euros)[1]
55668/19
09/10/2019
(88 applicants)
Miodrag ŽIVALJEVIĆ
1956
Milan ASANOVIĆ
1958
Gordana BAJIĆ
1968
Milorad BOGOJEVIĆ
1956
Vasilije BOLJEVIĆ
1946
Vasilije BOLJEVIĆ
1948
Branislav BOROVINIĆ
1947
Radenko BOŠKOVIĆ
1955
Goran BUBANJA
1968
Dragan BULATOVIĆ
1974
Mirko BULATOVIĆ
1967
Slavko CEKOVIĆ
1966
Zoran ČOVIĆ
1991
Miodrag ĆUPIĆ
1955
Zvezdana DABANOVIĆ
1947
Zef DEDIVANOVIĆ
1951
Đevad DELJANIN
1943
Milutin ĐOROJEVIĆ
1948
Milutin ĐUKANOVIĆ
1947
Zoran ĐUKANOVIĆ
1957
Miodrag DUMOVIĆ
1941
Golub GOLUBOVIĆ
1968
Vojka GOLUBOVIĆ
1945
Slavica GRGUROVIĆ
1960
Pero GRUJIĆ
1969
Bisera HAROVIĆ
1944
Željko ILIĆ
1955
Marinko IVANOVIĆ
1971
Marko IVANOVIĆ
1950
Miloš IVANOVIĆ
1962
Radomir IVANOVIĆ
1976
Saveta IVANOVIĆ
1952
Radivoje JOVANOVIĆ
1946
Radomir JOVANOVIĆ
1958
Radovan JOVANOVIĆ
1956
Veselinka JUŠKOVIĆ
1949
Kosa KAŽIĆ
1963
Špiro KLIKOVAC
1947
Veseljko KLJAJIĆ
1967
Ilija KNEŽEVIĆ
1941
Vojko KNEŽEVIĆ
1941
Selman LJAČEVIĆ
1952
Stojanka MAKOČEVIĆ
1940
Milan MARAŠ
1958
Miodrag MARKOVIĆ
1957
Zlatko MARKOVIĆ
1985
Vjera MIJATOVIĆ
1952
Danilo MIKULIĆ
1940
Radovan MILOŠEVIĆ
1939
Milorad MIRANOVIĆ
1949
Biljana MITROVIĆ
1961
Bosa MUGOŠA
1946
Srđan NIKČEVIĆ
1968
Milenko NOVAKOVIĆ
1956
Željko NOVIĆEVIĆ
1971
Gojko PAJOVIĆ
1947
Radomir PAJOVIĆ
1948
Đon PALJAJ
1960
Milka PAVIĆEVIĆ
1963
Zoran PEJOVIĆ
1962
Velibor POLEKSIĆ
1954
Raško RADEVIĆ
1954
Milan RADINOVIĆ
1939
Miodrag RADINOVIĆ
1957
Nenad RADINOVIĆ
1957
Đorđije RADONJIĆ
1950
Mihailo RADOVIĆ
1938
Predrag RADULOVIĆ
1975
Vaso RADUNOVIĆ
1980
Ljubomir RAJOVIĆ
1952
Sado RAMOVIĆ
1955
Isah RASTODER
1954
Slobodanka RONDOVIĆ
1943
Izet ŠABOVIĆ
1982
Milan ŠALETIĆ
1968
Velimir ŠĆEPANOVIĆ
1942
Momo STIJEPOVIĆ
1952
Mirko STOJANOVIĆ
1966
Aco ŠUŠKAVČEVIĆ
1957
Mesudin
TALJANOVIĆ
1966
Danilo TOMIĆ
1951
Bajram TUZOVIĆ
1954
Savo USKOKOVIĆ
1948
Nevena VUJAČIĆ
1963
Zorica VUJOŠEVIĆ
1951
Mirjana VUKOVIĆ
1966
Veselin VUKSANOVIĆ
1964
Predrag VULETIĆ
1952
Court of First Instance
Podgorica, 29/10/2007
Court of First Instance
Podgorica, 20/05/2009
Supreme Court 14/04/2009
Court of First Instance
Podgorica, 20/05/2009
High Court Podgorica
05/05/2009
Court of First Instance
Podgorica, 24/09/2007
High Court Podgorica
28/04/2009
Supreme Court
31/03/2009
Supreme Court
06/06/2009
Supreme Court
06/06/2009
High Court Podgorica
22/06/2009
High Court Podgorica
30/06/2009
High Court Podgorica
10/07/2009
Court of First Instance Podgorica
01/06/2009
Court of First Instance Podgorica
25/05/2009
Court of First Instance Podgorica
22/07/2009
Court of First Instance Podgorica
22/07/2009
Court of First Instance Podgorica
22/07/2009
Court of First Instance Podgorica
17/02/2009
Court of First Instance Podgorica
24/11/2009
Supreme Court
04/11/2009
Court of First Instance Podgorica
10/10/2009
Court of First Inst ancePodgorica
22/03/2010
Court of First Instance Podgorica
22/03/2010
Court of First Instance Podgorica
21/04/2009
Court of First Instance Podgorica
22/07/2009
Court of First Instance Podgorica
09/04/2010
Court of First Instance Podgorica
09/04/2010
Court of First Instance Podgorica
09/04/2010
Court of First Instance Podgorica
16/03/2010
Court of First Instance Podgorica
24/03/2010
Court of First Instance Podgorica
30/03/2010
Court of First Instance Podgorica
10/04/2007
Court of First Instance Podgorica
29/04/2010
Court of First Instance Podgorica
28/04/2010
Court of First Instance Podgorica
19/07/2010
Court of First Instance Podgorica
07/10/2010
Court of First Instance Podgorica
21/03/2011
Court of First Instance Podgorica
16/06/2011
Court of First Instance Podgorica
15/03/2010
High Court Podgorica
22/04/2010
Commercial Court
16/10/2017
Commercial Court
28/11/2017
16/05/2009
20/05/2009
04/06/2009
16/06/2009
16/06/2009
18/06/2009
19/06/2009
02/07/2009
02/07/2009
02/07/2009
22/07/2009
11/09/2009
16/09/2009
15/10/2009
09/11/2009
28/11/2009
02/12/2009
02/12/2009
24/12/2009
17/03/2010
07/04/2010
07/04/2010
10/04/2010
12/04/2010
12/04/2010
12/04/2010
12/04/2010
12/04/2010
12/04/2010
14/04/2010
12/05/2010
15/05/2010
17/05/2010
17/05/2010
27/05/2010
07/09/2010
08/03/2011
01/04/2011
23/06/2011
16/10/2017
12/05/2010
16/10/2017
28/11/2017
pending more than 15 years and 18 days
pending more than 15 years and 14 days
pending more than 15 years
pending more than 14 years, 11 months and 18 days
pending more than 14 years, 11 months and 18 days
pending more than 14 years, 11 months and 16 days
pending more than 14 years, 11 months and 15 days
pending more than 14 years, 11 months and 1 day
pending more than 14 years, 11 months and 1 day
pending more than 14 years, 11 months and 1 day
pending more than 14 years, 10 months and 12 days
pending more than 14 years, 8 months and 23 days
pending more than 14 years, 8 months and 18 days
pending more than 14 years, 7 months and 19 days
pending more than 14 years, 6 months and 25 days
pending more than 14 years, 6 months and 6 days
pending more than 14 years, 6 months and 1 day
pending more than 14 years, 6 months and 1 day
pending more than 14 years, 5 months and 10 days
pending more than 14 years, 2 months and 17 days
pending more than 14 years, 1 month and 27 days
pending more than 14 years, 1 month and 27 days
pending more than 14 years, 1 month and 24 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 22 days
pending more than 14 years, 1 month and 20 days
pending more than 14 years and 22 days
pending more than 14 years and 19 days
pending more than 14 years and 17 days
pending more than 14 years and 17 days
pending more than 14 years and 7 days
pending more than 13 years, 8 months and 27 days
pending more than 13 years, 2 months and 26 days
pending more than 13 years, 2 months and 2 days
pending more than 12 years, 10 months and 11 days
pending more than 6 years, 7 months and 18 days
pending more than 14 years and 22 days
pending more than 6 years, 7 months and 18 days
pending more than 6 years, 6 months and 6 days
250
[1] Plus any tax that may be chargeable to the applicants.