SECOND SECTION
DECISION
Application no. 14336/09
Vera KECOJEVIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 2 February 2016 as a Chamber composed of:
Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 19 February 2009,
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, Ms Vera Kecojević, is a Montenegrin national, who was born in 1957 and lives in Nikšić. She is represented before the Court by Mr M. Vojinović, a lawyer practising in Nikšić.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 28 December 2004 the President of the Municipality of Nikšić issued a decision appointing a Restitution and Compensation Commission (Komisija za povraćaj i obeštećenje, hereinafter “the Commission”). This decision was not confirmed by the Municipal Assembly and the remuneration of the members of the Commission was never specified. The Commission functioned until 8 July 2005, when it was replaced by a new one. The applicant was a member of both Commissions.
4. On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation in the amount of EUR 1,500 in respect of remuneration for her work in the Commission between 28 December 2004 and 8 July 2005, as she had not been paid during the said period.
5. On 2 July 2007 the Court of First Instance (Osnovni sud) in Nikšić ruled against the applicant on the ground that the Commission had had no legitimacy during the specified time, given that the decision on its appointment had not been confirmed by the Municipal Assembly, and as the remuneration for the said period had never been defined.
6. On 3 October 2008 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, essentially endorsing the reasons contained therein.
7. On 6 October 2008 the High Court in Podgorica overturned a first‑instance judgment issued in respect of one of the applicant’s colleagues, and awarded him compensation in the amount of EUR 1,380 in respect of remuneration for his work in the same Commission in the same period, plus accompanying interest and the costs of the proceedings. In doing so the court held, in particular, that the Commission had had a temporary character by virtue of the law itself and that therefore the first‑instance court’s conclusion that it had lacked legitimacy was wrong. Also section 58 of the Local Self-Governance Act 2003 specifically provided that if the Assembly did not confirm a certain decision or the President of the Municipality did not submit it for confirmation, the decision would cease to be in force as of the day when the Assembly terminated its session. Therefore, it had to be considered that the Commission had ceased to operate when the decision on its appointment was not confirmed, that is on 8 July 2005 in the given case. The court noted that the Court of First Instance had also taken into account that no act defined remuneration of the members of the Commission. However, the High Court held that, pursuant to section 28 (3) of the Restitution and Compensation Act, members of the Commission had the status of civil servants, and were therefore entitled to remuneration. In any event claimants should not suffer any detriment on account of the legislature’s failure to define the exact amount of their remuneration.
B. Relevant domestic law
1. Restitution of Expropriated Property Rights and Compensation Act 2004 (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju; published in the Official Gazette of the Republic of Montenegro - OG RM - no. 21/04)
8. Section 28 (1) provided that Municipal Assemblies would establish Restitution and Compensation Commissions within 60 days as of the date when this Act entered into force. Section 28 (3) further provided, inter alia, that members of the Commissions had the status of civil servants.
9. This Act entered into force on 8 April 2004.
2. The Amendments to the Local Self-Governance Act 1995 (Zakon o izmjenama i dopunama Zakona o lokalnoj samoupravi; published in the OG RM no. 16/95)
10. The said amendments introduced section 41a, which specified that the President of the Municipality could temporarily issue decisions falling within the Assembly’s competence, if the Assembly could not convene or for some other reason it was impossible for it to work and the said decisions were of interest for exercising citizens’ rights and freedoms. The President of the Municipality had to submit such a decision to the Assembly for its confirmation as soon as the Assembly could convene.
3. Local Self-Governance Act 2003 (Zakon o lokalnoj samoupravi; published in the OG RM no. 42/03)
11. Section 58 provides that the president of the Municipality can temporarily issue decisions falling within the Assembly’s competence, if the Assembly cannot convene or for some other reason it is impossible for it to work, and the absence of these decisions would endanger lives or property of great value. The President of the Municipality shall submit such a decision to the Assembly for its confirmation at its first session. If the Assembly does not confirm such a decision or the President does not submit it for confirmation, the decision shall cease to be in force (prestaje da važi) on the day when the session of the Assembly terminates.
12. This Act entered into force on 24 July 2003 except for Chapter V, including section 58, which was to enter into force as of the next local elections, which took place in Nikšić on 12 March 2005. Until then the relevant provisions of the earlier Act, including section 41a, continued in force.
4. Civil Procedure Act (Zakon o parničnom postupku; published in the OG RM nos. 22/04, 28/05, 76/06, and the Official Gazette of Montenegro no. 73/10)
13. Section 397 (2) in force at the time provided, inter alia, that an appeal on points of law against a second-instance decision would not be admissible in pecuniary matters unless the value of the claim exceeded EUR 10,000. Section 397 (4) (2) provided that exceptionally to the previous provision, an appeal on points of law was always admissible in disputes “for loss of earnings or other work-related income when these compensations were established or quashed for the first time” (zbog izgubljene zarade ili drugih prihoda po osnovu rada kada su te odštete prvi put određene ili ukinute).
14. Sections 433 - 438 set out details as to employment-related disputes. Section 438 provided in particular that an appeal on points of law was allowed only in disputes relating to employment, as well as continuation and termination thereof.
15. Sections 398 and 410, taken together, provided that the Supreme Court, when deciding upon an appeal on points of law, could either overturn the second-instance decision in cases when the substantive law was misapplied, or quash it and order a re-trial when the facts were incompletely established due to a misapplication of substantive law.
COMPLAINT
16. The applicant complained under Article 6 of the Convention about inconsistent practice of the domestic courts.
THE LAW
17. The Government submitted that the applicant had failed to lodge an appeal on points of law with the Supreme Court pursuant to section 397 (4) (2) of the Civil Procedure Act (see paragraph 13 in fine above). They maintained that the impugned proceedings were not employment‑related and that therefore section 438 of the said Act was not applicable in the applicant’s case.
18. The applicant submitted that she could not avail herself of this remedy as the value of her claim was well below the statutory threshold (see paragraph 13 in limine above) nor did it concern any of the issues provided under section 438 of the Civil Procedure Act (see paragraph 14 above). She made no comment on section 397 (4) (2) to which the Government referred.
19. The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before they are submitted to the Court (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). However, the only remedies which the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V; and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).
20. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 222, ECHR 2014 (extracts)); it falls to the respondent State to establish that these various conditions are satisfied (see Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006‑II; Selmouni v. France [GC], cited above, §§ 74-75; Vernillo v. France, 20 February 1991, § 27, Series A no. 198; and Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998‑I).
21. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from that requirement (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 89, 9 July 2015).
22. Turning to the present case, the Court notes that the applicant alleges that the domestic courts ruled differently in disputes arising from the same factual situation. It is also observed that the last decision was issued by the High Court and that the applicant indeed failed to lodge an appeal on points of law against it before the Supreme Court. The Court recalls in this regard that an appeal on points of law is, in principle, an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Rakić and Others v. Serbia, nos. 47460/07 et seq., § 37, 5 October 2010, and the authorities cited therein; see also Debelić v. Croatia, no. 2448/03, §§ 20-21, 26 May 2005) and that thereby the Supreme Court could have put right the alleged violation before it was submitted to the Court (see paragraph 15 above).
23. The Court notes, just as the applicant submitted, that the value of her claim was well below the statutory threshold allowing for an appeal on points of law. The parties agree that the impugned proceedings did not fall under section 438 of the Civil Procedure Act either (see paragraphs 13 and 14 above).
24. The applicant, however, made no comment whatsoever in respect of section 397 (4) (2), explicitly relied on by the Government, and its applicability in her case. The said provision provided that an appeal on points of law was always admissible in disputes over loss of earnings or other work-related income “when these compensations were established or quashed for the first time”. While admittedly this provision would benefit from further interpretation, notably as regards its last part, the Court is of the opinion that the applicant’s claim clearly concerned an alleged loss of earnings and as such fell prima facie within the ambit of this statutory provision.
25. In view of the above, the Court considers that the applicant should have lodged an appeal on points of law with the Supreme Court pursuant to section 397 (4) (2) of the Civil Procedure Act, particularly since the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia, (preliminary objection) [GC], cited above, § 74; see also Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996‑IV; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).
26. Therefore, the applicant’s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 February 2016.
Abel CamposIşıl Karakaş
Deputy RegistrarPresident
Full & Egal Universal Law Academy