Communicated on 16 December 2015
SECOND SECTION
Application no. 13039/11
Vladimir Andreevich KOLOSOV
against Montenegro
lodged on 20 February 2011
STATEMENT OF FACTS
The applicant, Mr Vladimir Andreevich Kolosov, is a Russian national, who was born in 1961 and lives in Moscow, Russia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date the applicant’s then wife filed divorce papers with the competent court in Moscow (Russian Federation), also seeking the division of property.
On 27 January 2011 she requested the Court of First Instance (Osnovni sud) in Kotor (Montenegro) to issue an interim measure prohibiting the applicant from disposing of two apartments (zabranjuje otuđenje i opterećenje nepokretnosti) in Budva (Montenegro) until the proceedings in Moscow ended.
On 1 February 2011 the court, in the absence of both the applicant and his representative, issued the said measure, which was duly registered in the Budva real estate register. The applicant received the relevant decision on 18 February 2011, which decision also contained the information that he could appeal within the next three days.
On 21 February 2011 the applicant sent his appeal by express mail, which was received at the High Court (Viši sud) in Podgorica on 28 February 2011 by a named court officer. The applicant submitted to the Court the relevant evidence in this regard.
On 18 March 2011 the High Court found that the applicant had sent his appeal on 22 February 2011 and rejected it (odbacio) as submitted out of time.
On 17 June 2011, the proceedings in Moscow ended with a friendly settlement.
On 22 June 2011 the applicant wrote to the High Court submitting, inter alia, that he had appealed on 21 February 2011, therefore in time. He also enquired on what basis the High Court had concluded that the appeal had been sent on 22 February 2011.
On 7 September 2011 one of the three High Court judges dealing with the applicant’s case informed the president of the High Court that “there was proof in the case-file that the appeal had been sent on 22 February” and that the High Court did not take into account other documents submitted by the applicant.
On 30 November 2011 the applicant’s ex-wife waived her rights in respect of the property in Montenegro and requested that the interim measure be revoked and deleted from the real estate register.
On 16 December 2011 the applicant informed both the courts in Kotor and Podgorica about the termination of the proceedings in Moscow and requested that the interim measure be revoked.
On 10 January 2012 the court in Kotor revoked the measure (ukida se privremena mjera).
On 30 April 2012 the applicant tried to sell his property in Budva, but could not as the interim measure was still registered. It turned out that the relevant decision had not yet been transmitted by the court in Kotor to the Budva Real Estate Registry. It would appear that the Real Estate Registry received it on 12 May 2012.
On 31 May 2012 the applicant requested the Real Estate Registry to delete the interim measure.
By 2 February 2013 the interim measure had not yet been deleted. There is no information in the case-file as to whether the measure has been deleted at a later stage and if so when.
B. Relevant domestic law
Article 58 of the Constitution of Montenegro (Ustav Crne Gore, published in the Official Gazette of Montenegro - OGM - no. 01/07) provides for the right to property (pravo svojine). In specifies, inter alia, that no one’s right to property can be restricted except when it is necessary in the public interest.
Section 10 of the Property Act (Zakon o svojinsko-pravnim odnosima, published in OGM no. 19/09) provides, inter alia, that the right to property can be limited only in accordance with the law.
Section 108 (2) of the Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 22/04, 28/05 and 76/06 and OGM no. 73/10) provides, inter alia, that if a submission is sent by post, the day when it was posted shall be considered as the day when it was lodged with the relevant court.
COMPLAINTS
Under various Articles of the Convention and Article 1 of Protocol No. 1 the applicant, in substance, complains about a lack of access to court, the right to a fair trial, and interference with his property rights.
QUESTIONS TO THE PARTIES
1. Was the decision of the High Court of 18 March 2011 to reject the applicant’s appeal as submitted out of time in breach of Article 6 § 1 of the Convention, given that the applicant’s appeal had been mailed within the three day time-limit (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11)?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in view of the absence of both the applicant and his representative from the proceedings in which the interim measure was issued (see Micallef v. Malta [GC], no. 17056/06, § 86, ECHR 2009)?
3. Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In particular, was the continued registration of the interim measure after 10 January 2012, preventing the applicant from disposing of his property, in accordance with the law (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58 and §§ 61-62, ECHR 1999‑II)?
The Government are also invited to inform the Court if the impugned interim measure was erased from the Budva real estate register and, if so, when. They are also invited to submit the relevant documents in that regard.
Full & Egal Universal Law Academy