SECOND SECTION
Application no. 17323/07
Slavka LAKIĆEVIĆ against Montenegro
and 7 other applications
(see list appended)
STATEMENT OF FACTS
The seven applicants in the present cases lodged eight applications (the sixth applicant lodged two applications; for additional personal details and the date of introduction of the applications see the attached Annex). They are all represented before the Court by Mr R. Šuković and Mr B. Minić (who is also the third applicant), lawyers practising in Bijelo Polje and Kolašin, respectively, except for the third applicant himself, who is represented by Mr R. Šuković alone.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows:
On an unspecified date in 2003 the third applicant filed a compensation claim against the State, maintaining that his right to a trial within a reasonable time had been violated, as one set of enforcement proceedings to which he was a party was still ongoing. On 23 December 2004 the Court of First Instance (Osnovni sud) in Bijelo Polje ruled partly in his favour, relying on section 11 of the Civil Procedure Act and section 7 of the Courts Act (see B.2 and B.3 below), as well as on Article 6 of the Convention. It would appear that on an unspecified date thereafter the State filed an appeal. There is no information in the case files as to the outcome of the appeal.
Between 1 January 2005 and 28 December 2005 all the applicants filed compensation claims against the State, maintaining that their right to a trial within a reasonable time had been violated, as a number of civil proceedings, previously instituted by or against them, were still ongoing at the time.
On 16 June 2005 and 2 June 2006, respectively, the Court of First Instance in Bijelo Polje ruled against the third applicant upon two other such compensation claims, on the grounds that these proceedings in respect of which he had complained of the length, were concluded within a reasonable time and that the third applicant had contributed to the length thereof, respectively.
On 26 June 2006 the Supreme Court (Vrhovni sud) issued a legal opinion (pravni stav) specifying that the national legal system of Montenegro did not have a legal remedy for violations of the right to a trial within a reasonable time, that the courts in Montenegro had no jurisdiction to rule on the matter and that all those who considered that their right to a trial within a reasonable time had been violated could lodge an application with the European Court of Human Rights (see B.1 below).
Between 11 July 2006 and 28 September 2006 the Court of First Instance in Bijelo Polje decided it had no jurisdiction to rule on the applicants’ compensation claims and rejected them. These decisions were upheld by the High Court (Viši sud) in Bijelo Polje by 3 May 2007. In so doing both courts referred to the Supreme Court’s legal opinion.
On 1 February 2007 and 18 October 2006, respectively, the High Court in Bijelo Polje quashed the first-instance judgments issued on 16 June 2005 and 2 June 2006 in respect of the third applicant and rejected his claims, also relying on the said legal opinion.
The applicants did not attempt to make use of an appeal on points of law (revizija) to the Supreme Court in view of the fact that the said opinion was issued by that very court.
B. Relevant domestic law and practice
1. Opinion issued by the Supreme Court of Montenegro on 26 June 2006 (Pravni stav Vrhovnog suda Republike Crne Gore; SU VI br. 38/2006)
The relevant parts of this Opinion read as follows:
“The domestic legal system offers no legal remedy against violations of the right to a hearing within a reasonable time, which is why the courts in the Republic of Montenegro have no jurisdiction to rule in respect of claims seeking non-pecuniary damages caused by a breach of this right. Any person who considers himself a victim of a violation of this right may therefore lodge an application with the European Court of Human Rights, within six months as of the adoption of the final judgment by the domestic courts.
[When asked to rule in respect of the compensation claims referred to above] ... the courts in the Republic of Montenegro must decline jurisdiction ... and declare ... [them] ... inadmissible (pursuant to section 19 (3) of the Civil Procedure Code).
[...]
The right to a hearing within a reasonable time is provided in section 7 of the Courts Act, whereas the Civil Procedure Code provides in section 11 (1) a duty of the courts to attempt to conduct the proceedings without delays, within a reasonable time...
Section 200 of the Obligations Act provides that ... non-pecuniary damage can be awarded for ... violations of ... the rights of individuals...
It can be concluded from the above-mentioned regulations that the legal system guarantees everybody the right to a hearing within a reasonable time, and not only because the European Convention on Human Rights is directly applicable on the national level, but also because the domestic legislation explicitly provides for that right.”
2. The Courts Act (Zakon o sudovima; published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 05/02 and 49/04)
Section 7 of this Act provides that everybody has the right to an impartial trial within a reasonable time.
3. The Civil Procedure Act (Zakon o parničnom postupku, published in the OG RM nos. 22/04, 28/05 and 76/06)
Section 11 (1) provides, inter alia, for the obligation of the domestic courts to ensure that the proceedings are conducted without delays, and within a reasonable time.
4. The Obligations Act (Zakon o obligacionim odnosima, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 57/89 and 31/93)
Section 172 (1) of the Obligations Act in force at the time provided that a legal entity was liable for the damage caused to a third party by one of its bodies in exercising its functions or in relation thereto.
Section 200 provided for a possibility of the courts to award non-pecuniary damages for, inter alia, violations of freedoms and rights of individuals (slobode i prava ličnosti).
5. Constitutional Charter of the State Union of Serbia and Montenegro (Ustavna povelja državne zajednice Srbija i Crna Gora, published in the Official Gazette of Serbia and Montenegro no. 1/03)
Article 5 provided that the State Union of Serbia and Montenegro consisted of the territory of its member States, Serbia and Montenegro.
Article 9 provided, inter alia, that the international treaties relating to human and minority rights and civil freedoms which were in force in Serbia and Montenegro, were directly applicable (neposredno se primenjuju).
Article 10 further provided, inter alia, that ratified international treaties had supremacy over the legislation of the member States.
This Charter entered into force on 4 February 2003.
COMPLAINT
Under Article 6 § 1 of the Convention the applicants complain about lack of access to a court in that the domestic courts refused to examine their compensation claims on the merits. They also invoked Article 13 of the Convention.
QUESTIONS
1. Were the decisions of the Court of First Instance and the High Court in Bijelo Polje to declare the applicants’ compensation claims inadmissible ratione materiae in breach of Article 6 § 1 of the Convention? In particular, given the relevant domestic provisions (see B.2 - B.4 below), have the applicants suffered a violation of their right of access to a court as guaranteed by Article 6 § 1 of the Convention? The Government are also invited to submit the decision of the High Court in Bijelo Polje, rendered upon an appeal against the judgment of 23 December 2004 of the Court of First Instance in Bijelo Polje P.br.12/03.
2. Alternatively, having regard to the decisions refusing to examine their compensation claims, were the applicants denied an effective remedy to complain about the length of their domestic proceedings, in breach of Article 13 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
Nationality
Place of residence
Represented by
Case number before the domestic courts
17323/07
07/04/2007
Slavka LAKIĆEVIĆ
(the first applicant)
Serbian
Kula
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 1013/05
17330/07
07/04/2007
Snežana OBRADOVIĆ
(the second applicant)
Serbian
Sivac
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 1027/05
17351/07
07/04/2007
Budislav MINIĆ
(the third applicant)
Montenegrin
Kolasin
Radivoje ŠUKOVIĆ
P. br. 258/06
17365/07
07/04/2007
Milan LAKIĆEVIĆ
(the fourth applicant)
Serbian
Sivac
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 1012/05
17392/07
07/04/2007
Mijomir MEDENICA
(the fifth applicant)
Montenegrin
Kolašin
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 922/05
30603/08
08/12/2006
Rodoljub ADAMOVIĆ
(the sixth applicant)
Serbian
Niš
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 12/06
30608/08
08/12/2006
Rodoljub ADAMOVIĆ
(the sixth applicant)
Serbian
Niš
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 115/06
30614/08
08/12/2006
Zorka GAZIBARA-ADAMOVIĆ
(the seventh applicant)
Serbian
Niš
Budislav MINIĆ and Radivoje ŠUKOVIĆ
P. br. 194/06
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