Communicated on 21 January 2015
SECOND SECTION
Application no. 17335/07
Budislav MINIĆ against Montenegro
and 5 other applications
(see list appended)
The six applicants in the present cases lodged six applications (the first applicant lodged two applications; and the fifth and sixth applicants lodged one application; for additional personal details see the attached Annex). They are all represented before the Court by Mr R. Šuković and Mr B. Minić (who is also the first applicant), lawyers practising in Bijelo Polje and Kolašin, respectively, except for the first 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:
1. The civil proceedings
(a) The second and third applicants
On 10 January 2001 the second and third applicants lodged a compensation claim against another private person, X. On 6 July 2001 the Court of First Instance (Osnovni sud) in Kolašin suspended the proceedings (prekida se postupak) until the criminal proceedings against X were terminated. This decision was upheld by the High Court (Viši sud) in Bijelo Polje on 1 March 2002.
By 24 October 2008 the criminal proceedings against X were terminated.
On an unspecified date in 2010 but prior to 27 May 2010, after three requests by the second and third applicants to that effect, the civil proceedings against X were resumed. On 28 June 2010 the Court of First Instance ruled in favour of the second applicant and considered the claim lodged by the third applicant withdrawn. On 10 December 2010 the High Court upheld this judgment.
(b) The fourth applicant
On 26 November 1999 a private person instituted civil proceedings against the fourth applicant seeking removal of certain sewage pipes. On 13 June 2008, after three remittals, the Court of First Instance in Kolašin ruled against the fourth applicant, which decision was upheld by the High Court in Bijelo Polje on 20 December 2008.
2. The compensation proceedings (all the applicants)
On an unspecified date in 2003 the first 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 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 file as to the outcome of the appeal.
On 16 June 2005 and 2 June 2006, respectively, the Court of First Instance in Bijelo Polje ruled against the first applicant upon two other such compensation claims, on the grounds that these proceedings in respect of which he complained of the length, had been concluded within a reasonable time and that the first applicant had contributed to the length thereof, respectively.
On 26 June 2006 the Supreme Court 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).
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 first applicant and rejected his claims, relying on the said legal opinion.
Between 29 January 2007 and 24 August 2007 all the applicants lodged compensation claims against the State before the Supreme Court, 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 or had recently been concluded.
Between 26 February 2007 and 11 September 2007 the Supreme Court declared that it lacked competence to deal with the claims, also relying on the said legal opinion, and rejected them.
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 Act).
...
The right to a hearing within a reasonable time is provided in section 7 of the Courts Act, whereas the Civil Procedure Act 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.
COMPLAINTS
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.
The second, third and fourth applicants also complain about the length of civil proceedings against other private persons. They also invoked Article 13 of the Convention in that they lacked an effective domestic remedy for the length of various domestic proceedings.
QUESTIONS
1. Were the decisions of the Supreme Court 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. Was the length of the civil proceedings involving the second, third and fourth applicants in breach of the “reasonable time” requirement contained in Article 6 § 1 of the Convention?
3. Having regard to the decisions refusing to examine their compensation claims, were the second, third and fourth applicants denied an effective remedy to complain about the length of their domestic proceedings, in breach of Article 13 of the Convention?
APPENDIX
Application
no.
Lodged on
Applicant name
Nationality
Place of residence
Represented by
17335/07
07/04/2007
Budislav MINIĆ
(the first applicant)
Montenegrin
Kolašin
Radivoje ŠUKOVIĆ
17337/07
07/04/2007
Budislav MINIĆ
(the first applicant)
Montenegrin
Kolašin
Radivoje ŠUKOVIĆ
17389/07
07/04/2007
Žarko BULATOVIĆ
(the second applicant)
Montenegrin
Kolašin
Budislav MINIĆ and
Radivoje ŠUKOVIĆ
17403/07
07/04/2007
Darinka MINIĆ
(the third applicant)
Montenegrin
Kolašin
Budislav MINIĆ and
Radivoje ŠUKOVIĆ
50417/07
23/08/2007
Ɖurađ RADOVIĆ
(the fourth applicant)
Montenegrin
Kolašin
Budislav MINIĆ and
Radivoje ŠUKOVIĆ
37837/07
20/08/2007
Milidrag BULATOVIĆ
(the fifth applicant)
Montenegrin
Kolašin
and “Goleš”
(the sixth applicant)
Montenegrin
Kolašin
Budislav MINIĆ and
Radivoje ŠUKOVIĆ
Full & Egal Universal Law Academy