Communicated on 6 January 2016
SECOND SECTION
Application no. 33781/15
Stanka MIRKOVIĆ against Montenegro
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 3 December 2004 the third and fourth applicants filed a request with the Restitution and Compensation Commission (hereinafter “the Commission”) seeking compensation for the land expropriated from their predecessor in 1946.
On 28 August 2005 the Commission ruled in their favour.
On 14 October 2005 the Ministry of Finance quashed the decision, upon an appeal filed on 19 September 2005 by the Supreme State Prosecutor (Vrhovni državni tužilac) in his capacity as legal representative of the respondent State.
On 17 April 2006 the Commission awarded compensation to all the applicants as they were all heirs of the said predecessor.
Between 12 June 2006 and 27 March 2014 the competent second‑instance administrative body and the Administrative Court issued sixteen decisions in total (eight decisions each).
The second-instance body (the Ministry of Finance at first and later the Appeals Commission) ruled upon a series of appeals mostly within the statutory time-limits, with only a few and minor exceptions.
On at least four occasions when initiating an administrative dispute before the Administrative Court the applicants explicitly referred to sections 37 and/or 58 of the Administrative Disputes Act (see B below) and urged the Administrative Court to decide on the merits of their request. The Administrative Court, for its part, never ruled on the merits of the initial compensation request, but rather quashed or upheld the quashing of the first-instance decision. Its last decision was issued on 27 March 2014, in substance remitting the case once again to the first-instance body.
On 27 June 2014 the Supreme Court upheld this decision.
On 28 October 2014 the Constitutional Court rejected the applicants’ constitutional appeal as premature given that their compensation request was pending before the Commission.
It would appear from the case file that the proceedings at issue are still pending, but there is no information as to before which body.
B. Relevant domestic law
Sections 37 and 58 of the Administrative Disputes Act (Zakon o upravnom sporu, published in the Official Gazette of the Republic of Montenegro no. 60/03, and the Official Gazette of Montenegro - OGM - nos. 73/10 and 32/11) provide, in substance, that the Administrative Court can rule on the merits of the initial request when quashing the lower body’s decision, and that, in principle, it shall rule on the merits when it had already quashed the impugned decision once, and the competent administrative body, in a re-examination, failed to issue another decision in accordance with the court’s previous judgment.
Section 2 of the Right to a Trial in a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku; published in the OGM no. 11/07) provides, inter alia, that parties and interested persons in an administrative dispute are entitled to the judicial protection afforded by this Act.
For other relevant domestic law see Vuković v. Montenegro (dec.), no. 18626/11, §§ 11-26, 27 November 2012.
COMPLAINTS
The applicants complain under Articles 6 and 13 of the Convention about the length of administrative proceedings and the lack of an effective domestic remedy in that regard.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, is a request for review an effective domestic remedy in the administrative proceedings, not only before the Administrative Court but also while they are pending before various administrative bodies beforehand (u upravnom postupku)? The Government are also invited to submit to the Court the relevant domestic case-law in this regard, if any.
2. Was the length of the administrative proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Živaljević v. Montenegro, no. 17229/04, §§ 75-78, 8 March 2011; Boucke v. Montenegro, no. 26945/06, §§ 89-94, 21 February 2012; Stakić v. Montenegro, no. 49320/07, §§ 47-51, 2 October 2012; Vukelić v. Montenegro, no. 58258/09, §§ 98-102, 4 June 2013)?
3. Has there been a violation of Article 13 taken together with Article 6 § 1 of the Convention? In particular, did the applicants have at their disposal an effective domestic remedy to expedite the administrative proceedings at issue and/or obtain compensation for the past delay (see Stakić v. Montenegro, cited above, §§ 52-60; and Milić v. Montenegro and Serbia, no. 28359/05, §§ 70-77, 11 December 2012)?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
33781/15
30/06/2015
Stanka MIRKOVIĆ
29/11/1939
Belgrade (Serbia)
Montenegrin
(“the first applicant”)
Oliver MIRKOVIĆ
33785/15
30/06/2015
Darinka MARJANOVIĆ
26/10/1931
Belgrade (Serbia)
Serbian
(“the second applicant”)
Oliver MIRKOVIĆ
34369/15
30/06/2015
Igor MIRKOVIĆ
26/05/1961
Belgrade (Serbia)
Serbian
(“the third applicant”)
Oliver MIRKOVIĆ
34371/15
30/06/2015
Oliver MIRKOVIĆ
03/04/1963
Pljevlja (Montenegro)
Montenegrin
(“the fourth applicant”)
himself
Full & Egal Universal Law Academy