Communicated on 14 January 2015
SECOND SECTION
Application no. 45197/13
Irena RADUNOVIĆ against Montenegro
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants - Ms Irena Radunović (“the first applicantˮ), Mr Veselin Nenezić (“the second applicantˮ), and Mr Ivan Gajević (“the third applicantˮ) - are Montenegrin nationals who were born in 1982, 1967 and 1978 respectively and are all represented before the Court by Mr D. Marković, a lawyer practising in Podgorica.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were employees of the US Embassy (“the Embassy”) in Montenegro. The first applicant worked as a translator, and the second and third applicants as security officers. All the applicants were local staff.
Between 14 February 2009 and 28 June 2012 the applicants were informed by the Embassy that they were dismissed.
On 26 July 2010 the Court of First Instance (Osnovni sud) in Podgorica, apparently upon the third applicant’s claim to that effect, quashed the decision on his dismissal and ordered his reinstatement. It would appear that on an unspecified date thereafter this decision became final.
Between 22 November 2010 and 26 July 2012 the applicants instituted separate civil proceedings against the Embassy. The first and second applicants claimed that their dismissal was unlawful and sought compensation therefor and reinstatement. The third applicant claimed compensation for pecuniary damage suffered between the day of his dismissal and the date of his reinstatement, which date was not specified.
On 26 May 2011 the Court of First Instance in Podgorica declared that it lacked competence to deal with the first applicant’s claim and rejected it (tužba [se] odbacuje), which decision was upheld by the High Court on 21 June 2011. On 4 October 2011 the Supreme Court quashed these decisions. Relying on section 29 of the Civil Procedure Act, section 2 (1) of the Labour Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see at B.3 - B.5 below), the Supreme Court considered that the Montenegrin courts had jurisdiction to examine the merits of the first applicant’s claim.
Between 8 September 2011 and 24 September 2012 the Court of First Instance in Podgorica declared that it lacked competence to deal with the applicants’ claims (in a re-trial in respect of the first applicant) and rejected them. In substance, the court considered that the respondent State had immunity provided for by international law, and therefore could not be subjected to the jurisdiction of another State’s court.
On various dates thereafter the applicants appealed. The first applicant submitted, inter alia, that the Court of First Instance had to examine the claim on the merits pursuant to the decision of the Supreme Court of 4 October 2011 and relied on section 415 of the Civil Procedure Act (see at B.4 below).
Between 20 November 2011 and 6 December 2012 the High Court upheld the first-instance decisions, in substance endorsing their reasoning. The High Court further held, upon the first applicant’s appeal, that a violation of sections 367 (1) and 415 of the Civil Procedure Code (see at B.4 below) by the first-instance court did not render the first-instance decision unlawful, in particular as it was undisputed that the respondent party had its seat in another State and only a diplomatic representation in Montenegro.
Between 1 November 2012 and 10 May 2013 the Supreme Court upheld the previous decisions on the grounds that the respondent party was a foreign State with its own legal personality and the domestic courts had no competence to rule upon the applicants’ claim. The court relied on section 29 of the Civil Procedure Act, section 46 of the Resolution of Conflict of Laws and Regulations of other States Act, and Article 3 of the Vienna Convention on Diplomatic Relations.
Between 10 January 2013 and 12 July 2013 the applicants lodged separate constitutional appeals which are still pending.
B. Relevant domestic law
1. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)
Article 32 provides for the right to a fair trial.
Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.
The Constitution entered into force on 22 October 2007.
2. Montenegro Constitutional Court Act (Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64/08)
Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self‑government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted.
Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.
This Act entered into force in November 2008.
3. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro –OG RM – nos. 22/04, 28/05, 76/06 and in the OGM no 73/10).
Section 28 provides that the international law rules apply with regard to the competence of the Montenegrin courts to rule in disputes involving foreign citizens enjoying immunity, foreign States and international organisations.
Section 29 further provides that a Montenegrin court shall be competent to rule in a dispute with an international element when its competence in such a case is explicitly provided for by a piece of legislation or an international treaty or, in the absence of such a provision, by the provisions on territorial competence of the domestic court.
Section 367 sets out details as to what constitutes a relevant breach of civil procedure (bitna povreda odredaba parničnog postupka).
Section 415 provides that the court to which the case has been remitted is bound by a legal opinion of the Supreme Court contained in its decision issued upon an appeal on points of law by which the lower court’s judgment was quashed.
4. The Labour Act (Zakon o radu; published in the OGM nos. 49/08, 26/09, 88/09, 26/10, 59/11, 66/12, and 31/14)
Section 2 (1) provides, inter alia, that the Labour Act is applicable to the employees working for employers operating in the territory of Montenegro, unless otherwise stipulated by the law (ako zakonom nije drukčije određeno).
5. Resolution of Conflict of Laws and Regulations of other States Act (Zakon o rešavanju sukoba zakona sa propisima drugih zamalja; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 43/82 and 72/82, and in the Official Gazette of Federal Republic of Yugoslavia no. 46/96)
Section 20 (19) provides that if the relevant law was not selected and if the circumstances of the case do not imply otherwise, the relevant law for pecuniary claims arising from employment contracts shall be the law of the State in which the work is or was performed.
Section 46 provides, inter alia, that the domestic court is competent to rule only if the respondent party has residence, that is its seat, in Montenegro.
Section 47 provides that the competence of domestic courts exists when it is explicitly provided so by this or another domestic piece of legislation.
Section 55 provides that the domestic court shall be competent in disputes against, inter alia, legal entities which have their seat abroad, in respect of obligations which arose or are to be honoured in the domestic territory if that legal entity has its representation (predstavništvo ili zastupništvo) in that territory.
6. The Courts Act (Zakon o sudovima; published in the OG RM nos. 05/02 and 49/04, and in the OGM nos. 22/08, 39/11, 46/13, 48/13 and 32/14)
Section 16 provides that the Court of First Instance is competent to rule in employment-related disputes.
7. The Obligations Act 2008 (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11)
Sections 192-199, 205, and 206-212, inter alia, set out details as regards the compensation of pecuniary and non-pecuniary damage.
C. Relevant international law
Article 8 of the International Labour Organisation Convention on Termination of Employment (No. 158) provides, inter alia, that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
Article 3 of the Vienna Convention on Diplomatic Relations sets out details as regards the functions of diplomatic missions.
For other relevant international law, see Cudak v. Lithuania [GC], no. 15869/02, §§ 25-26, 28-30 and 32, ECHR 2010.
COMPLAINT
The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 12 thereto about a lack of access to a court in that the domestic courts refused to examine the merits of their civil claims against the US Embassy in Montenegro, relying on the respondent party’s immunity.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was an appeal to the Montenegrin Constitutional Court an effective remedy in respect of the applicants’ complaints? The Government are invited to indicate whether the Constitutional Court has already ruled in respect of any constitutional appeals relating to the right of access to a court. Copies of any relevant decisions in this regard should be submitted.
2. Were the decisions of the domestic courts to refuse to examine the merits of the applicants’ claims in breach of Article 6 § 1 of the Convention? In particular, have the applicants suffered a violation of their right of access to a court as guaranteed by Article 6 § 1 of the Convention (see Cudak v. Lithuania [GC], no. 15869/02, § 60-75, ECHR 2010)?
Appendix
File No
Case Name
1.
45197/13
RADUNOVIĆ v. Montenegro
2.
53000/13
NENEZIĆ v. Montenegro
3.
73404/13
GAJEVIĆ v. Montenegro
Full & Egal Universal Law Academy