Communicated on 17 December 2015
SECOND SECTION
Application no. 80104/13
Dan Laurentiu TRIPCOVICI and Armenuhi TRIPCOVICI
against Montenegro
lodged on 8 July 2012
STATEMENT OF FACTS
The applicants, Mr Dan Laurentiu Tripcovici (“the first applicant”) and Ms Armenuhi Tripcovici (“the second applicant”), both of whom have dual Romanian and Italian nationality, were born in 1949 and 1923 respectively and live in Bucarest (Romania).
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first and second applicants are co-owners of, inter alia, two adjacent plots of land in Montenegro.
On 13 June 2009 the first applicant, during a visit, noticed a metal fence built partly on their property. The fence divided their two plots of land and made it impossible for them to access one plot of land from another. It appears that the fence was erected some time in February 2009.
On 15 July 2009 the applicants instituted civil proceedings for trespass (radi smetanja posjeda) against B.Ć., their neighbour.
On 27 June 2011 the Court of First Instance (Osnovni sud) in Kotor ruled in favour of the applicants and ordered B.Ć. to remove the fence and pay the applicants 1,435 euros for legal costs. The court considered that the applicants had lodged their claim in time given that the time limit for initiating the proceedings was 30 days from the day when they had noticed a trespass and given that 13 and 14 July were national holidays. In doing so the court relied on section 77 of Property Act (see B.1 below).
On 20 December 2011 the High Court (Viši sud) in Podgorica, ruling upon B.Ć.’s appeal, quashed the previous judgment and rejected the applicants’ claim (tužba se odbacuje) as submitted out of time. The court held that 13 and 14 July were indeed national holidays when the courts did not work. It considered, however, that the 30-day time limit within which the applicants had to institute proceedings was preclusive “[in which case] there was no shifting of the time limit when its last day fell on a day when the courts do not work”. Therefore the time limit had expired on 13 July 2009, while the applicants had filed their claim on 15 July 2009.
B. Relevant domestic law
1. Property Act (Zakon o svojinsko-pravnim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/1980 and 36/1990, and Official Gazette of Federal Republic of Yugoslavia no. 29/1996)
Section 77 provided that an action for trespass (spor zbog smetanja državine) could be lodged within 30 days as of the day when one learned of a trespass and a trespasser, and in any event within a year.
2. 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 the Official Gazette of Montenegro no. 73/10)
Section 108 provides that time limits are calculated in days, months and years. If the time limit is set in days, it shall start running not as of the day when the impugned event occurs but as of the next day. It further provides that if the last day of the time limit expires on the day of a national holiday or a Sunday or some other day when the courts do not work, the time limit shall expire on the first working day afterwards.
Section 443 of the Civil Procedure Act provides that an appeal on points of law is not allowed against civil courts’ decisions on trespass.
COMPLAINTS
The applicants complain under Article 6 of the Convention that they were unlawfully denied access to court and that the judgment of the High Court was arbitrary. They also complain under Article 1 of Protocol No. 1 about an arbitrary interference with their property rights.
QUESTIONS TO THE PARTIES
1. Was the decision of the High Court of 20 December 2011 to reject the applicants’ claim as submitted out of time in breach of Article 6 § 1 of the Convention (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18; Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005‑X; García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000‑II; Mortier v. France, no. 42195/98, § 33, 31 July 2001; and Guérin v. France, 29 July 1998, § 37, Reports of Judgments and Decisions 1998‑V). In particular, given the provision of section 108 of the Civil Procedure Act, 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 to the Court any other case‑law in which the domestic courts rejected claims as submitted out of time when the relevant time-limits expired on a Sunday or a national holiday and a claim was lodged on the first working day afterwards.
2. Assuming that the High Court’s decision of 20 December 2011 was not in compliance with section 108 of the Civil Procedure Act, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, mutatis mutandis, Anđelković v. Serbia, no. 1401/08, § 24 and §§ 27-29, 9 April 2013)?
3. Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In particular, in view of the rejection of the applicants’ claim as out of time, did the State ensure that their property rights were sufficiently protected by law and that adequate remedies were provided by which they could seek to vindicate their rights (see, mutatis mutandis, Blumberga v. Latvia, no. 70930/01, § 67, 14 October 2008)?
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