Communicated on 12 January 2017
SECOND SECTION
Application no. 18912/15
Milorad VUJOVIĆ and LIPA D.O.O.
against Montenegro
lodged on 14 April 2015
STATEMENT OF FACTS
The applicants are Mr Milorad Vujović, a Montenegrin national who was born in 1956 and lives in Cetinje (the first applicant), and Lipa D.O.O., a limited liability construction company founded in Cetinje in 1990 (the second applicant). The first applicant is the founder, the sole owner and the executive director of the second applicant. They are represented before the Court by Mr B. Radović, a lawyer practising in Cetinje.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 27 December 2013 the Commercial Court (Privredni sud) in Podgorica opened insolvency proceedings (stečajni postupak) in respect of the second applicant and, inter alia, appointed an insolvency administrator (stečajni upravnik). In the proceedings before the Commercial Court the second applicant was represented by the first applicant and a lawyer duly authorised by him.
On 23 January 2014 the second applicant, through the lawyer, appealed.
On 18 March 2014 the Court of Appeals (Apelacioni sud) in Podgorica rejected the appeal (žalba se odbacuje) as having been submitted by an unauthorised person, given that the lawyer had not been appointed by the insolvency administrator. The court relied on sections 75 and 76 of the Insolvency Act (see at B below).
On 12 May 2014 the applicants lodged a constitutional appeal.
On 13 May 2014 the applicants’ representative filed an initiative with the Constitutional Court seeking the assessment of the constitutionality of section 76 of the Insolvency Act in force at the time. The initiative would appear to be still pending.
On 23 July 2014 the Constitutional Court (Ustavni sud) rejected the applicants’ constitutional appeal for “not having been lodged by a party to the domestic proceedings or by a person authorised to appeal on behalf of the person whose rights and freedoms were violated”. This decision was served on the applicants on 15 October 2014.
B. Relevant domestic law
Article 20 of the Constitution (Ustav Crne Gore) provides that everyone is entitled to a legal remedy against a decision on their rights or a legally based interest.
Section 75 of the Insolvency Act 2011 (Zakon o stečaju), which entered into force on 19 January 2011, provides that the legal consequences of the opening of insolvency proceedings take effect as of the day when the notice of the opening of these proceedings was displayed on the notice board of the court.
Section 76 of the same Act provided that by opening insolvency proceedings all the rights in respect of company representation and management (zastupnička i upravljačka prava) of the executive director, legal representative and counsel (zastupnika i punomoćnika) ceased and were transferred to the insolvency administrator. By the amendments adopted in August 2016 this section was amended so as to provide that by opening insolvency proceedings all the rights in respect of company representation and management of the executive director, legal representative and counsel cease and are transferred to the insolvency administrator except for the right to lodge an appeal against the decision on the opening of insolvency proceedings.
COMPLAINTS
The applicants complain under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the refusal of the Court of Appeals to examine the merits of the second applicant’s appeal, and a violation of the first applicant’s property rights caused thereby.
QUESTIONS TO THE PARTIES
1. Are the first applicant’s complaints compatible with the provisions of the Convention, ratione personae, given that he is the sole owner of the second applicant (see Ankarcrona v. Sweden (dec.), no. 35178/97, 27 June 2000; see also, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 42, Series A no. 222; Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no. 16163/90, § 21, 31 July 2003; and Kin-Stib and Majkić v. Serbia, no. 12312/05, § 74, 20 April 2010)?
2. Was the decision of the Court of Appeals of 18 March 2014 to reject the second applicant’s appeal 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 guaranteed by this Article (see Baka v. Hungary [GC], no. 20261/12, § 120, ECHR 2016)?
3. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference in accordance with the law and did it impose an excessive individual burden on the applicants (see Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV; Zehentner v. Austria, no. 20082/02, § 73, 16 July 2009; and Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
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