Published on 24 June 2024
FIRST SECTION
Application no. 43050/22
Milorad VUJOVIĆ and LIPA D.O.O.
against Montenegro
lodged on 13 August 2022
communicated on 7 June 2024
SUBJECT MATTER OF THE CASE
The application concerns an alleged unlawful interference with the applicants’ right to the peaceful enjoyment of their property, and the fairness and the length of the proceedings.
The applicants are the sole owner of a company and the company itself.
On 27 December 2013 the Commercial Court opened insolvency proceedings in respect of the second applicant at the request of X. Following this Court’s finding of a violation of Article 6 due to lack of access to a court (see Vujović and Lipa D.O.O. v. Montenegro, no. 18912/15, §§ 41-44, 20 February 2018) and the re-opening of the domestic proceedings, the Commercial Court’s decision was upheld by the Court of Appeal on 29 November 2018. On four occasions between 3 November 2020 and 11 July 2022 the Constitutional Court found a violation of Article 6 in favour of the applicants and quashed the Court of Appeal’s decisions for being insufficiently reasoned and arbitrary. In at least two of their constitutional appeals the applicants also complained about the length of the proceedings and a violation of Article 1 of Protocol No. 1 in that the domestic courts’ opening of insolvency proceedings had amounted to an unlawful interference with their right to property, which had caused them enormous damage. The Constitutional Court did not deal with these complaints.
On 24 November 2022, after four remittals, the Court of Appeal accepted the second applicant’s appeal and quashed the Commercial Court decision of 27 December 2013. On 29 November 2022 the Commercial Court rejected X’s request to open insolvency proceedings in respect of the second applicant, finding that X had no legal standing to make such a request. The court also found that in the course of the insolvency proceedings most of the second applicant’s property had been sold. On 19 January 2023 the Court of Appeal upheld this decision.
The applicants complain under Article 1 of Protocol No. 1 that the domestic courts’ decisions amounted to an unlawful interference with their right to the peaceful enjoyment of their property. They also complain under Article 6 of the Convention about the fairness and the length of the proceedings, in particular about the repeated insufficiently reasoned and arbitrary decisions of the Court of Appeal contrary to the findings of the Constitutional Court.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 1 of Protocol No. 1 in view of the alleged arbitrariness and/or unlawfulness of the Commercial Court’s and the Court of Appeal’s reasoning (see Broniowski v. Poland [GC], no. 31443/96, §§ 143-44, ECHR 2004‑V; see, also, Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002‑VII, and Vulakh and Others v. Russia, no. 33468/03, § 44, 10 January 2012) and/or in view of the length of the proceedings (see, mutatis mutandis, Kunić v. Croatia, no. 22344/02, § 67, 11 January 2007)?
2. In particular, did the State ensure that the applicants’ 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)?
3. Did the proceedings at issue afford the applicants a reasonable opportunity of putting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by Article 1 of Protocol No. 1 (see Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV, with further references)?
The parties are also invited to provide detailed information as to the value of the applicants’ property sold in the course of the insolvency proceedings.
4. 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? In particular, were the decisions of the Court of Appeal sufficiently reasoned, as required by the Constitutional Court (see De Moor v. Belgium, 23 June 1994, § 55 in fine, Series A no. 292‑A)?
5. Have the applicants exhausted all effective domestic remedies in respect of their complaint about the length of the proceedings, as required by Article 35 § 1 of the Convention? In particular, were a request for review and an action for fair redress effective domestic remedies in the particular circumstances of the case?
6. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 147, 29 November 2016; see also Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005, and Živaljević v. Montenegro, no. 17229/04, § 74, 8 March 2011).
The applicants are also invited to provide a copy of the constitutional appeal lodged in respect of the Court of Appeal’s decision of 15 April 2022, as well as the Constitutional Court’s decision of 11 July 2022.