SECOND SECTION
DECISION
Application no. 18626/11
Dusan VUKOVIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 27 November 2012 as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 10 March 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Dušan Vuković, is a Montenegrin national, who was born in 1929 and lives in Danilovgrad.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 25 September 1962 several plots of land were expropriated from the applicant’s father, for which he was awarded certain compensation on 14 November 1962.
4. On 25 May 1994, after his father passed away, the applicant was declared one of his heirs.
5. In April 2004 Montenegro enacted the Restitution of Expropriated Property Rights and Compensation Act, which provided, inter alia, that natural persons were entitled to seek restitution or compensation for the expropriated property (see paragraph 11 below).
6. On 19 May 2005 the applicant filed a restitution request with the Restitution and Compensation Commission (Komisija za povraćaj i obeštećenje; “the Commission”) in Nikšić, a first-instance administrative body for this type of requests.
7. Between 3 April 2006 and 18 December 2006 the Commission heard the applicant, ordered three experts’ opinions as well as the relevant records of the Real Estate Directorate (Uprava za nekretnine).
8. On 7 May 2007 the Commission held an oral hearing, where the applicant specified that he was seeking compensation instead of restitution. He alleged that the property at issue had been sold by company X to company Y after the relevant legislation had been adopted and that he was thus unable to re-obtain the property itself. The Commission decided to seek an opinion of the Supreme State Prosecutor on the sale contract between the companies X and Y, and adjourned the hearing for an indefinite period (odlaže se na neodređeno vrijeme).
9. On 17 April 2008 the relevant documents would appear to have been transmitted to the Supreme State Prosecutor (“the Prosecutor”). On 13 May 2008 the applicant urged the Prosecutor to act in that regard. On 5 June 2008 the Prosecutor informed the Commission that there was no legal ground to seek the annulment of the said sale contract between the companies X and Y.
10. The Commission has not yet issued a decision on the applicant’s compensation request.
B. Relevant domestic law and practice
1. The Restitution of Expropriated Property Rights and Compensation Act 2004 (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju; published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 21/04, 49/07 and 60/07)
11. Section 6 provides that natural persons are entitled to restitution or compensation in accordance with this Act.
12. Section 34 § 1 provides that the Commission shall rule on the restitution/compensation request within 30 days after the hearing.
13. Section 36 provides that an appeal against the Commission’s decision can be lodged with the competent appellate body within 15 days as of the day when the first-instance decision was served.
14. Section 4 provides, inter alia, that the General Administrative Proceedings Act shall be accordingly applied to the restitution/compensation procedures.
15. The Act entered into force on 8 April 2004.
2. The General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in the OG RM no. 60/03)
16. Section 212 § 1 provided that in simple matters an administrative body was obliged to issue a decision within one month of a party’s lodging a request, unless a lex specialis provided for a shorter time-limit (ako posebnim zakonom nije određen kraći rok). In all other cases, the administrative body was obliged to issue a decision within two months of the lodging of the request.
17. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal to the appellate body as if his request had been refused. If the appeal is not allowed, the applicant can directly initiate an administrative dispute before the court with jurisdiction.
18. The Act entered into force on 5 November 2003.
3. The Amendments to the General Administrative Proceedings Act (Zakon o izmjenama i dopunama Zakona o opštem upravnom postupku; published in the Official Gazette of Montenegro - OGM - no. 32/11)
19. Section 12 of this Act amended section 212 § 1 of the previous Act by providing that in simple matters an administrative body is obliged to issue a decision within twenty days of a party’s lodging a request. In all other cases, the administrative body is obliged to issue a decision within one month of the lodging of the request.
20. This Act entered into force on 9 July 2011.
4. The Administrative Disputes Act (Zakon o upravnom sporu; published in the OG RM no. 60/03)
21. Section 18 provides that a party can institute administrative proceedings before the Administrative Court (administrative dispute) if the appellate body does not issue a decision within sixty days nor within an additional period of seven days; or if the first-instance body does not issue a decision and there is no right to an appeal.
22. Section 35 provides that the Administrative Court itself can rule on the merits if a decision has already been quashed in the same dispute and the relevant body has not acted fully in accordance with the Administrative Court’s judgment or if it has not issued a new decision within thirty days. The Administrative Court can also rule on the merits if the appellate body, or the first-instance body where there is no right to an appeal, has not ruled within the envisaged time-limit.
23. The Act entered into force in January 2005.
5. The Amendments to the Administrative Disputes Act (Zakon o izmjeni Zakona o upravnom sporu; published in the OGM no. 32/11)
24. Section 1 of this Act amended Section 18 of the previous Act by reducing the sixty-day time limit to thirty days.
25. This Act entered into force on 9 July 2011.
6. Relevant practice of the Administrative Court
26. The Administrative Court, which became operative in January 2005, rendered a large number of decisions following the failure of various administrative appellate bodies to rule on an appeal. This includes a number of decisions issued in the restitution context, some of them being U. broj 1240/2009, U. br. 762/2009, U. broj 521/11, U. br. 427/11, U. br. 471/2011, U. br. 99/11, U. br. 439/11, and U. br. 1942/2011. In those cases where it was established that the appellate body failed to act within the specified period, the Administrative Court ordered that a relevant decision be issued within 30 days at the latest as of the day when the appellate body received the decision of the Administrative Court.[1]
COMPLAINTS
27. The applicant complained under Articles 6 and 13 of the Convention about the excessive length of the proceedings before the Restitution Commission upon his request and a lack of an effective domestic remedy in that regard. He also complained under Article 1 of Protocol No. 1 that his right to property was violated by the failure of the said Commission to decide on his request.
THE LAW
1. Article 6 of the Convention
28. The applicant complained about the excessive length of proceedings before the Commission upon his restitution/compensation request.
29. The Court notes in this regard that the applicant lodged his request on 19 May 2005 and that the competent first-instance administrative body has not yet issued a decision thereupon.
30. It is also observed, however, that the applicant failed to pursue his request under the conditions specified in the General Administrative Proceedings Act and the Administrative Disputes Act. In particular, the relevant provisions of the said Acts enabled the applicant whose request had not been dealt with by the first-instance body within 30 days or, in more complex matters, within two months, to lodge an appeal with an appellate body as if his request had been rejected (see paragraphs 16-17 above). These time-limits were even further reduced by the subsequent legislative amendments (see paragraph 19 above). Furthermore, he could also institute the proceedings before the Administrative Court should the appellate body fail to issue a decision upon such an appeal (see paragraphs 21-26 above).
31. The Court considers that in such circumstances the applicant cannot complain about the length of the proceedings before the administrative body and that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of the domestic remedies (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002; see, also, mutatis mutandis, Štajcar v. Croatia (dec.), no. 46279/99, 20 January 2000).
2. Article 13 of the Convention
32. The applicant further complained under Article 13 of the Convention that he had not had an effective domestic remedy for his complaint under Article 6.
33. The Court recalls that Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172). The criteria for considering a claim as “arguable” cannot be construed differently from the criteria applied when declaring claims “manifestly ill-founded” (see Powell and Rayner, cited above, § 31, and Kienast v. Austria, no. 23379/94, § 54, 23 January 2003).
34. Since the applicant’s complaint under Article 6 has been declared inadmissible for non-exhaustion of the domestic remedies, the Court considers that it cannot be regarded as “arguable” for the purposes of Article 13. The applicant’s complaint under Article 13 taken in conjunction with the said Article is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Article 1 of Protocol No. 1 to the Convention
35. Lastly, the applicant complained that his right to property was violated by the failure of the Commission to render a decision upon his request.
36. The Court notes that the applicant’s request is still pending before the first-instance administrative body and that the applicant failed to make use of the available domestic remedies to bring his case before the Administrative Court. Therefore, the applicant’s claim under Article 1 of Protocol No. 1 to the Convention is premature (see Štajcar v. Croatia (dec.), cited above).
37. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosGuido Raimondi
Deputy RegistrarPresident
[1] The data are taken from the website of the Administrative Court of Montenegro on 25 October 2012 .
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