SECOND SECTION
CASE OF MILIĆ
v. MONTENEGRO AND SERBIA
(Application no. 28359/05)
JUDGMENT
STRASBOURG
11 December 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Milić v. Montenegro and Serbia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28359/05) against Montenegro and Serbia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Serbian national, Mr Ivan Milić (“the applicant”),
on 19 July 2005.
The applicant, who had been granted legal aid,
was represented by Ms G. Ćušić, a lawyer practising in Belgrade. The Montenegrin Government were represented by their Agent, Mr Z. Pažin. The
Serbian Government were represented by their Agent, Mr. S. Carić.
The applicant complained about non-enforcement of
a final judgment ordering his reinstatement and a lack of an effective domestic
remedy in that regard.
On 15 March 2010 the application was communicated
to the Governments of Montenegro and Serbia. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Ivan Milić, was born in 1966 and
lives in Belgrade, Serbia.
A. The first set of civil proceedings and the ensuing
enforcement proceedings
On 20 June 2002 the Court of First Instance (Osnovni
sud) in Podgorica ordered that the applicant be reinstated by the Clinical
Centre of Montenegro (Kliničko bolnički Centar Crne Gore), a
State-run medical institution.
On 4 February 2003 this judgment became final,
and on 16 December 2003 it was confirmed by the Supreme Court (Vrhovni sud)
in Podgorica at third instance.
On 23 April 2003 the Clinical Centre of
Montenegro informed the applicant that it could not comply with the judgment in
question, but would rather seek an alternative solution.
On 22 May 2003 the Court of First Instance issued
an enforcement order, which decision was confirmed on 26 June 2003.
On 19 August 2003 the Clinical Centre of
Montenegro concluded an agreement with the Special Hospital in Risan, also a
State-run medical institution, whereby the latter accepted the applicant as its
employee.
On 30 September 2003 the applicant informed the State
Prosecutor that he did not approve of this arrangement.
On 17 October 2003 the Special Hospital in Risan
issued a decision to the effect that the applicant would become its employee as
of 30 October 2003.
On 20 October 2003 the applicant received this
decision.
On 21 October 2009, as submitted by the
Montenegrin Government, the applicant concluded an Agreement on Termination of
Employment with the Clinical Centre of Montenegro whereby his employment had
been terminated as from 3 February 2003 and both parties waived any further
claims in this regard.
On 26 October 2009 the applicant withdrew his
enforcement request.
On 5 November 2009 the Court of First Instance
terminated the enforcement proceedings and all the enforcement activities which
had been carried out in that regard. On 17 November 2009 this decision became
final.
B. Other relevant facts
On 6 May 2004, upon the applicant’s separate
claim, the Court of First Instance in Podgorica ordered the Clinical Centre of
Montenegro to pay the applicant 4,456 euros (“EUR”) for salary arrears for the
period between September 2001 and 3 February 2003. This judgment was upheld by
the High Court on 5 October 2004. It would appear from the case file that
this judgment was enforced on an unspecified date thereafter.
On 3 February 2003 the applicant started to work
in the Clinical Centre of Serbia for a period of nine months. It would appear
from the case file that on an unspecified date thereafter his temporary
employment was transformed into a permanent one.
II. RELEVANT DOMESTIC LAW
A. Constitution of Montenegro 2007 (Ustav Crne Gore;
published in the Official Gazette of Montenegro - OGM - no. 1/07)
Article 149 of the Constitution 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.
B. Montenegro Constitutional Court Act (Zakon o
Ustavnom sudu Crne Gore; published in 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 domestic 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.
The Act entered into force in November 2008.
C. Right to a Trial within a Reasonable Time Act
(Zakon o zaštiti prava na suđenje u razumnom roku; published in OGM no. 11/07)
This Act provides, under certain circumstances,
the possibility to have lengthy proceedings expedited by means of a request for
review (kontrolni
zahtjev), as well as an opportunity for claimants to be awarded
compensation by means of an action for fair redress (tužba
za pravično zadovoljenje).
Section 9 § 2 provides that a request for review
can be filed with the court which is dealing with the case at the relevant
time.
Section 33 § 3 provides that an action for fair
redress shall be filed with the Supreme Court no later than six months after
the date of receipt of the final decision rendered in the impugned proceedings
or, within the enforcement procedure, no later than six months after the date
of receipt of the final decision issued upon the request for review.
Section 44 further provides that this Act shall
be applied retroactively to all proceedings from 3 March 2004, but that the
duration of proceedings before that date shall also be taken into account.
The Act entered into force on 21 December 2007,
but contained no reference to applications involving procedural delay already
lodged with the Court.
D. Enforcement Procedure Act 2000 (Zakon o izvršnom
postupku; published in the Official Gazette of the Federal Republic of
Yugoslavia nos. 28/00, 73/00 and 71/01)
Section 4 § 1 provided that enforcement proceedings
were urgent.
Sections 211-214 set out details as regards
enforcement in cases of reinstatement.
E. Enforcement Procedure Act 2004 (Zakon o izvršnom
postupku; published in the Official Gazette of the Republic of Montenegro - OG RM - no. 23/04)
The Act entered into force on 13 July 2004,
thereby repealing the Enforcement Procedure Act 2000. In accordance with
section 286 of this Act, however, all enforcement proceedings instituted prior
to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act
2000.
F. Labour Act 2003 (Zakon o radu; published in OG RM
nos. 43/03, 79/04, 24/06 and 25/06; and in the Official Gazette of Montenegro no. 16/07)
Section 33 required an employee’s consent in order for
him to be transferred to another employer.
G. Labour Act 2008 (Zakon o radu; published in OGM nos.
49/08, 26/09 and 88/09)
The Labour Act 2008 entered into force on 19 August
2008 thereby repealing the Labour Act 2003. Section 42 § 2 of the former,
however, also requires the employee’s consent for his transfer to another
employer.
H. Relevant domestic case-law
Between 1 January 2008 and 30 September 2009
twenty-two actions for fair redress were submitted, of which sixteen were dealt
with and six were still being examined. In one case the courts awarded the
plaintiff compensation for non-pecuniary damage in respect of the length of
civil proceedings. Between 1 January 2010 and 30 April 2011 an additional fifteen
actions for fair redress were examined, in three of which the courts awarded
damages.
THE LAW
The applicant complained under various Articles of
the Convention against both Montenegro and Serbia about the non-enforcement of
the judgment issued by the Court of First Instance in Podgorica ordering his
reinstatement, which became final on 4 February 2003, as well as about the lack
of an effective domestic remedy in that respect.
The Court considers that these complaints all
fall to be examined under Articles 6 § 1 and 13 of the Convention (see Akdeniz v. Turkey, no. 25165/94,
§ 88, 31 May 2005), which, in their relevant parts, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
Article 13
“Everyone whose rights and freedoms...are violated shall have
an effective remedy before a national authority...”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Admissibility
1. Compatibility ratione personae
(a) As regards the respondent States
. The Montenegrin Government made no
comment in this regard.
The Serbian Government submitted that the
application was incompatible ratione personae with regard to Serbia. They referred, in particular, to Bijelić v. Montenegro and Serbia, no. 11890/05, §§ 67-70, 28 April 2009.
The applicant complained against both Montenegro and Serbia.
Given the fact that the entire enforcement
proceedings have been conducted solely by the Montenegrin authorities, which
also had the exclusive competence to deal with the subject matter, the Court,
without prejudging the merits of the case, finds the applicant’s complaints in
respect of Montenegro compatible ratione personae with the provisions of
the Convention. For the same reason, however, the applicant’s complaints in
respect of Serbia are incompatible ratione personae within the meaning
of Article 35 § 3(a), and must be rejected pursuant to Article 35 § 4 of the
Convention (see, also, Lakićević and Others v. Montenegro
and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 41, 13 December 2011).
(b) As regards the applicant
The Montenegrin Government submitted that the
applicant could no longer claim to be a “victim” as he had
concluded the Agreement on Termination of Employment on 21 October 2009, waived
any further claims in this regard and had withdrawn his enforcement request.
The Agreement had effect as from 3 February 2003, which was before the
Convention entered into force in respect of Montenegro and before the applicant
lodged his application with the Court. They also maintained that the applicant’s
submission that he had been forced to conclude the said Agreement was
unsubstantiated.
The applicant contested these submissions. In
particular, he maintained that by the time he had concluded the Agreement the
enforcement proceedings had been already ongoing for more than five years but
to no avail. He had been forced to conclude the said Agreement and to withdraw
the enforcement request as he needed to verify his employment in another
institution. His withdrawal of the enforcement request was therefore irrelevant
and his rights had been breached.
The Court reiterates that, in order to be able
to lodge a petition by virtue of Article 34, a person, non-governmental
organisation or a group of individuals must be able to claim to be the victim
of a violation of the rights set forth in the Convention.
Turning to the present case, the Court notes
that the domestic proceedings were settled in that the applicant concluded the
Agreement on Termination of Employment and thus consented to discontinue to
insist that the relevant court judgment be enforced. He withdrew his
enforcement request on 26 October 2009, after which the enforcement proceedings
were terminated.
The Court also notes, however, that the said
agreement did not address the issue of the length of the said non-enforcement,
which the applicant alleges constituted a violation of the Convention. In view
of that, and without prejudice to the merits of the case, the Court considers
that the applicant’s Convention complaint still persists and that the applicant’s
status as a “victim” within the meaning of Article 34 of the Convention
remained unaffected by the agreement. The Government’s objection in this regard
must, therefore, be dismissed.
2. Exhaustion of domestic remedies
(a) Arguments of the parties
The Montenegrin Government submitted that the
applicant had not exhausted all effective domestic remedies available to him.
In particular, he had failed to lodge a request for review and an action for
fair redress provided by the Right to a Trial within a Reasonable Time Act (see
paragraph 24 above). He had also failed to make use of a constitutional appeal
(see paragraphs 19-23 above).
The applicant contested these submissions. In
particular, he maintained that the remedies referred to by the Government had
not existed at the time when he had lodged his application with the Court and
that therefore he had not been obliged to make use of them later. He also
submitted that in any event these remedies were not effective.
(b) Relevant principles
The Court recalls that, according to its
established case-law, the purpose of the domestic remedies rule in Article 35 §
1 of the Convention is to afford the Contracting States the opportunity of preventing
or putting right the alleged violations before they are submitted to the Court.
However, the only remedies which the Convention
requires to be exhausted are those which relate to the breaches alleged and at
the same time are available and sufficient (see Selmouni v. France [GC],
no. 25803/94, § 75, ECHR 1999 V, McFarlane v. Ireland [GC], no. 31333/06,
§ 107, ECHR 2010-...). The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they will lack
the requisite accessibility and effectiveness; it falls to the respondent State
to establish that these various conditions are satisfied (see Vernillo v.
France, 20 February 1991, § 27, Series A no. 198; and Dalia v. France,
19 February 1998, § 38, Reports 1998-I).
Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the Government
had in fact been used, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from that requirement (see Dankevich v.
Ukraine, no. 40679/98, § 107, 29 April 2003).
The Court reiterates that the effectiveness of a
particular remedy is normally assessed with reference to the date on which the
application was lodged (see, for example, Baumann v. France, no.
33592/96, § 47, ECHR 2001-V (extracts)), this rule, however, being subject to
exceptions which may be justified by the specific circumstances of each case
(see Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002).
(c) The Court’s assessment
(i) As regards the request for review
The Court has already held that it would be
unreasonable to require an applicant to try a request for review on the basis
of the Right to a Trial within a Reasonable Time Act in a case where the
domestic proceedings had been pending for a number of years before the introduction
of this legislation and where no conclusions could be drawn from the Government’s
submissions about its effectiveness (see, mutatis mutandis, Boucke
v. Montenegro, no. 26945/06,
§§ 72-74, 21 February 2012; as well as Živaljević
v Montenegro, no. 17229/04, §§ 60-65, 8 March
2011). The Court, however, reserved its right to reconsider its view if
the Government demonstrated, with reference to specific cases, the efficacy of
this remedy (see Boucke, cited above § 71, and Živaljević,
cited above, § 66).
In view of the fact that the enforcement
proceedings here at issue had been pending for more than four years and six
months before the Right to a Trial within a Reasonable Time Act entered into
force, of which more than three years and nine months had elapsed after the
Convention entered into force in respect of the respondent State, and that no
recent case-law concerning the efficacy of this particular remedy has been
submitted, the Court sees no reason to depart from its previous finding and
concludes, therefore, that the Government’s objection must be dismissed.
(ii) As regards the action for fair redress
The Court notes that the applicant lodged his
application on 19 July 2005, which was more than two years and five months
before an action for fair redress was introduced by the Right to a Trial within
a Reasonable Time Act (see paragraphs 1 and 28 above). Therefore, at the time
when the applicant lodged his application with this Court, there was no
available domestic remedy which would have enabled him to obtain redress for
the past delay, the effectiveness of a particular remedy being assessed with reference
to the date on which the application was lodged (see Baumann v. France,
cited above, § 47).
While the Court has allowed for an exception to
this rule, this was usually in cases where specific national legislation as
regards the length of proceedings had been passed in response to a great number
of applications already pending before the Court indicating a systemic problem
in these States. These laws also contained transitional provisions bringing
within the jurisdiction of domestic courts the cases already pending before
this Court (see Grzinčič v. Slovenia, no. 26867/02, § 48, 3
May 2007; Charzyński v. Poland (dec.), no. 15212/03, § 20,
ECHR 2005-V; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).
Having regard to those considerations, the Court was of the opinion that these
States should be afforded an opportunity to prevent or put right the alleged
violation themselves and therefore allowed for an exception to the above rule.
Unlike in the above mentioned cases, the
relevant legislation in Montenegro had not been passed in response to numerous
applications pending before this Court, nor does it contain any transitional
provision whatsoever with regard to applications already pending before this
Court (see paragraph 28 above). Therefore, it is unclear whether the domestic
courts would have ruled at all on the merits of the applicant’s action for fair
redress had he lodged one.
The Court also notes that the applicant cannot
be required to avail himself of this avenue of redress at this stage, as its
use had long become time-barred in his case (see paragraphs 26, 25 and 16
above, in that order).
Having regard to the particular circumstances of
the instant case as set out above, the Court considers that the applicant was
not obliged to exhaust this particular avenue of redress (see, mutatis
mutandis, Novović v. Montenegro, 13210/05, §§ 40-44, 23
October 2012 (not yet final); Vinčić and Others v. Serbia, no.
44698/06 et seq. § 51, 1 December 2009, as well as Cvetković v. Serbia,
no. 17271/04, § 41, 10 June 2008). The Government’s objection must, therefore,
be dismissed.
(iii) As regards the constitutional appeal
The Court has also already found that a
constitutional appeal cannot be considered an effective domestic remedy in
respect of length of proceedings (see Boucke, cited above, § 79; see,
also, Mijušković v. Montenegro, cited
above, §§ 73-74). It sees
no reason to hold otherwise in the present case. The Government’s objection in
this regard must, therefore, be dismissed.
3. Conclusion
The Court notes that the applicant’s complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The Montenegrin Government made no comment in
this regard.
The applicant reaffirmed his complaint.
The Court recalls that Article 6 § 1 of the
Convention, inter alia, protects the implementation of final, binding
judicial decisions, which, in States that accept the rule of law, cannot remain
inoperative to the detriment of one party. Accordingly, the execution of a
judicial decision cannot be prevented, invalidated or unduly delayed (see,
among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997-II). The State has an obligation to
organise a system of enforcement of judgments that is effective both in law and
in practice (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005).
Lastly, the Court reiterates that enforcement
proceedings by their very nature need to be dealt with expeditiously (see Comingersoll
S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV).
Turning to the present case, the Court notes that
the period to be taken into account began on 3 March 2004, which is
when the Convention entered into force in respect of Montenegro (see Bijelić
v. Montenegro and Serbia, no. 11890/05, §
69, 28 April 2009) and ended on 26 October 2009, when the applicant
withdrew the enforcement request. The impugned enforcement proceedings had thus
been within the Court’s competence ratione temporis
for a period of more than five years and seven months, more than another nine
months having already elapsed before that date (see Mikulić v. Croatia,
no. 53176/99, § 37, ECHR 2002-I, Styranowski v. Poland, 30
October 1998, § 46, Reports of Judgments and Decisions 1998-VIII).
The impugned enforcement proceedings concerned
the applicant’s reinstatement. While it can be accepted that some such cases
may be more complex than others, the Court does not consider the present one to
be of such complexity as to justify enforcement proceedings of this length. The
issue was clearly of great importance to the applicant, the Convention itself requiring
exceptional diligence in employment disputes (see, mutatis mutandis, Guzicka
v. Poland, no. 55383/00, § 30, 13 July 2004, Borgese v. Italy,
26 February 1992, § 18, Series A no. 228-B, and Georgi Georgiev v. Bulgaria, no. 22381/05, § 18 in fine, 27 May
2010).
As to the conduct of the parties, the Court
observes that after the Convention had entered into force in respect of the
respondent State and prior to 26 October 2009 the authorities failed to make
any attempt whatsoever in order to enforce the judgment in question. The
Montenegrin Government did not provide any explanation in that regard. It is
further noted that even before the ratification of the Convention the Clinical
Centre of Montenegro had merely informed the applicant that the impugned
decision could not be enforced, but that they would rather seek an alternative
solution. To that end it was agreed with the Special Hospital in Risan to take
over the applicant, an option explicitly requiring the applicant’s consent,
which was clearly lacking in the present case (see paragraphs 32-33 and 10-11
above). The applicant, for his part, would not appear to have contributed
in any way to the delay complained of.
Having regard to its case-law on the subject
(see, mutatis mutandis, Boucke, cited
above, § 89-94), what was at stake for the applicant and the failure of the
domestic authorities to display adequate diligence, the Court considers that
the non-enforcement at issue amounts to a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
A. Admissibility
The Court considers that
the applicant’s complaint in respect of Serbia is incompatible ratione personae, for the
reasons already stated in paragraph 40 above.
The Court notes that the complaint in respect of
Montenegro raises issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It also considers
that the complaint is not manifestly ill-founded within the meaning of Article
35 § 3(a) of the Convention and that it cannot be rejected on any other
grounds. The complaint must therefore be declared admissible.
B. Merits
The Court notes that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of all
rights and freedoms guaranteed by the Convention, including the right to a
hearing within a reasonable time under Articles 6 § 1 (see, inter alia, Kudła
v. Poland [GC], no. 30210/96, § 156, ECHR 2000 XI).
It recalls, further, that a remedy concerning
length is “effective” if it can be used either to expedite the proceedings
before the courts dealing with the case, or to provide the litigant with
adequate redress for delays which have already occurred (see Sürmeli v.
Germany [GC], no. 75529/01, § 99, ECHR 2006 VII).
Finally, the Court emphasises that the best
solution in absolute terms is indisputably, as in many spheres, prevention.
Where the judicial system is deficient with regard to the reasonable-time
requirement in Article 6 § 1 of the Convention, a remedy designed to expedite
the proceedings in order to prevent them from becoming excessively lengthy is
the most effective solution. Such a remedy offers an undeniable advantage over
a remedy affording only compensation since it also prevents a finding of
successive violations in respect of the same set of proceedings and does not
merely repair the breach a posteriori, as does a compensatory remedy.
However, as noted above, the existence of such
remedies must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and effectiveness (see
paragraph 49 above).
Turning to the present case, the Court notes
that the Montenegrin Government averred in their preliminary observations that
there were remedies available for the applicant’s complaint about the length of
the enforcement proceedings made under Article 6 § 1, which objections were
rejected on the grounds described at paragraphs 52-59 above.
The Court concludes, for the same reasons, that
there has been a violation of Article 13 taken together with Article 6 § 1
of the Convention on account of the lack of an effective remedy under domestic
law for the applicant’s complaint concerning the length of non-enforcement at
issue (see Stakić v. Montenegro, no. 49320/07, §§ 55-60, 2 October 2012 (not yet final); see,
also, Stevanović v. Serbia, no. 26642/05, §§ 67-68, 9 October 2007;
and, mutatis mutandis, Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, §§ 84-85, 27 May 2008).
The Court would again observe that it might
reconsider its view in this regard if the Government are able to demonstrate in
future such applications, with reference to specific cases, the efficacy of the
said remedies (see paragraph 52 above, in fine).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained: (a) under Article
1 of Protocol No. 1 to the Convention, that his right to peacefully enjoy his
property had been violated in that he had been forced to change the place of
residence to search for another job and thus had to leave his property in
Montenegro; and (b) under Article 14 of the Convention and Article 1 of
Protocol No. 12 thereto, about having been discriminated against.
The Court considers that the applicant’s
complaints in respect of Serbia are incompatible ratione personae for
the reasons already stated in paragraph 40 above.
In the light of all the material in its
possession, in particular in view of the fact that the applicant submitted no
evidence that Montenegro deprived him of his property in its territory or
interfered with it in any way, the Court finds that the complaint in this
respect is unsubstantiated and must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
Quite apart from the fact that the applicant
does not seem to have raised this issue before the domestic courts, the Court,
in any event, notes that there is no evidence in the case file that there has
been any discrimination against the applicant on any grounds. It follows that
this complaint is also manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed the damages but maintained
that the exact amount was difficult to specify as it was “an enormous figure”.
He did not submit a properly itemised claim or any documentary evidence in that
regard.
The Montenegrin Government made no comment in this
regard.
Pursuant to Rule 60 §§ 2 and 3 of the Rules of
Court, the Court requires specific claims supported by appropriate documentary
evidence, failing which it may make no award (see the Rules of Court as well as
paragraph 5 of the Practice Direction on Just Satisfaction Claims). As regards
pecuniary damage, in particular, it is for the applicant to show that pecuniary
damage has resulted from the violation alleged. The applicant should submit
relevant documents to prove, as far as possible, not only the existence but
also the amount or value of the damage (see paragraph 11 of the said Practice
Direction). Given that the applicant did not submit a properly itemised claim
in respect of the pecuniary damage nor any documentary evidence in that regard
and thus failed to comply with Rule 60 §§ 2 and 3 of the Rules of Court, the
Court makes no award under this head.
On the other hand, it is clear that the
applicant sustained some non-pecuniary damage arising from the breaches of
his rights under Articles 6 § 1 and 13 of the Convention, for which
he should be compensated. Making its assessment on an equitable basis, the
Court awards the applicant EUR 7,000 in this regard.
B. Costs and expenses
The applicant maintained that he had incurred
“significant” costs and expenses, but he had submitted no invoice.
The Montenegrin Government did not make any
comment in this respect.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see, for example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
90. In
the present case, regard being had to the above criteria, as well as to the EUR
850 already granted to the applicant under the Council of Europe’s legal aid scheme, the Court rejects the
applicant’s claim in this regard for lack of substantiation.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the applicant’s
complaints under Articles 6 § 1 and 13 of the Convention in respect of Montenegro;
2. Declares the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds that there has been a violation of
Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, 7,000
EUR (seven thousand euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses remainder
of the applicant’s just satisfaction claim.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
