MONTEMLIN SAJO v. MONTENEGRO - 61976/10 (Judgment : Article 6 - Right to a fair trial : Second Section Committee) [2018] ECHR 256 (20 March 2018)

In the case of Montemlin Šajo v. Montenegro,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 20 February 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 61976/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by Montemlin Šajo, a privately owned company with its seat in Danilovgrad ("the applicant company"), on 20 October 2010.

2. The Montenegrin Government ("the Government") were represented by their Agent, Ms V. Pavličić.

3. On 3 December 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of the Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant company is a privately owned company registered in Danilovgrad, Montenegro.

5. In July 2004 a call for tender for hotel "Otrant" in Montenegro was issued. The deadline for submitting bids was October 2004. Together with three other companies, the applicant company took part in the tendering process. On 30 November 2004, however, it was informed that the tender was awarded to another bidder.

6. On an unspecified date in December 2004, the applicant company objected to this decision. On 29 December 2004 the Commercial Court in Podgorica (Privredni sud u Podgorici) rejected the applicant company's objection.

7. On 28 January 2006 the Court of Appeal quashed this decision and remitted the case to the first instance.

8. On 15 June 2006 the Commercial Court ruled against the applicant company. This decision was served on the applicant company on 8 September 2009.

9. On 26 March 2010 the Court of Appeal upheld the decision of the Commercial Court. The decision of the Court of Appeal was served on the applicant company's lawyer on 27 April 2010.

10. On 15 July 2010 the applicant company lodged an initiative urging the Supreme Public Prosecutor's Office (Vrhovno državno tužilaštvo) to file a request for the protection of legality (zahtjev za zaštitu zakonitosti), but this motion was rejected on 21 July 2010.

11. On 30 July 2010 the applicant company lodged a constitutional appeal. On 14 October 2010 the Constitutional Court rejected this appeal as having been lodged out of time.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

12. The applicant company complained under Articles 6 and 13 of the Convention that the length of the tender-related proceedings had been incompatible with the "reasonable time" requirement.

13. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention only, which in so far as relevant reads as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal..."

A. Admissibility

14. The Government submitted that the applicant company had failed to properly exhaust domestic remedies. In particular, they pointed out that the applicant company's failure to apply to the Constitutional Court in a timely manner had resulted in its appeal being rejected as out of time.

15. The applicant company maintained that at the relevant time the constitutional appeal had not been an effective remedy.

16. The Court observes that it has consistently held that a constitutional appeal should, in principle, be considered an effective domestic remedy, within the meaning of Article 35 § 1 of the Convention, in respect of all applications lodged against Montenegro from 20 March 2015 onwards (see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, § 123, 24 November 2015, and Vučeljić v. Montenegro (dec.), no. 59129/15, § 31, 18 October 2016).

17. It sees no reason to hold otherwise in the present case and notes that the applicant company lodged its application with the Court on 20 October 2010. The Government's objection in this regard must therefore be rejected (see, among other authorities, Stanković and Trajković v. Serbia, nos. 37194/08 and 37260/08, § 36, 22 December 2015).

18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

19. The applicant company reaffirmed its complaint.

20. The Government maintained that there had been no violation of Article 6 § 1 of the Convention.

21. The period to be taken into consideration began in December 2004 (see paragraph 6 above) and ended on 27 April 2010. The impugned proceedings thus lasted approximately five years and four months at two instances.

22. The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

23. The Court notes that the case was not particularly complex to justify the length of five years and four months at two instances. Besides, it points out that the first instance judgment was served on the applicant company some three years and three months later following its adoption (see paragraph 8 above), for which delay the Government did not supply any justification. In Court's view, such delay in delivery seems manifestly excessive.

24. Having examined all the material submitted to it and with regard to its case-law on the subject (see, mutatis mutandis, Stanković v. Serbia, no. 29907/05, § 35, 16 December 2008), the Court considers the length of the impugned proceedings was excessive and failed to meet the "reasonable time" requirement.

25. There has accordingly been a breach of Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26. 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. Damages and costs and expenses

27. The applicant company claimed 882,403.17 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

28. The Government contested these claims.

29. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant company EUR 1,200 in respect of non-�pecuniary damage.

30. The applicant company did not submit any claim for costs and expenses incurred before the domestic courts or the Court. The Court therefore makes no award in this respect.

B. Default interest

31. 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 the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant company, within three months EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant company's claim for just satisfaction.

Done in English, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıLedi Bianku
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> MONTEMLIN SAJO v. MONTENEGRO - 61976/10 (Judgment : Article 6 - Right to a fair trial : Second Section Committee) [2018] ECHR 256 (20 March 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/256.html Cite as: [2018] ECHR 256, ECLI:CE:ECHR:2018:0320JUD006197610, CE:ECHR:2018:0320JUD006197610