(Application no. 11890/05)
28 April 2009
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 Bijelić v. Montenegro and Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nebojša Vučinić, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 7 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The eviction suit
B. The enforcement proceedings
C. Other relevant facts
II. RELEVANT DOMESTIC LAW
A. Constitutional Charter of the State Union of Serbia and Montenegro (Ustavna povelja drZavne zajednice Srbija i Crna Gora; published in the Official Gazette of Serbia and Montenegro - OG SCG - no. 1/03)
Article 9 §§ 1 and 3
“The Member States shall regulate, ensure and protect human and minority rights and civic freedoms in their respective territories.
[The State Union of] ... Serbia and Montenegro shall monitor the implementation of human and minority rights and civic freedoms and ensure their protection if such protection has not been provided in the Member States.”
Article 60 §§ 4 and 5
“Should Montenegro break away from the State Union of Serbia and Montenegro, the international documents pertaining to the Federal Republic of Yugoslavia, particularly the United Nations Security Council Resolution 1244, would concern and apply ... to Serbia as the successor.
The Member State which ... [breaks away] ... shall not inherit the right to international legal personality, and any disputable issues shall be regulated separately between the successor State and the newly independent State.”
B. Charter on Human and Minority Rights and Civic Freedoms of the State Union of Serbia and Montenegro (Povelja o ljudskim i manjinskim pravima i građanskim slobodama drZavne zajednice Srbija i Crna Gora; published in OG SCG no. 6/03)
Article 2 § 3
“The human and minority rights guaranteed under this Charter shall be directly regulated, secured and protected by the constitutions, laws and policies of the Member States.”
C. Opinion issued by the Supreme Court of Montenegro on 26 June 2006 (Pravni stav Vrhovnog suda Republike Crne Gore; SU VI br. 38/2006)
“The domestic legal system offers no legal remedy against violations of the right to a hearing within a reasonable time, which is why the courts in the Republic of Montenegro have no jurisdiction to rule in respect of claims seeking non-pecuniary damages caused by a breach of this right. Any person who considers himself a victim of a violation of this right may therefore lodge an application with the European Court of Human Rights, within six months as of the adoption of the final judgment by the domestic courts.
[When asked to rule in respect of the compensation claims referred to above] ... the courts in the Republic of Montenegro must refuse jurisdiction ... and declare ... [them] ... inadmissible (pursuant to Article 19 para. 3 of the Civil Procedure Code).”
D. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 1/07)
“The Constitutional Court shall ...
(3) ... [rule on a] ... constitutional appeal ... [filed 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 ...”
E. Constitutional Law on the Implementation of the Constitution of Montenegro (Ustavni zakon za sprovodjenje Ustava Crne Gore; published in OGM nos. 01/07, 9/08 and 4/09)
“Provisions of international treaties on human rights and freedoms, to which Montenegro acceded before 3 June 2006, shall be applied to legal relations which have arisen after their signature.”
F. Constitutional Court Act of Montenegro (Zakon o Ustavnom sudu Crne Gore; published in OGM no. 64/08)
G. Right to a Trial within a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku; published in OGM no. 11/07)
H. Police Act (Zakon o policiji; published in OGM no. 28/05)
I. Enforcement Procedure Act (Zakon o izvršnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no. 28/00, 73/00 and 71/01)
III. THE CONVENTION STATUS OF THE FORMER STATE UNION OF SERBIA AND MONTENEGRO, AS WELL AS OF SERBIA AND OF MONTENEGRO, RESPECTIVELY, FOLLOWING THE LATTER’S DECLARATION OF INDEPENDENCE
“1. ... the Republic of Serbia will continue the membership of the Council of Europe hitherto exercised by the ... [State Union] ... of Serbia and Montenegro, and the obligations and commitments arising from it;
2. ... the Republic of Serbia is continuing the membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006; ...
4. ... the Republic of Serbia was either a signatory or a party to the Council of Europe conventions referred to in the appendix ... to which [the State Union of] Serbia and Montenegro had been a signatory or party [including the European Convention on Human Rights]; ...”
“2. ... a. ... the Republic of Montenegro is to be regarded as a Party to the European Convention on Human Rights and its Protocols No. 1, 4, 6, 7, 12, 13 and 14 thereto with effect from 6 June 2006; ...”
IV. STATUTE OF THE COUNCIL OF EUROPE
“Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe by the Committee of Ministers. Any State so invited shall become a member on the deposit on its behalf with the Secretary General of an instrument of accession to the present Statute.”
“The Committee of Ministers shall, subject to the provisions of Articles 24, 28, 30, 32, 33 and 35, relating to the powers of the Consultative Assembly, decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe. For this purpose the Committee of Ministers shall adopt such financial and administrative arrangements as may be necessary.”
V. UNITED NATIONS HUMAN RIGHTS COMMITTEE
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
“Everyone has the right to respect for his ... home ...
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
I. THE COMPATIBILITY OF THE APPLICATION WITH THE CONVENTION
A. The parties’ submissions
1. The Serbian Government
2. The Montenegrin Government
3. The applicants
4. The third-party interveners
(a) European Commission for Democracy through Law (“the Venice Commission”)
(b) The Human Rights Action
B. The Court’s assessment
(i) the only reasonable interpretation of Article 5 of the Constitutional Act on the Implementation of the Constitution of the Republic of Montenegro (see paragraph 42 above), the wording of Article 44 of the Montenegrin Right to a Trial within a Reasonable Time Act (see paragraphs 46-48 above), and indeed the Montenegrin Government’s own observations, would all suggest that Montenegro should be considered bound by the Convention, as well as the Protocols thereto, as of 3 March 2004, that being the date when these instruments had entered into force in respect of the State Union of Serbia and Montenegro;
(ii) the Committee of Ministers had itself accepted, apparently because of the earlier ratification of the Convention by the State Union of Serbia and Montenegro, that it was not necessary for Montenegro to deposit its own formal ratification of the Convention;
(iii) although the circumstances of the creation of the Czech and Slovak Republics as separate States were clearly not identical to the present case, the Court’s response to this situation is relevant: namely, notwithstanding the fact that the Czech and Slovak Federal Republic had been a party to the Convention since 18 March 1992 and that on 30 June 1993 the Committee of Ministers had admitted the two new States to the Council of Europe and had decided that they would be regarded as having succeeded to the Convention retroactively with effect from their independence on 1 January 1993, the Court’s practice has been to regard the operative date in cases of continuing violations which arose before the creation of the two separate States as being 18 March 1992 rather than 1 January 1993 (see, for example, Konečný v. the Czech Republic, nos. 47269/99, 64656/01 and 65002/01, § 62, 26 October 2004).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
1. As regards the first applicant
2. As regards the second and third applicants
(a) Compatibility ratione personae
(b) Exhaustion of domestic remedies
B. Merits as regards the second and third applicants
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. As regards the first applicant
B. As regards the second and third applicants
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
91. Articles 41 and 46 read as follows:
“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.”
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the Government of Montenegro shall ensure, by appropriate means, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the enforcement of the final judgment adopted by the Court of First Instance on 26 January 1994;
(b) that the Government of Montenegro is to pay the second and third applicants, jointly, within the same three month period, the following sums:
(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, for the non-pecuniary damage suffered, and
(ii) EUR 700 (seven hundred euros), plus any tax that may be chargeable to the said two applicants, for costs and expenses;
(c) that, failing the enforcement ordered under (a) above, the Government of Montenegro is to pay, within the same three month period, the second and third applicants, jointly, the global sum of EUR 92,000 (ninety-two thousand euros), plus any tax that may be chargeable (instead of the award of 4,500 under (b)(i) above) ;
(d) that from the expiry of the said time-limit 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;
Done in English, and notified in writing on 28 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise