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ZIVALJEVIC v. MONTENEGRO - 17229/04 [2011] ECHR 403 (8 March 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/403.html
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[2011] ECHR 403
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FOURTH
SECTION
CASE OF ZIVALJEVIĆ v. MONTENEGRO
(Application
no. 17229/04)
JUDGMENT
STRASBOURG
8 March
2011
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 Zivaljević v. Montenegro,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17229/04) against Montenegro
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Montenegrin nationals, Mr Todor Zivaljević
and Mr Ljubiša Zivaljević (“the applicants”),
on 30 April 2004.
The
applicants, who had been granted legal aid, were represented by Mr V.
Hajduković, a lawyer practising in Podgorica. The
Montenegrin Government (“the Government”) were
represented by their Agent, Mr Z. PaZin.
The
applicants alleged, in particular, that the length of the
administrative proceedings had been incompatible with the “reasonable
time” requirement under Article 6 § 1 of the Convention.
On
26 October 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. 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
applicants were born in 1950 and 1953 respectively and live in
Podgorica.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
19 May 1995 the Public Construction Fund based in Podgorica (“the
PCFP”) requested the expropriation of a plot of land belonging
to the applicants in order to build a road.
On
14 September 1995 the applicants requested that their house and the
remainder of their land also be expropriated.
By
the end of 1995 the planned road was built, passing through the plot
in question.
On
11 October 1996 the Real Estate Office in Podgorica (“the
REOP”) expropriated only the plot specified by the PCFP,
without considering the applicants' request.
On 29 October 1996 the applicants lodged an appeal,
but by 11 December 1996 this appeal had been rejected.
On 5 February 1998 the Supreme Court (Vrhovni sud)
quashed the above decisions.
By
3 March 2004, following eight remittals, the requests were still
pending before the REOP.
Between
3 March 2004 and 28 March 2005 three hearings were adjourned, as
either the municipality's representative or the court's expert
witnesses had failed to appear.
On
18 February 2005 the applicants sought an “inspection”
(inspekcijski nadzor) of the proceedings at issue. By 16 March
2005 the Ministry of Justice had “established irregularities”
in the proceedings and ordered that they be rectified (otklanjanje
utvrđenih nepravilnosti).
On
28 March 2005 the REOP accepted both expropriation requests and on 1
September 2005 this decision was confirmed on appeal.
On
6 June 2006 the Administrative Court (Upravni sud) quashed the
latter decision.
On
3 October 2006 the Ministry of Finance (“the MOF”)
quashed the REOP's decision of 28 March 2005.
Since
the REOP had failed to render a decision thereafter, on 11 June
2007 and 14 August 2007 respectively the applicants lodged complaints
with the MOF.
On
30 August 2007 the applicants also initiated a dispute (upravni
spor) before the Administrative Court.
On
7 September 2007 the MOF accepted the applicants' appeal and ordered
the REOP to decide on the matter within thirty days.
On
24 October 2007 the Administrative Court stayed the administrative
dispute.
On
3 November 2007 the REOP accepted both expropriation requests, but on
28 May 2008 the MOF quashed this decision on appeal.
On
16 December 2008 the applicants re-instituted their dispute before
the Administrative Court.
As
of 19 May 2010 the proceedings were still pending.
II. RELEVANT DOMESTIC LAW
A. The 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.
This
Constitution entered into force on 22 October 2007.
B. The Montenegro Constitutional Court Act (Zakon o
Ustavnom sudu Crne Gore; published in OGM no. 64/08)
Section
48 provides that a constitutional appeal can be filed against an
individual decision of a state body, an administrative body, 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.
This
Act entered into force in November 2008.
C. The 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, for the possibility to
have lengthy proceedings expedited by means of request for review
(kontrolni zahtjev), as well as an opportunity for the
claimants to be awarded compensation therefor by means of an action
for fair redress (tuZba za pravično zadovoljenje).
Section
44, in particular, 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.
This
Act entered into force on 21 December 2007, but contained no
reference to applications involving procedural delay already lodged
with the Court.
D. The General Administrative Proceedings Act (Zakon o
opštem upravnom postupku; published in the Official Gazette of
the Republic of Montenegro - OG RM - no. 60/03)
Section
212 § 1 provides that in simple matters an administrative body
is obliged to issue a decision within one month of a party's lodging
a request. In all other cases, the administrative body is obliged to
issue a decision within two months of the lodging of the request.
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.
E. The Administrative Disputes Act (Zakon o upravnom
sporu; published in OG RM no. 60/03)
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.
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.
F. The Expropriation Act 1981 (Zakon o eksproprijaciji;
published in the Official Gazette of the Socialist Republic of
Montenegro nos. 20/81, 34/86, 10/90, and OG RM no. 37/95)
Section
9 of this Act provided that if during the expropriation of a part of
one's real estate it is established that the owner can no longer
normally use the remaining property, has no economic interest in
using it or if his very means of support is thereby jeopardised, the
remaining property shall also be expropriated if he requests it.
G. The Inspection Act (Zakon o inspekcijskom nadzoru;
published in OG RM nos. 39/03 and 76/09)
Section
10 provides that anybody can request an administrative inspection.
Sections
13-19 specify the rights and duties of inspectors, which, inter
alia, include their right to identify irregularities and order
that adequate measures be undertaken, as well as adequate fines
imposed.
H. The relevant domestic case-law
Between
1 January 2008 and 30 September 2009 the courts in Montenegro
considered one hundred and two requests for review pursuant to the
Right to a Trial within a Reasonable Time Act. A further two requests
were withdrawn and eight were still being examined. Of the one
hundred and two requests that had been considered in eighty-four
cases the applicants were notified that certain procedural measures
would be undertaken within a specified period. There is no
information in the documents provided as to whether these time-limits
were complied with or not. Eighteen requests were rejected as
ill-founded.
In
the same period, 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 non-pecuniary damages
for the length of civil proceedings. In 2010 an additional fourteen
actions for fair redress were examined, in two of which the courts
awarded damages.
I. The Obligations Act 1978 (Zakon o obligacionim odnosima;
published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia, nos. 29/78, 39/85, 57/89 and 31/93)
42. Sections
185-192 contained details concerning the right of persons who
had suffered damage as a result of the wrongful acts of third parties
to be compensated.
J. The Obligations Act 2008 (Zakon o obligacionim odnosima;
published in OGM no. 47/08)
This
Act entered into force on 15 August 2008 thereby repealing the
Obligations Act 1978. Sections 192-199, however, correspond to
sections 185-192 of the previous Act.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which 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...”
Admissibility
Compatibility ratione materiae
The
Government submitted that the applicants' request to have more
property expropriated than the State had initially sought cannot be
considered a “civil right and obligation” or a “dispute”
within the meaning of Article 6.
The
applicants contested this argument.
The
Court reiterates that Article 6 § 1 secures to everyone the
right to have a claim relating to his civil rights and obligations
brought before a court, the guarantees of this provision extending
only to rights which can be said, at least on arguable grounds, to be
recognised under domestic law (see Roche v. the United Kingdom
[GC], no. 32555/96, §§ 116-117, ECHR 2005 X).
As
regards the present case, the Court notes that the expropriation of
the plot in question was requested by the PCFP, and not by the
applicants. The applicants, only in response to such a request, and
in accordance with the relevant legislation (see paragraph 37 above),
made a request for the remainder of their property to be also
expropriated. The ensuing dispute was clearly based on the
applicants' right under domestic law to request that the remainder of
their property be expropriated, a right which was clearly “civil”
in nature.
Since
the applicants thus had a property-related right under domestic law,
which was clearly arguable, the Court considers that their complaint
falls within the scope of Article 6. The Government's objection in
this regard must, therefore, be dismissed.
Exhaustion of domestic remedies
(a) Arguments of the parties
The
Government submitted that the applicants had not exhausted all
effective domestic remedies available to them. Primarily, they failed
to “seek inspection” of the impugned proceedings.
Further, they 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 30 above). In this respect the Government
referred to Grzinčič v. Slovenia, no. 26867/02, ECHR
2007 V (extracts). Lastly, the applicants had not made use of a
constitutional appeal (see paragraphs 26-29 above).
The
applicants contested these submissions. They provided a copy of their
request for inspection, as well as the reply thereto (see paragraph
15 above). They submitted that the remedies referred to by the
Government had not existed when they lodged their application with
this Court, and that therefore they had not been obliged to make use
of them. They also submitted that in any event these remedies were
not effective.
(b) Relevant principles
The
Court reiterates 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 decisive question in assessing the
effectiveness of a remedy concerning a complaint about the length of
proceedings is whether or not it was possible for the applicant to be
provided with direct and speedy redress, rather than with indirect
protection of the rights guaranteed under Article 6 (see Scordino
v. Italy (no. 1) [GC],
no. 36813/97, § 195, ECHR 2006,
and Sürmeli v. Germany [GC],
no. 75529/01, §
101, 8 June 2006). In particular, a remedy of this sort shall be
“effective” if it can be used either to expedite a
decision by the courts dealing with the case or to provide the
litigant with adequate redress for delays which have already occurred
(see Kudła v. Poland [GC],
no. 30210/96, §§
157-159, ECHR 2000-XI; Mifsud v. France (dec.), [GC], no.
57220/00, § 17, ECHR 2002-VIII; and Sürmeli v. Germany
[GC], cited above, § 99).
Finally,
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,
ECHR 2002-VIII).
(c) The Court's assessment
(i) As regards the request for inspection
The
Court notes that the applicants, in response to the Government's
observations, submitted a copy of their request for inspection of
18 February 2005, as well as the Ministry of Justice's reply
thereto of 16 March 2005. The Court further notes that while the
inspection “established irregularities”, it obviously did
not expedite the proceedings, as in May 2010, more than five years
later, they were still pending.
Therefore,
the Government's objection in this regard must be dismissed.
(ii) As regards the request for review
The
Court notes the Government's reference to Grzinčič v.
Slovenia (cited above) where, as in some other cases, the Court
departed from the general rule that the assessment of whether
domestic remedies have been exhausted is carried out with reference
to the date on which the application was lodged with it.
The
Court observes that in these cases specific legislation as regards
the length of proceedings was passed mainly in answer to a great
number of applications already pending before this 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, cited above, § 48, 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.
Further,
when the Court allowed for such an exception the remedies referred to
had been recently introduced and there was no established domestic
case-law confirming the effectiveness of the remedy (see Giacometti
and Others v. Italy (dec.), no. 34939/97, ECHR 2001 XII,
Ahlskog v. Finland (dec.), no. 5238/07, § 73, 9 November
2010, Nogolica v. Croatia (dec.), no. 77784/01, ECHR
2002 VIII, Grzinčič v. Slovenia, cited above, §
108, Andrášik and Others v. Slovakia
(dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00,
60680/00 and 68563/01, ECHR 2002-IX). The Court had no reason to
doubt the effectiveness of these remedies at such an early stage
after their introduction.
Unlike
in the above cases, the Right to a Trial within Reasonable Time Act
has been in force for about three years. While the majority of the
requests for review were dealt with by setting periods in which
certain procedural measures were to be undertaken, the Government
have provided no information as to whether these actions and
time-limits were actually complied with and if the proceedings were
indeed expedited and/or concluded (see paragraph 40 above).
Finally,
unlike the Slovenian, Polish, and Italian laws which contained
transitional provisions concerning cases already pending before the
Court, this Act does not contain a provision which would explicitly
bring within the jurisdiction of the national courts the applications
already pending before the Court (see paragraph 32 above).
As
the impugned proceedings have been pending domestically for more than
eleven years and one month before the introduction of the legislation
referred to above and are still not decided, and since no conclusions
can be drawn from the Government's submissions about its
effectiveness in the particular circumstances of a case like the
applicants', the Court considers that it would be unreasonable to
require the applicants to try this avenue of redress (see Parizov
v. “the former Yugoslav Republic of Macedonia”, no.
14258/03, §§ 45-46, 7 February 2008, and Bijelić v.
Montenegro and Serbia, no. 11890/05, § 76, 28 April 2009).
Therefore,
having regard to the particular circumstances of the instant case as
set out above, the Government's objection in this regard must be
dismissed. The Court might in future cases reconsider its view if the
Government demonstrate, with reference to concrete cases, the
efficacy of the remedy, with the consequence that applicants may be
required to exhaust that remedy.
(iii) As regards the action for fair redress and
constitutional appeal
The
Court reiterates that it has already held that the action for fair
redress is not capable of expediting proceedings while they are still
pending, which is clearly the applicants' main concern (see, mutatis
mutandis, Mijušković v. Montenegro, no.
49337/07, §72, 21 September 2010).
Having
regard to the fact that the Government have submitted no case-law to
the contrary, the Court considers that a constitutional appeal cannot
be considered an available remedy in respect of length of proceedings
complaints due to there being no “individual decision”
against which such an appeal could be lodged (see, mutatis
mutandis, Mijušković v. Montenegro, cited
above, § 74; and, a
contrario, Slaviček
v. Croatia (dec.), no. 20862/02, ECHR 2002 VII).
(iv) Conclusion
The
Court considers that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and finds
no other ground to declare it inadmissible. It must therefore be
declared admissible.
Merits
Arguments of the parties
The
Government submitted that expropriation proceedings are complex by
their nature, the applicants' proceedings in particular requiring
complicated expertise. They also submitted that the case itself did
not require urgency.
The
applicants contested these arguments and reaffirmed their complaint.
Relevant principles
The
Court reiterates that 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court also reiterates that, in order to determine the reasonableness
of the delay at issue, regard must be had to the state of the case on
the date of ratification (see, mutatis mutandis, Styranowski
v. Poland, judgment of 30 October 1998, Reports of
Judgments and Decisions 1998-VIII).
It
must be further noted that repeated re-examination of a single case
following remittal may in itself disclose a serious deficiency in a
given State's judicial system (see Pavlyulynets v. Ukraine,
no. 70767/01, § 51, 6 September 2005).
The Court's assessment
It
is noted that the period to be taken into account began on 29 October
1996, the date on which the applicants lodged their appeal against
the decision rendered at first instance (see, mutatis mutandis,
Počuča v. Croatia, no. 38550/02, § 30, 29 June
2006). The Court observes that the proceedings are apparently still
pending before the Administrative Court (see paragraph 25 above).
Since the Convention entered into force in respect of Montenegro on
3 March 2004 (see Bijelić v. Montenegro and Serbia,
no. 11890/05, § 69, 28 April 2009), the proceedings in question
have thus been within the Court's competence ratione temporis
for a period of more than six years and eleven months. In addition,
they had already been pending for more than seven years and four
months before that date.
The
Court observes that the present case concerns expropriation of the
applicants' house and land. While it can be accepted that some
expropriation cases may be more complex than others, the Court does
not consider the present one of such complexity as to justify
proceedings of this length.
Further, the domestic legislation specifies periods
within which administrative bodies need to give their decisions,
these periods being one month or two months at one level of
jurisdiction (see paragraphs 33-36 above). The Court notes that the
special diligence requirement is of particular relevance in respect
of States where the domestic law provides that cases must be
terminated with particular urgency (see, mutatis mutandis,
Stevanović v. Serbia, no. 26642/05, §§ 53
and 55, 9 October 2007). In the present case, the Court notes
that, after the respondent State's ratification of the Convention on
3 March 2004, the first decision was given on 28 March 2005, which is
more than a year after the ratification. After this decision had been
quashed on 3 October 2006, it then took more than a year for another
first-instance decision to be given, on 3 November 2007. Lastly, the
case has been pending before the Administrative Court since
16 December 2008, that is for more than two years and one month.
There is nothing in the case file to suggest that this has been
caused by the conduct of the applicants, but rather by the failure of
the authorities to act in accordance with the law and time-limits
provided therein (see paragraphs 33-36 above).
In view of the criteria laid down in its jurisprudence
and the relevant facts of the present case, the Court is of the
opinion that the length of the proceedings complained of has failed
to satisfy the reasonable time requirement. There has accordingly
been a violation of Article 6 § 1 of the Convention.
II ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
In
their observations the applicants also complained that their property
rights had been violated, in that the road which had been built on
their plot of land had caused damage to the remainder of their
property.
The
Government maintained that there had been no violation of Article 1
of Protocol No. 1.
The
Court notes that both the Obligations Act 1978 and the Obligations
Act 2008 provide for a possibility for the applicants to claim
damages in proceedings before a court (see paragraphs 42-43 above).
The applicants have failed to avail themselves of that remedy.
Therefore, the applicants' complaint in this respect must be declared
inadmissible for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 and 4 of the Convention.
III 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
applicants claimed 183,300 euros (EUR) in damages in compensation for
the devastation of their property. They also claimed compensation for
non-pecuniary damage, but left it to the Court to determine the
amount.
The
Government contested the claim for pecuniary damage, given that the
proceedings concerning the said property are still pending before the
domestic authorities. In any event, the Government submitted that the
applicants had failed to show a causal link between the damages
sought and the violation alleged.
The
Court is of the view that it has not been duly substantiated that the
applicants sustained pecuniary damage as a result of the violation of
Article 6 § 1 on account of the length of the proceedings.
However, the Court accepts that the applicants have suffered
some non-pecuniary damage which cannot be sufficiently compensated by
the sole finding of a violation. Making its assessment on an
equitable basis, the Court therefore awards each of the applicants
EUR 1,200 under this head.
B. Costs and expenses
The
applicants claimed costs and expenses allegedly incurred before the
domestic courts, the amount of which they left to the Court's
discretion, and EUR 850 for costs and expenses incurred before the
Court.
The
Government contested the claim in respect of costs and expenses
incurred before the domestic courts, and left the claim in respect of
costs before the Court to the Court's discretion.
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).
In the present case, regard being had to the above
criteria, as well as to the EUR 850 already granted to the applicants
under the Council of Europe's legal aid scheme, the Court rejects the
claims for costs for lack of substantiation.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares by a majority the complaint concerning
the excessive length of the proceedings admissible and, unanimously,
the remainder of the application inadmissible;
Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
Holds by five votes to two
(a) that
the respondent State is to pay each of the applicants, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 1,200
(one thousand two hundred 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;
Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 8 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Mijović and Hirvelä is annexed to this judgment.
N.B.
T.L.E.
JOINT DISSENTING OPINION OF JUDGES MIJOVIĆ
AND HIRVELA
We
are unable to agree with the majority of the Chamber that the
complaint concerning the excessive length of the proceedings was
admissible and, consequently, that there has been a violation of
Article 6 § 1.
As
accepted in the judgment, the purpose of Article 35 of the Convention
is to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions (see §
52 of the judgment).
Consequently,
States are dispensed from answering for their acts before an
international body before they have had an opportunity to put matters
right through their own legal system. That rule is based on the
assumption, reflected in Article 13 of the Convention – with
which it has close affinity – that there is an effective remedy
available in respect of the alleged breach in the domestic system
(see the decision as to the admissibility of application no.
5238/07, Ahlskog v. Finland, 9 November 2010, § 68). In
this way, it is an important aspect of the principle that the
machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights (see the
recapitulation of the relevant case-law in Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V). The remedies which
Article 35 of the Convention requires to be exhausted are those that
relate to the breaches alleged and at the same time are available and
sufficient. The existence of such remedies must be sufficiently
certain both in theory and 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, for example, Vernillo v. France, 20 February
1991, § 27, Series A no. 198; and Akdivar and Others v.
Turkey, 16 September 1996, § 66, Reports of
Judgments and Decisions 1996 IV). On the other hand, and as
correctly pointed out in the judgment (see § 55), 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. The
decisive question when assessing the effectiveness of a remedy for a
length of proceedings complaint is whether or not the applicant was
afforded an opportunity to have the proceedings expedited or had a
possibility to claim compensation for delays which have occurred (see
Kudla v. Poland [GC], no. 30210/96 §§ 157-159, ECHR
2000 XI).
We do
not consider that these principles were properly applied in the
assessment of the effectiveness of the domestic remedies available to
the applicants.
Firstly,
the applicants in this case had had at their disposal two legal
remedies - a request for review and an action for fair redress
provided by the Right to a Trial within a Reasonable Time Act and a
constitutional appeal. The applicants alleged that these remedies
were not in existence when they lodged their application with the
European Court and therefore they had not been obliged to use them.
Additionally, they alleged that, in any event, the remedies were not
effective.
The
majority noted that the Right to a Trial within a Reasonable Time Act
came into force on 21 December 2007, and that it contained a
provision on its retroactive application. In the present case the
question arises as to whether the applicants should be required to
exhaust this remedy, given that they introduced their applications
prior to the enactment of the above Act. In this connection, the
majority reiterated that the assessment of whether domestic remedies
have been exhausted is normally carried out with reference to the
date on which the application was lodged with it. However, this rule
is subject to exceptions which may be justified by the particular
circumstances of each case (see Baumann v. France, no.
33592/96, § 47, ECHR 2001 V (extracts)). Thus, the Court
has held that applicants in cases against Italy, for instance, which
concerned length of proceedings and had not been declared admissible,
should be required to have recourse to the remedy introduced by the
“Pinto Act” notwithstanding that it was enacted after
their applications had been filed with the Court (see, for example,
Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR
2001 XII; or Brusco v. Italy (dec.), no. 69789/01, ECHR
2001 IX). A similar decision was taken in respect of cases
introduced against Croatia following the entry into force of a
constitutional amendment permitting the Constitutional Court to
provide redress of both a preventive and a compensatory nature to
persons complaining about undue delays in judicial proceedings (see
Nogolica v. Croatia (dec.), no. 77784/01, ECHR
2002-VIII). A similar approach was followed also in respect of
Slovakia (see Andrášik and Others v. Slovakia
(dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00,
68563/01 and 60226/00, ECHR 2002 IX) and Poland (see Charzyński
v. Poland (dec.), no. 15212/03, § 40, ECHR 2005 V; and
Michalak v. Poland (dec.), no. 24549/03, § 41, 1 March
2005). We believe that the present case is similar, in substance, to
the above Italian, Croatian, Slovak and Polish cases. As in those
cases, the arguments of the applicants that they did not have the
possibility to use this remedy and were not obliged to use it, should
in our opinion and following the Court's case-law, have been rejected
by the Court.
Additionally,
the applicants alleged that this remedy, even if used, would not have
been effective. The majority of the Chamber came to the same
conclusion and declared the application admissible. Bearing in mind
the previously emphasised principles that the Court applies when
dealing with the effectiveness issue, we would strongly disagree with
the conclusion reached by the majority for the following reasons.
Since
the Right to a Trial within a Reasonable Time Act came into force
only on 21 December 2007, there is as yet no long-term established
practice of the domestic courts. However, the wording of the Act
clearly indicates that it is specifically designed to address the
issue of excessive length of proceedings before the domestic courts.
Furthermore, the relevant domestic case-law shows that between 1
January 2008 and 30 September 2009 the courts in Montenegro
considered one hundred and two requests for review pursuant to this
Act. In eighty-four cases the applicants were notified that certain
procedural measures would be undertaken within a specified period. No
information has been provided as to whether these time-limits were
complied with or not. Eighteen requests were rejected as ill-founded.
On the other hand, in the same period twenty-two actions for fair
redress were submitted, of which sixteen were dealt with and six are
still being examined. In one case the domestic courts awarded
non-pecuniary damages for the length of civil proceedings. In
2010, an additional fourteen actions for fair redress were examined,
in two of which the courts awarded damages.
In
view of the above, we hesitate to decide that a complaint under the
Right to a Trial within a Reasonable Time Act is an ineffective
remedy in the sense that it is not capable of providing adequate
redress for excessive length of proceedings, provided that the
impugned proceedings are still pending.
Furthermore,
taking into account the fact that the Convention mechanism is
subsidiary to national systems for safeguarding human rights, and in
view of the above considerations, we are of the opinion that the
applicants should be required to use the remedy available to them
under the Right to a Trial within a Reasonable Time Act. That is why
we decided to vote against the admissibility of this case.
An
additional point that has not been elaborated on in the judgment
relates to the possible use of the constitutional appeal. According
to the Constitution of Montenegro of 2007, 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
majority of the Chamber found that a constitutional appeal could not
be considered an available remedy where there is no “individual
decision” against which such an appeal could be lodged. For the
majority, this implies that there should be an individual court
decision. However the proper point of departure for considering this
issue should be the Montenegro Constitutional Court Act that entered
into force in November 2008 which stipulates that:
“[c]onstitutional
complaints may be lodged against an individual act
of state authority, local self-government authority or legal person
vested with public powers, for the reason of violation of human
rights and freedoms guaranteed by the Constitution, after all
effective remedies have been exhausted.”
We
are of the opinion that the Chamber should have addressed this
discrepancy (an individual decision dec.
no. 13628/03, vs.
an individual act). This is not a solely linguistic matter, but a
significant and legally important issue clarifying the Constitutional
Court's jurisdiction.
However,
leaving aside that linguistic-legal issue, we are of the opinion that
the approach taken by the majority regarding the effectiveness of the
constitutional appeal in Montenegro appears to run counter to the
European Court's case-law. As found in Slaviček
v. Croatia
(dec). no. 20862/02, ECHR 2002 VII)
and Nogolica
v. Croatia
(cited above), a constitutional complaint was accepted by the Court
as an effective remedy for length of proceedings cases which were
still pending before the domestic courts in Croatia. The approach of
the Court's case-law in respect of Bosnia and Herzegovina has been to
the effect that when the applicant has neither
used the constitutional complaint nor shown that it was for any
reason inadequate or ineffective (and we consider that no such reason
had been shown in this case), the case is to be declared inadmissible
for reasons of non-exhaustion (see
Mirazović v.
Bosnia and Herzegovina, (dec.)
no. 13628/03, 6 May 2006).
Even from a theoretical
point of view, we are of the opinion that there is no reason why the
applicants' length of proceedings complaint could not or should not
have been lodged with the Constitutional Court, even if that court
has exclusively appellate jurisdiction, i.e. even when there are no
individual decisions that the applicants could have relied on as the
basis of their appeal. The essence of the length of proceedings
problem is precisely the lack of an individual decision and for that
reason there is no reasonable explanation why a constitutional
complaint could not have been lodged in this case either. The
applicants decided not to test this avenue, alleging that it would
not have been effective. However, there are no relevant statistics
showing that that would have been the case. The European Court's
case-law has already taken a stand on this issue, establishing that
as regards legal systems which provide constitutional protection for
fundamental rights, it is incumbent on the aggrieved individual to
test the extent of that protection (see Holland
v. Ireland,
no. 24827/94, Commission decision of 14 April 1998, Decisions and
Reports 93, p. 15 and Independent
News and Media and Independent Newspapers Ireland Limited v. Ireland
(dec.), no. 55120/00, 19 June 2003; Tokić
and Others v. Bosnia and Herzegovina,
nos. 12455/04, 14140/05, 12906/06 and 26028/06, § 59, 8 July
2008). For us, neither good reasons nor special circumstances have
been adduced which would justify a departure from this or any of the
above-emphasised principles and so absolve the applicant from the
obligation to use this legal remedy.
