CASE OF ĐUKOVIĆ v. MONTENEGRO
(Application no. 38419/08)
13 June 2017
This judgment is final but it may be subject to editorial revision
In the case of Đuković v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjřlbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Nebojša Vučinić, the judge elected in respect of Montenegro, withdrew from sitting in the Committee (Rule 28). Judge Georges Ravarani was accordingly appointed to sit in his place (Rule 27).
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
1. The applicant, Mr Batrić Đuković, is a Montenegrin and Serbian national, who was born in 1939 and is currently serving his sentence in the Spuž Penitentiary.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
3. On 13 November 2013 the application was communicated to the Government.
THE CIRCUMSTANCES OF THE CASE
4. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The first set of civil proceedings
5. On 25 March 1996 the applicant brought a compensation claim for damages suffered as a consequence of an expropriation of his property against the Municipality of Bar and one of the local primary schools before the Court of First Instance (Osnovni sud) in Bar.
6. On 11 April 1996 the applicant’s representative informed the Court of First Instance that he had initiated a separate set of proceedings to determine the value of the above-mentioned damages. The Court of First Instance suspended the above mentioned civil proceedings pending the final resolution of this matter.
7. No document was submitted by the parties as to whether or not the compensation proceedings have ended in the meantime. Accordingly, it would appear that the said two sets of proceedings are still pending before the Court of First Instance.
B. The second set of civil proceedings
8. On 2 February 2004 the applicant instituted proceedings before the Court of First Instance in Bar, against his neighbour, seeking a demarcation between their two plots of land.
9. On 25 March 2004 the applicant amended his proposal to this effect.
10. On 14 September 2004 the applicant and the respondent reached a friendly settlement which was approved by the Court of First Instance on the same day.
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
11. The applicant complained under 6 and 13 of the Convention about the excessive length of the two sets of domestic proceedings and a lack of an effective domestic remedy in that regard. He relied on Articles 6 § 1 and 13 of the Convention, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The Government’s preliminary objection concerning the alleged abuse of the right of petition
12. The Government submitted that the applicant had made insulting and inappropriate comments in his application form and his observations amounting to an abuse of the right of petition. In particular, he used expressions such are “corrupted judges”, “bribed judges”, and “the racketeering carried out by judges”, while referring to the domestic judiciary.
13. The Court recalls that, whilst the use of offensive language in proceedings before it is undoubtedly inappropriate, an application may only be rejected as abusive in extraordinary circumstances (see, e.g., Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53-54; and Felbab v. Serbia, no. 14011/07, § 56, 14 April 2009). In the present case, however, the Court considers that although the statements made by the applicant were clearly inappropriate and regrettable they do not amount to the circumstances of the kind that would justify a decision to declare his complaints inadmissible as an abuse of the right of petition (see, mutatis mutandis, Felbab v. Serbia, cited above).
14. Therefore, the Government’s preliminary objection must be rejected.
B. As regards the second set of civil proceedings
15. The Government argued that the applicant’s complaints about the length of the second set of civil proceedings should be rejected for non-observance of the six-month rule.
16. The Government maintained that the impugned proceedings had ended by 14 September 2004 whereas the applicant lodged the application with the Court on 10 June 2008.
17. In support of their claim, the Government submitted a copy of the minutes of the hearing held before the Court of First Instance on 14 September 2004 from which it transpires that the friendly settlement was reached by an agreement between the parties.
18. The applicant did not provide any comments in this regard.
19. The Court recalls that the purpose of the six-month rule is to promote security of the law, ensure that cases raising issues under the Convention are examined within a reasonable time, and protect the authorities and other persons concerned from being in a situation of uncertainty for a long period of time (see, for example, P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004).
20. The six-month period starts running from the date on which the applicant and/or his or her representative had sufficient knowledge of the final domestic decision (see Koç and Tosun v. Turkey (dec.), no. 23852/04, 13 November 2008). It is for the State to establish the date when the applicant became aware of the final domestic decision (see Şahmo v. Turkey (dec.), no. 37415/97, 1 April 2003).
21. Noting that, in present case, the Government provided sufficient evidence to prove that the applicant had sufficient knowledge of the final domestic decision, having signed the minutes in question, and that his complaint was lodged before this Court four years later, i.e. on 10 June 2008, the Court agrees with the Government that the application in respect of this set of proceedings was indeed introduced outside the six-month time-limit set out in Article 35 § 1 of the Convention.
C. As regards the first set of civil proceedings
22. The Government argued that the applicant’s complaints in this respect fell outside the scope of the Court’s temporal jurisdiction because the impugned proceedings “ended” by 11 April 1996 and that the Convention entered into force in respect of Montenegro on 3 March 2004.
23. The applicant disagreed.
24. The Court notes that the applicant initiated the civil proceedings in question before the Court of First Instance in March 1996. In April 1996 the said court suspended the proceedings pending the outcome of another civil suit concerning the same underlying issue. The latter proceedings are still pending.
25. In view of its extensive case-law on this issue (see: V.A.M. v. Serbia, no. 39177/05, § 102, 13 March 2007, Stevanović v. Serbia, no. 26642/05, §§ 43-45, 9 October 2007; and Velimirović v. Montenegro, no. 20979/07, § 34, 2 October 2012), the Court finds that the impugned proceedings fell within its competence ratione temporis as of 3 March 2004. The Government’s objection must therefore be rejected.
26. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
27. The proceedings started on 25 March 1996, but the period to be taken into consideration began only on 3 March 2004 (see paragraph 25 above). The period in question has not yet ended. It has thus lasted more than twelve years for one level of jurisdiction. However, in assessing the reasonableness of the length, account must be taken of the state of the proceedings at the time the Convention entered into force in respect of Montenegro (see Lavents v. Latvia, no. 58442/00, § 86, 28 November 2002; see also Zana v. Turkey, 25 November 1997, § 74, Reports of Judgments and Decisions 1997-VII). The Court therefore notes that on that date the (second) proceedings had been already pending for seven years, eleven months and eight days.
28. 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 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).
29. Having examined all the material submitted to it and in view of its case-law on the subject, the Court considers that, in the absence of any justification, the length of the proceedings of more than 12 (twelve) years was excessive and failed to meet the “reasonable time” requirement
30. There has accordingly been a breach of Article 6 § 1.
31. Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. 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 and costs and expenses
33. In his initial application to the Court the applicant claimed the amount of “at least” EUR 1,000,000 in respect of pecuniary and non-pecuniary damage suffered, as well as the costs and expenses incurred. The applicant also reaffirmed this claim in his subsequent.
34. The Government offered no comments in this regard.
35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,400 in respect of non-pecuniary damage.
36. Regard being had to the documents in its possession and to its case-law, the Court further considers it reasonable to award the applicant the additional sum of EUR 100 covering his costs before the Court only.
B. Default interest
37. 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 complaint about the length of the civil proceedings initiated on 2 February 2004 inadmissible;
2. Declares the complaint about the length of the civil proceedings initiated on 25 March 1996, as well as the related complaint about the lack of an effective remedy, admissible;
3. Holds that there has been a violation of Article 6 of the Convention;
4. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;
(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, the following sums:
(i) EUR 5,400 (five thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President