CASE OF TOMAŠEVIĆ v. MONTENEGRO
(Application no. 7096/08)
13 June 2017
This judgment is final but it may be subject to editorial revision.
In the case of Tomašević v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 7096/08) against Montenegro 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, Ms Slobodanka Tomašević (“the applicant”), on 21 January 2008.
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 in question was communicated to the Government and the remainder of the application was declared inadmissible.
4. The applicant was born in 1948 and lived in Igalo, Montenegro. On 14 June 2011 the applicant died.
5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE CIRCUMSTANCES OF THE CASE
6. On 9 August 2004 the applicant lodged a civil claim concerning a property issue against eleven other persons with the Court of First Instance (Osnovni sud) in Herceg Novi.
7. On 15 March 2011 the Court of First Instance in Herceg Novi ruled partly in favour of the applicant.
8. On 18 March 2011 the applicant lodged an appeal with the High Court (Viši sud) in Podgorica.
9. On 8 November 2013 the High Court in Podgorica quashed the judgement and remitted the case back to the Court of First Instance.
10. On 6 July 2015 the Court of First Instance in Herceg Novi ruled against the applicant. On 3 August 2015 the applicant lodged an appeal against this judgment. The proceedings are still pending at the second instance.
I. THE GOVERNMENT’S OBJECTION BASED ON RULE 47 OF THE RULES OF COURT
11. The Government submitted that the applicant had not lodged an application in accordance with Rule 47 of the Rules of the Court. Notably, neither the statement of the facts nor the statement of the alleged violations could be deemed as concise or indeed even legible. Moreover, the application was not accompanied with the relevant documents, including those related to the six-month requirement.
12. The Court notes that pursuant to the version of Rule 47 of the Rules of Court in force at the relevant time, an application under Article 34 of the Convention had to be made on the application form provided by the Registry, unless the Court decided otherwise (see Knick v. Turkey, no. 53138/09, § 36, 7 June 2016). The Court observes that the applicant made a substantiated complaint about the alleged violation of her Convention rights, and supported them with sufficient documentation. Accordingly, the Government’s objection should be dismissed as the application cannot be rejected for failure to comply with the procedural rules of the Court (see, Knick v. Turkey, cited above).
II. THE LOCUS STANDI OF MS DANICA Tomašević
13. The Court notes that the applicant died on 14 June 2011, after the lodging of her application, while the case was pending before the Court. On 24 August 2011, her daughter, Ms Danica Tomašević, who is her legal heir, informed the Court that she wished to pursue the application.
14. According to the Court’s case-law when the direct victim dies after the application was lodged with the Court, the applicant’s heirs may pursue the application provided that they have a legitimate interest in maintaining the request on behalf of the deceased (for, mutatis mutandis, Ergezen v. Turkey, no. 73359/10, § 28-30, 8 April 2014).
15. The Court has previously considered similar requests and accepted that the next-of-kin or an heir may in principle pursue the application. In particular, the children of a deceased applicant have, on numerous occasions, been accepted to be entitled to take part in the proceedings, if they express their wish to do so (see, for instance, Jama v. Slovenia, no. 48163/08, § 27-28, 19 July 2012, or Ghuyumchyan v. Armenia, no. 53862/07, § 33-40, 21 January 2016).
16. Furthermore, the fact that Ms Danica Tomašević, as the applicant’s heir, had become a party to the impugned proceedings domestically on 1 October 2012, in her mother’s stead, gives her the requisite standing under Article 34 of the Convention to pursue this application. For practical reasons, however, the term applicant will be used while referring to Ms Slobodanka Tomašević.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicant complained that the length of the proceedings at issue 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 ... tribunal...”
18. The Government contested that argument and maintained that the applicant’s complaints had been too vague.
19. The Court, being the “master of the characterisation” to be given in law to the facts of any case before it is satisfied that there was enough evidence to the effect that the applicant was essentially complaining about the proceedings here at issue. The Government’s objection in this respect must therefore be dismissed.
20. The Court notes that the application 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.
21. The period to be taken into consideration began on 9 August 2004 and has not yet ended. The impugned proceedings have thus already lasted more than twelve years at two levels of jurisdiction.
22. 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).
23. The Court considers that the proceedings in question were not particularly complex. The Government failed to provide any justification for the period between 9 August 2004 and 15 March 2011, as well as the other periods of inactivity before domestic courts.
24. Having examined all the material submitted to it and in view of its case-law on the subject, the Court considers that the impugned proceedings which have already lasted more than twelve years were excessive and failed to meet the “reasonable time” requirement.
25. There has accordingly been a breach of Article 6 § 1 of the Convention.
IV. 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. Damage and costs and expenses
27. The applicant claimed a total of EUR 12,423,452 in respect of the pecuniary and non-pecuniary damage suffered, as well as the costs and expenses incurred.
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. On the other hand, it awards the applicant EUR 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage.
30. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 100 (one hundred euros) covering costs under all heads.
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;
(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 4,200 (four thousand two 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;
4. 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 Paul Lemmens
Deputy Registrar President