CASE OF NEDIĆ v. MONTENEGRO
(Application no. 15612/10)
10 October 2017
This judgment is final but it may be subject to editorial revision.
In the case of Nedić v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Valeriu Griţco, President,
Jon Fridrik Kjřlbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 19 September 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 15612/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Borislav Nedić (“the applicant”), on 8 March 2010.
2. The applicant was represented by Mr D. Kavarić, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.
3. On 3 December 2014 the applicant’s complaint concerning the excessive length of the proceedings was communicated to the Government.
4. 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
5. The applicant was born in 1950 and lives in Podgorica.
6. On 6 September 2003 the applicant lodged an application with the Commission for Restitution (Komisija za restituciju nepokretnosti) in Berane requesting restitution of the property expropriated from his father in 1969.
7. Following the adoption of a new Restitution Act (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju), on 28 December 2005, the applicant submitted another application to the newly established Commission for Restitution and Compensation in Berane (Komisija za povraćaj oduzetih imovinskih prava i obeštećenja) requesting compensation.
8. In 2008 all the Commissions for Restitution and Compensation were consolidated into three regional Commissions in Bar, Bijelo Polje and Podgorica. Due to the location of the expropriated property, the applicant’s request was assigned to the Commission with its seat in Bijelo Polje (hereinafter “the Commission”).
9. On 19 February 2009 the applicant sought opinion from an independent expert regarding the expropriated property.
10. On 21 July 2009 the Commission also requested an assessment report on the expropriated property. The report was submitted to the Commission on 24 July 2009.
11. Due to Commission’s inactivity, on 4 September 2009 the applicant lodged an appeal (žalba zbog ćutanja uprave) with the Appeals Commission (Komisija za žalbe u postupku za povraćaj imovinskog prava ili obeštećenja).
12. On 23 October 2009 and 5 December 2013 the applicant filed complaints with the Ministry of Finance and the Administrative Court, respectively, about the Appeals Commission’s inactivity.
13. On 24 December 2013 the Appeals Commission ordered the Commission to decide on the applicant’s request within a period of 30 days.
14. On 13 October 2014 the Commission ruled against the applicant.
15. On 23 December 2014 the Appeals Commission upheld that decision on appeal.
16. The applicant filed and action with the Administrative Court seeking redress.
18. On 23 June 2015 the applicant lodged a constitutional appeal. On 24 July 2015 the Constitutional Court rejected his appeal for failure to make proper use of other available domestic remedies. According to the Constitutional Court, the applicant should first have made use of an additional request for the judicial review of his case (zahtjev za vanredno preispitivanje sudske odluke).
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
19. The applicant 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 ... tribunal...”
20. The Government submitted that the applicant had not exhausted available domestic remedies.
21. The applicant maintained that he had complied with the exhaustion requirement.
22. The Court notes that at the time when the present application was lodged there were no effective remedies in Montenegro as regards complaints relating to the length of proceedings. In particular, a request for review (kontrolni zahtjev) became effective as of 4 September 2013 (see Vukelić v. Montenegro, no. 58258/09, § 85, 4 June 2013), an action for fair redress (tužba za pravično zadovoljenje) became effective as of 18 October 2016 (see Vučeljić v. Montenegro (dec.), no. 59129/15, § 30, 18 October 2016), while a constitutional appeal became effective as of 20 March 2015 (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 123, 24 November 2015, and Vučeljić v. Montenegro (dec.), cited above, § 31). The Government’s objection must therefore be rejected.
23. The Court notes that the applicant’s complaint 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.
24. The applicant reaffirmed his complaint, while the Government maintained that there had been no violation of Article 6 of the Convention.
25. The Court notes that there are two sets of administrative proceedings in the present case.
26. The Court has already held that when under the national legislation an applicant has to exhaust all preliminary administrative procedures before having recourse to a court, the proceedings before the administrative authorities are to be included when calculating the overall length of the proceedings for the purposes of Article 6 of the Convention (see, for example, Pejčić v. Serbia, no. 34799/07, § 68, 8 October 2013, and Božić v. Croatia, no. 22457/02, § 33, 29 June 2006).
27. As regards the period to be taken into consideration, according to the Court’s settled case-law, in administrative proceedings that period begins only when a claimant appeals against the decision of the administrative body, since it is only then that a “dispute” within the meaning of Article 6 § 1 arises (see, inter alia, Pejčić v. Serbia, cited above, § 69). In the present case that period started on 4 September 2009 and ended on 23 April 2015 (see paragraphs 11 and 17 above).
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. The Court does not consider the present case one of such complexity as to justify proceedings of this length. Furthermore, there is nothing in the case file to suggest that the excessive length has been caused by the conduct of the applicant. The delay was caused mainly by the Commissions’ inactivity and it is therefore primarily attributable to the authorities (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).
30. 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 five years and four months at one level of jurisdiction was excessive and failed to meet the “reasonable time” requirement.
31. There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
32. The applicant further complained that his right to the peaceful enjoyment of his possessions had also been violated. In so doing, he relied on Article 1 of Protocol No. 1 which reads as follows:
“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.”
33. The Government contested this complaint claiming that the applicant had failed to make use of available domestic remedies. In particular, they submitted that before complaining to the Court the applicant should have first lodged a request for the judicial review of the case (see paragraph 18 above).
34. The Court has already held that the said request must, in principle and whenever available in accordance with the relevant rules of procedure, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 50, 13 December 2011).
35. Before lodging his application with the Court, the applicant should therefore have first lodged the request in question. Accordingly, his complaint under Article 1 of Protocol No. 1 must be declared inadmissible for non-exhaustion of domestic remedies and be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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.”
37. The applicant claimed 166,775 euros (EUR) in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage.
38. The Government contested these claims.
39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in the Court’s view, it is clear that the applicant sustained some non‑pecuniary loss arising from the breach of his rights under Articles 6 of the Convention, for which he should be compensated. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,500 for non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
40. The applicant also claimed EUR 6,562 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.
41. The Government contested this claim.
42. 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 500 covering costs incurred before the Court itself.
C. Default interest
43. 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 under Article 6 of the Convention admissible;
2. Declares the complaint under Article 1 of Protocol No. 1 inadmissible;
3. 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President