CASE OF LEKIĆ v. MONTENEGRO
(Application no. 37726/11)
9 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Lekić v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 18 September 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 37726/11) 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 Hasan Lekić ("the first applicant") and Mr Gano Lekić ("the second applicant"), on 5 June 2011.
2. The Montenegrin Government ("the Government") were represented by their Agent, Ms Valentina Pavličić.
3. On 16 December 2015 the complaint concerning the length of the proceedings in question was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4. On 14 March 2016 the first applicant's widow, Ms Badema Lekić, informed the Court that her spouse had died on 11 November 2013 and she expressed the wish to pursue the application before the Court. She also informed the Court that she wished to be represented by the second applicant and submitted a power of attorney to that effect.
5. The applicants were born in 1949 and 1950, respectively, and lived in Podgorica, where the second applicant still lives.
6. On 25 July 2000 the applicants' mother instituted civil proceedings against Podgorička banka Societe Generale Group ad Podgorica (hereinafter "respondent") seeking the payment of her savings, which she had deposited with the respondent's legal predecessor Titogradska osnovna banka Titograd .
7. On an unspecified date the applicants continued the above-mentioned proceedings in their mother's stead as she had passed away in the meantime.
8. On 25 July 2008 the First Instance Court in Podgorica ruled partly in favour of the applicants.
9. On 19 January 2010 the High Court in Podgorica reversed the first-instance judgment by dismissing the applicants' claims in their entirety. This judgment was upheld by the Supreme Court on 19 October 2010.
10. On 5 December 2010 the Supreme Court's judgment was served on the applicants.
11. On 3 February 2011 the applicants lodged a constitutional appeal.
12. On 12 April 2012 the Constitutional Court rejected the applicants' appeal, which decision was served on the applicants on 29 May 2012.
I. LOCUS STANDI OF MS BADEMA LEKIĆ
13. The Court takes note of the death of the first applicant in 2013, after the introduction of the present application, and of the wish expressed by his widow, Ms Badema Lekić, to continue the application before the Court in his stead.
14. The Court reiterates that in a number of cases in which an applicant had died in the course of the proceedings, it had taken into account statements by the applicant's heirs or by close family members expressing their wish to pursue the proceedings before the Court (see Karner v. Austria , no. 40016/98 , § 22, ECHR 2003-IX, with further references).
15. In the circumstances of the present case, the Court finds that the first applicant's widow has standing to proceed in his stead (see, mutatis mutandis , Göktaş v. Turkey , no. 66446/01 , § 19, 29 November 2007). For reasons of convenience, however, the Court will continue to refer to the first and second applicants together as "the applicants".
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicants complained that the length of the civil 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 a ... tribunal..."
17. The Government submitted that this complaint should be rejected for non-exhaustion of domestic remedies or the applicants' non-observance of the six-month rule.
18. The applicants disagreed.
19. The issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France , no. 33592/96, § 47, ECHR 2001-V (extracts)).
20. 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. 1451/10and 2 others, § 123, 24 November 2015, and Vučeljić, cited above, § 31). In view of that, the Court cannot but conclude that, since before the lodging of the application with the Court the applicants had had no effective remedy at their disposal, the Government's objection in this regard must be dismissed.
21. As regards the alleged non-observance of the six-month rule, the Court notes that the applicants received the Supreme Court's judgment of 19 October 2010 on 5 December 2010 (see paragraph 10 above). Since the six-month period provided for in Article 35 § 1 of the Convention started to run on 6 December 2010 and expired on 5 June 2011 (see Otto v. Germany (dec.), no. 21425/06 , 10 November 2009) on which date the applicants lodged their application, the Court concludes that they complied with the six month requirement, as set out in Article 35 § 1 of the Convention. Therefore, the Government objection in this regard must also be dismissed.
22. Given that the complaint in question is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must be declared admissible.
23. The proceedings at issue started on 25 July 2000 (see paragraph 6 above) and ended on 5 December 2010 (see paragraph 10 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 impugned proceedings fall within the Court's competence ratione temporis for a period of six years and nine months. In addition, they had already been pending for more than three years and seven months before that date.
24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question 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).
25. The Court considers that neither the complexity of the case nor the applicants' conduct explains the length of proceedings. The Government did not supply any explanation for the delay or provide any comment on this matter.
26. 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 proceedings of six years and nine months at three levels of jurisdiction was excessive and failed to meet the "reasonable time" requirement.
27. There has accordingly been a breach of Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. 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."
29. The applicants claimed 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 65,024.91 and accompanying interest in respect of pecuniary damage.
30. The Government contested these claims.
31. 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 applicants sustained some non-pecuniary loss arising from the breach of their right under Article 6 of the Convention, for which they should be compensated. The Court therefore considers it reasonable to award the second applicant and Ms Badema Lekić (see paragraph 15 above) EUR 900 jointly for non-pecuniary damage.
B. Costs and expenses
32. The applicants also claimed EUR 4,850 for costs and expenses incurred before domestic courts, together with statutory interest. They further claimed the costs and expenses incurred before the Court, the amount of which they left to the Court's discretion.
33. The Government contested these claims.
34. 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. In the present case, regard being had to the documents in its possession, and the above criteria, the Court rejects the applicants' claim for costs and expenses before the domestic courts as they were not incurred in order to remedy the violation in issue, but considers it reasonable to award the second applicant and Ms Badema Lekić EUR 100 jointly for the proceedings before the Court.
C. Default interest
35. 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 applicants' complaint about the length of proceedings 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 second applicant and Ms Badema Lekić, who has continued the proceedings in the first applicant's stead, within three months, the following amounts:
(i) EUR 900 (nine hundred euros) jointly, less any amounts which may have already been paid in that connection at the domestic level, in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 100 (one hundred euros) jointly in respect of cost and expenses, 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 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 applicants' claim for just satisfaction.
Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Deputy Registrar President