European Court of Human Rights

FIRST SECTION

CASE OF ŽIVALJEVIĆ AND OTHERS v. MONTENEGRO

(Application no. 55668/19)

JUDGMENT

STRASBOURG

18 July 2024

This judgment is final but it may be subject to editorial revision.

In the case of Živaljević and Others v. Montenegro,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,

and Viktoriya Maradudina, Deputy Section Registrar,

Having deliberated in private on 27 June 2024,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 9 October 2019.

2.  The applicants were represented by Mr Lj. Marković, a lawyer practising in Podgorica.

3.  The Montenegrin Government ("the Government") were given notice of the application.

THE FACTS

4.  The applicants' details and information relevant to the application are set out in the appended table.

5.  The applicants complained of the non-enforcement of domestic decisions given against socially/State-owned companies.

6.  On 25 June 2019 the Constitutional Court found a violation of the applicants' rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement. The applicants were awarded 2,000 euros (EUR) each in non-pecuniary damage.

7.  In 2021, in the insolvency proceedings against a debtor, the insolvency administrator rendered decisions accepting the applicants' claims. These decisions have not yet become final.

8.  The domestic decisions under consideration remain unenforced.

THE LAW

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

9.  The applicants complained principally of the non-enforcement of domestic decisions given in their favour. They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 
1.

10.  The Government submitted that the applicants had failed to inform the Court about the insolvency administrator's decisions (see paragraph 7 above) and invited it to reject the application as an abuse of the right of individual application in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

11.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a "hearing" for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997-II).

12.  The Court further notes that the decisions in the present case ordered specific action to be taken. The Court therefore considers that the decisions in question constitute "possessions" within the meaning of Article 1 of Protocol No. 
1.

13.  In the leading cases of R. Kačapor and Others v. Serbia (nos. 2269/06 and 5 others, §§ 97-99, 106-16 and 119-20, 15 January 2008), and Mijanović v. Montenegro (no. 19580/06, §§ 81-91, 17 September 2013), the Court already found a violation in respect of issues similar to those in the present case.

14.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, as regards the Government's argument (see paragraph 10 above), the Court notes that the insolvency administrator's decisions have not yet become final and are thus not enforced. Therefore, the information in question did not concern the very core of the case as it is undisputed between the parties that the final decisions in the applicants' favour under consideration remain unenforced (see paragraph 8 above). The Government's objection must therefore be rejected.

15.  Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants' favour.

16.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 
1.

2. APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  Regard being had to the documents in its possession and its own case-law (see, in particular, R. Kačapor and Others, cited above, §§ 123-26; Stošić v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013; and Mastilović and Others v. Montenegro, no. 28754/10, § 52, 24 February 2022) the Court considers it reasonable not to award the applicants compensation in respect of non-pecuniary damage because it has already been awarded domestically (see paragraph 6 above), but to award them a sum for costs and expenses indicated in the appended table.

18.  The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that this application discloses a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement of domestic decisions given against socially/State-owned companies;
3. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;
4. Holds

(a)  that the respondent State is to pay the applicants, within three months, the amount indicated in the appended table in respect of costs and expenses, at the rate applicable at the date of settlement;

(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.

Done in English, and notified in writing on 18 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Péter Paczolay

 Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1

(non-enforcement or delayed enforcement of domestic decisions given against socially/State-owned companies)

The applicants are represented before the Court by Mr Ljubomir Marković, a lawyer practicing in Podgorica.

[1] Plus any tax that may be chargeable to the applicants.