FOURTH SECTION
CASE OF NOVOVIĆ
v. MONTENEGRO
(Application no. 13210/05)
JUDGMENT
STRASBOURG
23 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Novović v. Montenegro,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 13210/05) 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 Miladin Novović (“the
applicant”), on 2 April 2005.
The applicant was
represented by Mr M. Mirović, a lawyer practising in Bar. The
Montenegrin Government (“the Government”) were represented by their Agent, Mr Z.
Pažin.
The applicant complained, in particular, about
the length of reinstatement proceedings.
On 28 June 2010 the
application was communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 §
1).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
The applicant was born in 1939 and lives in
Sutomore.
On 25 June 1991 the applicant was made redundant.
On 29 June 1991 and on 2 December 1993 the
applicant filed two claims seeking reinstatement and compensation, one against
his former employer, and one against the institution which, in the meantime,
had taken over the functions from his former employer (Republički zavod
za geodetske i imovinskopravne poslove; hereinafter “the Institution”).
On 28 February 1994 the Court of First Instance (Osnovni
sud) in Bar ruled against the applicant upon his claim against the
Institution.
On 27 May 1994 the High Court (Viši sud)
in Podgorica overturned this judgment and ruled in favour of the applicant.
On 9 November 1994 the two sets of proceedings
were joined into a single lawsuit. On the same day the Court of First Instance
in Bar ruled in respect of the claim against the former employer, awarding the
applicant damages. This judgment became final (pravosnažna) in January
1995. The proceedings against the Institution continued.
On 30 May 1995 the Supreme Court (Vrhovni sud)
in Podgorica quashed the two judgments rendered in respect of the Institution (see
paragraphs 8 and 9 above) and ordered a re-trial.
It would appear that on 8 December 1999 the
Court of First Instance in Bar rendered a decision that the applicant’s claim
had been withdrawn (tužba povučena), which decision was apparently
quashed by the High Court in Podgorica on 16 May 2000.
On 27 February 2006 the Court of First Instance
in Bar ruled against the applicant.
On 4 November 2008 the High Court in Podgorica
upheld this judgment.
On 16 June 2009 the Supreme Court in Podgorica
dismissed the applicant’s appeal on points of law (revizija).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 1/07)
Article 149 of the Constitution provides that
the Constitutional Court shall rule on a constitutional appeal lodged in
respect of an alleged violation of a human right or freedom guaranteed by the
Constitution, after all other effective legal remedies have been exhausted.
This Constitution entered into force on 22
October 2007.
B. The Montenegro Constitutional
Court Act (Zakon o Ustavnom sudu Crne Gore; published
in OGM no. 64/08)
. Section 48 provides that a
constitutional appeal may be lodged against an individual decision of a state
body, an administrative body, a local self-government body or a legal
person exercising public authority, for violations of human rights and
freedoms guaranteed by the Constitution, after all other effective domestic
remedies have been exhausted.
. Sections 49-59 provide additional details as regards
the processing of constitutional appeals. In particular, section 56 provides
that when the Constitutional Court finds a violation of a human right or
freedom, it shall quash the impugned decision, entirely or partially, and order
that the case be re-examined by the same body which rendered the quashed
decision.
This Act entered into force on 4 November 2008.
C. Right to a Trial within a Reasonable Time Act
(Zakon o zaštiti prava na suđenje u razumnom roku; published in OGM
no. 11/07)
This Act provides, under certain circumstances,
the possibility to have lengthy proceedings expedited by means of a request for
review (kontrolni
zahtjev), as well as an opportunity for claimants to be awarded
compensation by means of an action for fair redress (tužba
za pravično zadovoljenje).
Section 33 § 3 provides, inter alia, that
an action for fair redress shall be filed with the Supreme Court no later than
six months after the date of receipt of the final decision rendered in the
impugned proceedings.
Section 44, in particular, provides that this
Act shall be applied retroactively to all proceedings from 3 March 2004, but
that the duration of proceedings before that date shall also be taken into
account.
This Act entered into force on 21 December 2007,
but contained no reference to applications involving procedural delay already
lodged with the Court.
D. Civil Procedure Act 1977 (Zakon o parničnom
postupku; published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87,
57/89, 20/90, 27/90, 35/91, and the Official Gazette of the Federal Republic of
Yugoslavia nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
Section 434 provided that labour disputes were
to be dealt with by the courts urgently.
E. Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in the Official Gazette of the Republic of Montenegro nos. 22/04, 28/05 and 76/06)
This Act entered into force on 10 July 2004 and
thereby repealed the Civil Procedure Act 1977.
The text of section 434 of the Civil Procedure
Act 2004 corresponds to section 434 of the Civil Procedure Act 1977.
F. Relevant domestic case-law
Between 1 January 2008 and 30 September 2009
twenty-two actions for fair redress were submitted, of which sixteen were dealt
with and six were still being examined. In one case the courts awarded the
plaintiff compensation for non-pecuniary damage in respect of the length of
civil proceedings. Between 1 January 2010 and 30 April 2011 an additional
fifteen actions for fair redress were examined, in three of which the courts
awarded damages.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As regards the length of proceedings
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, the relevant part of 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...”
1. Admissibility
(a) Arguments of the parties
The Government submitted that the applicant had
not exhausted all effective domestic remedies available to him. In particular,
he had failed to lodge a request for review and an action for fair redress
provided by the Right to a Trial within a Reasonable Time Act (see paragraph 21
above). He had also failed to make use of a constitutional appeal (see
paragraphs 16-20 above).
The applicant submitted belated comments, which,
on that account, were not admitted to the file.
(b) Relevant principles
The Court reiterates that, according to its
established case-law, the purpose of the domestic remedies rule in Article 35 §
1 of the Convention is to afford the Contracting States the opportunity of
preventing or putting right the alleged violations before they are submitted to
the Court.
However, the only remedies which the Convention
requires to be exhausted are those which relate to the breaches alleged and at
the same time are available and sufficient (see Selmouni
v. France [GC], no. 25803/94, § 75, ECHR 1999-V; and McFarlane
v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).
The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing which
they will lack the requisite accessibility and effectiveness; it falls to the
respondent State to establish that these various conditions are satisfied (see Vernillo
v. France, 20 February 1991, § 27, Series A no. 198; and Dalia
v. France, 19 February 1998, § 38, Reports
of Judgments and Decisions 1998-I).
Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the Government
had in fact been used, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her of that requirement (see Dankevich
v. Ukraine, no. 40679/98,
§ 107, 29 April 2003).
The decisive question in assessing the effectiveness
of a remedy concerning a complaint about the length of proceedings is whether
or not it was possible for the applicant to be provided with direct and speedy
redress, rather than with indirect protection of the rights guaranteed under
Article 6 (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 195, ECHR 2006, and Sürmeli
v. Germany [GC], no. 75529/01, § 101, 8 June 2006). In
particular, a remedy of this sort shall be “effective” if it can be used either
to expedite a decision by the courts dealing with the case or to provide the
litigant with adequate redress for delays which have already occurred (see Kudła
v. Poland [GC], no. 30210/96, §§ 157-159, ECHR 2000-XI; Mifsud
v. France (dec.), [GC], no. 57220/00, § 17, ECHR 2002-VIII; and
Sürmeli
v. Germany [GC], cited above, § 99).
The Court reiterates that the effectiveness of a
particular remedy is normally assessed with reference to the date on which the
application was lodged (see, for example, Baumann
v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)), this rule,
however, being subject to exceptions which may be justified by the specific
circumstances of each case (see Nogolica v. Croatia (dec.), no.
77784/01, ECHR 2002-VIII).
(c) The Court’s assessment
(i) As regards the request for review
The Court has already held that it would be
unreasonable to require an applicant to try a request for review on the basis
of the Right to a Trial within a Reasonable Time Act in a case where the domestic
proceedings had been pending for a number of years before the introduction of
this piece of legislation and where no conclusions could be drawn from the
Government’s submissions about its effectiveness (see, mutatis mutandis,
Boucke v. Montenegro, no. 26945/06, §§ 72-74, 21 February 2012, as well as Živaljević
v Montenegro, no. 17229/04, §§ 60-65, 8 March 2011). The
Court, however, reserved its right to reconsider its view if the Government
demonstrated, with reference to specific cases, the efficacy of this remedy
(see Boucke, cited above, § 71, and Živaljević,
cited above, § 66).
In view of the fact that the proceedings here at
issue had been pending for more than 16 years and 5 months before the Right to
a Trial within a Reasonable Time Act entered into force, out of which more than
three years and nine months had elapsed after the Convention had entered into
force in respect of the respondent State, and that no recent case-law
concerning the efficacy of this particular remedy has been submitted, the Court
sees no reason to depart from its previous finding and considers that it would
have been unreasonable to have required the applicant to try this avenue of
redress (see Boucke, cited above, § 74; see, also, Živaljević,
cited above, §§ 60-65). The Government’s objection in this regard
must, therefore, be dismissed.
(ii) As
regards the action for fair redress
The Court notes that the applicant lodged his
application on 2 April 2005, which was more than 2 years and 8 months before an
action for fair redress was introduced by the Right to a Trial within a
Reasonable Time Act (see paragraphs 1 and 24 above). Therefore, at the time
when the applicant lodged his application with this Court, there was no
available domestic remedy which would have enabled him to obtain redress for
the past delay, the effectiveness of a particular remedy being assessed with
reference to the date on which the application was lodged (see Baumann
v. France, cited above, § 47).
While the Court has allowed for an exception to
this rule, this was usually in cases where specific national legislation as
regards the length of proceedings had been passed in response to a great number
of applications already pending before the Court indicating a systemic problem
in these States. These laws also contained transitional provisions bringing
within the jurisdiction of domestic courts the cases already pending before this
Court (see Grzinčič v. Slovenia, no. 26867/02, § 48, 3 May
2007; Charzyński
v. Poland (dec.), no. 15212/03, § 20, ECHR 2005-V; and Brusco
v. Italy (dec.), no. 69789/01, ECHR 2001-IX). Having regard to those
considerations, the Court was of the opinion that these States should be
afforded an opportunity to prevent or put right the alleged violation
themselves and therefore allowed for an exception to the above rule.
Unlike in the above mentioned cases, the
relevant legislation in Montenegro had not been passed in response to numerous
applications pending before this Court, nor does it contain any transitional
provision whatsoever with regard to applications already pending before this
Court (see paragraph 24 above). Therefore, it is unclear whether the domestic
courts would have ruled at all on the merits of the applicant’s action for fair
redress had he lodged one.
The Court also notes that the applicant cannot
be required to avail himself of this avenue of redress at this stage, as its
use had long become time-barred in his case (see paragraphs 15 and 22 above).
Having regard to the particular circumstances of
the instant case as set out above, the Court considers that the applicant was
not obliged to exhaust this particular avenue of redress (see, mutatis
mutandis, Vinčić and Others v. Serbia, no. 44698/06 et
seq. § 51, 1 December 2009, as well as Cvetković v. Serbia, no.
17271/04, § 41, 10 June 2008). The Government’s objection must, therefore, be
dismissed.
(iii) As regards the constitutional appeal
The Court has already held that a constitutional
appeal cannot be considered an effective domestic remedy in respect of length
of proceedings (see, mutatis mutandis, Boucke, cited above, § 79;
see, also, Mijušković v. Montenegro,
no. 49337/07, § 73-74, 21
September 2010). It sees no reason to hold otherwise in the present
case. The Government’s objection must, therefore, be dismissed.
(iv) Conclusion
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.
2. Merits
The Government made no comment.
The applicant did not submit comments within the
time-limit set by the Court (see paragraph 31 above).
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and having regard to the criteria laid down in its case-law, in
particular the complexity of the case, the conduct of the parties and of the
relevant authorities, and the importance of what is at stake for the applicant
(see, among other authorities, Mikulić v.
Croatia, no. 53176/99, § 38, ECHR 2002-I).
In assessing the reasonableness of the delay at
issue, regard must also be had to the state of the employment dispute on the
date of ratification (see, mutatis mutandis,
Styranowski v. Poland, 30 October 1998, § 46, Reports of Judgments
and Decisions 1998-VIII).
The Court recalls that reinstatement proceedings
are of “crucial importance” to plaintiffs and that, as such, they must be dealt
with “expeditiously” (see Guzicka v. Poland, no. 55383/00, § 30, 13
July 2004, and Georgi Georgiev v. Bulgaria, no. 22381/05, § 18 in fine, 27 May 2010).
Indeed, this requirement is reinforced additionally in respect of States where
domestic law provides that such cases must be resolved with particular urgency
(see, mutatis mutandis, Borgese v. Italy, 26 February 1992, § 18,
Series A no. 228-B; see also paragraphs 25-27 above). The Court has
already found a period of four years and one month for three levels of
jurisdiction in proceedings concerning reinstatement excessive and in breach of
Article 6 § 1 of the Convention (see Simić v. Serbia, no. 29908/05,
§§ 16 and 21, 24 November 2009).
Turning to the present case, the Court notes
that the impugned proceedings were within this Court’s competence ratione
temporis for a period of five years and three months after the respondent
State’s ratification of the Convention on 3 March 2004, another twelve years
and eight months having already elapsed before that date.
The Court further observes that the nature of
the applicant’s action was not particularly complex and there was nothing in
the case file which would indicate that he contributed to the length of the
impugned proceedings.
Having regard to the criteria laid down in its
jurisprudence and the domestic law (see, in particular, paragraphs 49-51 and
25-27 above, in that order), as well as the circumstances of the present case,
the Court considers that the overall length of the impugned proceedings has
failed to satisfy the reasonable time requirement (see, mutatis mutandis, Stanković v.
Serbia, no. 29907/05, § 35, 16 December 2008, and Simić v.
Serbia, cited above, §§ 18 - 21).
There has, accordingly, been a violation of
Article 6 § 1 of the Convention.
B. As regards the outcome of the proceedings
Under Article 6 § 1 of the Convention the
applicant implicitly also complained about the outcome of the above
proceedings.
The Court reiterates that it is not its function
to deal with errors of fact or law allegedly committed by the national courts unless
and in so far as they may have infringed rights and freedoms protected by the
Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR
1999-I), nor is it its task to act as a court of appeal in respect of the
decisions taken by domestic courts (see Melnychuk
v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).
It follows that this part of the application is
manifestly ill-founded and must, as such, be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
In his belated observations the applicant
referred to the just satisfaction claim he had made in his application form:
EUR 27,195 for damages and EUR 7,500 for costs and expenses incurred before the
domestic courts.
The Government contested this claim.
In the Court’s letter of 4 November 2010 the
applicant was invited to submit any claims for just satisfaction within the
time-limit fixed for the submission of his observations on the merits, and was
reminded that failure to do so entailed the consequence that the Chamber would
either make no award of just satisfaction or else reject the claim in part. He
was also informed that this applied even if the applicant had indicated his
wishes in this respect at an earlier stage of the proceedings. Even though he
was legally represented the applicant submitted a just satisfaction claim after
the expiration of the envisaged time-limit. The Court, therefore, makes no
award (see, mutatis mutandis, Boucke v. Montenegro, cited above, § 99).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
length of the proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
