SECOND SECTION
CASE OF
VUKELIĆ v. MONTENEGRO
(Application no.
58258/09)
JUDGMENT
STRASBOURG
4 June 2013
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 Vukelić v. Montenegro,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Françoise Elens-Passos, Acting Section
Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58258/09) 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 Croatian national, Mr Zvonimir Vukelić (“the
applicant”), on 27 October 2009.
The applicant was represented by Mr D. Todorovski,
a lawyer practising in Skopje, “the former Yugoslav Republic of Macedonia”. The
Montenegrin Government (“the Government”) were represented by their Agent, Mr Z.
Pažin.
The applicant complained, under Article 6 of the
Convention, about the non-enforcement of a final judgment rendered in his
favour in 1997.
On 6 January 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).
On 27 April 2010 the Government submitted their
observations and on 25 June 2010 the applicant responded. On 29 September 2010 the
Government submitted their final comments.
Further to the notification under Article 36 § 1
of the Convention and Rule 44 § 1 (a), the Croatian Government did not wish to
exercise their right to intervene in the present case.
On 30 May 2012 the President of the Fourth Section,
to which the case had been assigned at the time, decided to re-communicate the
application and ask the Government for a factual up-date, in particular the
relevant domestic case-law adopted on the basis of the Right to a Trial within
a Reasonable Time Act. The applicant replied in writing to the Government’s
submissions in this regard.
The application was transferred to the Second
Section of the Court, following the re-composition of the Court’s sections on 1
November 2012.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and lives in Skopje, “the former Yugoslav Republic of Macedonia”.
The facts of the case, as submitted by the parties,
may be summarised as follows.
A. The civil proceedings
On an unspecified date the applicant, represented
by a lawyer, filed a compensation claim against another private person (“the
debtor”).
On 17 October 1996 the Real Estate Office in Bar
(Služba za katastar i imovinsko-pravne poslove Bar) issued a decision to
register a mortgage (založno pravo) on the debtor’s flat in favour of
the applicant.
On 7 November 1996 the Court of First Instance (Osnovni
sud) in Bar ruled in favour of the applicant, ordering the debtor to pay
36,000 German Marks, statutory interest and specified legal costs. This
judgment became final on 7 January 1997.
On 18 March 1997 the High Court (Viši sud)
in Podgorica rejected the debtor’s appeal as having been lodged out of time.
B. The enforcement proceedings
On 16 April 1997 the Court of First Instance issued
an enforcement order (rješenje o izvršenju) ordering the sale of the
debtor’s flat by means of a public auction.
On 5 May 2000 the same court established the
value of the flat at issue.
The public auction, scheduled for 1 September 2000,
was cancelled on account of the judge’s absence. No further auctions have been
scheduled thereafter.
On 31 October 2006 the Court of First Instance stayed
the enforcement proceedings (prekida se postupak izvršenja) due to the
debtor’s death. On 8 November 2006 this decision was posted on the applicant’s
door, after a prior written notice (poslije pismenog obaviještenja rješenje
pribijeno na vrata).
On 9 September 2009 the applicant wrote to the
President of the Court of First Instance, urging that the decision at issue be
enforced and asking that any relevant information in that regard be sent to him
at his address in Skopje, “the former Yugoslav Republic of Macedonia”.
On 15 September 2009 the applicant was informed
that the enforcement proceedings had been stayed on 31 October 2006.
On 25 September 2009 the applicant wrote again
to the President of the Court of First Instance seeking that the enforcement
proceedings be expedited.
On 28 September 2009 the applicant proposed that
the enforcement proceedings be continued in respect of the debtor’s heirs.
On 13 October 2009 the Court of First Instance
in Bar invited the applicant to provide the names and the addresses of the
debtor’s heirs within three days, in default of which his request would be
considered withdrawn. It was further specified that no appeal was allowed
against this decision.
On 9 December 2009 the applicant appealed. He
submitted that he did not know the names and the addresses of the debtor’s
heirs, and that it was impossible for him to find this out, especially within
three days. He further maintained that the court should have acted pursuant to section
32 of the Enforcement Act and should have found the debtor’s heirs, or,
alternatively, should have appointed a temporary representative for them without
delay (see paragraph 45 below).
On 18 December 2009 the Court of First Instance requested
the Real Estate Office in Bar (Uprava za nekretnine, područna jedinica
Bar) to provide a property certificate (list nepokretnosti) for the
flat at issue.
On 28 December 2009 the Real Estate Office provided
the requested certificate, which indicated that the new owners of the flat were
B.N. and A.N., the registered address of the former being in Serbia.
On 21 January 2010 the Court of First Instance
rendered a decision to continue the enforcement proceedings, designating B.N. and
A.N. as the new debtors. On 3 February 2010 this decision was served on A.N.
The delivery to B.N. failed as he appeared not to live at the provided address
in Serbia.
On 15 April 2010 the Court of First Instance
requested the relevant Police Directorate in Serbia to inform it if B.N. had
residence there and, if so, at which address.
On 16 February 2011 the Ministry of Justice of Serbia informed the Ministry of Justice of Montenegro that B.N. had a permanent residence in Serbia, but that he actually lived in Montenegro. On 8 March 2011 this information was forwarded to
the court in Bar.
On 13 June 2012 the court in Bar invited the
applicant to pay 233.88 EUR “for publishing a notice (oglas) in the
media, pursuant to section 94 paragraph 6 of the Enforcement Act” (see paragraph
50 below), in default of which the enforcement would be terminated (obustaviti).
On 4 July 2012 the applicant’s objection against
the previous decision was rejected as inadmissible. It was specified that,
pursuant to section 169 of the Enforcement Act 2011, a notice on sale was to be
published in the newspapers (see paragraph 51 below). At the same time, the
applicant was informed that on 11 October 2011 another interim measure
prohibiting the sale of the flat at issue had been deleted from the register of
the Real Estate Office, thus creating the conditions for these enforcement
proceedings to be concluded (see paragraph 34 below).
There is no information in the case file that
the notice on sale was published in the newspapers or that B.N. was served with
the enforcement decision of 21 January 2010. The enforcement proceedings would
appear to be still pending.
C. Other relevant facts
On 26 February 2004 the debtor passed away.
On an unspecified date in 1997 a private person
X instituted civil proceedings against the debtor and another private person.
On 7 April 1998 the court in Bar issued an interim measure prohibiting the
debtor from selling the flat at issue and ordered that this measure be
registered by the Real Estate Office in Bar until these proceedings were concluded. On
10 September 1999 the proceedings ended. On 11 October 2011 the interim
measure was deleted, following a relevant order of the court in Bar to that
effect.
On an unspecified date in 2008 a private person Y
filed a compensation claim against A.N. and three other private persons. On
11 March 2009 these proceedings were registered in respect of the flat at
issue by the Real Estate Office (zabilježba spora). On 23 October 2009
these proceedings ended by a court settlement of the parties. On 12 October
2011 the court in Bar ordered that the note on the proceedings be deleted from
the register of the Real Estate Office.
On 24 November 2010 the court in Bar requested
the Central Bank to calculate the interest rate applicable to the amounts of
34,891.30 EUR and EUR 104.85 starting from 25 March 2004. On 30 November 2010
the Central Bank informed the court in Bar that the requested amounts were EUR
52,411.59 and EUR 157.49, respectively.
There is no information in the case file as to
when the applicant’s lawyer ceased to represent him save for the letter of 9
September 2009 in which the applicant asked the courts that all the relevant information
be sent to him (see paragraph 19 above).
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.
The Constitution entered into force on 22
October 2007.
B. 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.
The Act entered into force in November 2008.
C. Enforcement Procedure Act 2000 (Zakon o izvršnom
postupku; published in the Official Gazette of the Federal Republic of
Yugoslavia nos. 28/00, 73/00 and 71/00)
Section 4 § 1 provided that enforcement
proceedings were urgent.
Section 14 provided that the Civil Procedure Act
would apply accordingly to the enforcement proceedings unless provided
otherwise by this or another federal Act.
Section 32 provided that in cases where the
enforcement proceedings were stayed due to the death of one of the parties the
relevant court would inform thereof the heirs of that party, if their names and
addresses were known, as well as the opposite party. If the names or addresses
of the heirs were not known the court would, without a delay, appoint a temporary
representative for them.
Sections 134-176, inter alia, set out
details as regards enforcement by means of a public auction.
D. Enforcement Procedure Act 2004 (Zakon o izvršnom
postupku; published in the Official Gazette of the Republic of Montenegro - OG
RM - no. 23/04)
The Enforcement Procedure Act 2004 entered into
force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In
accordance with section 286, however, all enforcement proceedings instituted
prior to 13 July 2004 were to be concluded pursuant to the Enforcement
Procedure Act 2000.
E. Enforcement Act 2011 (Zakon o izvršenju i
obezbjeđenju; published in the OGM no. 36/11)
This Act entered into force on 25 September 2011
and thereby repealed the Enforcement Procedure Act 2004. Section 292 § 1, in
particular, provides that all enforcements (postupci izvršenja) would be
terminated in accordance with this Act.
Sections 6 § 1 and 14 of this Act correspond, in
substance, to sections 4 § 1 and 14 of the Enforcement Procedure Act 2000.
Section 94 sets out details as regards the sale
of the debtor’s movable property.
Sections 154-184 set out details as regards the
sale of real estate as well as regards enforcement by means of a public
auction. In particular, section 169 provides, inter alia, that a notice
on sale of a real estate shall be published in the media.
F. Civil Procedure Act (Zakon o parničnom postupku;
published in the OG RM nos. 22/04, 28/05 and 76/06)
Section 211 provides that the proceedings shall
be stayed (postupak se prekida) when one of the parties passes away.
Section 214 provides, inter alia, that proceedings
which were stayed due to the death of one of the parties shall be continued
when the heirs or an administrator of the estate (staralac zaostavštine)
take over the proceedings or when the court invites them to do so upon a
proposal of the other party to that effect.
Section 133 § 1 provides, inter alia,
that when a party has a representative (punomoćnika), all court
documents will be served on the representative.
Section 136 provides, inter alia, that a
decision against which a separate appeal may be filed shall be delivered in
person to a party or his/her representative. If a person who is to be served does
not happen to be at the place where the delivery is to be performed, the
bailiff shall find out when and where that person can be found and shall leave
a written notice with one of the persons mentioned in section 137, requesting
that he/she be present on a certain day and hour in his flat or office. If the
bailiff does not find the person to be served even after this, he/she shall
proceed in accordance with the provisions of section 137 of this Act and the
delivery shall thus be considered as having been carried out.
Section 137 provides that if the person to whom
a court document is to be delivered does not happen to be at home, the delivery
shall be accomplished by serving the court documents on an adult member of his/her
household, who must receive them. If such persons also happen not to be at
home, the court documents shall be served on a neighbour, if he/she agrees.
Section 138 provides that if the person to be
served, an adult member of the household, an authorised person or an employee
of a State body or a legal entity refuses to receive the court documents
without legal reason, the bailiff shall leave the said documents in the flat or
at the office of that person or post it on the door of the flat or the office
in question. The bailiff shall make a note on the delivery slip concerning the
day, hour and reason for refusal of reception, as well as the place where he or
she left the court documents, and thus the delivery shall be considered
accomplished.
Section 142 § 1 provides that when a party to
the proceedings or his/her representative changes his/her address during the
proceedings they shall immediately inform the court thereof.
This Act entered into force on 10 July 2004.
G. Right to a Trial within a Reasonable Time Act
(Zakon o zaštiti prava na suđenje u razumnom roku; published in the 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 10, in particular, provides that the
president of the relevant court shall decide upon the request for review,
which, pursuant to section 9, is to be submitted to the court before which the
case is pending and must contain the name and the address of the party, the
registration number of the case or other data on the basis of which it can be
established to which case it refers, the data and circumstances indicating that
the court is unjustifiably prolonging the proceedings, and the signature of the
party.
Section 17 provides that if the judge notifies
the president of the court that certain procedural measures will be undertaken
no later than four months after the receipt of the request for review, the
president of the court shall notify the party thereof and thus finalise the
procedure upon the request for review.
Section 23 § 1 provides that if the president of
the court acted pursuant to section 17 the party cannot file another request
for review in the same case before the expiry of the period specified in the
notification.
Pursuant to section 24 § 1 if the president of
the court does not deliver a notification on the request for review to the
party pursuant to section 17 the party may lodge an appeal.
Section 44 provides that this Act shall apply
also to judicial proceedings initiated before the entry into force of this Act
but after 3 March 2004. In the determination of a legal remedy for
violations of the right to trial within a reasonable time, the violations of
the right which occurred after 3 March 2004 shall be established. When
establishing the violation of this right, the Court shall also take into
consideration the length of the judicial proceedings prior to 3 March 2004.
This Act entered into force on 21 December 2007.
H. Relevant domestic case-law
Between 21 December 2007, which is when the Right
to a Trial within a Reasonable Time Act entered into force, and 3 September
2012, the courts in Montenegro considered more than 121 requests for review. The
Court of First Instance in Cetinje submitted the data only for the period
between 1 May 2011 and 15 May 2012, and the Court of First Instance in Žabljak
for the period between January 2011 and June 2012. Also, the Court of First
Instance in Danilovgrad and the Court of First Instance in Kolašin did not
provide the exact number of the requests for review that had been dealt with by
these two courts. All the other courts dealt with 121 requests for review in
total.
In forty-six cases the courts issued
notifications specifying the concrete actions that would be undertaken in each case
within four months with a view of expediting the proceedings (see paragraph 62
above). In thirty cases of these forty-six the relevant actions were undertaken
within the set time-limit (a main hearing concluded, a decision or a judgment
rendered etc.). In fourteen cases the relevant actions were undertaken within periods
ranging between 4 months and 12 months. In two cases the relevant action
specified in the notification would not appear to have been undertaken even
after a period of 12 months.
In thirty-three cases the requests for review were
dismissed as unfounded. In twenty-one cases of these thirty-three the relevant
domestic proceedings would appear to have been pending before the
first-instance courts between 5 months, and 1 year and nine months at most. In one
case the relevant civil proceedings in respect of which the request for review was
dismissed as unfounded had already been pending for at least 4 years and 5 months
before a first-instance court. In eleven cases it is unclear how long the
relevant domestic proceedings had lasted.
It is unclear how the additional thirty-three requests
for review had been dealt with. However, it would appear that in eighteen cases
out of these thirty-three the relevant domestic proceedings ended soon thereafter.
The status of the remaining fifteen proceedings is not known.
Lastly, in five cases the appellants were
informed that the relevant decisions had been rendered in the meantime and in four
cases the requests for review were withdrawn.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained, under Article 6 of the
Convention, about the non-enforcement of the final court judgment rendered in
his favour, which became final in 1997.
The relevant part of this Article 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 ...”.
A. Admissibility
1. Abuse of the right to petition
The Government submitted that the applicant had
made comments in his observations amounting to an abuse of the right of
petition, within the meaning of Article 35 § 3 of the Convention. In
particular, the applicant had submitted that he had been discriminated against
on the grounds of his Croatian nationality, that his lawyer had had to cancel
his power of attorney in order not to have professional problems, and that the
domestic bodies had worked unlawfully using threats, blackmails as well as
family and political connections. The Government therefore invited the Court to
declare the application inadmissible.
The Court recalls that, whilst the use of
offensive language in proceedings before it is undoubtedly inappropriate, an
application may only be rejected as abusive in extraordinary circumstances (see,
for example, Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports
of Judgments and Decisions 1996-IV; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). It is also true that in certain
exceptional cases the persistent use of insulting or provocative language by an
applicant against the respondent Government may be considered an abuse of the
right of petition (see Duringer and Grunge v. France (dec.), nos.
61164/00 and 18589/02, ECHR 2003-II, as well as Stamoulakatos v. the United
Kingdom, no. 27567/95, Commission decision of 9 April 1997; X. v.
Germany, no. 2724/66, Commission decision of 10 February 1967; X. and Y.
v. Germany, no. 2625/65, Commission decision of 30 September 1968, Reports
28, pp. 26-42). In the present case, however, the Court considers that the
statements made by the applicant are unsubstantiated, but that they do not
amount to circumstances of the kind that would justify a decision to declare
the application inadmissible as an abuse of the right of petition (see, mutatis
mutandis, Chernitsyn v. Russia (dec.), no. 5964/02, 8 July 2004).
It follows that the Government’s preliminary
objection must be dismissed.
2. Exhaustion
of domestic remedies
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,
which were provided by the Right to a Trail within a Reasonable Time Act (see paragraph
60 above). The applicant’s not living in Montenegro and his ignorance about
these remedies did not absolve him from the obligation to use them. Lastly,
after having used these remedies the applicant could have made use of a
constitutional appeal.
The applicant contested the Government’s
submissions. In particular, he did not live in Montenegro and therefore did not
know about the said remedies until he received the Government’s observations in
the present case. In any event, the decision at issue remained unenforced as of
1997, and the Right to a Trial within a Reasonable Time Act had entered into
force only in 2007. He also submitted that the domestic case-law provided by
the Government (see paragraphs 67-71 above) was irrelevant to his case.
b. The 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 violations alleged 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, 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 1998-I).
Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the Government
was in fact 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 from the requirement (see Akdivar and
Others, cited above, § 65).
The application of this rule must make due
allowance for the context. Accordingly, the Court has recognised that Article
35 § 1 must be applied with some degree of flexibility and without excessive
formalism (see Akdivar and Others, cited above, § 69). It has further
recognised that the rule of exhaustion is neither absolute nor capable of being
applied automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each individual case
(see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40).
This means, amongst other things, that the Court must take realistic account
not only of the existence of formal remedies in the legal system of the
Contracting Party concerned, but also of the general context in which they
operate, as well as the personal circumstances of the applicant (see Akdivar
and Others, cited above, § 69). It must examine whether, in all the
circumstances of the case, the applicant did everything that could reasonably
be expected in order to exhaust domestic remedies (see EVT Company v. Serbia,
no. 3102/05, § 37 in fine, 21 June 2007).
Finally, 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 legislation and where no conclusions could be drawn from the
Government’s submissions about its effectiveness (see Boucke v. Montenegro,
no. 26945/06, §§ 72-74, 21 February 2012; as well as, mutatis mutandis, 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 effectiveness of this
remedy (see Živaljević, cited above, § 66).
c. The Court’s assessment
The Court observes that the respondent State’s
case-law on the basis of the request for review has considerably evolved in the
meantime (see paragraphs 67-71 above; see also Boucke, cited above, §§ 46-47). In particular, in
nearly all the cases in which the relevant domestic courts specified a
time-limit for undertaking certain procedural activities these activities were
indeed undertaken and in most cases in a timely manner (see paragraph 68 above).
It also appears that most of the requests for review that were dismissed as
unfounded were correctly dismissed as such (see paragraph 69 above).
While there are some cases in which the outcome
of the request for review is rather unclear (see paragraph 70 above), the Court
considers that, in view of the considerable development of the relevant domestic
case-law on this issue, a request for review must, in principle and whenever
available in accordance with the relevant legislation, be considered an
effective domestic remedy within the meaning of Article 35 § 1 of the
Convention in respect of all applications introduced against Montenegro after
the date when this judgment becomes final.
Turning to the present case, the Court notes that
while the applicant has indeed never lodged a request for review as such, he
has urged at least twice the relevant domestic courts to expedite the enforcement
proceedings, substantially complying with the requirements provided by a request
for review (see paragraphs 61, 19 and 21, in that order), but to no avail. More
than three years and five months after such attempts the enforcement proceedings
are still ongoing.
In view of the above, the Court considers that requiring
the applicant to use this remedy formally in such circumstances would amount to
excessive formalism and that therefore he did not have to exhaust this
particular avenue of redress (see, mutatis mutandis, Boucke, cited
above, §§ 73-74). The
Government’s objection in this regard must therefore be dismissed.
The Court has already held that an action for
fair redress is not capable of expediting proceedings while they are still
pending, which is clearly the applicant’s main concern, and that a
constitutional appeal cannot be considered an effective domestic remedy in
respect of length of proceedings (see Boucke, cited above, §§ 75-79; see also Stakić v. Montenegro,
no. 49320/07, § 41, 2 October 2012). It sees no reason to depart
from its finding in the present case. The Government’s objection in this regard
must, therefore, also be dismissed.
3. Conclusion
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.
B. Merits
1. Arguments of the parties
The applicant reaffirmed his complaint. In
particular, he submitted that there were several long periods of inactivity by
the respondent State (see paragraphs 17-18, 29-30, and 34 above), and a failure
of the relevant authorities to act in accordance with the relevant legislation,
in particular section 32 of the Enforcement Act (see paragraph 45 above). He
also submitted that it was unclear how the judge responsible for the
enforcement got the amounts of EUR 34.891.30 and EUR 104.85 given that there
was no expert’s calculation in that regard, or why the interest rate was calculated
only as of 25 March 2004 (see paragraph 36 above).
The Government submitted that the applicant had contributed
to the length of the enforcement proceedings at issue. In particular, he had made
a proposal that the enforcement proceedings be continued only on 28 September
2009, which proposal was necessary for the courts to invite the heirs to take
over the proceedings (see paragraphs 22, 53, 44 and 49 above, in that order). He
had also failed to provide the courts with the names of the debtor’s heirs
which is why they could not have a temporary representative appointed pursuant
to section 32 of the Enforcement Act. As regards the applicant’s argument that
he did not know who they were (see paragraph 24 above), the data registered in
the Real Estate Office were public and accessible to every interested person,
including the applicant. He could have thus obtained this information as easily
as the Court of First Instance did.
The Government further submitted that the length
of the enforcement proceedings at issue was also influenced by an international
legal assistance, as one of the new debtors had a permanent residence in Serbia. Due to the failure to serve him with the new enforcement order in Serbia, for which the respondent State could not be held responsible, the said enforcement order could
not become final, this being a precondition for proceeding with the enforcement
at issue.
Lastly, the present case was complex due to
there being several other property-related claims in respect of the flat at
issue (see paragraphs 34-35 above). Once one of these proceedings had been
concluded the enforcement could continue in respect of the applicant (see paragraph
31 in fine above).
In view of the above the Government concluded
that the Montenegrin authorities had proceeded in a timely and efficient manner.
2. The relevant principles
The Court recalls that Article 6 § 1 of the
Convention, inter alia, protects the implementation of final, binding
judicial decisions, which, in States that accept the rule of law, cannot remain
inoperative to the detriment of one party. Accordingly, the execution of a
judicial decision cannot be prevented, invalidated or unduly delayed (see,
among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997-II). The State has an obligation to
organise a system of enforcement of judgments that is effective both in law and
in practice (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005).
Further, the Court notes that, irrespective of
whether enforcement is to be carried out against a private or State actor, it
is up to the State to take all necessary steps, within its competence, to
execute a final court judgment and, in so doing, to ensure the effective
participation of its entire apparatus, failing which it will fall short of the
requirements contained in Article 6 § 1 (see, albeit in the context of child
custody, Felbab v. Serbia, no. 14011/07, § 62, 14 April 2009). However, a failure to enforce a
judgment because of the debtor’s indigence cannot be held against the State
unless and to the extent that it is imputable to the domestic authorities, for
example, to their errors or delay in proceeding with the enforcement (see, mutatis
mutandis, Omasta v. Slovakia (dec.), no. 40221/98, 10 December
2002).
Lastly, the Court reiterates that enforcement
proceedings by their very nature need to be dealt with expeditiously (see Comingersoll
S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV).
3. The Court’s assessment
Turning to the present case, the Court notes
that the judgment at issue had not been enforced as of April 1997 and remains unenforced
to date (see paragraphs 15 and 32 above). While the period to be taken
into account began on 3 March 2004, which is when the Convention entered into
force in respect of Montenegro (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009),
in order to determine the reasonableness of the length of proceedings regard
must also be had to the state of the case on 3 March 2004 (see, among other
authorities, Mikulić v. Croatia, no. 53176/99, § 37, ECHR 2002-I;
Styranowski v. Poland, 30 October 1998, § 46, Reports of
Judgments and Decisions 1998-VIII). The impugned enforcement
proceedings have thus been within the Court’s competence ratione temporis
for a period of more than nine years, another six years and ten months having
already elapsed before that date. The length of the enforcement proceedings
here at issue could be justified only under exceptional circumstances.
The Court notes that between 3 March 2004 and 31
October 2006, which is two years, seven months and twenty-nine days, the
relevant authorities made no attempt whatsoever to enforce the judgment at
issue (see paragraphs 17-18 above). Once they were informed in February 2011
that one of the new debtors actually lived in Montenegro they would not appear
to have made any effort to date to establish his whereabouts in order to serve
him with the new decision, which is more than another two years and one month,
and which, as the Government submitted, is a precondition for the new
enforcement decision to become final (see paragraph 92 in fine above). No
explanation was provided in this regard. The Court considers that these substantial
periods of inactivity can only be attributed to the domestic authorities.
The applicant, for his part, would not appear
to have contributed in any way to the delay complained of. In this regard,
the Court observes that an attempt was made to serve the decision to stay the enforcement
proceedings on the applicant in person, contrary to the relevant domestic
provisions given that he would appear to have been duly represented by a lawyer
at the time, as it was only in September 2009 that the applicant asked the
domestic court to communicate directly with him (see paragraphs 11, 18 in
fine, 19 and 37 above). Once the applicant learned that the enforcement
proceedings had been stayed he immediately sought that they be continued (see
paragraphs 20 and 22 above). Therefore, the Court considers that the period
between 31 October 2006 and 9 September 2009 cannot be attributed to the
applicant either.
Lastly, it is noted that the present case concerns
the enforcement of a judgment against another private person. While it can be
accepted that some such cases may be more complex than others, the Court does
not consider the present one to be of such complexity as to justify the enforcement
proceedings of this length. While it is true that there were other property-related
claims in respect of the flat at issue, it is observed that the first such proceedings
had already ended in 1999, which is long before the Convention entered into
force in respect of the respondent State, and the second such proceedings
lasted between 2008 and October 2009, that is when the enforcement proceedings
here at issue had been stayed anyhow and therefore could not be considered to
have had any influence over it.
Having regard to its case-law on the subject
(see, mutatis mutandis, Boucke, cited above, § 89-94) and the
failure of the domestic authorities to display adequate diligence, the Court
considers that the non-enforcement at issue amounts to a violation of Article 6
§ 1 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.”
A. Damage
The applicant claimed EUR 208,333.88 in respect
of pecuniary damage, this apparently being the amount of the debt as established
by the domestic judgment at issue including the accompanying interest. He also
claimed EUR 50,000 for non-pecuniary damage on account of “mental anguish of
his three-member family and himself”.
The Government made no comment in this regard.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim (see, mutatis mutandis, Šoštarić v. Croatia, no. 39659/04, §§ 39-41, 12 April 2007). On the other hand, it awards the applicant
EUR 3,600 in respect of non-pecuniary damage.
Having regard to the violation found, the Court
also considers that the respondent State must secure, by appropriate means, the
enforcement of the judgment rendered in favour of the applicant (see, mutatis
mutandis, Gülizar Çevik v. Turkey, no. 34450/08, § 35, 31 May 2012).
B. Costs and expenses
The applicant claimed EUR 10,000 for the costs
and expenses in general, but he submitted no invoice.
The Government made no comment in this respect.
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 (see, for example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case,
regard being had to the documents in its possession and the above criteria, the
Court rejects the applicant’s claim for costs and expenses for lack of
substantiation.
C. Default interest
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;
3. Holds
(a) that the respondent State must secure, by
appropriate means, the enforcement of the judgment rendered in favour of the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention;
(b) 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, EUR 3,600 euros (three
thousand six hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(c) 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Guido Raimondi
Acting Registrar President
