NOVAKOVIC AND OTHERS v. MONTENEGRO - 44143/11 (Judgment : Article 6 - Right to a fair trial : Second Section Committee) [2018] ECHR 257 (20 March 2018)

SECOND SECTION

CASE OF NOVAKOVIĆ AND OTHERS v. MONTENEGRO

(Application no. 44143/11)

JUDGMENT

STRASBOURG

20 March 2018

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

In the case of Novaković and Others v. Montenegro,

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

Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 20 February 2018,

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

PROCEDURE

1. The case originated in an application (no. 44143/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Montenegrin nationals, Mr Milan Novaković, Ms Draginja Proročić and Ms Mileva Lubarda ("the applicants"), on 6 July 2011.

2. The applicants were represented by Ms M. Novaković, a lawyer practising in Podgorica, and Ms D. Radulović, a lawyer practicing in Kotor. 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 and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1925, 1927 and 1930, respectively, and live in Budva.

5. On 3 April 2001 the applicants lodged a civil claim with the Court of First Instance in Kotor seeking compensation for the property nationalised from their parents in 1948. On 16 July 2008 the Court of First Instance ruled against the applicants.

6. On 2 October 2009, the High Court in Podgorica upheld the decision of the first instance court on appeal.

7. On 19 January 2011 the Supreme Court of Montenegro rejected the applicants' appeal on points of law, which decision was served on the applicants on 15 March 2011.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

8. The applicants 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 [a] ... tribunal..."

A. Admissibility

9. The Court notes that this 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.

B. Merits

10. The applicants reaffirmed their complaints.

11. The Government made no comment in this regard.

12. The Court observes that the proceedings in question took place between 3 April 2001 and 15 March 2011. However, the Court can only examine the period between 3 March 2004, when the Convention had entered into force in respect of Montenegro, and 15 March 2011, when the Supreme Court's decision was served on the applicants, that being a period of seven years at three levels of jurisdiction.

13. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

14. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

15. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of seven years at three levels of jurisdiction was excessive and failed to meet the "reasonable time" requirement.

16. There has accordingly been a breach of Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

17. 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."

18. The applicants asked the Court to award them pecuniary damage, but left the amount to the discretion of the Court. They further claimed compensation for non-pecuniary damage in their application form, but they failed to submit any quantified claims in this respect despite the Court's letter inviting them to submit their just satisfaction claims under Article 41 of the Convention subsequent to the communication of their complaints.

19. The Government contested their claim.

20. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

21. Furthermore, in view of its settled case-law and finding no exceptional circumstances in the present case which could warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589/08, §§ 76-78, 30 March 2017), the Court makes no award in respect of non-pecuniary damage.

22. Lastly, as the applicant failed to submit any quantified claim in respect of costs and expenses, the Court makes no award in this respect either.

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. Dismisses the applicants' claims for just satisfaction.

Done in English, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıLedi Bianku
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> NOVAKOVIC AND OTHERS v. MONTENEGRO - 44143/11 (Judgment : Article 6 - Right to a fair trial : Second Section Committee) [2018] ECHR 257 (20 March 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/257.html Cite as: [2018] ECHR 257, ECLI:CE:ECHR:2018:0320JUD004414311, CE:ECHR:2018:0320JUD004414311