KECOJEVIĆ v. MONTENEGRO
Inadmissible
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
1. The applicant, Ms Vera Kecojević, is a Montenegrin national, who was born in 1957 and lives in Nikšić. She is represented before the Court by Mr M. Vojinović, a lawyer practising in Nikšić. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 28 December 2004 the President of the Municipality of Nikšić issued a decision appointing a Restitution and Compensation Commission (Komisija za povraćaj i obeštećenje, hereinafter “the Commission”). This decision was not confirmed by the Municipal Assembly and the remuneration of the members of the Commission was never specified. The Commission functioned until 8 July 2005, when it was replaced by a new one. The applicant was a member of both Commissions. 4. On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation in the amount of EUR 1,500 in respect of remuneration for her work in the Commission between 28 December 2004 and 8 July 2005, as she had not been paid during the said period. 5. On 2 July 2007 the Court of First Instance (Osnovni sud) in Nikšić ruled against the applicant on the ground that the Commission had had no legitimacy during the specified time, given that the decision on its appointment had not been confirmed by the Municipal Assembly, and as the remuneration for the said period had never been defined. 6. On 3 October 2008 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, essentially endorsing the reasons contained therein. 7. On 6 October 2008 the High Court in Podgorica overturned a firstinstance judgment issued in respect of one of the applicant’s colleagues, and awarded him compensation in the amount of EUR 1,380 in respect of remuneration for his work in the same Commission in the same period, plus accompanying interest and the costs of the proceedings. In doing so the court held, in particular, that the Commission had had a temporary character by virtue of the law itself and that therefore the firstinstance court’s conclusion that it had lacked legitimacy was wrong. Also section 58 of the Local Self-Governance Act 2003 specifically provided that if the Assembly did not confirm a certain decision or the President of the Municipality did not submit it for confirmation, the decision would cease to be in force as of the day when the Assembly terminated its session. Therefore, it had to be considered that the Commission had ceased to operate when the decision on its appointment was not confirmed, that is on 8 July 2005 in the given case. The court noted that the Court of First Instance had also taken into account that no act defined remuneration of the members of the Commission. However, the High Court held that, pursuant to section 28 (3) of the Restitution and Compensation Act, members of the Commission had the status of civil servants, and were therefore entitled to remuneration. In any event claimants should not suffer any detriment on account of the legislature’s failure to define the exact amount of their remuneration. 8. Section 28 (1) provided that Municipal Assemblies would establish Restitution and Compensation Commissions within 60 days as of the date when this Act entered into force. Section 28 (3) further provided, inter alia, that members of the Commissions had the status of civil servants. 9. This Act entered into force on 8 April 2004. 10. The said amendments introduced section 41a, which specified that the President of the Municipality could temporarily issue decisions falling within the Assembly’s competence, if the Assembly could not convene or for some other reason it was impossible for it to work and the said decisions were of interest for exercising citizens’ rights and freedoms. The President of the Municipality had to submit such a decision to the Assembly for its confirmation as soon as the Assembly could convene. 11. Section 58 provides that the president of the Municipality can temporarily issue decisions falling within the Assembly’s competence, if the Assembly cannot convene or for some other reason it is impossible for it to work, and the absence of these decisions would endanger lives or property of great value. The President of the Municipality shall submit such a decision to the Assembly for its confirmation at its first session. If the Assembly does not confirm such a decision or the President does not submit it for confirmation, the decision shall cease to be in force (prestaje da važi) on the day when the session of the Assembly terminates. 12. This Act entered into force on 24 July 2003 except for Chapter V, including section 58, which was to enter into force as of the next local elections, which took place in Nikšić on 12 March 2005. Until then the relevant provisions of the earlier Act, including section 41a, continued in force. 13. Section 397 (2) in force at the time provided, inter alia, that an appeal on points of law against a second-instance decision would not be admissible in pecuniary matters unless the value of the claim exceeded EUR 10,000. Section 397 (4) (2) provided that exceptionally to the previous provision, an appeal on points of law was always admissible in disputes “for loss of earnings or other work-related income when these compensations were established or quashed for the first time” (zbog izgubljene zarade ili drugih prihoda po osnovu rada kada su te odštete prvi put određene ili ukinute). 14. Sections 433 - 438 set out details as to employment-related disputes. Section 438 provided in particular that an appeal on points of law was allowed only in disputes relating to employment, as well as continuation and termination thereof. 15. Sections 398 and 410, taken together, provided that the Supreme Court, when deciding upon an appeal on points of law, could either overturn the second-instance decision in cases when the substantive law was misapplied, or quash it and order a re-trial when the facts were incompletely established due to a misapplication of substantive law.