CASE OF STANKA MIRKOVIĆ AND OTHERS v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Administrative proceedings;Article 6-1 - Reasonable time)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
5. Details of the applicants are set out in the appendix. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 3 December 2004 the third and fourth applicants filed a request with the Restitution and Compensation Commission (hereinafter “the Commission”), seeking compensation for land expropriated from their legal predecessor in 1946. 8. Between 17 July and 12 August 2005 the first and second applicants made statements waiving their rights in respect of the property belonging to the same legal predecessor in favour of the third and fourth applicants. 9. On 28 August 2005 the Commission ruled in favour of the third and fourth applicants. 10. On 14 October 2005 the Ministry of Finance quashed that decision upon an appeal filed on 19 September 2005 by the Supreme State Prosecutor (Vrhovni državni tužilac) in his capacity as legal representative of the respondent State. 11. On 17 April 2006 the Commission issued a new decision, awarding compensation to all the applicants as they were all heirs of the legal predecessor. In so doing, it also examined the waiver statements of the first and second applicants made in 2005, but considered that, pursuant to section 40 of the Restitution of Expropriated Property Rights and Compensation Act, such waiver statements could only be validly made in non-contentious proceedings before a competent court (see paragraph 20 below). 12. Between 12 June 2006 and 27 March 2014 the competent secondinstance administrative body (firstly the Ministry of Finance and later the Appeals Commission) and the Administrative Court, before which the case was first brought on an unspecified date in 2006, issued sixteen decisions in total (eight decisions each). The second-instance body ruled upon a series of appeals and gave decisions within 55 days, 65 days, 30 days, 53 days, 14 days, 78 days, 94 days, and 132 days. The Administrative Court gave rulings within 1 year 8 months and 17 days, 7 months and 22 days, 7 months and 27 days, 3 months and 23 days, 5 months, 5 months and 19 days, 4 months and 16 days, and 4 months and 23 days. 13. On at least four occasions, when initiating an administrative dispute before the Administrative Court, the applicants explicitly referred to section 37 and/or section 58 of the Administrative Disputes Act (see paragraph 26 below) and urged the Administrative Court to decide on the merits of their request. The Administrative Court never ruled on the merits of the initial compensation request, but instead quashed or upheld the quashing of the first-instance decision of the Commission. Its last decision was issued on 27 March 2014, in substance remitting the case once again to the Commission. 14. On 27 June 2014 the Supreme Court upheld the Administrative Court’s decision. The Supreme Court’s decision was served on the applicants on 8 July 2014. 15. On 25 July 2014 the applicants each lodged a constitutional appeal against the decision of the Supreme Court, relying on, inter alia, Articles 6 and 13 of the Convention. The Government submitted that, on the same day, in addition to those constitutional appeals against the Supreme Court’s decision, the applicants had also each lodged a second constitutional appeal against the decision of the Administrative Court of 27 March 2014. No copies of those second constitutional appeals were provided by either party. 16. On 28 October 2014 the Constitutional Court rejected the applicants’ constitutional appeals against the Supreme Court’s decision as premature, given that the Commission was still considering their compensation request. 17. On 28 December 2015 the Constitutional Court issued another decision dismissing the applicants’ constitutional appeals. The decision stated that the applicants’ constitutional appeals had been filed against the judgments of the Administrative Court and the Supreme Court. In its ruling, the Constitutional Court constantly referred to the “impugned judgments”. There is no information in the case file as to when that decision was served on the applicants. 18. On 31 March 2016, at a hearing before the Commission, the proceedings were adjourned at the applicants’ request until this Court ruled on their applications.