CASE OF BOUCKE v. MONTENEGRO
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time)
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicants, Ms Snežana Boucke (“the first applicant”) and Ms Kristina Boucke (“the second applicant”), were born in 1951 and 1988 respectively and live in Kruševac, Serbia. 6. On 21 May 1988 the first applicant gave birth to the second applicant, born out of wedlock. 7. On 18 August 1992 the District Court in Düsseldorf ruled that M.J., from Montenegro, was the father of the second applicant and ordered him to pay child maintenance. 8. On 29 October 1999 the District Court (Okružni sud) in Kruševac (Serbia) confirmed (priznao) the decision of the Düsseldorf District Court. It would appear that enforcement of this judgment has never been sought. 9. On an unspecified date the second applicant instituted proceedings against M.J. seeking child maintenance. As she was a minor at the time she was represented by the first applicant as her legal guardian. 10. On 23 December 1997 the Municipal Court (Opštinski sud) in Kruševac issued a judgment ordering M.J. (hereinafter “the debtor”) to pay 62,500 Yugoslav dinars (YUD) for the maintenance accrued between 1 July 1988 and 30 June 1997, with statutory interest, plus YUD 960 for the costs of proceedings. This judgment became final on 10 February 1998. 11. On 13 April 1998 the Court of First Instance (Osnovni sud) in Herceg Novi (Montenegro) issued an enforcement order (rješenje o izvršenju) providing that the amount due would be paid by the sale of the debtor’s movable assets. On 22 October 1998 the debtor’s objection (prigovor) in this regard was rejected. 12. On 29 October 1998 the court bailiff established that the debtor had no movable assets of his own, as he lived at his father-in-law’s house. The debtor, for his part, submitted in addition that he was paying 70% of his salary for the maintenance of two other children. 13. On 12 November 1998 the Court of First Instance informed the second applicant that the debtor was insolvent, as he had no movable assets which could be sold to allow the judgment in question to be enforced. 14. On an unspecified date in 1998 the debtor paid YUD 600 towards his debt. 15. On 14 January 1999 the second applicant sought enforcement of the remainder of the decision by attachment of the debtor’s salary, which request was repeated on 7 August 2000, 19 February 2001, and 7 May, 1 July and 3 September 2004. 16. It would appear that on 1 July 2004 the second applicant complained to the Montenegrin Ministry of Justice about the work of the relevant Court of First Instance. On 12 July 2004 the judge who was in charge of the enforcement as of May 2004, in reply to this complaint, informed the president of the Court of First Instance that he “considered the complaint justified (osnovana).” 17. On 12 July 2004 the said judge informed the second applicant that the enforcement proceedings in her case had been resumed. 18. On 24 September 2004 an expert witness submitted to the Herceg Novi court a recalculation of the amount owed in euros, the amount due being 6,352.42 euros (EUR). 19. On 8 November 2004 the Court of First Instance in Herceg Novi requested the second applicant’s lawyer to provide the necessary bank details so that a corresponding enforcement order could be issued. 20. Between 13 December 2004 and 28 December 2004 the said court attempted to contact the second applicant and also sought assistance from the relevant Internal Affairs Secretariat as well as a Social Care Centre in Serbia. 21. On 27 January 2005 the first applicant provided the court with the requested bank details. 22. On 4 March 2005 the Herceg-Novi court issued another enforcement order, providing that one third of the debtor’s monthly income was to be transferred to the first applicant as the second applicant’s legal guardian. 23. On 17 March 2005 the debtor lodged an objection, stating, inter alia, that he was supporting a family of four, two of whom were minor children, as well as paying 50% of his salary for the maintenance of another child. He proposed to pay one-sixth of his income for the enforcement in question. 24. On 16 May 2007 the Court of First Instance rejected the debtor’s objection and upheld its enforcement order of 4 March 2005, without considering the debtor’s arguments in respect of his financial commitments. 25. On 20 October 2010 the same court forwarded the enforcement order of 4 March 2004 to the Power Supply Company (Elektroprivreda – Filijala Herceg Novi), the debtor’s employer, a State-owned company. 26. On an unspecified date thereafter the second applicant would appear to have informed the Court of First Instance that the said enforcement order had not been complied with, apparently because the debtor was paying off several loans. 27. On 19 November 2010 the Court of First Instance approached the debtor’s employer, reminding them that the child maintenance, in accordance with the relevant provisions of the Family Act and the Enforcement Act, had priority over all the other pecuniary obligations of the debtor and that the employer was therefore obliged to comply with the enforcement order. 28. On 14 December 2010 the Court of First Instance ordered the debtor’s employer to transfer to the second applicant the amount that was otherwise retained by the employer on a monthly basis on account of a loan owed by the debtor to the employer (see paragraph 37 below). 29. This decision would appear not to have been enforced to date. 30. On an unspecified date the second applicant instituted another set of civil proceedings against M.J. seeking child maintenance. She was represented by the first applicant as her legal guardian. 31. On 30 June 2004, after two remittals, the Municipal Court in Kruševac gave a judgment ordering M.J. to pay 8% of his monthly income from 18 February 1998, plus YUD 48,600 for the costs of proceedings. This judgment became enforceable on 23 May 2005. 32. The applicants maintain that they sought enforcement of this judgment, but have submitted no evidence in that regard, even though they have been requested by the Court to do so on at least three occasions. 33. This judgment would appear not to have been enforced to date. 34. On an unspecified date the second applicant instituted another set of civil proceedings against the debtor, seeking an increase of the child maintenance established by the decision of 30 June 2004 (see paragraph 31 above). On 17 September 2009 the Municipal Court in Kruševac gave a decision stating that the second applicant’s claim had been withdrawn. On 2 October 2009 the second applicant appealed against this decision. These proceedings appear to be still pending. 35. On 3 February 1997 the debtor and his spouse at the time lodged with the Court of First Instance in Herceg Novi a plea for dissolution of their marriage, proposing to the court, inter alia, that the debtor’s spouse be given custody of their two minor children, born in 1990 and 1995 respectively, and that the debtor pay in respect of child maintenance 50% of his monthly income. There is no decision of a domestic court in this regard in the case file. 36. On 17 July 2009, in criminal proceedings, the debtor was found guilty of not paying child maintenance to the second applicant between 23 May 2005 and 30 January 2006, and was sentenced to three months’ imprisonment, suspended for a period of one year. It would appear that the decision is still pending on appeal. 37. The debtor’s payslip of October 2010 specified that he earned EUR 559.89 per month, 62% of which he was paying towards two loans. The payslip indicates that the debtor had taken one of those loans from his employer in a total amount of EUR 5,500 ten months earlier, to be repaid over ten years, and that the other loan had been taken from a bank that very month in a total amount of EUR 54,295.75, to be repaid over fifteen years. It also transpires that over an unspecified ten-year period before October 2010 the debtor had been paying off a third loan, the monthly payment of which amounted to approximately 20% of his monthly income. 38. 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. 39. This Constitution entered into force on 22 October 2007. 40. 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. 41. 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. 42. This Act entered into force in November 2008. 43. 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). 44. 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. 45. This Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court. 46. Between 1 January 2008 and 30 September 2009 the courts in Montenegro considered 102 requests for review pursuant to the Right to a Trial within a Reasonable Time Act. A further two requests were withdrawn, and eight were still being examined. Of the 102 requests that had been considered, in eighty-four cases the applicants were notified that certain procedural measures would be taken within a specified period. There is no information in the documents provided as to whether these time-limits were complied with or not. Eighteen requests were rejected as ill-founded. 47. Between 1 January 2010 and 30 April 2011 an additional ninety-six requests for review were considered. A further two requests were still being examined and one request had been withdrawn. Of the ninety-six requests that had been considered two were rejected on procedural grounds (odbačeni), and twenty-six were rejected as ill-founded (odbijeni). Ten requests were considered justified (usvojeni): in five cases the proceedings were indeed expedited, in three they were not, and in two cases it is unclear if the proceedings advanced. In thirty-eight requests the applicants were notified that certain procedural measures would be taken within a specified period: in twenty-six cases the indicated measure would appear to have been taken, in eight cases “compliance with notifications was controlled” without any further details having been provided, in two cases the proceedings were not expedited, in one case it is unclear what the outcome of the notification was and in one case the impugned proceedings ended at about the same time as the applicant lodged the request. As regards the remaining twenty requests for review, decisions and/or notifications were issued without details as to their specific content. 48. 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. 49. Section 2 provides that enforcement proceedings are to be instituted at the request of the creditor, except when this Act specifically provides that the proceedings are to be instituted ex officio. 50. Section 4 § 1 provides that the enforcing court is obliged to proceed as a matter of urgency. 51. Sections 63-84 contain, inter alia, provisions relating to enforcement in respect of the debtor’s movable assets. 52. Section 87 provides that enforcement in respect of the debtor’s salary can reach a maximum of half his/her salary. 53. Sections 112-120 contain, inter alia, provisions relating to enforcement in respect of the debtor’s income. Section 115 § 1, in particular, provides that when there are several people entitled to legal maintenance (zakonsko izdržavanje) from the same debtor and the total amount sought by them exceeds the proportion of the debtor’s income in respect of which their claims can be enforced, the enforcement shall be carried out in favour of each creditor in proportion to their claim (izvršenje se određuje i sprovodi u korist svakog od takvih poverilaca srazmerno visini njihovih potraživanja). 54. This Act entered into force on 8 July 2000. In accordance with section 262 of the Act, however, all enforcement proceedings instituted prior to 8 July 2000 are to be concluded pursuant to this Act. 55. The Enforcement Procedure Act 2004 entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286 of this Act, however, all enforcement proceedings instituted prior to 13 July 2004 are to be concluded pursuant to the Enforcement Procedure Act 2000. 56. Section 273 provided, inter alia, that following a debtor’s request to that effect, a court could increase, reduce, terminate (ukine) or alter the maintenance established by a previous court decision if the circumstances on which the said decision was based have changed. 57. Section 277 further provided that in a case where a parent who has been ordered by a court decision to pay child maintenance does not comply with that obligation on a regular basis, the Social Care Centre (organ starateljstva) shall, either at the request of the other parent or of its own motion, take measures to ensure that the child is provided with temporary maintenance in accordance with the regulations on social and child protection, until the said parent starts fulfilling his obligation. 58. The Family Act 2007 entered into force on 1 September 2007, thereby repealing the Family Act 1989. By virtue of section 380 however, if the first-instance decision was given before this Act entered into force, the procedure shall be continued under the Family Act 1989. 59. Pursuant to section 44, the court competent to deal with disputes arising from enforcement proceedings is the court in the region of jurisdiction of the court in charge of the enforcement proceedings. 60. This Act entered into force on 10 July 2004.