GLENDŽA v. MONTENEGRO
Inadmissible
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
1. The applicant, Mr Sreten Glendža, is a Montenegrin national, who was born in 1962 and lives in Ulcinj. He was represented before the Court by Mr R. Vukmanović, a lawyer practising in Ulcinj. 2. The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 January 2009 the Supreme State Prosecution (Vrhovno državno tužilaštvo) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians. 5. On 21 January 2009 the High Court (Viši sud) in Podgorica ordered his detention. 6. On 23 January 2009 the applicant was arrested. The same day he appealed against the detention order, which appeal was received at the High Court on 24 January 2009 at the latest. 7. On 24 February 2009 the applicant complained to the Supreme Court that, inter alia, he had received no decision upon his appeal against the detention order. 8. On 2 March 2009 the Court of Appeals (Apelacioni sud) in Podgorica dismissed the applicant’s appeal in this regard. 9. On 23 March 2009 the applicant lodged a constitutional appeal. He submitted, inter alia, that the Court of Appeals had failed to rule on his appeal against the detention order within 48 hours, contrary to the relevant domestic provisions in that regard (see paragraphs 14 and 23 below). 10. On 29 March 2011 the High Court acquitted the applicant and he was released. On an unspecified date thereafter the High Court decision would appear to have been quashed, but no order was given for the applicant to be re-detained. 11. On 2 June 2011 the Constitutional Court found a violation of Article 5 § 4 of the Convention and Article 30 § 3 of the Constitution of Montenegro. In particular, the Constitutional Court established that the High Court had not immediately transmitted the applicant’s case-file to the Court of Appeals for a ruling on his appeal against the detention order. Notably, on 5 February 2009 the High Court had sent the applicant’s case-file to the Court of Appeals, which had received it on 9 February 2009. The same day the case-file had been returned to the High Court because certain documents had been served improperly on some of the co-accused in the same set of criminal proceedings. On 27 February 2009 the High Court had transmitted the documents to the Court of Appeals, which court had received them on 2 March 2009 and the same day had ruled on the applicant’s appeal. The decision of the Constitutional Court was served on the applicant on 28 July 2011. 12. On 22 November 2012 the High Court acquitted the applicant, which judgment was upheld by the Court of Appeals on 17 May 2013. 13. On 12 February 2013 the applicant lodged a compensation claim, pursuant to the relevant provisions of the Criminal Procedure Code 2009 (see paragraph 25 below), seeking both pecuniary and non-pecuniary damage for unlawful detention. The claim would appear to be currently pending before the first-instance court. 14. Article 30 lays down detailed rules as regards detention. In particular, paragraph 3 provides that a detainee has the right to lodge an appeal against a detention order, on which the court shall rule within 48 hours. 15. Article 149 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. 16. The Constitution entered into force on 22 October 2007. 17. Section 48 of the Montenegro Constitutional Act provided that a constitutional appeal could 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 legal remedies had been exhausted. 18. Sections 49-59 provided additional details as regards the processing of constitutional appeals. Section 56 provided that if the impugned decision had lost its force (prestalo pravno dejstvo) by the time the Constitutional Court ruled on the constitutional appeal, the Constitutional Court would only find a violation if it considered that a human right or freedom was breached. 19. None of the sections provided for a possibility for the Constitutional Court to award damages. 20. This Act entered into force in November 2008. 21. At the relevant time Article 16 provided, inter alia, for an obligation of the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed. 22. Article 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention. 23. Article 149 provided, inter alia, that a detainee could appeal against a detention order within 24 hours. The appeal, the detention order and other relevant documents were to be immediately forwarded to the panel of judges, which was to rule on the appeal within 48 hours. 24. Articles 15, 174 § 2 and 176 of this Act correspond, in substance, to sections 16, 147 § 2 and 149 of the Criminal Procedure Code 2003. 25. Articles 498-506 set out details as regards compensation for, inter alia, unlawful detention. Article 502, in particular, provides that an individual is entitled to compensation if he or she was in detention and was subsequently acquitted by means of a final judgment. 26. This Code entered into force on 1 September 2011, repealing the 2003 Code, except for Chapter XXIX, which Chapter is not relevant in the present case. 27. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. 28. Section 166 provides, inter alia, that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or in relation thereto.