CASE OF MILIĆ v. MONTENEGRO AND SERBIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time) (Montenegro);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Montenegro)
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
5. The applicant, Mr Ivan Milić, was born in 1966 and lives in Belgrade, Serbia. 6. On 20 June 2002 the Court of First Instance (Osnovni sud) in Podgorica ordered that the applicant be reinstated by the Clinical Centre of Montenegro (Kliničko bolnički Centar Crne Gore), a State-run medical institution. 7. On 4 February 2003 this judgment became final, and on 16 December 2003 it was confirmed by the Supreme Court (Vrhovni sud) in Podgorica at third instance. 8. On 23 April 2003 the Clinical Centre of Montenegro informed the applicant that it could not comply with the judgment in question, but would rather seek an alternative solution. 9. On 22 May 2003 the Court of First Instance issued an enforcement order, which decision was confirmed on 26 June 2003. 10. On 19 August 2003 the Clinical Centre of Montenegro concluded an agreement with the Special Hospital in Risan, also a State-run medical institution, whereby the latter accepted the applicant as its employee. 11. On 30 September 2003 the applicant informed the State Prosecutor that he did not approve of this arrangement. 12. On 17 October 2003 the Special Hospital in Risan issued a decision to the effect that the applicant would become its employee as of 30 October 2003. 13. On 20 October 2003 the applicant received this decision. 14. On 21 October 2009, as submitted by the Montenegrin Government, the applicant concluded an Agreement on Termination of Employment with the Clinical Centre of Montenegro whereby his employment had been terminated as from 3 February 2003 and both parties waived any further claims in this regard. 15. On 26 October 2009 the applicant withdrew his enforcement request. 16. On 5 November 2009 the Court of First Instance terminated the enforcement proceedings and all the enforcement activities which had been carried out in that regard. On 17 November 2009 this decision became final. 17. On 6 May 2004, upon the applicant’s separate claim, the Court of First Instance in Podgorica ordered the Clinical Centre of Montenegro to pay the applicant 4,456 euros (“EUR”) for salary arrears for the period between September 2001 and 3 February 2003. This judgment was upheld by the High Court on 5 October 2004. It would appear from the case file that this judgment was enforced on an unspecified date thereafter. 18. On 3 February 2003 the applicant started to work in the Clinical Centre of Serbia for a period of nine months. It would appear from the case file that on an unspecified date thereafter his temporary employment was transformed into a permanent one. 19. 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. 20. The Constitution entered into force on 22 October 2007. 21. 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. 22. 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. 23. The Act entered into force in November 2008. 24. 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). 25. Section 9 § 2 provides that a request for review can be filed with the court which is dealing with the case at the relevant time. 26. Section 33 § 3 provides that an action for fair redress shall be filed with the Supreme Court no later than six months after the date of receipt of the final decision rendered in the impugned proceedings or, within the enforcement procedure, no later than six months after the date of receipt of the final decision issued upon the request for review. 27. Section 44 further 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. 28. The Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court. 29. Section 4 § 1 provided that enforcement proceedings were urgent. 30. Sections 211-214 set out details as regards enforcement in cases of reinstatement. 31. The Act 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 were to be concluded pursuant to the Enforcement Procedure Act 2000. 32. Section 33 required an employee’s consent in order for him to be transferred to another employer. 33. The Labour Act 2008 entered into force on 19 August 2008 thereby repealing the Labour Act 2003. Section 42 § 2 of the former, however, also requires the employee’s consent for his transfer to another employer. 34. 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.