KOLOSOV v. MONTENEGRO
Inadmissible
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
1. The applicant, Mr Vladimir Andreevich Kolosov, is a Russian national who was born in 1961 and lives in Aprelevka (Russian Federation). He was represented before the Court by Mr Y. Aksaev, a lawyer practising in Moscow (Russian Federation). 2. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić. 3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Russian Government expressed no wish to do so. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On an unspecified date the applicant’s wife filed divorce papers with the competent court in Moscow, also seeking the division of property. 6. On 27 January 2011 she applied to the Court of First Instance (Osnovni sud) in Kotor (Montenegro) for an interim measure prohibiting the applicant from disposing of two apartments (zabranjuje otuđenje i opterećenje nepokretnosti) in Budva (Montenegro) until the proceedings in Moscow had ended. 7. On 1 February 2011 the court, in the absence of both the applicant and his representative, approved the measure, which was duly registered in the Budva real estate register. On 18 February 2011 the applicant received the relevant decision, which also contained information that he could appeal to the High Court, through the court in Kotor, within three days. 8. On 21 February 2011 the applicant allegedly sent his appeal by express mail and it was received at the High Court (Viši sud) in Podgorica on 28 February 2011 by a named court officer. The applicant submitted a copy of a Pony Express delivery company envelope to the Court with a date of 21 February 2011. It was addressed to the High Court in Podgorica, with a waybill number of 11-8895-0367 marked on it. 9. On 18 March 2011 the High Court found that the applicant had sent his appeal on 22 February 2011 and rejected it (odbacio) as out of time. 10. On 17 June 2011, the proceedings in Moscow ended with a friendly settlement. 11. On 22 June 2011 the applicant wrote to the High Court, maintaining that he had appealed on 21 February 2011 and had therefore been in time. He enquired about the basis for the High Court’s conclusion that the appeal had been sent on 22 February 2011. 12. On 7 September 2011 one of the three High Court judges dealing with the applicant’s case informed the president of the High Court that there was proof in the case file that the appeal had been sent on 22 February and that the High Court had not taken other documents submitted by the applicant into account, namely “a receipt, a bill and a fax sent on 21 February 2011”. 13. On 30 November 2011 the applicant’s ex-wife waived her rights in respect of the property in Montenegro and requested that the interim measure be revoked and deleted from the real estate register. 14. On 16 December 2011 the applicant informed the courts in Kotor and Podgorica about the termination of the proceedings in Moscow and requested that the interim measure be revoked. 15. On 10 January 2012 the court in Kotor revoked the measure (ukida se privremena mjera). 16. On 30 April 2012 the applicant tried to sell his property in Budva, but could not as the interim measure was still in the register. It transpired that the court in Kotor had not transmitted the relevant decision to the Budva real estate registry. 17. On 15 May 2012 the Court of First Instance in Kotor requested that the real estate registry in Budva delete the measure. 18. On 25 May 2012 the registry issued a decision to strike out the interim measure in respect of one of the apartments, which was executed on 3 December 2013. On 10 July 2014 the registry issued a decision to strike out the interim measure in respect of the other apartment, which was executed on 4 August 2014. 19. Section 108(2) of the Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 22/04, 28/05 and 76/06, and Official Gazette of Montenegro no. 73/10) provides, inter alia, that submissions sent by post are considered as having been lodged with the relevant court on the day of posting.