KALUĐEROVIĆ-BRAJOVIĆ v. MONTENEGRO
Inadmissible
András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen;Robert Spano
1. The applicant, Ms Vidosava Kaluđerović-Brajović, is a Montenegrin national, who was born in 1937 and lives in Podgorica. She was represented before the Court by Ms D. Kisjelica, a lawyer practising in Herceg Novi. 2. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The facts of the case, as submitted by the parties, may be summarised as follows: 4. On 9 June 2005 the Commission for Restitution and Compensation (Komisija za povraćaj i obeštećenje Opštine Podgorica; hereinafter “the Commission”) awarded the applicant and her co-claimants a total amount of EUR 1,285,765.75 as compensation for the property which had been expropriated from their relatives in 1950 and 1962. The applicant herself was awarded 1/24 of the total amount, that is EUR 53,573.57. The decision specified that the amount was to be paid within 15 days as of the date when the decision became final. 5. On 9 November 2005 the Ministry of Finance (Ministarstvo finansija) declared the Commission’s decision null and void (oglašeno je ništavim). 6. On 2 February 2006 the Administrative Court (Upravni sud) quashed the decision of the Ministry of Finance. In so doing, the court held, inter alia, that the Commission’s decision properly (pravilno) specified the applicant and her co-claimants as being entitled to the compensation and awarded them the relevant amounts accordingly. 7. On 17 November 2005 the Court of First Instance (Osnovni sud) in Podgorica declared that it lacked competence (oglašava se nenadležnim) to decide on the applicant’s request for enforcement of the Commission’s decision dated 9 June 2005, relying on sections 268 and 269 of the General Administrative Proceedings Act as well as on section 37 of the Restitution of Expropriated Property Rights and Compensation Act (see paragraphs 3031 and 20 below). 8. On 20 December 2005 the High Court (Viši sud) in Podgorica upheld the said decision of the Court of First Instance. 9. On 29 June 2007 the Court of First Instance once again declared that it lacked competence to decide on the applicant’s renewed request for enforcement. 10. In March 2006 the Compensation Fund started paying the awarded amount to the applicant in instalments pursuant to the relevant legislation (see paragraphs 17 and 23 below). By April 2011 the applicant had received EUR 10,307.25 in total. 11. On 21 December 2007 the Ministry of Finance informed the applicant, upon her enquiry, that the frequency of payment was regulated by the relevant statutory provisions and that the Ministry had no competence to make any changes in that regard. 12. On 18 September 2006 the applicant, upon her own request, was issued with bonds (obveznice), the value of which was EUR 50,002. In September 2009 she returned the bonds and had her right to pecuniary compensation re-established. 13. By April 2011 some of the applicant’s co-claimants, X and Y, had passed away and the compensation awarded to them had been transferred to and divided amongst their heirs. In particular, X’s five heirs inherited between EUR 6,122.69 and EUR 24,490.77, and out of these sums they received between EUR 3,024 and EUR 11,633.10, respectively, in pecuniary compensation and the remainder of the respective amounts in bonds. Y’s four heirs each inherited EUR 13,393.39, out of which they received by April 2011 EUR 6,777.43 in pecuniary compensation. 14. As submitted by the Government, there were 10,700 requests for restitution and/or compensation in total. The Compensation Fund received 1,118 final decisions in favour of compensation, the total value of which amounted to EUR 185,691,379.35. Of this sum more than EUR 19,000,000 was paid in money, and additional EUR 90,000,000 in bonds. The bonds worth EUR 87,701,528, that is 46.89% of the entire compensation awarded, were used on the market pursuant to section 25 of the relevant legislation (see paragraphs 18 and 24 below). 15. As submitted by the applicant 0.5% of the respondent State’s GDP in 2005 was EUR 8,450,000 and in 2006 it was EUR 9,145,000. 16. Section 4 (2) of this Act, which entered into force on 8 April 2004, provides that the General Administrative Proceedings Act applies to proceedings concerning restitution and/or compensation, unless otherwise provided by this Act. 17. Section 22 (1) states that a “former owner, who has no right to restitution of the property rights [in integrum], can have, in accordance with this law, the right to: (a) pecuniary compensation (obeštećenje novčanim sredstvima), which shall be paid from the Compensation Fund to applicants in proportion to the amount of all the claims registered, within 30 days as of the expiration of the time-limit envisaged for submitting requests and, after that, every six months, according to the availability of funds in the Compensation Fund, until the amounts due are fully paid; or (b) compensation in bonds (obeštećenje obveznicama)”. 18. Section 25 provides, inter alia, that the bonds can be sold or used for purchase of the stocks, shares and other property of the State and State funds. The owner of these bonds is entitled to return them to the Compensation Fund within eighteen months as of the date when they were obtained, and request that the right to pecuniary compensation be re-established. The owner of the bonds that have expired also has the right to return them and to seek re-establishment of pecuniary compensation. The Compensation Fund shall issue relevant decisions recognising the right to pecuniary compensation corresponding to the value of the unused bonds. 19. Section 34 provides that the Commission for Restitution and Compensation is to decide on restitution/compensation requests and determine, inter alia, the time-period within which the compensation is to be paid (rok za obeštećenje). 20. Section 37 provides that decisions on pecuniary compensation and compensation in bonds are to be enforced by the Compensation Fund. The same provision also provides that enforcements (prinudno izvršenje) shall be carried out in accordance with the Enforcement Procedure Act. 21. Section 44 further provides, inter alia, that the Compensation Fund, a legal entity, shall be established by the Government, and that its organisation and functioning is to be regulated by a Government decree. 22. The Restitution and Compensation Act was amended in 2007, the relevant changes being as follows. 23. While Section 22 (1) still provides for the right to pecuniary compensation from the Compensation Fund in proportion to the amount of all the claims, it has now been amended so as to also provide, inter alia, that the total annual amount of compensation cannot be higher than 0.5% of the Montenegrin GDP in the previous year, that the compensation is to be paid to claimants in annual instalments according to the funds available in the Compensation Fund, and that the periodicity of the payments is to be established by the Government. 24. Section 25 provides that the bonds can also be used for paying taxes. They can be returned to the Compensation Fund within 36 months as of the day when they were obtained and their owners can seek that their pecuniary compensation be re-established. 25. The Act entered into force on 18 August 2007. 26. Section 1 (2) provided, inter alia, that the provisions of this Act were applicable to the enforcement of administrative decisions ordering pecuniary compensation, unless the law provided for a competence of some other body for such enforcement. 27. Section 3 provided that the courts were responsible for enforcement unless otherwise provided by law. 28. Section 4 § 1 provided that enforcement proceedings were to be dealt with expeditiously. 29. Section 2 provides that [other] institutions and legal entities performing public functions (u vršenju javnih ovlašćenja) shall comply with this law when ruling in administrative matters. 30. Section 268 provides that administrative decisions shall, in principle, be enforced in an administrative manner (administrative enforcement). 31. Section 269 specifies that both pecuniary and non-pecuniary awards shall be enforced in an administrative manner. 32. Section 275 provides that administrative pecuniary awards shall be enforced by an administrative body responsible for the public revenue.