CASE OF BARAC AND OTHERS v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicants - Mr Blagota Barać, Mr Milan Terzić, Mr Zoran Stanišić, Mr Stanko Burić, Ms Stanica Marković, Mr Radovan Kadović, Mr Ranko Tomašević, Mr Novo Stanišić, Mr Branko Radulović, Mr Novak Nikolić, Mr Mihailo Popović, Mr Milan Golubović, and Mr Ranko Kovačević - are all Montenegrin nationals who were born in 1968, 1953, 1961, 1950, 1956, 1951, 1952, 1963, 1951, 1966, 1955, 1953, and 1955 respectively and live in Danilovgrad. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 14 January 2005 the applicants filed a claim for compensation (isplata zimnice) against their employer. 8. On 13 February 2006 the Court of First Instance (Osnovni sud) in Danilovgrad ruled in their favour, awarding them 150 euros (EUR) each, plus legal costs totalling EUR 1,875. 9. On 26 April 2006 the High Court (Viši sud) in Podgorica overturned the previous judgment and rejected the applicants’ claim, relying solely on the Act on Changes and Amendments to the Labour Act 2004 (Zakon o izmjenama i dopunama Zakona o radu, hereinafter “the Labour Amendments Act 2004”). At the same time, the applicants were ordered to pay jointly to their employer EUR 900 for legal costs. The applicants received this judgment on 23 May 2006 at earliest. 10. On 12 September 2006 the Supreme Court (Vrhovni sud) in Podgorica rejected the applicants’ appeal on points of law on procedural grounds (revizija se odbacuje). 11. On 28 February 2006 the Constitutional Court of Montenegro (Ustavni sud) declared the Labour Amendments Act 2004 unconstitutional (see paragraph 14 below). 12. On 18 April 2006 that decision was published in Official Gazette no. 24/06 (Službeni list br. 24/06), and thereby the said Act ceased to be in force (see paragraph 13, in particular Article 62 therein, and paragraph 16 below). 13. The relevant provisions of the Act provided as follows: “When it is established that an Act [...] is not in accordance with the Constitution [...] that Act [...] ceases to be in force on the day when the Constitutional Court’s decision is published in the Official Gazette of the Republic of Montenegro.” “[Such an] Act [...] cannot be applied to matters (odnosi) which arose before the day when the decision of the Constitutional Court was published unless a final decision in the particular matter was rendered before that day.” “Those whose rights have been violated by final decisions rendered on the basis of an Act ... which the Constitutional Court established was not in accordance with the Constitution ... have the right to request the body in charge to change the final decision [in question]. A request to have [such a] decision changed shall be submitted within six months of the day when the decision of the Constitutional Court was published in the Official Gazette of the Republic of Montenegro.” “If the consequences of the implementation of the [unconstitutional] Act ... cannot be removed by having the impugned decision changed, the Constitutional Court can determine that the consequences be removed by restitutio in integrum, compensation, or in some other way.” 14. The relevant part of the Decision reads as follows: “It has been established that the Labour Amendments Act 2004 (Official Gazette of the Republic of Montenegro, no. 79/04) is not in accordance with the Constitution of the Republic of Montenegro and it shall cease to exist on the day when this decision is published. 15. The Decision specified that the reason for declaring the above Act unconstitutional was that it had not been adopted in Parliament by an absolute majority of MPs, as required by the Constitution. 16. The Decision was published on 18 April 2006. 17. The Government submitted three decisions of the Constitutional Court of Montenegro, rendered in September 2003, December 2005 and July 2006, respectively, on the basis of Articles 70 and 71 of the Constitutional Court Act 1993. In all three decisions the Constitutional Court, in rejecting other claimants’ requests, had held that Article 70 actually provided for an individual the right to request the reopening of proceedings in which an impugned decision had been rendered. 18. In particular, in its decision of September 2003 the Constitutional Court had rejected an initiative to assess the constitutionality of Article 70 of the Constitutional Court Act 1993. 19. In December 2005 the Constitutional Court rejected a claimant’s request to amend a decision rendered by the Court of First Instance in November 2004, which first-instance decision had been based on a provision which was later, in April 2005, declared unconstitutional. 20. In July 2006 the Constitutional Court rejected a claimant’s request to remove the consequences he had allegedly suffered before November 2005 on account of the implementation of a decision of the Water Supply Company of 2002, the decision having been declared unconstitutional in November 2005. 21. In the latter two decisions, the claimants’ requests were rejected as they had failed to previously request the reopening of the proceedings in which the impugned decisions had been rendered.