CASE OF BIJELIC v. MONTENEGRO AND SERBIA
Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Nebojša Vučinić;Nona Tsotsoria;Vladimiro Zagrebelsky
10. The first, second and third applicants were born in 1950, 1973 and 1971, respectively, and currently live in Belgrade, Serbia. 11. The facts of the case, as submitted by the parties, may be summarised as follows. 12. The first applicant, her husband and the other two applicants were holders of a specially protected tenancy concerning a flat in Podgorica (nosioci odnosno korisnici stanarskog prava), Montenegro, where they lived. 13. In 1989 the first applicant and her husband divorced and the former was granted custody of the other two applicants. 14. On 26 January 1994 the first applicant obtained a decision from the Court of First Instance (Osnovni sud u Podgorici) declaring her the sole holder of the specially protected tenancy on the family’s flat. In addition, her former husband (“the respondent”) was ordered to vacate the flat within fifteen days from the date when the decision became final. 15. On 27 April 1994 the decision of the Court of First Instance was upheld on appeal by the High Court (Viši sud u Podgorici) and thereby became final. 16. Given that the respondent did not comply with the court order to vacate the flat, on 31 May 1994 the first applicant instituted a formal judicial enforcement procedure before the Court of First Instance. 17. The enforcement order was issued on the same date. 18. On 8 July 1994 the bailiffs attempted to evict the respondent together with his new wife and minor children but the eviction was adjourned because he threatened to use force. 19. On 14 July 1994 they tried again, this time assisted by the police, but apparently the planned eviction was adjourned for the same reason. 20. On 15 July 1994 the first applicant bought the flat and became its owner. 21. On 26 October 1994 the bailiffs and the police once again failed to evict the respondent who kept threatening the first applicant in their presence and bore arms on his person. There also appear to have been additional weapons, ammunition and even a bomb in the flat at the time. The police took the respondent to their station but released him shortly afterwards without pressing charges. 22. On 28 November 1994 and 16 March 1995 another two scheduled evictions failed, the latter due to the “respondent’s request for the provision of social assistance” in respect of his minor children. 23. On 23 October 1995 the first applicant gifted the flat to the second and third applicants. 24. On 3 June 1996 and 1 August 1996, respectively, another two scheduled evictions failed. 25. On 3 June 1998 the Ministry of Justice informed the first applicant that the Court of First Instance had committed to enforce the eviction order before the end of the month. 26. On 27 October 1998 and 1 November 1999 another two scheduled evictions failed. 27. In the meantime, on 13 August 1999, the Real Estate Directorate (Direkcija za nekretnine) issued a formal decision recognising the second and the third applicants as the new owners of the flat in question. 28. In March of 2004 another eviction was attempted but failed. In the presence of police officers, fire fighters, paramedics, bailiffs and the enforcement judge herself, as well as his wife and their children, the respondent threatened to blow up the entire flat. His neighbours also seem to have opposed the eviction, some of them apparently going so far as to physically confront the police. 29. Throughout the years the first applicant complained to numerous State bodies about the non-enforcement of the judgment rendered in her favour, but to no avail. 30. On 9 February 2006 another scheduled enforcement failed because the respondent had threatened to “spill blood” rather than be evicted. 31. On 5 May 2006 and 31 January 2007, respectively, the enforcement judge sent letters to the Ministry of Internal Affairs, seeking assistance. 32. On 15 February 2007 the enforcement judge was told, at a meeting with the police, that the eviction in question was too dangerous to be carried out, that the respondent could blow up the entire building by means of a remote control device, and that the officers themselves were not equipped to deal with a situation of this sort. The police therefore proposed that the applicants be provided with another flat instead of the one in question. 33. On 19 November 2007 the enforcement judge urged the Ministry of Justice to secure the kind of police assistance needed for the respondent’s ultimate eviction. 34. On 26 March 2004 the second applicant, on her own behalf and on behalf of the third applicant, authorised the first applicant to sell the flat in question. 35. On 30 January 2006 the second and third applicants authorised the first applicant, inter alia, to represent them in the enforcement proceedings. 36. The applicants maintain that the gift contract of 1995 (see paragraph 23 above) and the said powers of attorney were submitted to the enforcement court. The first applicant was therefore the second and third applicants’ legal representative in the enforcement proceedings. 37. The relevant provisions of this Charter read as follows: “The Member States shall regulate, ensure and protect human and minority rights and civic freedoms in their respective territories. ... [The State Union of] ... Serbia and Montenegro shall monitor the implementation of human and minority rights and civic freedoms and ensure their protection if such protection has not been provided in the Member States.” “Should Montenegro break away from the State Union of Serbia and Montenegro, the international documents pertaining to the Federal Republic of Yugoslavia, particularly the United Nations Security Council Resolution 1244, would concern and apply ... to Serbia as the successor. The Member State which ... [breaks away] ... shall not inherit the right to international legal personality, and any disputable issues shall be regulated separately between the successor State and the newly independent State.” 38. The relevant provisions of this Charter read as follows: “The human and minority rights guaranteed under this Charter shall be directly regulated, secured and protected by the constitutions, laws and policies of the Member States.” 39. The relevant part of this Opinion reads as follows: “The domestic legal system offers no legal remedy against violations of the right to a hearing within a reasonable time, which is why the courts in the Republic of Montenegro have no jurisdiction to rule in respect of claims seeking non-pecuniary damages caused by a breach of this right. Any person who considers himself a victim of a violation of this right may therefore lodge an application with the European Court of Human Rights, within six months as of the adoption of the final judgment by the domestic courts. [When asked to rule in respect of the compensation claims referred to above] ... the courts in the Republic of Montenegro must refuse jurisdiction ... and declare ... [them] ... inadmissible (pursuant to Article 19 para. 3 of the Civil Procedure Code).” 40. The relevant provisions of the Constitution read as follows: “The Constitutional Court shall ... (3) ... [rule on a] ... constitutional appeal ... [filed 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 ...” 41. This Constitution entered into force on 22 October 2007. 42. The relevant provisions of this Act read as follows: “Provisions of international treaties on human rights and freedoms, to which Montenegro acceded before 3 June 2006, shall be applied to legal relations which have arisen after their signature.” 43. This Act also entered into force on 22 October 2007. 44. Articles 48-59 provide additional details as regards the processing of constitutional appeals. 45. This Act entered into force in November 2008. 46. This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited, as well as an opportunity for the claimants to be awarded compensation therefor. 47. Article 44, in particular, provides that this Act shall be applied retroactively to all proceedings as of 3 March 2004, but that the duration of proceedings before that date shall also be taken into account. 48. This Act entered into force on 21 December 2007, but contained no reference to the applications involving procedural delay already lodged with the Court. 49. Pursuant to Article 7 § 1 the police are obliged to assist other State bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected. 50. Article 4 § 1 provides that the enforcement court is obliged to proceed urgently. 51. Under Article 47, if needed, the bailiff may request police assistance; should the police fail to provide such assistance, the enforcement court shall inform thereof the Minister of Internal Affairs, the Government, or the competent parliamentary body. 52. Finally, Article 23 § 1 states that enforcement proceedings shall also be carried out at the request of a person not specifically named as the creditor in the final court decision, providing he or she can prove, by means of an “official or another legally certified document”, that the entitlement in question has subsequently been transferred to that individual from the original creditor. 53. On 3 March 2004 the Convention and Article 1 of Protocol No. 1 entered into force in respect of the State Union of Serbia and Montenegro. 54. On 3 June 2006 the Montenegrin Parliament adopted its Declaration of Independence. 55. On 14 June 2006 the Committee of Ministers of the Council of Europe, inter alia, noted that: “1. ... the Republic of Serbia will continue the membership of the Council of Europe hitherto exercised by the ... [State Union] ... of Serbia and Montenegro, and the obligations and commitments arising from it; 2. ... the Republic of Serbia is continuing the membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006; ... 4. ... the Republic of Serbia was either a signatory or a party to the Council of Europe conventions referred to in the appendix ... to which [the State Union of] Serbia and Montenegro had been a signatory or party [including the European Convention on Human Rights]; ...” 56. Finally, on 7 and 9 May 2007 the Committee of Ministers decided, inter alia, that: “2. ... a. ... the Republic of Montenegro is to be regarded as a Party to the European Convention on Human Rights and its Protocols No. 1, 4, 6, 7, 12, 13 and 14 thereto with effect from 6 June 2006; ...” 57. The relevant provisions of the Statute read as follows: “Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe by the Committee of Ministers. Any State so invited shall become a member on the deposit on its behalf with the Secretary General of an instrument of accession to the present Statute.” “The Committee of Ministers shall, subject to the provisions of Articles 24, 28, 30, 32, 33 and 35, relating to the powers of the Consultative Assembly, decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe. For this purpose the Committee of Ministers shall adopt such financial and administrative arrangements as may be necessary.” 58. The Human Rights Committee has made clear, in the context of obligations arising from the International Covenant on Civil and Political Rights, that fundamental rights protected by international treaties “belong to the people living in the territory of the State party” concerned. In particular, “once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession” (General Comment No. 26: Continuity of obligations: 08/12/97, CCPR/C/21/Rev.1/Add. 8/ Rev.1).