CASE OF SINEX D.O.O. v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström
5. The applicant is a privately owned company which was established in 1989 and registered in Belgrade. 6. On 9 September 2003 the applicant and Beranka AD, a sociallyowned company, concluded a guarantee agreement. To secure the payment of obligations under this agreement, the applicant and Beranka AD concluded Annex No. 1 on the fiduciary transfer of the latter’s property to the applicant (Anex br. 1 Ugovora o fiducijarnom prenosu prava svojine). In this Annex, the property offered as collateral was: (a) property no. 6 – storehouse (magacin); (b) property no. 29 – power plant (energana); (c) property no. 30 – boiler-room (kotlovnica); (d) property no. 9 – laboratory (laboratorija); and (e) property PM2 – paper machines (papir mašine). 7. On 31 October 2003 the fiduciary transfer of Beranka AD’s property to the applicant was registered by the Real Estate Office in Berane (Direkcija za nekretnine, Područna jedinica Berane). 8. On 8 April 2004 the Commercial Court in Bijelo Polje (Privredni sud u Bijelom Polju) opened insolvency proceedings in respect of Beranka AD. 9. On 5 June 2004 the applicant reported its claim in these proceedings. 10. On 17 September 2004 the Commercial Court refused to recognise this claim. 11. Following the decision of 17 September 2004, on 11 October 2004 the insolvency administrator for Beranka AD (stečajni upravnik) lodged a request with the Real Estate Office in Berane seeking that the registration of the fiduciary transfer of property to the applicant be erased. On the same day the Real Estate Office Registry accepted this request. 12. On 5 November 2004 the applicant lodged an appeal with the Real Estate Department in Berane (Uprava za nekretnine Područna jedinica Berane). On 26 November 2004 the Real Estate Department amended the said decision. 13. On 13 April 2005 the Real Estate Department in Podgorica (Uprava za nekrentine u Podgorici) quashed both decisions on appeal and remitted the case for reconsideration. 14. On 1 June 2005 the Real Estate Department in Berane re-registered the fiduciary transfer on properties nos. 6 and 9, as well as on PM2, but refused to re-register the fiduciary transfer on properties nos. 29 and 30. 15. On 22 November 2005 the Real Estate Department in Podgorica upheld this decision. 16. The applicant appealed to the Administrative Court. On 6 February 2007 the Administrative Court quashed the decision of the Real Estate Department in Podgorica and remitted case to the Real Estate Department in Berane. It would appear that the case is still pending before that body. 17. On 11 April 2007 the Administrative Court issued an enforcement decision ordering the registration of the applicant’s fiduciary rights in respect of all properties. 18. Following the Commercial Court’s decision of 17 September 2004 (see paragraph 10 above), the applicant lodged an objection. The hearings concerning the objection were held on 11 August 2004, 31 May 2005 and 17 April 2006. On 24 August 2006 the Commercial Court dismissed the applicant’s objection. 19. On 17 January 2007 the Real Estate Department in Berane again erased the fiduciary transfer of Beranka AD’s property from the public register. On 24 February 2007 the applicant lodged an appeal against this decision. 20. On 3 September 2007 the Ministry of Finance upheld the decision of the Real Estate Department to erase the applicant’s fiduciary rights. 21. On 8 July 2008, upon an appeal by the applicant, the Administrative Court quashed the decision of the Ministry and remitted the case to the Real Estate Department in Berane for reconsideration. 22. On 2 October 2008 the Real Estate Department in Berane ordered the removal of the applicant’s rights on Beranka AD’s property from the public register. 23. On 9 April 2009 the Ministry of Finance quashed the decision of 2 October 2008 and remitted case to the first instance. 24. On 8 April 2010 the Real Estate Department in Berane stayed the proceedings, because it needed some documents which were in the file of a case pending before the Commercial Court. This decision was quashed by decision of the Ministry of Finance and the matter was remitted to the first instance. 25. On 26 October 2011 the Real Estate Department adopted a decision allowing the deletion of the applicant’s rights from the public register. The same authority confirmed that decision on 2 November 2011. 26. On 16 November 2011 the applicant filed an objection with the Ministry of Finance. 27. On 9 July 2012 the applicant also lodged an appeal with the Administrative Court. On 30 November 2012 the Administrative Court rendered a decision in the applicant’s favour and ordered the Ministry of Finance to reconsider on the applicant’s prior objection. 28. On 14 June 2013 the Ministry of Finance remitted the case to the first instance. The proceedings are still pending before the Real Estate Department in Berane.