CASE OF VUKELIĆ v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
9. The applicant was born in 1963 and lives in Skopje, “the former Yugoslav Republic of Macedonia”. 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. On an unspecified date the applicant, represented by a lawyer, filed a compensation claim against another private person (“the debtor”). 12. On 17 October 1996 the Real Estate Office in Bar (Služba za katastar i imovinsko-pravne poslove Bar) issued a decision to register a mortgage (založno pravo) on the debtor’s flat in favour of the applicant. 13. On 7 November 1996 the Court of First Instance (Osnovni sud) in Bar ruled in favour of the applicant, ordering the debtor to pay 36,000 German Marks, statutory interest and specified legal costs. This judgment became final on 7 January 1997. 14. On 18 March 1997 the High Court (Viši sud) in Podgorica rejected the debtor’s appeal as having been lodged out of time. 15. On 16 April 1997 the Court of First Instance issued an enforcement order (rješenje o izvršenju) ordering the sale of the debtor’s flat by means of a public auction. 16. On 5 May 2000 the same court established the value of the flat at issue. 17. The public auction, scheduled for 1 September 2000, was cancelled on account of the judge’s absence. No further auctions have been scheduled thereafter. 18. On 31 October 2006 the Court of First Instance stayed the enforcement proceedings (prekida se postupak izvršenja) due to the debtor’s death. On 8 November 2006 this decision was posted on the applicant’s door, after a prior written notice (poslije pismenog obaviještenja rješenje pribijeno na vrata). 19. On 9 September 2009 the applicant wrote to the President of the Court of First Instance, urging that the decision at issue be enforced and asking that any relevant information in that regard be sent to him at his address in Skopje, “the former Yugoslav Republic of Macedonia”. 20. On 15 September 2009 the applicant was informed that the enforcement proceedings had been stayed on 31 October 2006. 21. On 25 September 2009 the applicant wrote again to the President of the Court of First Instance seeking that the enforcement proceedings be expedited. 22. On 28 September 2009 the applicant proposed that the enforcement proceedings be continued in respect of the debtor’s heirs. 23. On 13 October 2009 the Court of First Instance in Bar invited the applicant to provide the names and the addresses of the debtor’s heirs within three days, in default of which his request would be considered withdrawn. It was further specified that no appeal was allowed against this decision. 24. On 9 December 2009 the applicant appealed. He submitted that he did not know the names and the addresses of the debtor’s heirs, and that it was impossible for him to find this out, especially within three days. He further maintained that the court should have acted pursuant to section 32 of the Enforcement Act and should have found the debtor’s heirs, or, alternatively, should have appointed a temporary representative for them without delay (see paragraph 45 below). 25. On 18 December 2009 the Court of First Instance requested the Real Estate Office in Bar (Uprava za nekretnine, područna jedinica Bar) to provide a property certificate (list nepokretnosti) for the flat at issue. 26. On 28 December 2009 the Real Estate Office provided the requested certificate, which indicated that the new owners of the flat were B.N. and A.N., the registered address of the former being in Serbia. 27. On 21 January 2010 the Court of First Instance rendered a decision to continue the enforcement proceedings, designating B.N. and A.N. as the new debtors. On 3 February 2010 this decision was served on A.N. The delivery to B.N. failed as he appeared not to live at the provided address in Serbia. 28. On 15 April 2010 the Court of First Instance requested the relevant Police Directorate in Serbia to inform it if B.N. had residence there and, if so, at which address. 29. On 16 February 2011 the Ministry of Justice of Serbia informed the Ministry of Justice of Montenegro that B.N. had a permanent residence in Serbia, but that he actually lived in Montenegro. On 8 March 2011 this information was forwarded to the court in Bar. 30. On 13 June 2012 the court in Bar invited the applicant to pay 233.88 EUR “for publishing a notice (oglas) in the media, pursuant to section 94 paragraph 6 of the Enforcement Act” (see paragraph 50 below), in default of which the enforcement would be terminated (obustaviti). 31. On 4 July 2012 the applicant’s objection against the previous decision was rejected as inadmissible. It was specified that, pursuant to section 169 of the Enforcement Act 2011, a notice on sale was to be published in the newspapers (see paragraph 51 below). At the same time, the applicant was informed that on 11 October 2011 another interim measure prohibiting the sale of the flat at issue had been deleted from the register of the Real Estate Office, thus creating the conditions for these enforcement proceedings to be concluded (see paragraph 34 below). 32. There is no information in the case file that the notice on sale was published in the newspapers or that B.N. was served with the enforcement decision of 21 January 2010. The enforcement proceedings would appear to be still pending. 33. On 26 February 2004 the debtor passed away. 34. On an unspecified date in 1997 a private person X instituted civil proceedings against the debtor and another private person. On 7 April 1998 the court in Bar issued an interim measure prohibiting the debtor from selling the flat at issue and ordered that this measure be registered by the Real Estate Office in Bar until these proceedings were concluded. On 10 September 1999 the proceedings ended. On 11 October 2011 the interim measure was deleted, following a relevant order of the court in Bar to that effect. 35. On an unspecified date in 2008 a private person Y filed a compensation claim against A.N. and three other private persons. On 11 March 2009 these proceedings were registered in respect of the flat at issue by the Real Estate Office (zabilježba spora). On 23 October 2009 these proceedings ended by a court settlement of the parties. On 12 October 2011 the court in Bar ordered that the note on the proceedings be deleted from the register of the Real Estate Office. 36. On 24 November 2010 the court in Bar requested the Central Bank to calculate the interest rate applicable to the amounts of 34,891.30 EUR and EUR 104.85 starting from 25 March 2004. On 30 November 2010 the Central Bank informed the court in Bar that the requested amounts were EUR 52,411.59 and EUR 157.49, respectively. 37. There is no information in the case file as to when the applicant’s lawyer ceased to represent him save for the letter of 9 September 2009 in which the applicant asked the courts that all the relevant information be sent to him (see paragraph 19 above). 38. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged 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. 39. The Constitution entered into force on 22 October 2007. 40. Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted. 41. Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision. 42. The Act entered into force in November 2008. 43. Section 4 § 1 provided that enforcement proceedings were urgent. 44. Section 14 provided that the Civil Procedure Act would apply accordingly to the enforcement proceedings unless provided otherwise by this or another federal Act. 45. Section 32 provided that in cases where the enforcement proceedings were stayed due to the death of one of the parties the relevant court would inform thereof the heirs of that party, if their names and addresses were known, as well as the opposite party. If the names or addresses of the heirs were not known the court would, without a delay, appoint a temporary representative for them. 46. Sections 134-176, inter alia, set out details as regards enforcement by means of a public auction. 47. The Enforcement Procedure Act 2004 entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286, however, all enforcement proceedings instituted prior to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act 2000. 48. This Act entered into force on 25 September 2011 and thereby repealed the Enforcement Procedure Act 2004. Section 292 § 1, in particular, provides that all enforcements (postupci izvršenja) would be terminated in accordance with this Act. 49. Sections 6 § 1 and 14 of this Act correspond, in substance, to sections 4 § 1 and 14 of the Enforcement Procedure Act 2000. 50. Section 94 sets out details as regards the sale of the debtor’s movable property. 51. Sections 154-184 set out details as regards the sale of real estate as well as regards enforcement by means of a public auction. In particular, section 169 provides, inter alia, that a notice on sale of a real estate shall be published in the media. 52. Section 211 provides that the proceedings shall be stayed (postupak se prekida) when one of the parties passes away. 53. Section 214 provides, inter alia, that proceedings which were stayed due to the death of one of the parties shall be continued when the heirs or an administrator of the estate (staralac zaostavštine) take over the proceedings or when the court invites them to do so upon a proposal of the other party to that effect. 54. Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative. 55. Section 136 provides, inter alia, that a decision against which a separate appeal may be filed shall be delivered in person to a party or his/her representative. If a person who is to be served does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in section 137, requesting that he/she be present on a certain day and hour in his flat or office. If the bailiff does not find the person to be served even after this, he/she shall proceed in accordance with the provisions of section 137 of this Act and the delivery shall thus be considered as having been carried out. 56. Section 137 provides that if the person to whom a court document is to be delivered does not happen to be at home, the delivery shall be accomplished by serving the court documents on an adult member of his/her household, who must receive them. If such persons also happen not to be at home, the court documents shall be served on a neighbour, if he/she agrees. 57. Section 138 provides that if the person to be served, an adult member of the household, an authorised person or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the delivery shall be considered accomplished. 58. Section 142 § 1 provides that when a party to the proceedings or his/her representative changes his/her address during the proceedings they shall immediately inform the court thereof. 59. This Act entered into force on 10 July 2004. 60. This Act provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). 61. Section 10, in particular, provides that the president of the relevant court shall decide upon the request for review, which, pursuant to section 9, is to be submitted to the court before which the case is pending and must contain the name and the address of the party, the registration number of the case or other data on the basis of which it can be established to which case it refers, the data and circumstances indicating that the court is unjustifiably prolonging the proceedings, and the signature of the party. 62. Section 17 provides that if the judge notifies the president of the court that certain procedural measures will be undertaken no later than four months after the receipt of the request for review, the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review. 63. Section 23 § 1 provides that if the president of the court acted pursuant to section 17 the party cannot file another request for review in the same case before the expiry of the period specified in the notification. 64. Pursuant to section 24 § 1 if the president of the court does not deliver a notification on the request for review to the party pursuant to section 17 the party may lodge an appeal. 65. Section 44 provides that this Act shall apply also to judicial proceedings initiated before the entry into force of this Act but after 3 March 2004. In the determination of a legal remedy for violations of the right to trial within a reasonable time, the violations of the right which occurred after 3 March 2004 shall be established. When establishing the violation of this right, the Court shall also take into consideration the length of the judicial proceedings prior to 3 March 2004. 66. This Act entered into force on 21 December 2007. 67. Between 21 December 2007, which is when the Right to a Trial within a Reasonable Time Act entered into force, and 3 September 2012, the courts in Montenegro considered more than 121 requests for review. The Court of First Instance in Cetinje submitted the data only for the period between 1 May 2011 and 15 May 2012, and the Court of First Instance in Žabljak for the period between January 2011 and June 2012. Also, the Court of First Instance in Danilovgrad and the Court of First Instance in Kolašin did not provide the exact number of the requests for review that had been dealt with by these two courts. All the other courts dealt with 121 requests for review in total. 68. In forty-six cases the courts issued notifications specifying the concrete actions that would be undertaken in each case within four months with a view of expediting the proceedings (see paragraph 62 above). In thirty cases of these forty-six the relevant actions were undertaken within the set time-limit (a main hearing concluded, a decision or a judgment rendered etc.). In fourteen cases the relevant actions were undertaken within periods ranging between 4 months and 12 months. In two cases the relevant action specified in the notification would not appear to have been undertaken even after a period of 12 months. 69. In thirty-three cases the requests for review were dismissed as unfounded. In twenty-one cases of these thirty-three the relevant domestic proceedings would appear to have been pending before the first-instance courts between 5 months, and 1 year and nine months at most. In one case the relevant civil proceedings in respect of which the request for review was dismissed as unfounded had already been pending for at least 4 years and 5 months before a first-instance court. In eleven cases it is unclear how long the relevant domestic proceedings had lasted. 70. It is unclear how the additional thirty-three requests for review had been dealt with. However, it would appear that in eighteen cases out of these thirty-three the relevant domestic proceedings ended soon thereafter. The status of the remaining fifteen proceedings is not known. 71. Lastly, in five cases the appellants were informed that the relevant decisions had been rendered in the meantime and in four cases the requests for review were withdrawn.