CASE OF MERCUR SYSTEM A.D. AND OTHERS v. MONTENEGRO (European Court of Human Rights) Applications nos. 5862/11 and 70851/13

FIFTH SECTION
CASE OF MERCUR SYSTEM A.D. AND OTHERS v. MONTENEGRO
(Applications nos. 5862/11 and 70851/13)
JUDGMENT
STRASBOURG
26 November 2020

This judgment is final but it may be subject to editorial revision.

In the case of Mercur System A.D. and Others v. Montenegro,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Ganna Yudkivska, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 5 November 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The applicants were represented by Mr R. Vouk, a lawyer practising in Klagenfurt, and by Ms M. Novaković, a lawyer practising in Podgorica.

3. The Montenegrin Government (“the Government”) were given notice of the applications.

THE FACTS

4. The list of the applicants and the relevant details of the applications are set out in the appended table.

5. The applicants complained of the excessive length of civil proceedings.

THE LAW

I. JOINDER OF THE APPLICATIONS

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. THE LOCUS STANDI OF mR sLOBODAN ŠLJIVANČANIN’S FAMILY MEMBERS TO PURSUE THE APPLICATION (NO. 70851/13)

7. The Court notes that Mr Slobodan Šljivančanin died on 6 March 2014 while the case was pending before the Court.

8. In a letter of 15 June 2016 the applicant’s wife and a son, Ms Dragica Šljivančanin and Mr Marko Šljivančanin, who are his legal heirs, expressed their intention to pursue the application.

9. The Court considers that the applicant’s wife and son have a legitimate interest in obtaining a finding of a breach of the right guaranteed by Article 6 § 1 of the Convention to have the case heard within a reasonable time (see Dalban v. Romania [GC], no. 28114/95, §§ 1 and 39, ECHR 1999-VI, and Ernestina Zullo v. Italy [GC], no. 64897/01, §§ 36-37, 29 March 2006).

10. Accordingly, the Court holds that Ms Dragica Šljivančanin and Mr Marko Šljivančanin have standing to continue the present proceedings.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

11. The applicants complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”

12. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

13. In the leading case of Stakić v. Montenegro, no. 49320/07, §§ 45-51, 2 October 2012, the Court already found a violation in respect of issues similar to those in the present case.

14. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

15. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

16. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

17. Regard being had to the documents in its possession and to its case‑law (see, in particular, Stakić, cited above, § 65), the Court considers it reasonable to award the sums for costs and expenses indicated in the appended table. It further notes that the applicants claimed different amounts in respect of pecuniary damage (relating to the substance of their respective domestic proceedings). However, the Court does not discern any causal link between the violation found and the pecuniary damage alleged and, therefore, dismisses these claims. Moreover, since the applicants did not submit claims for just satisfaction in respect of non-pecuniary damage, there is no call to award them any sum on that account.

18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Holds that Ms Dragica Šljivančanin and Mr Marko Šljivančanin have standing to continue the present proceedings in Mr Slobodan Šljivančanin’s stead;

3. Declares the applications admissible;

4. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the excessive length of civil proceedings;

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt                                Ganna Yudkivska
Acting Deputy Registrar                 President

 

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

(excessive length of civil proceedings)

No. Application no.

Date of introduction

Applicant’s name

Year of birth/ registration

 

Represen-tative’s

name and location

Start of proceedings or date of entry into force of the Convention in respect of Montenegro

(3 March 2004)

End of proceedings Total length

Levels of jurisdiction

Relevant domestic decision Amount awarded for costs and expenses per application

(in euros)[1]

1. 5862/11

20/01/2011

MERCUR SYSTEM A.D.

2000

Vouk Rudolf

Klagenfurt

03/03/2004

 

08/02/2012

 

7 years, 11 months and 5 days

3 levels of jurisdiction

Supreme Court of Montenegro Už.br. 08/02/2012 500
2. 70851/13

18/10/2013

(32 applicants)

Ljubomir Vujović

1951

Mihailo Milošević

1947

Boro Novaković

1954

Rade Nikolić

1958

Milorad Vukičević

1957

Rajko Lakić

1952

Radovan Radnjić

1953

Duško Kosović

1958

Savo

Perunović

1938

Mladen Bulatović

1963

Zoran

Jovićević

1971

Snežana Kosović

1972

Božidar Tatar

1958

Petar Bakić

1954 

Slobodan Šljivančanin

1962

(purused by heirs:

Dragica Šljivančanin

and Marko Šljivančanin)

Svetislav Milošević

1951

Vukosava Kljajević

1939

Milija Delević

1959

Damjan Živković

1967

Nenad Zarubica

1955

Miroslava Zindović-Leković

1968

Dragica Jelić Šljivančanin

1959

Miruna Martinović

1937

Dragoljub Vučić

1950

Gorčin Vukotić

1956

Zvonimir Lukić

1955

Branislav Orlandić

1937

Danica Kažić

1943

Budimir Đukanović

1954

Milan Cvetkovski

1955

Goran Šćepanović

1962

Srđan Radović

1965

Novaković Marika

Podgorica

03/03/2004

 

09/05/2013

 

9 years, 2 months and 6 days

3 levels of jurisdiction

 

500

[1] Plus any tax that may be chargeable to the applicants.

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