Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 21712/16
Vuk Tomislav VUJISIĆ
against Montenegro
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, DeputySection Registrar,
Having regard to the above application lodged on 13 April 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vuk Tomislav Vujisić, is a Serbian national who was born in 2005 and lives in Belgrade. He was represented before the Court by Mr M. Čogurić, a lawyer practising in Belgrade who was authorised to act for the applicant by the applicant’s mother, Ms M. Stojanović, his legal guardian (zakonski zastupnik).
2. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.
3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of their right to intervene in the present case, the Serbian Government expressed no wish to do so.
A. The circumstances of the case
4. On 25 August 2004, before the applicant was born, his father T.V. died. The applicant was born out of wedlock on 25 January 2005.
5. On 12 November 2004 the First Municipal Court (Prvi opštinski sud) in Belgrade (Serbia) issued an interim measure prohibiting T.V.’s two brothers, D.V. and S.V., from selling, mortgaging or otherwise disposing of T.V.’s property (zabranjuje se preduzimanje akata raspolaganja, opterećenja i otuđenja) including, inter alia, business premises situated in the Old Town of Budva (Montenegro), and ordered that the property be sealed. On 26 November 2004 the Real Estate Office in Budva registered the interim measure in the Real Estate Registry, and the premises were sealed on 7 December 2004.
6. On 18 September 2008 the First Municipal Court in Belgrade established that the applicant, as T.V.’s son, was his only legal heir, and thus the owner of, inter alia, the business premises in Budva. That judgment became final on 22 July 2009.
7. On 7 November 2008 T.V.’s brothers, D.V. and S.V., leased the business premises to a company “Stari grad d.o.o.” from Budva (“the company”) for a period of fifteenyears.
8. On 16 October 2009 the First Municipal Court in Belgrade revoked the interim measure, given that the judgment of 18 September 2008 had become final in the meantime.
1. The first set of civil proceedings
9. On an unspecified date in 2009 the applicant instituted civil proceedings against D.V., S.V. and the company, seeking that the lease agreement be declared null and void.
10. On 26 July and 21 October 2010 respectively, the Court of First Instance (Osnovni sud) in Kotor and the High Court (Viši sud) in Podgorica ruled in favour of the applicant, considering, in substance, that the agreement by which the property subject to an interim measure had been disposed of was against mandatory requirements and as such null and void. The High Court also specified that the interim measure had prohibited not only the sale and mortgage of the property, but also disposal of it, which included leasing the property.
11. On 23 February 2011 the Supreme Court (Vrhovni sud) in Podgorica overturned the previous two decisions and ruled against the applicant. The court held that the fact that the sale, mortgage and disposal of the business premises at issue had been prohibited at the time when the agreement had been made was not a reason for the lease agreement to be declared null and void “… because the object of the impugned agreement [was] possible, permitted and specified, [and] because it represent[ed] a human action which it [was] possible to undertake which [was] not contrary to mandatory requirements and [which], at the time when the agreement had been concluded, had been realistically possible”. In the Supreme Court’s opinion, the interim measure might possibly be (može eventualno biti) grounds for the payment of compensation.
12. On 30 June 2015 the Constitutional Court dismissed a constitutional appeal by the applicant, considering that the proceedings at issue had been fair. In particular, “the impugned judgment of the Supreme Court was based on a constitutionally acceptable interpretation of the Obligations Act, [and] it [did] not give an impression of arbitrariness, but contain[ed] clear and consistent reasons”. The Constitutional Court also held that the applicant’s right under Article 1 of Protocol No. 1 to the Convention had not been violated. That decision was served on the applicant on 22 October 2015.
2. Criminal complaint
13. On 25 June 2009 the applicant filed a criminal complaint against an unknown person for breaking the official seal on the premises. On 25 July 2009 the State Prosecution Office (Osnovno državno tužilaštvo) in Kotor rejected the complaint. It held in substance that it was not certain when exactly the seal had been broken, and that there was no evidence that the prosecution was not statute-barred. At the same time the applicant was informed that he could take over the prosecution by filing an indictment (optužni predlog) within eight days. There is nothing in the case file to indicate whether the applicant did so.
3. Additional information obtained
a. The second set of civil proceedings
14. On 13 December 2016 the application was communicated to the respondent Government. At the same time the applicant was explicitly asked not to send any submissions before being asked to do so by the Court. On 13 April 2017 the Government’s observations were transmitted to the applicant, who was then asked to submit his observations. On 27 June 2017 the applicant complied with that request, and in doing so referred to the Supreme Court’s judgment of 28 March 2017 and its findings. On 15 September 2017, in their response to the applicant’s observations, the Government submitted all the decisions issued in the second set of civil proceedings, which indicated the following information.
15. On 22 January 2011 the applicant instituted civil proceedings against the company, seeking compensation and requesting that the property be returned to him. On 15 May 2014 the applicant withdrew the part of the claim relating to compensation.
16. On 22 February 2016 the Court of First Instance in Kotor ruled in favour of the applicant and ordered the company to return the property at issue. That judgment was upheld by the High Court and the Supreme Court on 11 October 2016 and 28 March 2017 respectively. In particular, the Supreme Court found that the applicant was the owner of the property which was in the company’s unlawful possession (u bespravnoj državini). The legal grounds for the company’s possession of the property ceased (prestao pravni osnov za državinu tuženih) upon the applicant’s right of ownership over that property being established, and the lease agreement was cancelled ex lege. The court relied on section 608 of the Obligations Act and section 112 of the Property Act (see paragraphs 25 and 27 below). It also considered it irrelevant that the applicant’s previous claim for the lease agreement to be declared null and void had been dismissed, as that did not prevent the applicant, as the owner, from seeking the return of property by means of a property claim (svojinskom tužbom).
b. Other relevant information
17. In his additional submission of January 2018 the applicant submitted the following factual up-date.
18. On 4 June 2012 the owner of the company founded another company (the company K).
19. On 29 May 2017 the owner of the company instituted proceedings against the company and the applicant, seeking that the enforcement aimed at returning the property to the applicant be declared impermissible (nedopustivo).
20. On 12 October 2017 certain R.S. instituted proceedings against the applicant seeing that he (R.S.) be recognised as the owner of part of the property at issue.
21. On 26 July 2017 the enforcement order was issued. On 29 November 2017 the bailiff entered the property, and changed the locks in business premises, and partly in residential part of the house. It appeared that the remaining part of the house was occupied by R.S. The bailiff informed R.S. that he had to surrender the keys of the premises possessed by him with which R.S. agreed and on 30 November 2017 complied with the request.
22. On 31 December 2017 the applicant was informed that the owner of the company had broken into his property. The same day the applicant, over a telephone, submitted a criminal complaint with the police in Budva. In a subsequent conversation he was informed that the police had visited the scene and had identified persons there, without removing them. On 9 January 2018 the applicant requested the police to provide him with a report (službena zabilješka) containing the names of the identified persons. It appears that the criminal complaint and the request for the report are still pending.
23. On 8 January 2018 the applicant tried to enter his property but was prevented by two wolfdogs at the entrance. He filed a complaint with communal police and inspection against an unknown person seeking that the dogs be removed. This complaint would appear to be still pending.
B. Relevant domestic law
1. The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47/08, 04/11, and 22/17)
24. Sections 151, 192-199, 217, 221, 224, 226, and 269-276, inter alia, set out details as regards compensation for pecuniary and non-pecuniary damage.
25. Section 608 provides, inter alia, that when it is established that a third party has a right which fully excludes the right of a lessee to use leased property, the lease agreement shall be deemed terminated ex lege.
26. This Act entered into force on 15 August 2008.
2. The Property Act (Zakon o svojinsko-pravnim odnosima; published in the OGM no. 19/09)
27. Section 112 provides that an owner can file an action requesting that an occupant return his property to him. The owner has to prove that he has the right of ownership and that his property is in the factual possession of the respondent party.
28. This Act entered into force on 21 March 2009.
COMPLAINTS
29. The applicant complained under Article 6 of the Convention about the arbitrary reasoning given by the Supreme Court on 23 February 2011. He further complained under Article 1 of Protocol No. 1 that his property rights had been violated. He also complained about a violation of his property rights originating from breaking into his property on 31 December 2017 and his being unable to access the property due to the presence of the dogs (see paragraphs 22-23 above).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 THERETO
30. The applicant alleged a violation of his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
31. The Government contested the applicant’s allegations.
A. The parties’ submissions
32. The Government submitted that the applicant had failed to make use of any form of redress related to property. On 15 September 2017, in their response to the applicant’s observations, the Government also maintained that the applicant had abused the right of petition, as he had failed to notify the Court of the second set of civil proceedings and its outcome. They submitted all the relevant documents in that regard (see paragraphs 15-16 above).
33. The applicant contested the Government’s submissions and reaffirmed his complaint. In particular, in his observations of 28 June 2017, the applicant submitted that in its new judgment of 28 March 2017 the Supreme Court had found that the legal basis for the company’s possession of the property had ceased and that the lease agreement had been cancelled ex lege by the property rights of the applicant being established (see paragraph 16 above). He averred that this confirmed the arbitrariness of the Supreme Court’s decision of 23 February 2011. In his additional submissions of January 2018, the applicant maintained that the owner of the company transferred the entire company’s business to company K, emptied the company’s accounts and thus practically made it insolvent (nelikvidna), which was why he had withdrawn the compensation part of the claim.
B. The Court’s assessment
34. The Court reiterates that, in accordance with Rule 47 § 7 of the Rules of Court, applicants shall keep the Court informed of all circumstances relevant to an application. It further reiterates that incomplete and therefore misleading information may also amount to abuse of the right of petition, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see, for example, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
35. Turning to the present case, the Court notes that when the case was communicated to the Government on 13 December 2016, that is before the second set of civil proceedings was concluded, the applicant was explicitly asked not to send any submissions before being asked to do so by the Court. Only on 28 March 2017 did the Supreme Court issue its decision, thereby concluding the second set of civil proceedings. Even though it was the Government who on 15 September 2017 submitted the relevant decisions from those proceedings, the Court notes that it was actually the applicant who had first referred to the second judgment of the Supreme Court. He did so on 28 June 2017, that is as soon as he was asked by the Court to send his observations (see paragraph 14 above). In view of the foregoing, the Court does not consider that the applicant failed to disclose information to the Court or that his intention was to mislead it, and therefore it does not consider that his conduct was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention. The Government’s objection in this regard must therefore be dismissed.
36. The Court does not consider it necessary to examine the Government’s objection relating to the non-exhaustion of domestic remedies. In the light of the new developments brought to its attention, it considers that, for the reasons set out below, there is no objective justification for continuing to examine the applicant’s complaints, and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
37. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia, no. 60654/00, § 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).
38. The Court notes that, in the present case, the applicant complained that the Supreme Court’s decision of 23 February 2011, in refusing to declare the impugned lease agreement null and void, had been arbitrary and that therefore his property rights had been breached. However, it also observes that in the subsequent set of civil proceedings the civil courts, including the Supreme Court, explicitly held that the lease agreement had been cancelled ex lege and that the company had been in unlawful possession of the property in question. It thus ordered that the property be returned to the applicant. In November 2017, pursuant to these decisions, the property was returned to the applicant (see paragraph 21 above). The circumstances of which the applicant complained therefore no longer sustain.
39. In addition, the Court also observes that the applicant could have sought compensation and requested other forms of redress capable of affording adequate non-pecuniary satisfaction under the relevant provisions of the Obligations Act (see paragraph 24 above). It is noted in this regard that he initially filed a compensation claim, but later withdrew it (see paragraph 15 above), thus preventing the domestic courts from adjudicating on the matter. In view of that, and since the impugned lease contract was cancelled and the relevant property returned to the applicant, the Court considers that his complaint has been adequately and sufficiently remedied.
40. In view of the above, the Court considers that the matter giving rise to the applicant’s complaints from the application can therefore be considered to be resolved within the meaning of Article 37 § 1 (b). Lastly, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of these complaints under Article 37 § 1 in fine.Accordingly, this part of the application should be struck out of the Court’s list of cases.
II. OTHER COMPLAINTS
41. On 24 January 2018, in his additional factual update, the applicant complained about a violation of his property rights originating from the events that had taken place as of 31 December 2017, notably breaking into his property and his being unable to access the property due to the presence of the dogs (see paragraphs 22-23 above).
42. The Government maintained that the relevant decision of the domestic courts was enforced and that the applicant had been given the possession of the property at issue. As regards the subsequent events, the applicant should address the competent domestic bodies, that is the local courts and the communal police.
43. The Court observes that these complaints were not included in the initial application, but were raised in the applicant’s additional submissions of January 2018. The Court considers, therefore, that it is not appropriate to take these matters up in the context of this application (see Mugoša v. Montenegro, no. 76522/12, §§ 70-71, 21 June 2016; Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006).
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 21 June 2018.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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