SECOND SECTION
\nCASE OF LEKI\u0106 v. MONTENEGRO
\n(Application no. 37726\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Leki\u0107 v. Montenegro,<\/strong><\/p>\n The European Court of Human Rights(Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, andHasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n Having deliberated in private on 18 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 37726\/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Montenegrin nationals, Mr Hasan Leki\u0107(\u201cthe first applicant\u201d)and Mr GanoLeki\u0107 (\u201cthe second applicant\u201d), on 5 June 2011.<\/p>\n 2.\u00a0\u00a0The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Ms ValentinaPavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0On 16 December 2015 the complaint concerning the length of the proceedings in question was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule\u00a054\u00a0\u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0On 14 March 2016 the first applicant\u2019s widow, Ms BademaLeki\u0107, informed the Court that her spouse had died on 11 November 2013 andshe expressed the wish to pursue the application before the Court. She also informed the Court that she wished to be represented by the second applicant and submitted a power of attorney to that effect.<\/p>\n THE FACTS<\/strong><\/p>\n 5.\u00a0\u00a0The applicants were born in 1949 and 1950, respectively, and lived in Podgorica, where the second applicant still lives.<\/p>\n 6.\u00a0\u00a0On 25 July 2000 the applicants\u2019 mother instituted civil proceedings against Podgori\u010dkabankaSocieteGenerale Group ad Podgorica(hereinafter \u201crespondent\u201d) seeking the payment of her savings, which she haddeposited with the respondent\u2019s legal predecessorTitogradskaosnovnabanka Titograd.<\/p>\n 7.\u00a0\u00a0On an unspecified date the applicants continued the above-mentioned proceedings in their mother\u2019s stead as she had passed away in the meantime.<\/p>\n 8.\u00a0\u00a0On 25 July 2008 the First Instance Court in Podgorica ruled partly in favour of the applicants.<\/p>\n 9.\u00a0\u00a0On 19 January 2010 the High Court in Podgorica reversed the first\u2011instance judgment by dismissing the applicants\u2019claimsin their entirety. This judgment was upheld by the Supreme Court on 19\u00a0October\u00a02010.<\/p>\n 10.\u00a0\u00a0On 5\u00a0December 2010 the Supreme Court\u2019s judgment was served on the applicants.<\/p>\n 11.\u00a0\u00a0On 3 February 2011 the applicants lodged a constitutional appeal.<\/p>\n 12.\u00a0\u00a0On 12 April 2012 the Constitutional Court rejected the applicants\u2019 appeal, which decision was served on the applicants on 29 May 2012.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0LOCUS STANDI OF MS BADEMA LEKI\u0106<\/p>\n 13.\u00a0\u00a0The Court takes note of the death of the first applicant in 2013, after the introduction of the present application, and of the wish expressed by his widow, Ms BademaLeki\u0107, to continue the application before the Court in his stead.<\/p>\n 14.\u00a0\u00a0The Court reiterates that in a number of cases in which an applicant had died in the course of the proceedings, it had taken into account statements by the applicant\u2019s heirs or by close family members expressing their wish to pursue the proceedings before the Court (see Karner v.\u00a0Austria, no.\u00a040016\/98, \u00a7 22, ECHR 2003\u2011IX, with further references).<\/p>\n 15.\u00a0\u00a0In the circumstances of the present case, the Court finds that the first applicant\u2019s widow has standing to proceed in his stead (see, mutatis mutandis, G\u00f6kta\u015f v. Turkey, no. 66446\/01, \u00a7 19, 29 November 2007). For reasons of convenience, however, the Court will continue to refer to the first and second applicants together as \u201cthe applicants\u201d.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 16.\u00a0\u00a0The applicants complained that the length of the civil proceedings at issue had been incompatible with the \u201creasonable time\u201d requirement, laid down in Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by a … tribunal…\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 17.\u00a0\u00a0The Government submitted that this complaint should be rejected for non\u2011exhaustion of domestic remediesor the applicants\u2019non\u2011observance of the six\u2011month rule.<\/p>\n 18.\u00a0\u00a0The applicants disagreed.<\/p>\n 19.\u00a0\u00a0The issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592\/96, \u00a7\u00a047, ECHR\u00a02001\u2011V (extracts)).<\/p>\n 20.\u00a0\u00a0The Court notes that at the time when the present application was lodged there were no effective remedies in Montenegro as regards complaints relating to the length of proceedings. In particular, a request for review (kontrolnizahtjev) became effective as of 4\u00a0September\u00a02013 (see Vukeli\u0107 v. Montenegro, no. \u00a058258\/09, \u00a7 85, 4 June 2013), an action for fair redress (tu\u017ebazapravi\u010dnozadovoljenje) became effective as of 18\u00a0October\u00a02016 (see Vu\u010delji\u0107 v.\u00a0Montenegro (dec.), no. 59129\/15, \u00a7\u00a030, 18\u00a0October 2016), while a constitutional appeal became effective as of 20\u00a0March 2015 (see Sini\u0161taj and Others v. Montenegro, nos. 1451\/10 and 2\u00a0others, \u00a7\u00a0123, 24\u00a0November\u00a02015, and Vu\u010delji\u0107, cited above, \u00a7\u00a031). In view of that, the Court cannot but conclude that, since before the lodging of the application with the Court the applicants had had no effective remedy at their disposal, the Government\u2019s objection in this regard must be dismissed.<\/p>\n 21.\u00a0\u00a0As regards thealleged non\u2011observance of the six\u2011month rule, the Court notes that the applicants received the Supreme Court\u2019s judgment of 19\u00a0October 2010 on 5 December 2010 (see paragraph 10 above).Since the six-month period provided for in Article 35 \u00a7 1 of the Convention started to run on 6\u00a0December 2010 and expired on 5\u00a0June 2011 (see Otto v. Germany (dec.), no. 21425\/06, 10 November 2009)on which date theapplicants lodged their application, the Court concludes that they complied with the six month requirement, as set out in Article\u00a035\u00a0\u00a7\u00a01 of the Convention. Therefore, the Government objection in this regard must also be dismissed.<\/p>\n 22.\u00a0\u00a0Given that the complaint in question is neither manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, nor inadmissible on any other grounds, it must be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 23.\u00a0\u00a0The proceedings at issue started on 25 July 2000 (see paragraph 6 above) and ended on 5 December 2010 (see paragraph10above). Since the Convention entered into force in respect of Montenegro on 3\u00a0March\u00a02004 (see Bijeli\u0107 v.\u00a0Montenegro and Serbia, no.\u00a011890\/05, \u00a7 69, 28\u00a0April 2009) the impugned proceedings fall within the Court\u2019s competence rationetemporis for a period of six years and nine months. In addition, they had already been pending for more than three years and seven months before that date.<\/p>\n 24.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979\/96, \u00a7 43, ECHR 2000-VII).<\/p>\n 25.\u00a0\u00a0The Court considers that neither the complexity of the case nor the applicants\u2019 conduct explains the length of proceedings. The Government did not supply any explanation for the delay or provide any comment on this matter.<\/p>\n 26.\u00a0\u00a0Having examined all the material submitted to it and in view of its case-law on the subject, the Court considers that, in the absence of any justification, the length of proceedings of six years and nine months at three levels of jurisdiction was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n 27.\u00a0\u00a0There has accordingly been a breach of Article 6 \u00a7 1.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 28.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 29.\u00a0\u00a0The applicants claimed 20,000 euros(EUR) in respect of non\u2011pecuniary damage and EUR 65,024.91 and accompanying interest in respect of pecuniary damage.<\/p>\n 30.\u00a0\u00a0The Government contested these claims.<\/p>\n 31.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in the Court\u2019s view, it is clear that the applicants sustained some non\u2011pecuniary loss arising from the breach of their right under Article 6 of the Convention, for which they should be compensated. The Court therefore considers it reasonable to award the second applicant and Ms BademaLeki\u0107 (see paragraph 15 above) EUR 900 jointly for non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 32.\u00a0\u00a0The applicants also claimed EUR 4,850 for costs and expenses incurred before domestic courts, together with statutory interest. They further claimed the costs and expenses incurred before the Court, the amount of which they left to the Court\u2019s discretion.<\/p>\n 33.\u00a0\u00a0The Government contested these claims.<\/p>\n 34.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, and the above criteria, the Court rejects the applicants\u2019 claim for costs and expenses before the domestic courts as they were not incurred in order to remedy the violation in issue, but considers it reasonable to award the second applicant and Ms BademaLeki\u0107 EUR 100 jointly for the proceedings before the Court.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 35.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the applicants\u2019 complaint about the length of proceedings admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the second applicant and Ms\u00a0BademaLeki\u0107, who has continued the proceedings in the first applicant\u2019s stead, within three months, the following amounts:<\/p>\n (i)\u00a0\u00a0EUR 900 (nine hundred euros) jointly, less any amounts which may have already been paid in that connection at the domestic level, in respect of non-pecuniary damage, plus any tax that may be chargeable;<\/p>\n (ii)\u00a0\u00a0EUR 100 (one hundred euros) jointly in respect of cost and expenses, plus any tax that may be chargeable;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LediBianku
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n