SECOND SECTION
\nDECISION<\/p>\n
Application no. 21712\/16
\nVuk Tomislav VUJISI\u0106
\nagainst Montenegro<\/p>\n
The European Court of Human Rights (Second Section), sitting on 29\u00a0May 2018 as a Committee composed of:<\/p>\n
Ledi Bianku, President,
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Hasan Bak\u0131rc\u0131, DeputySection Registrar,<\/p>\n
Having regard to the above application lodged on 13 April 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Vuk Tomislav Vujisi\u0107, is a Serbian national who was born in 2005 and lives in Belgrade. He was represented before the Court by Mr M. \u010coguri\u0107, a lawyer practising in Belgrade who was authorised to act for the applicant by the applicant\u2019s mother, Ms\u00a0M.\u00a0Stojanovi\u0107, his legal guardian (zakonski zastupnik).<\/p>\n 2.\u00a0\u00a0The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Mrs V. Pavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0Notified under Article 36 \u00a7 1 of the Convention and Rule 44 \u00a7 1 (a) of their right to intervene in the present case, the Serbian Government expressed no wish to do so.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 4.\u00a0\u00a0On 25 August 2004, before the applicant was born, his father T.V. died. The applicant was born out of wedlock on 25 January 2005.<\/p>\n 5.\u00a0\u00a0On 12 November 2004 the First Municipal Court (Prvi op\u0161tinski sud) in Belgrade (Serbia) issued an interim measure prohibiting T.V.\u2019s two brothers, D.V. and S.V., from selling, mortgaging or otherwise disposing of T.V.\u2019s property (zabranjuje se preduzimanje akata raspolaganja, optere\u0107enja i otu\u0111enja) including, inter alia, business premises situated in the Old Town of Budva (Montenegro), and ordered that the property be sealed. On 26\u00a0November 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.<\/p>\n 6.\u00a0\u00a0On 18 September 2008 the First Municipal Court in Belgrade established that the applicant, as T.V.\u2019s 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.<\/p>\n 7.\u00a0\u00a0On 7 November 2008 T.V.\u2019s brothers, D.V. and S.V., leased the business premises to a company \u201cStari grad d.o.o.\u201d from Budva (\u201cthe company\u201d) for a period of fifteenyears.<\/p>\n 8.\u00a0\u00a0On 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.<\/p>\n 1.\u00a0\u00a0The first set of civil proceedings<\/em><\/p>\n 9.\u00a0\u00a0On 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.<\/p>\n 10.\u00a0\u00a0On 26 July and 21 October 2010 respectively, the Court of First Instance (Osnovni sud) in Kotor and the High Court (Vi\u0161i 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.<\/p>\n 11.\u00a0\u00a0On 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 \u201c… 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\u201d. In the Supreme Court\u2019s opinion, the interim measure might possibly be (mo\u017ee eventualno biti) grounds for the payment of compensation.<\/p>\n 12.\u00a0\u00a0On 30 June 2015 the Constitutional Court dismissed a constitutional appeal by the applicant, considering that the proceedings at issue had been fair. In particular, \u201cthe 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\u201d. The Constitutional Court also held that the applicant\u2019s 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.<\/p>\n 2.\u00a0\u00a0Criminal complaint<\/em><\/p>\n 13.\u00a0\u00a0On 25 June 2009 the applicant filed a criminal complaint against an unknown person for breaking the official seal on the premises. On 25\u00a0July\u00a02009 the State Prosecution Office (Osnovno dr\u017eavno tu\u017eila\u0161tvo) 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 (optu\u017eni predlog) within eight days. There is nothing in the case file to indicate whether the applicant did so.<\/p>\n 3.\u00a0\u00a0Additional information obtained<\/em><\/p>\n a.\u00a0\u00a0The second set of civil proceedings<\/p>\n 14.\u00a0\u00a0On 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\u2019s 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\u2019s judgment of 28 March 2017 and its findings. On 15\u00a0September 2017, in their response to the applicant\u2019s observations, the Government submitted all the decisions issued in the second set of civil proceedings, which indicated the following information.<\/p>\n 15.\u00a0\u00a0On 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.<\/p>\n 16.\u00a0\u00a0On 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\u2019s unlawful possession (u bespravnoj dr\u017eavini). The legal grounds for the company\u2019s possession of the property ceased (prestao pravni osnov za dr\u017eavinu tu\u017eenih) upon the applicant\u2019s 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\u2019s 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 tu\u017ebom).<\/p>\n b.\u00a0\u00a0Other relevant information<\/p>\n 17.\u00a0\u00a0In his additional submission of January 2018 the applicant submitted the following factual up-date.<\/p>\n 18.\u00a0\u00a0On 4 June 2012 the owner of the company founded another company (the company K).<\/p>\n 19.\u00a0\u00a0On 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).<\/p>\n 20.\u00a0\u00a0On 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.<\/p>\n 21.\u00a0\u00a0On 26 July 2017 the enforcement order was issued. On 29\u00a0November\u00a02017 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.<\/p>\n 22.\u00a0\u00a0On 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\u00a0January 2018 the applicant requested the police to provide him with a report (slu\u017ebena zabilje\u0161ka) containing the names of the identified persons. It appears that the criminal complaint and the request for the report are still pending.<\/p>\n 23.\u00a0\u00a0On 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.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 1.\u00a0\u00a0The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47\/08, 04\/11, and 22\/17)<\/p>\n 24.\u00a0\u00a0Sections 151, 192-199, 217, 221, 224, 226, and 269-276, inter alia, set out details as regards compensation for pecuniary and non-pecuniary damage.<\/p>\n 25.\u00a0\u00a0Section 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.<\/p>\n 26.\u00a0\u00a0This Act entered into force on 15 August 2008.<\/p>\n 2.\u00a0\u00a0The Property Act (Zakon o svojinsko-pravnim odnosima; published in the OGM no. 19\/09)<\/p>\n 27.\u00a0\u00a0Section 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.<\/p>\n 28.\u00a0\u00a0This Act entered into force on 21 March 2009.<\/p>\n COMPLAINTS<\/strong><\/p>\n 29.\u00a0\u00a0The 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\u00a0December\u00a02017 and his being unable to access the property due to the presence of the dogs (see paragraphs 22-23 above).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 THERETO<\/p>\n 30.\u00a0\u00a0The 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:<\/p>\n Article 6 \u00a7 1<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n Article 1 of Protocol No. 1<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n 31.\u00a0\u00a0The Government contested the applicant\u2019s allegations.<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 32.\u00a0\u00a0The 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\u2019s 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).<\/p>\n 33.\u00a0\u00a0The applicant contested the Government\u2019s 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\u2019s 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\u2019s 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\u2019s business to company K, emptied the company\u2019s accounts and thus practically made it insolvent (nelikvidna), which was why he had withdrawn the compensation part of the claim.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 34.\u00a0\u00a0The Court reiterates that, in accordance with Rule 47 \u00a7 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, \u00a7\u00a7 25-26, 2\u00a0December\u00a02008). 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 \u00a7 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.\u00a0Switzerland [GC], no. 67810\/10, \u00a7 28, ECHR 2014).<\/p>\n 35.\u00a0\u00a0Turning 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\u2019s objection in this regard must therefore be dismissed.<\/p>\n 36.\u00a0\u00a0The Court does not consider it necessary to examine the Government\u2019s 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\u2019s complaints, and that it is thus appropriate to apply Article 37 \u00a7 1 of the Convention, which provides as follows:<\/p>\n \u201cThe 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<\/p>\n (a) the applicant does not intend to pursue his application; or<\/p>\n (b) the matter has been resolved; or<\/p>\n (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.<\/p>\n 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.\u201d<\/p>\n 37.\u00a0\u00a0In order to ascertain whether Article 37 \u00a7 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, \u00a7 42, 24 October 2002; Sisojeva and Others v. Latvia, no. 60654\/00, \u00a7 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no.\u00a059643\/00, \u00a7 48, 7 December 2007).<\/p>\n 38.\u00a0\u00a0The Court notes that, in the present case, the applicant complained that the Supreme Court\u2019s decision of 23\u00a0February 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.<\/p>\n 39.\u00a0\u00a0In 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.<\/p>\n 40.\u00a0\u00a0In view of the above, the Court considers that the matter giving rise to the applicant\u2019s complaints from the application can therefore be considered to be resolved within the meaning of Article 37 \u00a7 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 \u00a7\u00a01 in fine.Accordingly, this part of the application should be struck out of the Court\u2019s list of cases.<\/p>\n II.\u00a0\u00a0OTHER COMPLAINTS<\/p>\n 41.\u00a0\u00a0On 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).<\/p>\n 42.\u00a0\u00a0The 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.<\/p>\n 43.\u00a0\u00a0The Court observes that these complaints were not included in the initial application, but were raised in the applicant\u2019s 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 Mugo\u0161a v.\u00a0Montenegro, no. 76522\/12, \u00a7\u00a7 70-71, 21 June 2016; Nuray \u015een v. Turkey (no. 2), no. 25354\/94, \u00a7 200, 30 March 2004; Melnik v. Ukraine, no.\u00a072286\/01, \u00a7\u00a7 61-63, 28 March 2006).<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Decides to strike the application out of its list of cases.<\/p>\n Done in English and notified in writing on 21 June 2018.<\/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 Ledi Bianku
\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