SECOND SECTION
\nCASE OF MONTEMLIN \u0160AJO v. MONTENEGRO
\n(Application no. 61976\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n20 March 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Montemlin\u0160ajo 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 20 February 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. 61976\/10) 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 Montemlin\u0160ajo, a privately owned company with its seat in Danilovgrad(\u201cthe applicant company\u201d), on 20 October 2010.<\/p>\n 2.\u00a0\u00a0The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Ms V. Pavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0On 3 December 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of the Court.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant company is a privately owned company registered in Danilovgrad, Montenegro.<\/p>\n 5.\u00a0\u00a0In July 2004 acall for tender for hotel \u201cOtrant\u201d in Montenegro was issued.The deadline for submitting bids was October 2004. Together with three other companies, the applicant companytook part in the tendering process.On 30 November 2004, however, it was informed that the tender was awarded to another bidder.<\/p>\n 6.\u00a0\u00a0On an unspecified date in December 2004, the applicant company objected to this decision. On 29\u00a0December\u00a02004 the Commercial Court in Podgorica (Privrednisud u Podgorici) rejected the applicant company\u2019s objection.<\/p>\n 7.\u00a0\u00a0On 28\u00a0January\u00a02006 the Court of Appeal quashed this decision and remitted the case to the first instance.<\/p>\n 8.\u00a0\u00a0On 15 June 2006 the Commercial Court ruled against the applicant company. This decision was served on the applicant company on 8\u00a0September\u00a02009.<\/p>\n 9.\u00a0\u00a0On 26\u00a0March\u00a02010 the Court of Appeal upheld the decision of the Commercial Court. The decision of the Court of Appealwas served on the applicant company\u2019s lawyer on 27\u00a0April\u00a02010.<\/p>\n 10.\u00a0\u00a0On 15\u00a0July\u00a02010 the applicant company lodged an initiative urging the Supreme Public Prosecutor\u2019s Office (Vrhovnodr\u017eavnotu\u017eila\u0161tvo) to file a request for the protection of legality (zahtjevzaza\u0161tituzakonitosti), but this motion was rejected on 21\u00a0July\u00a02010.<\/p>\n 11.\u00a0\u00a0On 30 July 2010 the applicant company lodged a constitutional appeal. On 14\u00a0October\u00a02010 the Constitutional Court rejected this appeal as having been lodged out of time.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 12.\u00a0\u00a0The applicant company complained under Articles 6 and 13 of the Convention that the length of the tender-related proceedingshad been incompatible with the \u201creasonable time\u201d requirement.<\/p>\n 13.\u00a0\u00a0The Court considers that this complaint falls to be examined under Article 6\u00a7 1 of the Convention only, which in so far as relevant 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 14.\u00a0\u00a0The Government submitted that the applicant company had failed to properly exhaust domestic remedies. In particular, they pointed out that the applicant company\u2019s failure to apply to the Constitutional Court in a timely manner had resulted in its appeal being rejected as out of time.<\/p>\n 15.\u00a0\u00a0The applicant company maintained that at the relevant time the constitutional appeal had not been an effective remedy.<\/p>\n 16.\u00a0\u00a0The Court observes that it has consistently held that a constitutional appeal should, in principle, be considered an effective domestic remedy, within the meaning of Article 35 \u00a7 1 of the Convention, in respect of all applications lodged against Montenegro from 20 March 2015 onwards(see Sini\u0161taj and Others v. Montenegro, nos. 1451\/10, 7260\/10 and 7382\/10, \u00a7\u00a0123, 24 November 2015, and Vu\u010delji\u0107\u00a0v.\u00a0Montenegro (dec.), no. 59129\/15, \u00a7\u00a031, 18 October 2016).<\/p>\n 17.\u00a0\u00a0It sees no reason to hold otherwise in the present case and notes that the applicant company lodged its application with the Court on 20\u00a0October\u00a02010. The Government\u2019s objection in this regard must therefore be rejected (see, among other authorities, Stankovi\u0107 and Trajkovi\u0107 v. Serbia, nos. 37194\/08 and 37260\/08, \u00a7 36, 22 December 2015).<\/p>\n 18.\u00a0\u00a0The Courtnotes that this complaint is not manifestly ill-founded within the meaning of Article 35 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 19.\u00a0\u00a0The applicant company reaffirmed its complaint.<\/p>\n 20.\u00a0\u00a0The Government maintained that there had been no violation of Article 6 \u00a7 1 of the Convention.<\/p>\n 21.\u00a0\u00a0The period to be taken into consideration began in December\u00a02004 (see paragraph 6 above) and ended on 27\u00a0April\u00a02010. The impugned proceedings thus lasted approximately five years and four months at two instances.<\/p>\n 22.\u00a0\u00a0The 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 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.\u00a030979\/96, \u00a7 43, ECHR 2000-VII).<\/p>\n 23.\u00a0\u00a0The Court notes that the case was not particularly complex to justify the length of five years and four months at two instances. Besides, it points out that the first instance judgment was served on the applicant company some three years and three months later following its adoption (see paragraph 8 above), for which delay the Government did not supply any justification. In Court\u2019s view, such delay in delivery seems manifestly excessive.<\/p>\n 24.\u00a0\u00a0Having examined all the material submitted to it and with regard to its case-law on the subject (see, mutatis mutandis, Stankovi\u0107 v. Serbia, no.\u00a029907\/05, \u00a7 35, 16 December 2008), the Court considers the length of the impugned proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n 25.\u00a0\u00a0There has accordingly been a breach of Article 6 \u00a7 1.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 26.\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\u00a0Damages and costs and expenses<\/strong><\/p>\n 27.\u00a0\u00a0The applicant company claimed 882,403.17 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.<\/p>\n 28.\u00a0\u00a0The Government contested these claims.<\/p>\n 29.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant company EUR 1,200 in respect of non\u2011pecuniary damage.<\/p>\n 30.\u00a0\u00a0The applicant company did not submit any claimfor costs and expenses incurred before the domestic courts or the Court.The Court therefore makes no award in this respect.<\/p>\n B.\u00a0\u00a0Default interest<\/strong><\/p>\n 31.\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\u00a0Declarestheapplicationadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat 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 applicant company, within three months \u00a0EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/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 applicant company\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 March 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
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, 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