SECOND SECTION
\nCASE OF RAJAK v. MONTENEGRO
\n(Application no. 71998\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Rajak v. Montenegro,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, and Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n Having deliberated in private on 6 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. 71998\/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201ctheConvention\u201d) by a Montenegrin national, Mr \u0110or\u0111e Rajak (\u201ctheapplicant\u201d), on 17 October 2011.<\/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 12 January 2017 the applicant\u2019s complaints about the non\u2011enforcement of a final domestic judgment concerninga re\u2011allocation of plots for the construction of apartments, the length of administrative proceedings, and the length of separate civil proceedings concerning the applicant\u2019s reinstatement and damages,were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54\u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n 4.\u00a0\u00a0The applicant was born in 1961 and lives in Bijela, Montenegro.<\/p>\n A.\u00a0\u00a0The enforcement proceedings<\/strong><\/p>\n 5.\u00a0\u00a0On 1 March 2012 the Herceg Novi First Instance Court rendered a judgment in favour of the applicant and ordered the applicant\u2019s employer \u201cVektra Boka\u201d AD Herceg Novi (hereinafter \u201cthe debtor\u201d) to carry out a re\u2011allocation of plots for the construction of apartments. This judgment became final on 21 December 2012.<\/p>\n 6.\u00a0\u00a0On 15 January 2013 the applicant requested enforcement of the above judgment and the Herceg Novi First Instance Court issued an enforcement order on 31 January 2013.<\/p>\n 7.\u00a0\u00a0On 12 June 2015 the Commercial Court opened insolvency proceedings in respect of the debtor.<\/p>\n 8.\u00a0\u00a0On 28 January 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action.<\/p>\n 9.\u00a0\u00a0On 22 March 2016 the Commercial Court suspended (obustavio) the enforcement due to the opening of the insolvency proceedings, which decision became final on 11 May 2016.<\/p>\n 10.\u00a0\u00a0The judgement in question remains unenforced to the present day.<\/p>\n B.\u00a0\u00a0The administrative proceedings<\/strong><\/p>\n 11.\u00a0\u00a0On 8 February 2013 the applicant instituted administrative proceedings seeking, on the basis of the above judgment, the removal of competing titles from the Land Register.<\/p>\n 12.\u00a0\u00a0On 29 July 2015 the Real Estate Directorate terminated (prekinuo) the administrative proceedings because the Commercial Court had commenced insolvency proceeding in respect of the debtor.<\/p>\n 13.\u00a0\u00a0On 7 September 2015 the applicant submitted an objection against the above decision.This objection was rejected as being out of time by the Real Estate Directorate on 5October2015.<\/p>\n 14.\u00a0\u00a0The administrative proceedings are still pending.<\/p>\n C.\u00a0\u00a0The civil proceedings<\/strong><\/p>\n 15.\u00a0\u00a0On an unspecified day in 2003, the applicant instituted separate civil proceedings against the debtor, as his former employer, seeking reinstatement and damages. Following three remittals, on 3 March 2014 the Herceg Novi First Instance Court rendered a judgment in the applicant\u2019s favour.<\/p>\n 16.\u00a0\u00a0On 22 September 2015 the High Court upheld this judgment on the merits, but quashed it as regards the costs.<\/p>\n 17.\u00a0\u00a0On 31 October 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action due to the commencement of the insolvency proceedings in respect of the debtor.<\/p>\n 18.\u00a0\u00a0On 22 February 2017 the Commercial Court ruled partly in favour of the applicant regarding the costs.<\/p>\n 19.\u00a0\u00a0The parties did not inform the Courtaboutwhen the Commercial Court\u2019s decision became final and was served on the applicant.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE GOVERNMENT\u2019S OBJECTION BASED ON RULE 47 OF THE RULES OF COURT<\/p>\n 20.\u00a0\u00a0The Government maintained that the applicant had not lodged the application in accordance with Rule 47 of the Rules of Court. In particular, they stated that the content of the application was for the most part illegible and confusing.<\/p>\n 21.\u00a0\u00a0The Court notes that pursuant to the version of Rule 47 of the Rules of Court in force at the relevant time, an application under Article 34 of the Convention had to be made on the application form provided by the Registry, unless the Court decides otherwise (see Knick v. Turkey, no.\u00a053138\/09, \u00a7 36, 7 June 2016). The Court observes that the applicant made substantiated complaints about the alleged violations of Convention rights, and supported them with sufficient documentation. It further notes that the requirement in question is not one of the inadmissibility grounds set out in Article 35 of the Convention. Accordingly, the Government\u2019s preliminary objection should be dismissed as the application cannot be rejected for failure to comply with the procedural rules of the Court (seeKnickv.Turkey, cited above).<\/p>\n II.\u00a0\u00a0SCOPE OF THE CASE<\/p>\n 22.\u00a0\u00a0In their observations, the Government submitted that the complaintsrelating to the proceedings concerning the applicant\u2019s eviction from temporary accommodation should be declared inadmissible.<\/p>\n 23.\u00a0\u00a0The Court notes that the President of the Section, sitting in asingle\u2011judge formation, had already declaredthese complaintsinadmissible on 12January 2017, upon communication of the remainder of the application to the Government.<\/p>\n 24.\u00a0\u00a0The Court recalls in this connection that it cannot examine the complaints which had already been declared inadmissible and that the scope of the case now before the Court is thus limited to those complaints which werecommunicated to the Government (see, mutatis mutandis, StebnitskiyandKomfort v. Ukraine, no. 10687\/02, \u00a739, 3 February 2011, and Terra Woningen B.V. v. the Netherlands, 17December 1996, \u00a7\u00a7 44-45, Reports of Judgments and Decisions 1996\u2011VI).<\/p>\n III.\u00a0ALLEGED VIOLATIONS OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0The applicant complained about the non\u2011enforcement of afinal domestic judgment concerning a re\u2011allocation of plots for the construction of apartments, the length of administrative proceedings which he had brought on the basis of the above judgment, and the length of separate civil proceedings concerning his reinstatement and damages. In so doing, the applicant relied on 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 26.\u00a0\u00a0The Government submitted that these complaints had not been included in the applicant\u2019s initial application and that they should be rejected for non\u2011exhaustion of domestic remedies or non\u2011observance of the six\u2011month rule.<\/p>\n 27.\u00a0\u00a0The applicant disagreed and reaffirmed his complaints.<\/p>\n A.\u00a0\u00a0As regards the length of the civil proceedings<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 28.\u00a0\u00a0The Court observes that this complaint was, in fact, raised in the applicant\u2019s initial application of 17October 2011.<\/p>\n 29.\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 47, ECHR\u00a02001\u2011V (extracts)).<\/p>\n 30.\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 (kontrolni zahtjev) became effective as of 4September2013 (see Vukeli\u0107 v. Montenegro, no. 58258\/09, \u00a7 85, 4 June 2013), an action for fair redress (tu\u017eba za pravi\u010dno zadovoljenje) became effective as of 18\u00a0October 2016 (see Vu\u010delji\u0107 v.Montenegro (dec.), no. 59129\/15, \u00a7 30, 18\u00a0October2016), while a constitutional appeal became effective as of 20\u00a0March2015 (see Sini\u0161taj and Others v. Montenegro, nos. 1451\/10 and 2 others, \u00a7123, 24\u00a0November2015, and Vu\u010delji\u0107, cited above, \u00a731). In view of that, the Court cannot but conclude that, since before the lodging of the application with the Court the applicant had had no effective remedy at hisdisposal, the Government\u2019s objection in this regard must be dismissed.<\/p>\n 31.\u00a0\u00a0As regards the Government\u2019s plea on non\u2011observance of the six\u2011month rule, the Court observes that the application had been lodged with the Court before the impugned proceedings were finally completed on 22\u00a0February 2017 (see paragraphs 18and 19 above). In these circumstances, the Court concludes that the applicant had complied with the six monthrequirement, as set out in Article35\u00a71 of the Convention. Therefore, the Government objection in this regard mustalso be dismissed.<\/p>\n 32.\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 2.\u00a0\u00a0Merits<\/em><\/p>\n 33.\u00a0\u00a0The proceedings at issue started on an unspecified day in 2003 (see paragraph 15 above) and ended on 22 February 2017 (see paragraphs 18 and\u00a019 above). Since the Convention entered into force in respect of Montenegro on 3March2004 (see Bijeli\u0107 v.Montenegro and Serbia, no.\u00a011890\/05, \u00a7 69, 28April 2009) the impugned proceedings fall within the Court\u2019s competence ratione temporis for a period of more than twelve years and eleven months.<\/p>\n 34.\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 35.\u00a0\u00a0The Court considers that neither the complexity of the case nor the applicant\u2019s 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 36.\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 said length of proceedings of more than twelve years and eleven months at two levels of jurisdiction was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n 37.\u00a0\u00a0There has accordingly been a breach of Article 6 \u00a7 1.<\/p>\n B.\u00a0\u00a0As regards the non-enforcement of a final domestic judgment and the length of the administrative proceedings<\/strong><\/p>\n 38.\u00a0\u00a0The Court observes that these complaints were indeed not included in the initial application, but were raised for the first time in the applicant\u2019s letter to the Court of 9 April 2015.<\/p>\n 39.\u00a0\u00a0The Court recalls that any complaints concerning subsequent facts, including proceedings and\/or decisions, shall have their own, \u201cnew\u201d, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (seeTe\u0161i\u0107v.\u00a0Serbia, nos. 4678\/07 and 50591\/12, \u00a7 55, 11 February 2014 and the authorities cited therein).<\/p>\n 40.\u00a0\u00a0Since these complaints were raised before the Court on 9April2015, that is to say after the constitutional appeal became an effective domestic remedy in the respondent State (see paragraph 30 above) the applicant was under an obligation to avail himself of the constitutional appeal procedure before turning to Strasbourg.<\/p>\n 41.\u00a0\u00a0Accordingly, these complaints must be declared inadmissible for non-exhaustion of domestic remedies and be rejected pursuant to Article\u00a035\u00a7\u00a7\u00a01 and 4 of the Convention.<\/p>\n 42.\u00a0\u00a0In view of the above finding, the Court does not find it necessary to examine the Government\u2019s objection in respect of the six month issue.<\/p>\n IV.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 43.\u00a0\u00a0In his observations dated 5 July 2017 the applicant complained, for the first time, about the outcome of separate civil proceedings concerning the payment of the severance and employment related taxes and contributionbefore the Commercial Court.<\/p>\n 44.\u00a0\u00a0The Court observes that this complaint was not included in the initial application, but was raised in the applicant\u2019s observations of 5July2017. The Court considers, therefore, that it is not appropriate to examine this complaint in the context of this application(see, Mugo\u0161a v.Montenegro, no.\u00a076522\/12, \u00a7\u00a7 70-71, 21 June 2016, and Stanka Mirkovi\u0107 and Others v.\u00a0Montenegro, nos. 33781\/15 and 3 others, \u00a7\u00a7 64-66, 7March2017).<\/p>\n V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 45.\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 46.\u00a0\u00a0The applicant claimed 107,859 euros (EUR) in respect of pecuniary damage. He also claimed non-pecuniary damage, but left it to the Court\u2019s discretion as to the exact amount.<\/p>\n 47.\u00a0\u00a0The Government contested these claims.<\/p>\n 48.\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 view,it is clear that the applicant sustained some non\u2011pecuniary loss arising from the breach of his right under Article 6 of the Convention, for which he should be compensated.The Court thereforeconsiders it reasonable to award the applicant EUR 4,800 for non-pecuniary damage, plus any tax that may be chargeable.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 49.\u00a0\u00a0The applicant further claimed EUR 4,005 for the costs and expenses incurred before the domestic courts. He did not claim anything in respect of the costs and expenses before the Court.<\/p>\n 50.\u00a0\u00a0The Government contested this claim.<\/p>\n 51.\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 applicant\u2019s claim for costs and expenses before the domestic courts as they were not incurred in order to remedy the violation in issue.<\/p>\n 52.\u00a0\u00a0Since the applicant made no claim in respect of costs and expenses before the Court, the latter considers that there is no call to award him any sum on that account.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 53.\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\u00a0Declaresthe complaint about the length of civil proceedings concerning the applicant\u2019sreinstatement and damages admissible;<\/p>\n 2.\u00a0\u00a0Declares the complaints about the non-enforcement of a final domestic judgment of 1 March 2012 and the length of administrative proceedings inadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention in respect of the above civil proceedings;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant within three monthsEUR 4,800 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 to the applicant;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 27 February 2018, pursuant to Rule77\u00a7\u00a72 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 Ledi Bianku
\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