BRAJOVIC AND OTHERS v. MONTENEGRO - 52529/12 (Judgment : Article 6 - Right to a fair trial : Second Section) [2018] ECHR 106 (30 January 2018)

In the case of Brajović and Others v. Montenegro,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 9 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 52529/12) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by six Montenegrin nationals, Ms Pava Brajović, Ms Zoranka Ajković, Ms Jelena Brajović, Mr Kastro Brajović, Ms Lindita Vučić, and Ms Nada Zlatičanin ("the applicants"), on 7 August 2012.

2. The applicants were represented by Mr B. Simović, a lawyer practising in Podgorica. The Montenegrin Government ("the Government") were represented by their Agent, Mrs V. Pavličić.

3. The applicants complained about the denial of access to court given that the Court of Appeal had not ruled on their appeal on costs in criminal proceedings.

4. On 7 December 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1931, 1972, 1948, 1965, 1970, and 1964 respectively, and live in Golubovci.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

A. The criminal proceedings

7. The applicants intervened, as injured party, in criminal proceedings against X, in the course of which they sought 2.705,70 euros (EUR) as compensation for legal costs.

8. On 14 October 2008 the High Court (Viši sud) in Podgorica found X guilty and, inter alia, ordered him to pay the applicants 505.70 euros (EUR) for the costs of legal representation, without specifying what exactly was covered by this amount.

9. On an unspecified date X and the High State Prosecutor appealed.

10. On 30 March 2009 the applicants appealed in respect of costs and expenses. On 6 May 2009 the High Court transmitted the applicants' appeal to the Court of Appeal (Apelacioni sud) in Podgorica.

11. On 22 September 2009 the Court of Appeal ruled on the appeals lodged by the High State Prosecutor and X. The applicants learned of this judgment on 27 May 2010 when checking the case-file at the High Court. It was served on them on 3 October 2013.

12. On 28 May 2010 the applicants complained to the President of the Supreme Court that the Court of Appeal had failed to rule on their appeal.

13. On 7 June 2010 the President of the Supreme Court notified them that she had been informed by the High Court President that the case file had been "at the Court of Appeal in order for it to rule on [their] appeal in respect of costs of criminal proceedings given that it had not been ruled upon by [its] judgment of 22 September 2009".

14. On 24 October 2011 the applicants requested the President of the High Court to transmit the case file to the Court of Appeal given that they had learnt that the file had been archived in the High Court, contrary to what that court had said to the President of the Supreme Court.

15. On 11 January 2012 the applicants again complained to the President of the Supreme Court.

16. It would appear that the Court of Appeal has not ruled on the applicants' appeal.

B. The civil proceedings

17. On 14 March 2011, in the absence of any ruling by the Court of Appeal, the applicants filed a compensation claim against the State.

18. On 17 June 2011 the Court of First Instance (Osnovni sud) in Podgorica rejected the claim (odbacuje se) finding that the High Court had awarded them the costs, which judgment had become final in the meantime, and that the issue was thus res iudicata.

19. On 7 July 2011 the High Court upheld this judgment.

20. On 12 July 2012 the Constitutional Court (Ustavni sud) dismissed the applicants' constitutional appeal, considering that there was no violation of Article 6 as res iudicata was indeed a procedural obstacle which prevented further proceedings. It further held that the applicants' dissatisfaction with the costs awarded in the criminal proceedings did not mean that they could claim them by a regular civil claim (putem redovne građanske tužbe). In any event, the civil proceedings could not serve to correct the final decisions issued in criminal proceedings.

C. Other relevant facts

21. On 8 December 2011 the High Court issued a decision ordering its finance department (računovodstvo) to pay the applicants' representative the amount awarded by the High Court on 14 October 2008. This decision became final on 5 January 2012, given that no appeal was lodged against it.

22. On 10 January 2017 the High Court informed the Agent's office that the Court of Appeal had not ruled on the applicants' appeal in respect of costs of criminal proceedings, but that the High Court, after its judgment of 14 October 2008 had become final, had issued a decision on 8 December 2011 ordering that the applicants' representative be paid the sum awarded thereby.

II. RELEVANT DOMESTIC LAW

A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01⁄07)

23. Article 32 provides that everyone shall have the right to a fair trial before a tribunal.

B. Criminal Procedure Code 2003 (Zakonik o krivičnom postupku, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 71⁄03, 07⁄04, and 47⁄06)

24. Article 193 provided that a judgment would become final when it was no longer possible to challenge it by an appeal or when appeal was not allowed against it.

25. Article 199 § 2(8) provided that the costs of proceedings included necessary expenses of an injured party, as well as the fee and necessary expenses of their representative. Article 202 § 1 provided that, when finding a defendant guilty, the court would also award the costs of criminal proceedings, including the costs incurred by the injured party and their representative as well as their representative's fee. Articles 371-402 set out details as regards appeals. Article 372 § 4, in particular, provided that an injured party was entitled to lodge an appeal against the first-instance judgment in respect of the costs of proceedings.

26. Article 203 § 1 provided that if the proceedings were discontinued, if the defendant was acquitted, or if the charges were dismissed (odbijajuća presuda), the decision or the judgment would specify that the costs of criminal proceedings as specified in Article 199 § 2(1)-(6), as well as the defendant's expenses, and expenses and the fee of the defendant's representative, would be paid from the budget, save in exceptional cases not relevant to the present case, specified in Article 203. Article 203 § 6 further provided that if the request for the costs and the fee under paragraph 1 of this Article was not accepted or the court did not rule thereon within two months as of the day when it had been lodged, the defendant and his representative were entitled to claim them in civil proceedings (imaju pravo da potraživanja ostvaruju u parničnom postupku) against the State.

C. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro -�OG RM - nos. 22⁄04, 28⁄05, 76⁄06 and in the OGM no 73⁄10)

27. Section 1 provides, inter alia, that this Act shall be applied to all property-related/pecuniary matters and other civil claims of physical and legal entities (iz imovinskih i drugih građanskopravnih odnosa), except those where the law specifically provides for a competence of some other State body.

28. Section 276(1)(5) provides that the court shall reject a claim if it finds that the matter has already been ruled upon.

D. The Obligations Act 2008 (Zakon o obligacionim odnosima; published in the OGM nos. 47⁄08 and 04⁄11)

29. The Obligations Act, which entered into force in 2008, was partially amended in April 2017. The relevant provisions, as in force at the time, provided as follows.

30. Sections 148 to 216 set out details as regards compensation claims.

31. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage. In particular, section 148(1) provided that whoever caused damage to somebody else was liable to compensation, unless he or she could prove that the damage was not his or her fault.

32. Section 166(1) provided that any legal entity, including the State, was liable for any damage caused by one of "its bodies".

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

33. The applicants complained under Article 6 of the Convention about denial of access to court given that the Court of Appeal had not ruled on their appeal as regards costs in criminal proceedings.

34. The relevant part of Article 6 reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...".

35. The Government contested that argument.

A. Admissibility

1. The parties' submissions

36. The Government submitted that the applicants had failed to lodge an application within six months. They maintained that "all the facts on which the High Court adjudicated [...] including the costs of proceedings against which the applicants appealed, became final [by means of] the Court of Appeal judgment [...]". As no appeal was allowed against it this was the final judgment in the present case. This was further confirmed by the High Court decision of 8 December 2011, ordering that the applicants' representative be paid the costs awarded by the High Court (see paragraph 21 above).

37. The Government maintained that the applicants could not obtain further compensation in civil proceedings as the issue was indeed res iudicata, given that the High Court had already ruled on the costs in criminal proceedings.

38. The applicants contested the Government's submissions and maintained that a civil claim was the only remedy they had at their disposal.

2. The Court's conclusion

39. The relevant principles as regards the six-month time-limit are set out in Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-260, ECHR 2014 (extracts). In particular, the six-month rule is autonomous and must be construed and applied to the facts of each individual case, so as to ensure the effective exercise of the right to individual petition. While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting point of the six-month period (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012).

40. The relevant principles as regards the exhaustion of domestic remedies are set out in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69-77, 25 March 2014. In particular, the rule of exhaustion of domestic remedies is based on the assumption - reflected in Article 13 of the Convention, with which it has close affinity - that there is an effective remedy available in respect of the alleged violation (ibid., § 69 in fine). The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid., § 71).

41. Turning to the present case, the Court notes that the civil courts rejected the applicants' claim, considering that the issue was res iudicata. Even though the applicants were not required to do so at the time, they also made use of a constitutional appeal (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 130, 24 November 2015). The Constitutional Court, for its part, agreed with the civil courts and, in addition, held that the applicants' dissatisfaction with the costs awarded in the criminal proceedings did not mean that they could claim them by a regular civil claim (see paragraph 20 above). In other words, the domestic courts held that a civil claim was not an effective domestic remedy for the applicants' grievance.

42. The Court further observes that even though the Obligations Act provided in general for a possibility of a compensation claim before the domestic courts, the Criminal Procedure Code in force at the time specified that if the relevant criminal court failed to rule on the costs and fees in criminal proceedings, only the defendant and his representative were entitled to claim them in civil proceedings, and only in cases when the criminal proceedings were discontinued, the defendant was acquitted or the charges were dismissed (see paragraph 26 above).

43. It is noted that in the present case the applicants were injured parties in criminal proceedings and the defendant was found guilty. The relevant Article, Article 203 § 1, of the Criminal Procedure Code was therefore not applicable to them, i.e. a civil claim was indeed not an available remedy for the applicants' complaint (see paragraph 40 in fine above).

44. It is further observed that pursuant to the relevant domestic legislation the applicants were clearly entitled to lodge an appeal against the first-instance judgment issued in the course of the criminal proceedings in respect of the costs (see paragraph 25 in fine above). Without prejudging the merits of the case it is noted that the Court of Appeal has not ruled on the applicants' appeal, and that they were led to believe that it was still being examined (see paragraph 13 above). Nevertheless, the Court considers that the applicants should have realised at some point that their appeal was not going to be examined, namely when they received no reply from the Supreme Court to their enquiry of 11 January 2012. However, the Court also considers that the applicants were entitled to wait a certain time for a reply, given that the Supreme Court had previously informed them that their appeal was still pending. It thus accepts that, the present application having been lodged on 7 August 2012, the applicants complied with the six-month time-limit once they should have realised that their appeal would not be examined. The Government's objection in this regard must therefore be rejected.

45. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

46. The applicants argued that the Court of Appeal failed to take a decision on their appeal. They submitted that the costs awarded by the High Court judgment were undisputed, but that this was only part of the costs they had incurred, and their appeal which related to the rest of it had never been ruled upon.

47. The Government maintained that the Court of Appeal had ruled on the appeals of the High State Prosecutor and the defendant on 22 September 2009. As no appeal was allowed against this decision it thus became final.

48. The relevant principles in this regard are set out in a long line of case-law starting with Golder v. the United Kingdom (21 February 1975, § 36, Series A no. 18) and finding its most recent expression in Baka v. Hungary [GC] (no. 20261/12, § 120, ECHR 2016). In particular, the Court held that Article 6 § 1 "secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal" (see Golder, cited above, § 36). This "right to a court", of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-�X). The right to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, Series A no. 43; Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II; Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010; Fălie v. Romania, no. 23257/04, § 22, 19 May 2015; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, ECHR 2016 (extracts); and Kardoš v. Croatia, no. 25782/11, § 48, 26 April 2016). Finally, the Court reiterates that Article 6 § 1 does not compel the States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees contained in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25 in fine, Series A no. 11, and Kudła v. Poland [GC], no. 30210/96, § 122, ECHR 2000-�XI).

49. Turning to the present case, it is firstly noted that the applicants' costs-related claim clearly fall within the scope of Article 6 § 1 (see, mutatis mutandis, Editions Périscope v. France, 26 March 1992, § 40, Series A no. 234-�B). It is further observed that the relevant provision of the Criminal Procedure Code in force at the time clearly entitled an injured party to lodge an appeal against the first-instance judgment relating to the costs, which included the costs and fees of their representative (see paragraph 25 in fine above). The applicants submit, and the Government do not contest, that the Court of Appeal has actually never ruled on such an appeal filed by the applicants as injured parties. This was further confirmed by the President of the Supreme Court (see paragraph 13 above) and by the High Court (see paragraph 22 above). Lastly, no information has been submitted to the Court in which the Court of Appeal itself confirms that the applicants' appeal remains under consideration. In such circumstances, the Court considers that the applicants have been effectively deprived of having their civil claim determined by a tribunal, within the meaning of Article 6 § 1 (see, mutatis mutandis, Kardoš v. Croatia, cited above, §§ 47-58). There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

"If 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."

51. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention.

Done in English, and notified in writing on 30 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithRobert Spano
RegistrarPresident

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