SECOND SECTION

DECISION

Application no . 7321/12 Sreten GLENDŽA against Montenegro

The European Court of Human Rights ( Second Section ), sitting on 9 June 2015 as a Chamber composed of:

Işıl Karakaş , President, Nebojša Vučinić , Helen Keller , Paul Lemmens , Egidijus Kūris , Robert Spano , Jon Fridrik Kjølbro , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 25 January 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Sreten Glendža , is a Montenegrin national, who was born in 1962 and lives in Ulcinj . He was represented before the Court by Mr R. Vukmanović , a lawyer practising in Ulcinj .

2. The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pa ž in .

A. The circumstances of the case

3. The facts of the case, as submitted by the partie s, may be summarised as follows.

4. On 19 January 2009 the Supreme State Prosecution ( Vrhovno državno tužilaštvo ) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians.

5. On 21 January 2009 the High Court ( Viši sud ) in Podgorica ordered his detention.

6. On 23 January 2009 the applicant was arrested. The same day he appealed against the detention order, which appeal was received at the High Court on 24 January 2009 at the latest.

7. On 24 February 2009 the applicant complained to the Supreme Court that, inter alia , he had received no decision upon his appeal against the detention order.

8. On 2 March 2009 the Court of Appeals ( Apelacioni sud ) in Podgorica dismissed the applicant ’ s appeal in this regard.

9. On 23 March 2009 the applicant lodged a constitutional appeal. He submitted, inter alia , that the Court of Appeals had failed to rule on his appeal against the detention order within 48 hours, contrary to the relevant domestic provisions in that regard (see paragraphs 14 and 23 below ).

10. On 29 March 2011 the High Court acquitted the applicant and he was released. On an unspecified date thereafter the High Court decision would appear to have been quashed, but no order was given for the applicant to be re-detained.

11. On 2 June 2011 the Constitutional Court found a violation of Article 5 § 4 of the Convention and Article 30 § 3 of the Constitution of Montenegro . In particular, the Constitutional Court established that the High Court had not immediately transmitted the applicant ’ s case-file to the Court of Appeals for a ruling on his appeal against the detention order . Notably, on 5 February 2009 the High Court had sent the applicant ’ s case-file to the Court of Appeals, which had received it on 9 February 2009. The same day the case-file had been returned to the High Court because certain documents had been served improperly on some of the co-accused in the same set of criminal proceedings. On 27 February 2009 the High Court had transmitted the documents to the Court of Appeals, which court had received them on 2 March 2009 and the same day had ruled on the applicant ’ s appeal. The decision of the Constitutional Court was served on the applicant on 28 July 2011.

12. On 22 November 2012 the High Court acquitted the applicant, which judgment was upheld by the Court of Appeals on 17 May 2013.

13. On 12 February 2013 the applicant lodged a compensation claim, pursuant to the relevant provisions of the Criminal Procedure Code 2009 ( see paragraph 25 below ), seeking both pecuniary and non-pecuniary damage for unlawful detention. The claim would appear to be currently pending before the first-instance court.

B. Relevant domestic law

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

14. Article 30 lays down detailed rules as regards detention. In particular, paragraph 3 provides that a detainee has the right to lodge an appeal against a detention order , on wh ich the co urt shall rule within 48 hours.

15. Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective lega l remedies have been exhausted.

16. The Constitution entered into force on 22 October 2007.

2. Montenegro Constitutional Act ( Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64/08)

17. Section 48 of the Montenegro Constitutional Act provide d that a constitutional appeal could be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies ha d been exhausted.

18. Sections 49-59 provide d additional details as regards the processing of constitutional appeals. Section 56 provide d that if the impugned decision had lost its force ( prestalo pravno dej s tvo ) by the time the Constitutional Court ruled on the constitutional appeal, the Constitutional Court would only find a violation if it considered that a human right or freedom was breached.

19. None of the sections provided for a possibility for the Constitutional Court to award damages.

20. This Act entered into force in November 2008.

3. The Criminal Procedure Code 2003 ( Zakonik o krivičnom postupku ; published in the Official Gazette of the Republic of Montenegro nos. 71/03, 07/04, and 47/06)

21. At the relevant time Article 16 provided, inter alia , for an obligation of the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed.

22. Article 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention.

23. Article 149 provided, inter alia , that a detainee could appeal against a detention order within 24 hours. The appeal, the detention order and other relevant documents were to be immediately forwarded to the panel of judges, which was to rule on the appeal within 48 hours.

4 . The Criminal Procedure Code 200 9 ( Zakonik o krivičnom postupku ; published in the O GM nos. 57/09, 49/10, 47/14 and 02/15)

24. Articles 15, 174 § 2 and 176 of this Act correspond, in substance, to sections 16, 147 § 2 and 14 9 of the Criminal Procedure Code 2003 .

25. Articles 498-506 set out details as regards compensation for, inter alia , unlawful detention. Article 502, in particular, provides that an individual is entitled to compensation if he or she was in detention and was subsequently acquitted by means of a final judgment.

26. This Code entered into force on 1 September 2011, repealing the 2003 Code, except for Chapter XXIX, which Chapter is not relevant in the present case.

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

27. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

28. Section 166 provides, inter alia , that a legal entity ( pravno lice ), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or in relat ion thereto.

COMPLAINT

29. The applicant alleged a violation of Article 5 § 4 of the Convention in that the domestic courts had failed to consider his appeal against the detention order with the necessary promptness . Article 5 § 4 of the Convention provides as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

THE LAW

30. The Government submitted that the application was inadmissible on various grounds. In particular, the applicant no longer had victim status given that the Constitutional Court had found a violation of Article 5 § 4 of the Convention. In addition, the application was premature since his compensation claim pursuant to the relevant provisions of the Criminal Procedure Code was pending. Lastly, the applicant could have lodged a compensation claim pursuant to section 166 of the Obligations Act, which he had failed to do.

31. The applicant contested this, considering that neither a civil claim nor a constitutional appeal were effective remedies.

32 . The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before they are submitted to the Court. However, the only remedies which the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999 ‑ V; and McFarlane v. Ireland [GC] , no. 31333/06, § 107, 10 September 2010).

33 . The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Vernillo v. France , 20 February 1991, § 27, Series A no. 198; and Dalia v. France , 19 February 1998, § 38, Reports of Judgments and Decisions 1998 ‑ I).

34 . Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her of that requirement (see Dankevich v. Ukraine , no. 40679/98, § 107, 29 April 2003).

35 . Turning to the present case, the Court notes that the applicant alleges that the domestic courts failed to consider his appeal against the detention order with the necessary promptness in violation of Article 5 § 4 of the Convention. The applicant lodged an appeal against the High Court ’ s detention order on 23 January 2009, and on 2 March 2009, that is after 38 days, the Court of Appeal dismissed the applicant ’ s appeal. On 2 June 2011 the Constitutional Court found a violation of Article 5 § 4 of the Convention. Thus, the Constitutional Court clearly recognised the alleged violation of the Convention. However, the Constitutional Court did not grant compensation for non-pecuniary damage or in any other way afford redress for the alleged violation. The Court does not find it necessary to decide if the applicant, in the specific circumstances of the case, may still claim to be a victim within the meaning of Article 34 of the Convention, as the applicant has for the following reasons failed to exhaust domestic remedies.

36 . The Court observ es that the Obligations Act provides, inter alia , that anyone who has suffered fear, physical pain or mental anguish due to a breach of his reputation, personal integrity, liberty or other “personal rights” shall be entitled to seek injunctive relief, lodge a civil claim for damages and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. The same Act provides also for the State ’ s liability for damage caused by one of its bodies in the course of performing its functions or related thereto (see paragraphs 27-28 above).

37 . However, the applicant failed to make use of such a remedy, upon which the civil courts could not only have decided on the non-pecuniary damage, but could have also pronounced on the violation complained of, especially in view of the Constitutional Court ’ s earlier finding in that regard (see paragraph 11 above).

38 . In view of the above, the Court considers that the applicant should have lodged a civil claim based on the Obligations Act, particularly since the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others v. Turkey , 16 September 1996, § 71, Reports of Judgments and Decisions 1996 ‑ IV).

39 . Therefore, the applicant ’ s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

40 . The Court notes lastly that the applicant lodged a compensation claim pursuant to the relevant provisions of the Criminal Procedure Code 2009 (see paragraphs 13 and 25 above), but this claim is not related to the complaint examined herewith and is therefore irrelevant to the present case.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 July 2015 .

Abel Campos Işıl Karakaş Deputy Registrar President