SECOND SECTION

CASE OF KEÅ ELJ AND OTHERS v. MONTENEGRO

( Application no. 33264/11 )

JUDGMENT

STRASBOURG

13 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Kešelj and Others v. Montenegro ,

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

Ledi Bianku , President, Nebojša Vučinić , Jon Fridrik Kjølbro , judges,

and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 23 January 2018 ,

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

PROCEDURE

1 . The case originated in an application (no. 33264/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by ten nationals of Bosnia and Herzegovin a , on 24 May 2011 . Further personal details of the applicants are set out in the appendix.

2 . The applicants were represented by Mr I. Darmanović , a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) wer e represented by their Agent, Ms V. Pavličić .

3 . On 12 January 2017 the complaint s concerning the non-enforcement of a final court settlement concluded in favour of the applicants w ere communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I . THE CIRCUMSTANCES OF THE CASE

A. The proceedings co ncerning the applicants ’ claims

4 . On 28 February 1996 the a pplicants and the debtor (JSP “ Tara” Cetinje) reached a court approved settlement before the Cetinje Municipal Court, where by the debtor undertook to pay the applicants specified amounts in respect of pecuniary and non-pecuniary damage.

5 . Th e settlement became final on the same date.

6 . The debtor ultimately paid part of the amounts determined in the settlement.

7 . On 26 May 1997 the Podgorica Commercial Court opened insolvency proceedings against the debtor.

8 . On 19 August 1997 the applicants submitted their respective claims based on the settlement.

9 . In the course of the insolvency proceedings the Podgorica Commercial Court acknowledged the applicants ’ claims.

10 . On 23 December 2009 the Podgorica Commercial Court terminated ( zaključio ) the insolvency proceedings against the debtor, but continued the proceedings against the debtor ’ s estate. This decision was upheld by the Appellate Court on 9 April 2010.

11 . The proceedings are still pending .

12 . On 14 October 2010 the Constitutional Court dismissed the applicants ’ constitutional appeal on procedural grounds.

13 . The court settlement in question remains partly unenforced to the present day.

B. T he debtor ’ s legal status

14 . It transpires from the case file that at the time the court settlement was concluded an d became final (see paragraph s 4 and 5 above) t he d ebtor was a company predominantly comprised of State ‑ controlled capital . The Government neither contested this nor p rovide d any evidence to the contrary.

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO . 1

15 . W ithout relying on any of the Articles of the Convention or the Protocols thereto, the applicants complained about the failure of the national authorities to enforce the final court settlement concluded in their favour.

16 . Being the master of the characteris ation to be given in law to the facts of any case before it (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), the Court considers that the applicants ’ complaint s fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 1 of Protocol No. 1

“Every 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.

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.”

A. Admissibility

17 . The Government submitted that the applicants ’ complaint s should be rejected for failure to observ e the six-month ’ s rule. They maintained that th e time-limit had started to run from the date on which the commercial c ourt ’ s decision on the termination of the insolvency proceedings a gainst the debtor had become final given that a constitutional appeal had not be e n an effective domestic remedy at th e relevant time.

18 . The applicants reaffirmed their complaint s .

19 . The Court reiterates its conclusion in its decision in the case of Sokolov and Others v. Serbia (( dec ), nos. 30859/10 and 6 others, § 34, 14 January 2014) that , in the context of non ‑ enforcement of domestic court decisions against insolvent socially /State -owned companies , the applicants should lodge their applications, at the latest, within six months of a decision on the termination of insolvency proceedings becom ing final . In particular, in its aforementioned Sokolov and Others ( cited above , § 33 ), it found that the insolvency proceedings had been terminated and that the debtor company had been liquidated without a ny remaining debtor ’ s estate , which was why the applicants ought to have been aware that enforcement of the judgments in their favour was no longer possible .

20 . I n the present case , the proceedings in respect of the debtor ’ s estate are still continuing . Therefore , the six-month time ‑ limit could not have started to run (see, mutatis mutandis , Stanka Mirković and Others v. Montenegro , nos. 33781/15 and 3 others, § 44, 7 March 2017, and the authorities cited therein) and t he Government ’ s objection in this regard must be dismissed .

21 . Since the applicants ’ complaint s are neither manifestly ill - founded within the meaning of Articl e 35 § 3 (a) of the Convention nor inadm issible on any other grounds, t hey must be declared admissible.

B. Merits

22 . The Court notes that the applicants obtained only part of the amounts specified in the final court settlement of 28 February 1996 , t he remainder of the settlement being still unenforced.

23 . The Court observes that it has frequently found violations o f Article 6 of the Conventions and /or Article 1 of Protocol No. 1 to the Convention in cases raising issues simil ar to those in the present case, particularly in cases concerning companies undergoing restructuring, privatisation and/or other forms of transition from a planned to a market economy ( see R. Kačapor and Others v. Se r bia , nos . 2269/06 and 5 others , §§ 115-116 and § 120 , 15 January 2008, Crnišanin and Others v. Serbia , nos. 35835/05 and 3 others, §§ 123-124 and 133-134, 13 January 2009 , and Mijanović v. Montenegro , no. 19580/06 , §§ 81-82 and 86-91, 17 September 2013 ).

24 . After examin ing all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. There have accordingly been violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

II . ALLE GED VIOLATION OF THE CONVENTION IN RESPECT OF MR DRAGO KANDIĆ

25 . On 3 July 2017 the applicants ’ lawyer provided the Court with a notari s ed document confirming that Mr Drago Kandić , in respect of whom the same complaint had already been rejected because of an abuse of the right of individual petition, was in fact alive when the application was lodg ed and still is . The applicants ’ lawyer also invited the Court to examine Mr Kandić ’ s complaint on the merits.

26 . The Government did not express an opinion on the matter.

27 . Since this evidence was submitted together with the applicants ’ observation s , t he Court considers that i t is not appropriate to take this matter up in the context of this application (see , mutatis mutandis , Mugoša v. Montenegro, no. 76522/12 , §§ 70-71, 21 June 2016, and Stanka Mirković and Others v. Montenegro , nos. 33781/15 and 3 others, §§ 64-66, 7 March 2017 ).

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

28 . 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.”

A. Damage, costs and expenses

29 . T he applicants requested that the Sta te be ordered to pay the sums awarded by the final court settlement of 28 February 1996 , together with statutory interest .

30 . The applicants further claimed EUR 5,000 each in respect of the non-pecuniary damage suffered as a consequence of the impugned non ‑ enforcement.

31 . Lastly, they claimed 2,745 Yugoslav dinars and EUR 1,450 jointly for the costs and expenses incurred before the domestic courts , plus EUR 4,100 for the costs and expenses i ncur r ed before the Court.

32 . The Government contested these claims.

33 . Having regard to the violations found in the present case and its own jurisprudence (see Mijanović , cited above, § § 93-95 ; R. Kačapor and Others , cited above, §§ 123-126; and Crnišanin and Others , cited above, §§ 137-139), the Court finds that the Government must pay the applicants the sums established in the final court settlement of 28 February 1996 , less any amounts which may have already been paid on this basis . As regards the claim for statutory interest, the court notes that no statutory interest was awarded in the said settlement. It therefore rejects the applicants ’ claims in this respect.

34 . Furthermore, t he Court considers that the applicants sustained some non ‑ pecuniary loss arising from the breaches of the Convention found in this case. The Court award s EUR 2,000 to each applicant, less any amounts which may have already been paid in th at regard at the domestic level, to cover the non-pecuniary damage suffered as well as the costs and expenses incurred before the domestic courts and the Court.

B . Default interest

35 . The 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.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the complaint s related to the non-enforcement of the final court settlement of 28 February 1996 admissible;

2 . Holds that there have been violation s of Article 6 § 1 of the Convention and Article 1 of P rotocol No.1 ;

3. Holds

(a) that the respondent State is to pay the applicant s , from its own funds and within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sums awarded in the court settlement of 28 February 1996 , w hich are to be converted into euros at the rate applicable at the date of settlement, less any amounts which may have already been paid on this basis.

(b) that the respondent State is to pay each applicant, within the same period, EUR 2,000 (two thousand euros) , less any amounts which may have already been paid in that connection at the domestic level, in respect of non-pecuniary damage, costs and expenses, plus a ny tax that may be chargeable t o the applicants ;

(c ) that 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;

4 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 13 February 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku Deputy Registrar President

APPENDIX

N o .

Applicant ’ s name

Birth date

Place of residence

Gojko KEÅ ELJ

21/09/1960

Nevesinje

Dražen BOVAN

30/07/1964

Mostar

Ž ivko GOVEDARICA

15/02/1936

Nevesinje

Dušan HAJVAZ

15/04/1946

Nevesinje

Mladen JANJIĆ

28/10/1959

Bileća

Radivoje KULJIĆ

09/01/1954

Berkovići

Risto MEDAN

24/09/1955

Mostar

Vidak MUČIBABIĆ

25/07/1939

Nevesinje

Tripo SKOČAJIĆ

11/02/1954

Nevesinje

Veljko STEVIĆ

14/05/1941

Nevesinje