Resolution CM/ResDH(2013)64 Barać and others against Montenegro Execution of the judgment of the European Court of Human Rights

(Application No. 47974/06, judgment of 13/12/2011, final on 13/03/2012)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)105E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

Barać and Others v. Montenegro, Application No. 47974/06

judgment of 13 December 2011, final on 13 March 2012

I. Case description

This case concerns the violation of the applicants ’ right to a fair trial on account of the fact that the domestic final judgment rendered against them had been based on a law which was no longer in force at the relevant time (violation of Article 6, paragraph 1).

The European Court stated in particular “that no fair trial could be considered to have been held where the reason given in the relevant domestic decision was not envisaged by the domestic legislation and, therefore, was not a legally valid one ... ” (§32). The Court observed furthermore that the final decision rendered by the High Court in Podgorica against the applicants relied solely on an Act which had previously been declared unconstitutional and a relevant decision to that effect already published in the Official Gazette (§33).

II. Individual measures

According to the applicable legislation (Article 428a of the Civil Procedure Law), the applicants were entitled to request reopening of the impugned proceedings within three months following to the European Court ’ s judgment in this case. The applicants did not, however, lodge a request for reopening of the impugned civil proceedings.

The European Court has however awarded just satisfaction to the applicants in respect of the non ‑ pecuniary damage sustained.

In view of these facts, no individual measure is required.

III. General measures

The Constitution of Montenegro provides that the courts shall administer justice on the basis of the Constitution, laws and ratified international treaties (Article 118). It further provides that any law must be compliant with the Constitution (Article 145).

The violation found in this case stems therefore from the misapplication of the legislation by the domestic courts in this particular case. The Government of Montenegro thus considers that the publication and dissemination of the European Court ’ s judgment in this case will suffice to prevent similar violations. The European Court ’ s judgment in this case was accordingly published in the “Official Gazette of Montenegro”, No. 17/2012 of 27 March 2012. The European Court ’ s judgment has also been published on the website of the Supreme Court of Montenegro, which made it available to all interested persons.

The government wishes to stress that it is aware of no other recorded case in Montenegro where national courts applied a law, which was previously proclaimed unconstitutional by the Constitutional Court. It can be therefore concluded that the application of the relevant provisions, which were declared unconstitutional, in this was an isolated occurrence. For this reason, the government considers that no other general measures, apart from publication and dissemination, are called for in this case.

IV. Just satisfaction

The amounts awarded to the applicants in respect of non-pecuniary damages as well as costs and expenses were paid to the applicants within the deadline set by the European Court.

V. Conclusions of the respondent State

In view of the above facts, the Government of Montenegro considers that no individual measure is required, apart from the payment of the just satisfaction, and that the general measures adopted will prevent similar violations and that Montenegro has thus complied with its obligation under Article 46, paragraph 1 of the Convention. It is therefore proposed to the Committee of Ministers to adopt a final resolution closing the supervision of execution of this case.

Representative of Montenegro before the European Court of Human Rights

Zoran Pažin