Communicated on 26 June 2017

SECOND SECTION

Application no. 65191/16 Nataša BACKOVIĆ against Montenegro lodged on 1 November 2016

STATEMENT OF FACTS

The applicant, Ms Nataša Backović , is a Montenegrin national, who was born in 1973 and lives in Nik š i ć .

A. The circumstances of the case

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

On 16 December 2010 the applicant instituted civil proceedings against her employer seeking, inter alia , that it be established that her employer had discriminated against her in the proceedings for flat allocation.

On 18 November 2011 the Court of First Instance ( Osnovni sud ) in Nik š i ć ruled on the applicant ’ s claim, without ruling anything on the discrimination-related part of the claim.

On 5 June 2012 the High Court ( Vi Å¡ i sud ) in Podgorica upheld the first ‑ instance decision.

On 2 November 2012 the Supreme Court ( Vrhovni sud ) in Podgorica ruled on the applicant ’ s appeal on points of law, without ruling on her discrimination-related complaint.

On 20 May 2016 the Constitutional Court accepted the applicant ’ s constitutional appeal, quashed the Supreme Court ’ s decision and ordered a re-trial. It held that an appeal on points of law was always permitted in discrimination-related disputes pursuant to the Prohibition of Discrimination Act (see at B below) and that by not ruling on this complaint the courts had violated the applicant ’ s right of access to court protected by Article 32 of the Constitution and Article 6 of the Convention.

On 6 October 2016 the Supreme Court, in the re-trial, rejected the applicant ’ s appeal on points of law without examining it on the merits ( odbacuje se kao nedozvoljena ). It considered that there was no violation of the applicant ’ s rights. The court noted that she had indeed made a discrimination-related claim in her civil action. It held, however, that she had failed to lodge a request for an additional judgment ( predlog za dono š enje dopunske presude ) after the Court of First Instance had failed to rule thereon. In addition, she had failed to raise this issue in her appeal to the High Court. Therefore, contrary to the findings of the Constitutional Court, the Supreme Court did not have to rule on this issue in its own decision ( nije ni postojala obaveza [ Vrhovnog ] suda da se na te navode osvr ć e u revizijskoj odluci ).

On 14 November 2016 the applicant lodged another constitutional appeal, which is currently pending.

B. Relevant domestic law

Section 77 (2) of the Constitutional Court Act ( Zakon o Ustavnom sudu Crne Gore ; published in the Official Gazette of Montenegro - OGM - no. 011/15) provides that when the Constitutional Court quashes a decision and orders a re-trial the competent body is bound by the legal reasoning of the Constitutional Court.

Section 24 (5) of the Prohibition of Discrimination Act ( Zakon o zabrani diskriminacije ; published in the OGM nos. 046/10, 040/11 and 018/14) provides that an appeal on points of law is always permitted in discrimination-related disputes.

COMPLAINT

The applicant complains that she was denied access to a court given that the Supreme Court had refused to examine the merits of her appeal on points of law.

QUESTIONs TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was a request for an additional judgment an effective remedy within the meaning of this provision? Also, did the applicant invoke before the national authorities, in particular the High Court, at least in substance, the right on which she now wishes to rely before the Court (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-75, 25 March 2014)?

2. Was the decision of the Supreme Court to refuse to examine the merits of the applicant ’ s appeal on points of law in breach of Article 6 § 1 of the Convention? In particular, has the applicant suffered a violation of her right of access to a court as guaranteed by Article 6 § 1 of the Convention (see Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18; Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33 , ECHR 2001 ‑ XI (extracts) )?