Communicated on 1 September 2016

SECOND SECTION

Application no. 23644/12 Darinka MINIĆ against Montenegro lodged on 12 April 2012

STATEMENT OF FACTS

The applicant, Ms Darinka Minić , is a Montenegrin national, who was born in 1929 and lives in Kolašin . She is represented before the Court by Mr M. Stojanović , a lawyer practising in Berane .

A. The circumstances of the case

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

The applicant is the owner of a plot of land in Kolašin .

On 27 April 1969 she leased the land to company T to build temporary accommodation ( barake ) for the workers building a railway in the vicinity. The lease contract provided also for an obligation of T to restore the land to its original state once the works were done, that is to remove the cabins and other infrastructure, and return the land to the applicant.

On 23 August 1978 T sold the cabins to the company V, which company took over the obligation to remove the cabins and return the land to the applicant when the works were done.

On various dates in 1982, 1983 and 1984 the Municipality of Kola Å¡ in let the housing at issue to a number of families apparently living in difficult circumstances.

On an unspecified date the applicant filed a compensation claim against V, as it was not paying the rent. On 31 October 1988 the proceedings ended in a court settlement by which V acknowledged the debt and paid to the applicant the rent up to 1988.

On an unspecified date thereafter the applicant instituted proceedings against the company K, the legal successor of V, seeking the removal of the cabins from her land. In the course of the proceedings K admitted that it was its obligation to remove the cabins, and added that some of them had indeed been removed. However, it could not remove the remaining cabins given that the Municipality, without K ’ s knowledge, had occupied and renovated them, and rented them out to a number of families who were living there. On 20 April 2000 the Court of First Instance ( Osnovni sud ) in Kola š in ordered K to remove the cabins from the applicant ’ s land or the applicant would do it at K ’ s expense.

On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation for the land at issue.

On 2 April 2011 and 23 June 2011 the Court of First Instance and the High Court respectively ruled in favour of the applicant, ordering the Municipality to pay her 419,804 euros for the land. The courts established that the cabins had been altered and rebuilt and that the Municipality, without any legal basis or the applicant ’ s consent as the owner of the land, had moved a number of families in there for which it collected rent. There was no legal act for the expropriation of the land from the applicant nor had she got any compensation therefor, but as a result of the Municipality ’ s actions she was de facto prevented from using it, and restitutio in integrum was no longer possible.

On 30 November 2011 the Supreme Court ( Vrhovni sud ) in Podgorica overturned these judgments and ruled against the applicant. The court held that the Municipality was neither the owner nor the possessor of the cabins ( ne nalazi se u njihovoj dr ž avini ) nor had it expropriated the land. The Municipality therefore had no obligation to pay the compensation, especially since the reason why the applicant could not use the land was because other companies had not removed the cabins and not because they were used by some other persons on the basis of the Municipality ’ s decision.

B. Relevant domestic law

The 1992 Constitution guaranteed the right to property and provided that it could be limited only when the public interest so required and in return for compensation at market value. The 2007 Constitution guarantees the same, except that it provides for just compensation instead of market value.

The Property Act 1980, with its amendments of 1990 and 1996, regulated property rights in detail. Section 3 provided, inter alia , that the owner had the right to use and dispose of his/her property within the statutory limits, and that everybody had a duty to refrain from violating other persons ’ property rights.

The Property Act 2009 repealed the previous Act. Section 6 thereof, however, corresponds to section 3 of the Property Act 1980.

COMPLAINT

Relying on the Convention in general the applicant, in substance, complains about a deprivation of her property without any compensation in that regard.

QUESTIONS TO THE PARTIES

1. ( a ) Is the applicant still the legal owner of the land in issue? If not, when and how did she lose ownership?

(b) On what legal grounds did the Municipality rent out the temporary accommodation ( barake ) built on the applicant ’ s land, given the Supreme Court ’ s conclusion that the Municipality was neither the owner nor in possession thereof, nor had it ever expropriated the land at issue?