Communicated on 28 May 2014

SECOND SECTION

Application no. 14336/09 Vera KECOJEVIĆ against Montenegro lodged on 19 February 2009

STATEMENT OF FACTS

The applicant, Ms Vera Kecojević , is a Montenegrin national, who was born in 1957 and lives in Nikšić . She is represented before the Court by Mr M. Vojinović , a lawyer practising in Nikšić .

A. The circumstances of the case

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

On 28 December 2004 the President of the Municipality of Nik šić issued a decision appointing a Restitution and Compensation Commission ( Komisija za povra ć aj i obe štećenje , hereinafter “the Commission” ). This decision was not confirmed by the Municipal Assembly and the remuneration of the members of the Commission was never specified. The Commission functioned until 8 July 2005, when it was replaced by a new one. The applicant was a member of both Commissions.

On an unspecified date in 2006 the applicant instituted proceedings against the Municipality seeking compensation in the amount of 1,500 euros (EUR) on account of remuneration for the work in the Commission between 28 December 2004 and 8 July 2005, as she was not paid during the said period.

On 2 July 2007 the Court of First Instance ( Osnovni sud ) in Nik šić ruled against the applicant on the ground that the Commission had no legitimacy during the specified time, given that the decision on its appointment had not been confirmed by the Municipal Assembly, and as the remuneration for the said period had never been defined.

On 3 October 2008 the High Court ( Vi Å¡ i sud ) in Podgorica upheld the first-instance judgment, essentially endorsing the reasons contained therein.

On 6 October 2008 the High Court in Podgorica overturned a first-instance judgment issued in respect of one of the applicant ’ s colleagues, and awarded him compensation in the amount of EUR 1,380 on account of remuneration for the work in the same Commission in the same period, plus accompanying interest and the costs of the proceedings. In doing so the court held, in particular, that the Commission had a temporary character by means of legislation itself and that therefore the first-instance court ’ s conclusion that it had lacked legitimacy was wrong. Also section 58 of the Local Self-Governance Act 2003 specifically provided that if the Assembly did not confirm a certain decision or the President of the Municipality did not submit it for confirmation, the decision would cease to be in force as of the day when the Assembly terminated its session. Therefore, it had to be considered that the Commission had ceased to operate when its work was not confirmed, that is on 8 July 2005 in the given case. The court noted that the Court of First Instance had also taken into account that no act defined remuneration of the members of the Commission. However, the High Court held that, pursuant to section 28(3) of the Restitution and Compensation Act, members of the Commission had the status of civil servants, and were therefore entitled to remuneration. In any event claimants should not suffer any detriment on account of the legislature ’ s failure to define the exact amount of their remuneration.

B. Relevant domestic law

1. Restitution of Expropriated Property Rights and Compensation Act 2004 ( Zakon o povra ć aju oduzetih imovinskih prava i obe š te ć enju ; published in the Official Gazette of the Republic of Montenegro - OG RM - no. 21/04)

Section 28 (1) provided that Municipal Assemblies would establish Restitution and Compensation Commissions within 60 days as of the date when this Act entered into force. Section 28 (3) further provided, inter alia , that members of the Commissions had the status of civil servants.

This Act entered into force on 8 April 2004.

2. The Amendments to the Local Self-Governance Act 1995 ( Zakon o izmjenama i dopunama Zakona o lokalnoj samoupravi , published in the OG RM no. 16/95)

The said amendments introduced section 41a, which specified that the President of the Municipality could temporarily issue decisions falling within the Assembly ’ s competence, if the Assembly could not convene or for some other reason it was impossible for it to work and the said decisions were of interest for exercising citizens ’ rights and freedoms. The President of the Municipality had to submit such a decision to the Assembly for its confirmation as soon as the Assembly could convene.

3. Local Self-Governance Act 2003 ( Zakon o lokalnoj samoupravi ; published in the OG RM no. 42/03)

Section 58 provides that the president of the Municipality can temporarily issue decisions falling within the Assembly ’ s competence, if the Assembly cannot convene or for some other reason it is impossible for it to work, and the absence of these decisions would endanger lives or property of great value. The President of the Municipality shall submit such a decision to the Assembly for its confirmation at its first session. If the Assembly does not confirm such a decision or the President does not submit it for confirmation, the decision shall cease to be in force ( prestaje da va ž i ) on the day when the session of the Assembly terminates.

This Act entered into force on 24 July 2003 except for Chapter V, including section 58, which was to enter into force as of the next local elections. Until then the relevant provisions of the earlier Act, including section 41a, continued to be in force.

4. Civil Procedure Act ( Zakon o parni č nom postupku ; published in the OG RM nos. 22/04, 28/05, 76/06, and the Official Gazette of Montenegro no. 73/10)

Section 397 provides, inter alia , that an appeal on points of law against a second-instance decision shall not be admissible in pecuniary matters unless the value of the claim exceeds EUR 10,000.

COMPLAINT

The applicant complains under Article 6 of the Convention about inconsistent practice of domestic courts.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s allegation that the High Court in Podgorica applied different case-law to identical employment-related claims, did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty contained in this provision complied with by the domestic courts (see, mutatis mutandis , Vinčić and Others v. Serbia , nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07 , § 56 , 1 December 2009 ; Tudor Tudor v. Romania , no. 21911/03, §§ 29-32 , 24 March 2009 ; Santos Pinto v. Portugal , no. 39005/04, §§ 43-45 , 20 May 2008 ; Beian v. Romania (no. 1) , no. 30658/05, § 37-40 , ECHR 2007 ‑ V (extracts) ).

2. The Government are invited to provide all relevant case- law , that is all the other judgments rendered by the High Court in cases such as the applicant ’ s.