SECOND SECTION

Application no. 7321/12 Sreten GLENDŽA against Montenegro lodged on 25 January 2012

STATEMENT OF FACTS

The applicant, Mr Sreten Glendža , is a Montenegrin national, who was born in 1962 and lives in Ulcinj . He is rep resented before the Court by Mr R. Vukmanović , a lawyer practising in Ulcinj .

A. The circumstances of the case

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

On 19 January 2009 the Supreme State Prosecution ( Vrhovno državno tužilaštvo ) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians.

On 21 January 2009 the High Court ( Viši sud ) in Podgorica ordered his detention.

On 23 January 2009 the applicant was arrested. The same day he appealed against the detention order, which appeal was received at the High Court on 24 January 2009 at the latest.

On 31 January 2009 the applicant filed an objection ( prigovor ) against the indictment, which objection was dismissed on 20 February 2009.

On 24 February 2009 the applicant complained to the Supreme Court that, inter alia , he had received no decision upon his appeal against the detention order.

On 2 March 2009 the Court of Appeals ( Apelacioni sud ) in Podgorica dismissed the applicant ’ s appeal in this regard.

On 23 March 2009 the applicant filed a constitutional appeal. He submitted, inter alia , that the Court of Appeals had failed to rule on his appeal against the detention order within 48 hours, contrary to the relevant domestic provisions in that regard (see section 30 at B.1 and section 149 at B.3 below).

On 2 June 2011 the Constitutional Court established that the High Court had not immediately transmitted the applicant ’ s case-file to the Court of Appeals for ruling on his appeal against the detention order and found a violation of Article 5 § 4 of the Convention and Article 30 § 3 of the Constitution of Montenegro. In particular, it was established t hat on 5 February 2009 the High Court had sent the applicant ’ s case-file to the Court of Appeals, which had received it on 9 February 2009. The same day the case-file had been returned to the High Court due to a previous improper serving of certain documents on some of the co-accused in the same set of criminal proceedings. On 27 February 2009 the High Court had transmitted the documents to the Court of Appeals, which court received them on 2 March 2009 and the same day ruled on the applicant ’ s appeal.

B. Relevant domestic law

1. Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)

Article 30 contains details as regards detention. In particular, paragraph 3 provides that a detainee has the right to appeal against a detention order on which the court shall rule within 48 hours. Paragraph 4 provides that the duration of detention must be as short as possible ( mora biti svedeno na najkra ć e mogu ć e vrijeme ). Paragraph 5 further specifies that detention can last up to three months at most upon a relevant decision of the first-instance court as of the day when the person was detained. By means of a second-instance court decision the detention can be extended for another three months at most.

Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

2. Montenegro Constitutional Act ( Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64/08)

Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.

This Act entered into force in November 2008.

3. The Criminal Procedure Code 2003 ( Zakonik o krivičnom postupku ; published in the Official Gazette of the Republic of Montenegro nos. 71/03, 07/04, and 47/06)

Section 16 provided, inter ali a , for an obligation of the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed.

Section 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention.

Section 149 provided, inter alia , that a detainee could appeal against a detention order within 24 hours. The appeal, the detention order and other relevant documents were to be immediately forwarded to the panel of judges, which was to rule on the appeal within 48 hours.

4. The Obligations Act 2008 ( Zakon o obligacionim odnosima ; published in the OGM nos. 47/08 and 04/11)

Sections 15 1 , 206 and 207 of the Obligations Act, taken together, provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adeq uate non-pecuniary satisfaction.

Section 166 provides, inter alia , that a legal entity ( pravno lice ), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or related thereto.

COMPLAINT

The applicant complains under Article 5 of the Convention that the domestic bodies did not rule promptly on his appeal against the detention order.

QUESTIONS TO THE PARTIES

1. May the applicant claim to be a victim of a violation of the Convention within the meaning of Article 34 there of? In particular, has the Constitutional Court ’ s decision of 2 June 2011 afforded h im adequate redress (see Eckle v. Germany , 15 July 1982, § 66 , Series A no. 51 ; G.B. v. Switzerland , no. 27426/95, §§ 41-42 , 30 November 2000 ; Lebedev v. Russia , no. 4493/04, § 127 , 25 October 2007 ; Khudobin v. Russia , no. 59696/00, §§ 143-144 , ECHR 2006 ‑ XII (extracts) )?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was a civil claim on the basis of sections 151, 166, 206 and 207 of the Obligations Act 2008 an effective remedy in respect of the applicant ’ s complaint? The Government are invited to indicate whether the domestic courts have already ruled in respect of any such claims following the Constitutional Court ’ s finding of a violation of any human right and, in particular, of Article 5 § 4 of the Convention. Copies of any relevant decisions in this regard should also be submitted.

3 . Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention (see, mutatis mutandis , Graužinis v. Lithuania , no. 37975/97, § 32 , 10 October 2000 ; Khudobin v. Russia , cited above, § 115 , ECHR 2006 ‑ XII (extracts) ; Lebedev v. Russia , cited above, § 102)?