Information Note on the Court’s case-law No. 118

April 2009

Bijelić v. Montenegro and Serbia - 11890/05

Judgment 28.4.2009 [Section II]

Article 35

Article 35-3

Ratione personae

Montenegrin authorities’ failure to enforce an order given by a court in Montenegro several years before declaration of independence by Montenegro: admissible in respect of Montenegro and inadmissible in respect of Serbia

Facts : In 1994 the first applicant obtained a court decision ordering her former husband to vacate the family flat. Subsequently, she donated the flat to the second and third applicants. Between 1994 and 2007 the bailiffs, assisted by the police, made several unsuccessful attempts to evict her former husband.

The European Court communicated the application to the Government of the State Union of Serbia and Montenegro. On 3 June 2006 Montenegro declared its independence. The applicants stated that they wished to proceed against both Montenegro and Serbia, as two independent States. In 2008 the Court decided to re-communicate the application, in its entirety, to the Governments of Montenegro and Serbia.

Law : Admissibility : Domestic law and the Montenegrin Government’s observations suggested that Montenegro should be considered bound by the Convention and its Protocols as of 3 March 2004, that being the date when these instruments had entered into force in respect of the State Union of Serbia and Montenegro. The Committee of Ministers had accepted, taking into account the earlier ratification of the Convention by the State Union of Serbia and Montenegro, that it was not necessary for Montenegro to deposit its own formal ratification of the Convention. Bearing in mind the Court’s practice following the dissolution of the Czech and Slovak Federal Republic, the practical requirements of Article 46 of the Convention, and the principle that fundamental rights protected by international human rights treaties should belong to individuals living in the territory of the State party concerned, despite its subsequent dissolution or succession, the Convention and Protocols thereto should be deemed as having continuously been in force in respect of Montenegro since 3 March 2004. As the impugned proceedings had been solely within the competence of the Montenegrin authorities, the Court found the applicants’ complaints in respect of Montenegro compatible and their complaints in respect of Serbia incompatible ratione personae with the provisions of the Convention.

Merits :The Court found a violation of Article 1 of Protocol No. 1 on account of the Montenegrin authorities’ failure to enforce the eviction order.

Conclusion : violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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