Published on 7 March 2022

FIFTH SECTION

Application no. 2890/21 Zlatko BAGOJE against Montenegro lodged on 17 December 2020 communicated on 18 February 2022

SUBJECT MATTER OF THE CASE

The application concerns an alleged inconsistent practice of domestic courts.

In 1991, during the war in the former Socialist Federal Republic of Yugoslavia, the applicant, then a Croatian soldier, was held as a prisoner of war in Montenegro. In 2014 he brought a civil claim against Montenegro, seeking damages for the ill-treatment he had suffered there. On 9 February 2015 the Court of First Instance in Podgorica awarded him EUR 9,199.77 in respect of non-pecuniary damage for “mental anguish and physical pain caused by torture, inhuman and degrading treatment”. That judgment became final on 23 April 2015.

On 24 February 2017 the applicant brought another civil claim seeking compensation for non-pecuniary damage on account of his reduced capacity to function ( umanjenje životne aktivnosti ) and “already sustained and future physical pain and the fear suffered” ( za pretrpljene i buduće fizičke bolove i za pretrpljeni strah ). On 24 September 2018 the first-instance court ruled partly in his favour and awarded him compensation for a reduced capacity to function, but rejected the remainder of his claim on the ground that he had already been compensated by the judgment of 9 February 2015. The Court of Appeal upheld this judgment on 17 March 2020. The applicant’s request for an appeal on points of law was rejected because the value of the claim did not exceed the required statutory amount. The Constitutional Court rejected the applicant’s appeal on 18 June 2020.

The applicant complains, under Articles 6 and 14, and Article 1 of Protocol No. 12, about the inconsistent practice of domestic courts. He argues that the domestic courts awarded compensation for “already sustained and future physical pain and the fear suffered” to certain other claimants who had been in the same situation, while his claim was rejected. In support of his claims, the applicant submitted the first- and second-instance judgments rendered between 2018 and 2020 in four sets of civil proceedings initiated by other claimants, by which claims similar to his had been accepted. In yet another (the fifth) set of proceedings, on 17 June 2020 the Supreme Court quashed the second-instance judgment and remitted the case to a re-trial because the lower courts had failed to determine whether the “already sustained and future physical pain and the fear suffered” had already been compensated by the compensation awarded for the claimant’s reduced capacity to function.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his 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 , Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 54, 20 October 2011, and Tomić and Others v. Montenegro , nos. 18650/09 and 9 others, §§ 53-58, 17 April 2012).

2. The Government are invited to provide all relevant case-law of the domestic courts in cases similar to the applicant’s case.