JOINT DISSENTING OPINION OF JUDGES VUČINIĆ, GRIŢCO AND MOUROU-VIKSTRÖM

To our regret, we cannot agree with the majority ’ s finding that there has been no violation of Article 6 § 1 of the Convention in the present case. The reasons, explaining our point of view, are the following.

1 . According to the Court ’ s established case-law, it is well known that Article 6 obliges the courts to give reasons for their judgments, but it cannot be understood as requiring a detailed answer to every argument, nor is the European Court called upon to examine whether arguments are adequately met (see Van de Hurk v. the Netherlands , § 61, 19 April 1994, Series A no. 288). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I). It is, moreover, necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6, can only be determined in the light of the circumstances of the case. If, however, a submission would, if accepted, be decisive for the outcome of the case, as has been the applicants ’ situation in the present case, it may require a specific and express reply by the court in its judgment (see Hiro Balani v. Spain , 9 December 1994, § 27, Series A no. 303-B, and Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303-A).

2 . In the case at hand, the applicants ’ claim was dismissed on the ground that the land at issue was in the coastal zone and as such was State property which could not be privately owned. In the course of the proceedings the applicants consistently and explicitly maintained that land in the coastal zone could be privately owned and referred to the different status of the adjacent plot of land, also in the coastal zone, owned by them. The applicants ’ objection, if it had been accepted, could have been decisive for the outcome of their case, and as such required a specific and express reply of the domestic courts. The Court of First Instance dismissed the argument as “of no particular influence” without providing any further explanation in that regard, and neither the High Court nor the Supreme Court made any reference to it whatsoever. That being so, the domestic courts failed to provide a specific and express reply to submissions of fundamental importance made by the applicants.

3 . More precisely, the applicants have put before the domestic courts two substantial arguments in support of their applications for recognition of property rights: ( i ) the adjacent plot of land also located in a coastal area was the subject of a private possession; and (ii) section 4 of the Coastal Zone Act of 1992 allows the possibility for individuals to own coastal land privately, even if this possibility remains exceptional. In spite of the fact that these arguments were decisive for the outcome of the litigation, the domestic courts failed to give an answer in this respect. In our opinion, the domestic courts should have decided in a clear and explicit manner about the reasons why – and the conditions upon which – the disputed land did not benefit from the same legal status as the adjacent plot of land and why so ‑ called “exceptional circumstances” could not be applied as regards the land in dispute.

4 . In similar situations, when domestic courts had not addressed the main arguments which had crucial importance for the applicants, the Court has found a violation of Article 6 § 1 of the Convention (see Mitrofan v. the Republic of Moldova , no. 50054/07 , §§ 42-55, 15 January 2013; Kuznetsov and Others v. Russia, no. 184/02, § 84, 11 January 2007; Pronina v. Ukraine, no. 63556/00, § 25, 18 July 2006).

5 . Under Article 6 § 1 of the Convention, a party to judicial proceedings can also expect reasoning to be given by the courts in order to understand the reasons on which their decisions are based, together with a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see Ruiz Torija , cited above, § 29). It can hardly be said that the domestic courts fulfilled this obligation in the present case.

6 . Furthermore, on 27 May 2015 the Supreme Court of Montenegro issued a general legal opinion relating to the use of land in the coastal zone. It analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section 20(2) of the Property Act provided that exceptionally a coastal zone could be privately owned, while at the same time section 22(3) of the same Act provided that the coast could not be privately owned. It also found that the conditions under which the coastal zone could be privately owned were not provided for by law, “which [left] open numerous questions on practical implementation”. The Supreme Court stated as follows:

“ by analysing the relevant legislation it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined in legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in precise and clear manner ... ”

Nevertheless, it was a fact that there were lawfully acquired rights in respect of the coastal zone, as indicated by section 30 of the Coastal Zone Act.

7 . In this context it is to be noted that the Supreme Court, while it recognised the legal lacuna and a lack of precise regulation in the domain of interpretation and implementation of the Coastal Zone Act 1992, it did nothing to regulate the matter, thus leaving room for different and unequal decisions regarding the same or similar factual situations within that domain, which is what happened in the applicants ’ case.

8 . Thus, the combined effects of the above-mentioned shortcomings in the judgments of the Montenegrin courts, the lack of a clear response to the applicants ’ main submissions, the absence of proper reasoning and the inability of the Supreme Court of Montenegro to establish legal security and clarity in the field of interpretation and implementation of the Coastal Zone Act 1992, have convinced us that the applicants ’ case was not heard in accordance with the requirements of a fair trial, and that accordingly there has been a violation of Article 6 § 1 of the Convention.