JOINT DISSENTING OPINION OF JUDGES MIJOVI Ć AND H IRVELA

We are unable to agree with the majority of the Chamber that the complaint concerning the excessive length of the proceedings was admissible and, consequently, that there has been a violation of Article 6 § 1.

As accepted in the judgment, the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see § 52 of the judgment).

Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see the decision as to the admissibility of application no. 5238/07, Ahlskog v. Finland , 9 November 2010, § 68). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France , 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV). On the other hand, and as correctly pointed out in the judgment (see § 55), once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from that requirement. The decisive question when assessing the effectiveness of a remedy for a length of proceedings complaint is whether or not the applicant was afforded an opportunity to have the proceedings expedited or had a possibility to claim compensation for delays which have occurred (see Kudla v. Poland [ GC ] , no. 30210/96 §§ 157-159, ECHR 20 00 ‑ XI ).

We do not consider that these principles were properly applied in the assessment of the effectiveness of the domestic remedies available to the applicants.

Firstly, the applicants in this case had had at their disposal two legal remedies - a request for review and an action for fair redress provided by the Right to a Trial within a Reasonable Time Act and a constitutional appeal. The applicants alleged that these remedies were not in existence when they lodged their application with the European Court and therefore they had not been obliged to use them. Additionally, they alleged that, in any event, the remedies were not effective.

The majority noted that the Right to a Trial within a Reasonable Time Act came into force on 21 December 2007, and that it contained a provision on its retroactive application. In the present case the question arises as to whether the applicants should be required to exhaust this remedy, given that they introduced their applications prior to the enactment of the above Act. In this connection, the majority reiterate d that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Thus, the Court has held that applicants in cases against Italy, for instance, which concerned length of proceedings and had not been declared admissible, should be required to have recourse to the remedy introduced by the “Pinto Act” notwithstanding that it was enacted after their applications had been filed with the Court (see, for example, Giacometti and Others v. Italy ( dec .), no. 34939/97 , ECHR 2001 ‑ XII ; or Brusco v. Italy ( dec .), no. 69789/01 , ECHR 2001 ‑ IX ). A similar decision was taken in respect of cases introduced against Croatia following the entry into force of a constitutional amendment permitting the Constitutional Court to provide redress of both a preventive and a compensatory nature to persons complaining about undue delays in judicial proceedings (see Nogolica v. Croatia ( dec .), no. 77784/01, ECHR 2002-VIII ). A similar approach was followed also in respect of Slovakia (see Andrášik and Others v. Slovakia ( dec . ), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 ‑ IX) and Poland (see CharzyÅ„ski v. Poland ( dec . ), no. 15212/03 , § 40 , ECHR 2005 ‑ V ; and Michalak v. Poland ( dec . ), no. 24549/03, § 41 , 1 March 2005 ). We believe that the present case is similar, in substance, to the above Italian, Croatian, Slovak and Polish cases. As in those cases, the arguments of the applicants that they did not have the possibility to use this remedy and were not obliged to use it, should in our opinion and following the Court ’ s case-law, have been rejected by the Court.

Additionally, the applicants alleged that this remedy, even if used, would not have been effective. The majority of the Chamber came to the same conclusion and declared the application admissible. Bearing in mind the previously emphasised principles that the Court applies when dealing with the effectiveness issue, we would strongly disagree with the conclusion reached by the majority for the following reasons.

Since the Right to a Trial within a Reasonable Time Act came into force only on 21 December 2007, there is as yet no long-term established practice of the domestic courts. However, the wording of the Act clearly indicates that it is specifically designed to address the issue of excessive length of proceedings before the domestic courts. Furthermore, the relevant domestic case-law shows that between 1 January 2008 and 30 September 2009 the courts in Montenegro considered one hundred and two requests for review pursuant to this Act. In eighty-four cases the applicants were notified that certain procedural measures would be undertaken within a specified period. No information has been provided as to whether these time-limits were complied with or not. Eighteen requests were rejected as ill-founded. On the other hand, in the same period twenty-two actions for fair redress were submitted, of which sixteen were dealt with and six are still being examined. In one case the domestic courts awarded non- pecuniary damages for the length of civil proceedings. In 2010 , an additional fourteen actions for fair redress were examined, in two of which the courts awarded damages.

In view of the above, we hesitate to decide that a complaint under the Right to a Trial within a Reasonable Time Act is an ineffective remedy in the sense that it is not capable of providing adequate redress for excessive length of proceedings, provided that the impugned proceedings are still pending.

Furthermore, taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, we are of the opinion that the applicants should be required to use the remedy available to them under the Right to a Trial within a Reasonable Time Act . That is why we decided to vote against the admissibility of this case.

An additional point that has not been elaborated on in the judgment relates to the possible use of the constitutional appeal. According to the Constitution of Montenegro of 2007, 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 majority of the Chamber found that a constitutional appeal could not be considered an available remedy where there is no “individual decision” against which such an appeal could be lodged. For the majority , this implies that there should be an individual court decision. However the proper point of departure for considering this issue should be the Montenegro Constitutional Court Act that entered into force in November 2008 which stipulates that:

“[c] onstitutional complaints may be lodged against an individual act of state authority, local self-government authority or legal person vested with public powers, for the reason of violation of human rights and freedoms guaranteed by the Constitution, after all effective remedies have been exhausted.” [1]

We are of the opinion that the Chamber should have addressed this discrepancy (an individual decision dec . no. 13628/03, vs. an individual act). This is not a solely linguistic matter, but a significant and legally important issue clarifying the Constitutional Court ’ s jurisdiction.

However, leaving aside that linguistic-legal issue, we are of the opinion that the approach taken by the majority regarding the effectiveness of the constitutional appeal in Montenegro appears to run counter to the European Court ’ s case-law. As found in Slavi ček v. Croatia ( dec ) . no. 20862/02, ECHR 2002 ‑ VII ) and Nogolica v. Croatia ( cited above ), a constitutional complaint was accepted by the Court as an effective remedy for length of proceedings cases which were still pending before the domestic courts in Croatia . The approach of the Court ’ s case - law in respect of Bosnia and Herz egovina has been to the effect that when t he applicant has neither used the constitutional complaint nor shown that it was for any rea son inadequate or ineffective (and we consider that no such reason had been shown in this case), the case is to be declared inadmissible for reasons of non-exhaustion ( see Mirazovi ć v. Bosnia and Herzegovina , ( dec . ) no. 13628/03, 6 May 2006 ) .

Even from a theoretical point of view, we are of the opinion that there is no reason why the applicants ’ length of proceedings complaint could not or should not have been lodged with the C onstitutiona l C ourt, even if that court has exclusively appellate jurisdiction, i.e. even when there are no individual decisions that the applicants could have relied on as the basis of their appeal. The essence of the length of proceedings problem is precisely the lack of an individual decision and for that reason there is no reasonable explanation why a constitutional complaint could not have been lodged in this case either. The applicants decided not to test this avenue, alleging that it would not have been effective. However, there are no relevant statistics showing that that would have been the case. The European Court ’ s case-law has already taken a stand on this issue, establishing that as regards legal systems which provide constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection (see Holland v. Ireland , no. 24827/94, Commission decision of 14 April 1998, Decisions and Reports 93, p. 15 and Independent News and Media and Independent Newspapers Ireland Limited v. Ireland ( dec . ), no. 55120/00, 19 June 2003; Tokić and Others v. Bosnia and Herzegovina , nos. 12455/04, 14140/05, 12906/06 and 26028/06, § 59, 8 July 2008). For us, neither good reasons nor special circumstances have been adduced which would justify a departure from this or any of the above - emphasised principles and so absolve the applicant from the obligation to use this legal remedy.

[1] 1. Cited Article 48 of the Montenegro Constitutional Court Act has been taken from the Constitutional Court ’s official web site in its official English translation version, and as such should have been properly used and cited by the Chamber in the judgment