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CASE OF MASTILOVIĆ AND OTHERS v. MONTENEGRODISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

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Document date: February 24, 2022

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CASE OF MASTILOVIĆ AND OTHERS v. MONTENEGRODISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

Doc ref: • ECHR ID:

Document date: February 24, 2022

Cited paragraphs only

DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

(Translation)

I am unable to concur with the majority’s position in declaring inadmissible the complaints lodged with the Court by six of the applicants (listed as the first, twelfth, seventeenth, nineteenth, twentieth and twenty-second applicants).

Before considering the question of the rejection of these applicants’ complaints on formal grounds, it is worth noting the background to the case.

The applicants had the misfortune to be passengers on a bus that was involved in a road accident on 11 September 1994. They sustained injuries and between 1996 and 2005 brought various sets of civil proceedings against the bus company, which was predominantly State-owned.

Some of the applicants were awarded compensation in respect of non-pecuniary damage (under court judgments or court-approved settlement agreements), while others were awarded both compensation in respect of non-pecuniary damage and the costs of the proceedings.

The decisions in question have never been enforced, and those failings were what gave rise to the applications to the Court.

The Chamber held unanimously that there had been a violation in respect of the applicants listed as the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, twenty-first, twenty-third, twenty-fourth and twenty-fifth applicants.

However, it declared inadmissible the complaints brought by the other six applicants, on the grounds (see paragraph 36 of the judgment) that their names as recorded in their birth certificates did not correspond to the names specified in the domestic judgments awarding them compensation.

The Chamber found:

 that the identity of these applicants could not be established with certainty;

 that they should have applied under section 342 of the 1977 Civil Procedure Act for rectification of the errors made by the domestic courts that had given the decisions. The Chamber acknowledged in paragraph 36 of the judgment that these were simply clerical errors . At no time was there any reference to the slightest fraudulent intention on the applicants’ part in seeking to deceive the Court in order to secure undue advantages by usurping another person’s identity.

The Chamber displayed excessive formalism in finding that the applicants should be made to bear the burden and responsibility of rectifying clerical errors that were probably attributable to the domestic courts, and in referring to the applicants’ inaction as a ground for declaring their application to the Court inadmissible.

Precise identification of these clerical errors supports the observation that an excessive requirement was imposed.

No.

Applicant’s name

(on birth certificate)

Name in domestic judgment

Draginja MASTILOVIĆ

Dragica MASTILOVIĆ

Dragica ILIĆ

Draga ILIĆ

Radislavka MUČIBABIĆ

Radislava MUČIBABIĆ

Veselinka PAROVIĆ

Vesna PAROVIĆ

Vidosava POJUŽINA

(maiden name IVANIŠEVIĆ)

Vida IVANIŠEVIĆ

Kosa Å IPOVAC

Kosana Å IPOVAC

The errors thus mainly concerned forenames and not surnames .

A more detailed analysis, moreover, shows that for each of these applicants, at least three and as many as eight initial letters are the same.

The requirement imposed by the majority does not correspond to a flexible, in concreto approach in line with the fairness of the admissibility criteria, as could be advocated with regard to the application of Rule 47 of the Rules of Court.

APPENDIX

List of cases

No.

Applicant’s Name

(in birth certificate)

The names in domestic judgments or settlements

The amounts awarded domestically (compensation and costs of proceedings)

Date of birth

Place of residence

Draginja MASTILOVIĆ

(the first applicant)

Dragica MASTILOVIĆ

- YUN 56,000 with interest;

- YUN 408

04/12/1954

Nevesinje, BIH

Branislav AĆIMOVIĆ

(the second applicant)

the same

- DEM 7,000 with interest;

- DEM 729

23/02/1966

Ontario, Canada

Milanka AĆIMOVIĆ

(maiden name STEVANOVIĆ)

(the third applicant)

Jovanka STEVANOVIĆ

- DEM 3,000 (no interest);

- EUR 137.38

14/05/1976

Ontario, Canada

Dušanka ANDRIĆ

(the fourth applicant)

the same

- EUR 14,000 with interest;

- EUR 904.94

06/03/1948

Nevesinje, BIH

Nedeljko BOTIĆ

(the fifth applicant)

the same

- DEM 21,000 with interest;

- YUN 8,150

14/11/1959

Nevesinje, BIH

Radmila BOŽIĆEVIĆ

(the sixth applicant)

the same

- DEM 9,000 with interest;

- DEM 903,40

05/11/1951

Nevesinje, BIH

Dobrila BUDALIĆ

(the seventh applicant)

the same

- YUN 105,000 with interest;

- no costs

28/03/1964

Nevesinje, BIH

Mitra ĆORIĆ

(the eighth applicant)

the same

- DEM 3,750 with interest;

- DEM 905,37

10/10/1953

Nevesinje, BIH

Radojka ĐURICA

(maiden name ILIĆ)

(the ninth applicant)

Radojka ILIĆ

- DEM 11,750 with interest;

- DEM 1,356.95

27/08/1973

Nevesinje, BIH

Koviljka GAČIĆ

(the tenth applicant)

the same

- DEM 5,250 with interest;

- DEM 1,204.59

02/08/1958

Nevesinje, BIH

Zora GLAVAÅ

(the eleventh applicant)

the same

- DEM 9,000 with interest;

- DEM 1,175.28

10/02/1957

Mostar, BIH

Dragica ILIĆ

(the twelfth applicant)

Draga ILIĆ

- EUR 10,000

(no interest, no costs)

25/07/1961

Novi Sad, Serbia

Ljubica KNEŽEVIĆ

(the thirteenth applicant)

the same

- EUR 20,000 with interest

- EUR 409,25

17/10/1961

Nevesinje, BIH

Radislavka KRAMAR

(the fourteenth applicant)

the same

- DEM 10,750 with interest;

- DEM 113,63

25/05/1956

Nevesinje, BIH

Gordana LOJPUR

(the fifteenth applicant)

the same

- DEM 21,500 with interest;

- DEM 902,54

04/05/1956

Gacko, BIH

Anđa MAČAR

(the sixteenth applicant)

the same

- DEM 7,000 with interest;

- DEM 882.62

01/08/1953

Nevesinje, BIH

Radislavka MUČIBABIĆ

(the seventeenth applicant)

Radislava MUČIBABIĆ

- EUR 2,500 with interest;

- EUR 675

31/03/1953

Nevesinje, BIH

Marija NADAŽDIN

(the eighteenth applicant)

the same

- YUN 45,000 with interest;

- YUN 5,150

26/12/1939

Mostar, BIH

Veselinka PAROVIĆ

(the nineteenth applicant)

Vesna PAROVIĆ

- DEM 7,500 with interest;

- DEM 1,182.62

25/01/1958

Nevesinje, BIH

Vidosava POJUŽINA

(maiden name IVANIŠEVIĆ)

(the twentieth applicant)

Vida IVANIŠEVIĆ

- YUN 70,000 with interest;

- no costs

27/06/1960

Nevesinje, BIH

Ilija SAVIĆ

(the twenty-first applicant)

the same

- DEM 3,000 with interest;

- no costs

02/08/1950

Nevesinje, BIH

Kosa Å IPOVAC

(the twenty- second applicant)

Kosana Å IPOVAC

- YUN 65,000 with interest;

- no costs

29/03/1948

Nevesinje, BIH

Tihana SUDAR

(the twenty-third applicant)

the same

- DEM 5,500 with interest;

- DEM 219.35

18/05/1960

Mostar, BIH

Ljiljana VASILJEVIĆ

(the twenty-fourth applicant)

the same

- DEM 13,750 with interest;

- DEM 513,44

15/08/1958

Nevesinje, BIH

Anđelka VUČIĆ

(the twenty-fifth applicant)

the same

- YUN 25,000 with interest;

- no costs

28/08/1960

Mostar, BIH

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