Bešović protiv Crne Gore

Prevod presude Zastupnika Crne Gore pred ESLJP preuzet sa hudoc.echr.coe.int

FIRST SECTION

CASE OF BEŠOVIĆ AND OTHERS v. MONTENEGRO

(Application no. 21601/20)

JUDGMENT

STRASBOURG

11 April 2024

This judgment is final but it may be subject to editorial revision.

In the case of Bešović and Others v. Montenegro,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 21 March 2024,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 April 2020.

   2.  The applicants were represented by Mr B. Ćupić, a lawyer practising in Podgorica.

3.  The Montenegrin Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicants’ details and information relevant to the application are set out in the appended table.

5.  The applicants complained of the non-enforcement of domestic decisions given against socially/State-owned companies.

6.  On 18 July 2019 the Constitutional Court found a violation of the applicants’ rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement. The applicants were awarded 2,000 euros each in non-pecuniary damage. However, the domestic decisions under consideration in this case remain unenforced until the present day.

THE LAW

1.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1

7.  The applicants complained principally of the non-enforcement of domestic decisions given in their favour. They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1.

1. As regards Mr Miodrag Vujović, Mr Branislav Radetić, Mr Dragoslav Pajović and Mr Vaso Ljuljđurović

8.  The Government submitted that final domestic decisions in question had been fully enforced as regards Mr Miodrag Vujović, Mr Branislav Radetić, Mr Dragoslav Pajović and Mr Vaso Ljuljđurović. The applicants argued that they did not obtain sufficient redress.

  9.  The Court notes that the applicants were entitled to receive, and they indeed received, the principal debt and default interest at the statutory rate until the institution of the insolvency proceedings against the debtor. They did not receive default interest after that date because they were not entitled to it pursuant to section 87 of the Insolvency Act 2011 (Zakon o stečaju; Official Gazette nos. 1/2011, 53/2016 and 1/2022).

  10.  That being the case, the Court concludes that the domestic decisions in issue were fully enforced in respect of these four applicants and considers that they  can no longer claim to be victims of the alleged violation within the meaning of Article 34 of the Convention. It follows that the application, in so far as it has been submitted by Mr Miodrag Vujović, Mr Branislav Radetić, Mr Dragoslav Pajović and Mr Vaso Ljuljđurović, is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. As regards the remaining applicants

  11.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).

  12.  The Court further notes that the decisions in the present applications ordered specific action to be taken. The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1.

13.  In the leading cases of R. Kačapor and Others v. Serbia (nos. 2269/06 and 5 others, §§ 97-99, 106-16 and 119-20, 15 January 2008), and Mijanović v. Montenegro (no. 19580/06, §§ 81-91, 17 September 2013), the Court already found a violation in respect of issues similar to those in the present case.

14.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.

15.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

2. APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  Regard being had to the documents in its possession and its own case‑law (see, in particular, R. Kačapor and Others, cited above, §§ 123-26; Stošić v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013; and Mastilović and Others v. Montenegro, no. 28754/10, § 52, 24 February 2022) the Court considers it reasonable not to award the applicants compensation in respect of non-pecuniary damage because it has already been awarded domestically (see paragraph 6 above), and therefore dismisses this part of the applicants’ claim for just satisfaction. It decides however to award them compensation for costs and expenses indicated in the appended table.

17.  The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application inadmissible in so far as it has been submitted by Mr Miodrag Vujović, Mr Branislav Radetić, Mr Dragoslav Pajović and Mr Vaso Ljuljđurović;
2.  Declares the remainder of the application admissible;
3. Holds that this application discloses a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non‑enforcement of domestic decisions given against socially/State-owned companies;
4. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table;
5. Holds

(a) that the respondent State is to pay the applicants jointly, with exception of the applicants whose application was declared inadmissible, within three months, the amount indicated in the appended table in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina                             Péter Paczolay
 Acting Deputy Registrar                           President