FOURTH SECTION
 
 
 
 
 
CASE OF BARAĆ AND OTHERS v. MONTENEGRO
 
(Application no. 47974/06)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
13 December 2011
 
FINAL
 
13/03/2012
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Barać and Others v. Montenegro,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Lech Garlicki, President,
 David Thór Björgvinsson,
 Päivi Hirvelä,
 Ledi Bianku,
 Zdravka Kalaydjieva,
 Nebojša Vučinić,
 Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 22 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 47974/06) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Montenegrin nationals, Mr Blagota Barać, Mr Milan Terzić, Mr Zoran Stanišić, Mr Stanko Burić, Ms Stanica Marković, Mr Radovan Kadović, Mr Ranko Tomašević, Mr Novo Stanišić, Mr Branko Radulović, Mr Novak Nikolić, Mr Mihailo Popović, Mr Milan Golubović, and Mr Ranko Kovačević (“the applicants”), on 9 November 2006. 2. The applicants were represented by Mr M. Vojinović, a lawyer practising in Nikšić. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The applicants complained under Article 6 § 1 of the Convention that the domestic civil proceedings had been unfair since the final judgment rendered against them had been based on an Act which was no longer in force at the relevant time. 4. On 28 June 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants - Mr Blagota Barać, Mr Milan Terzić, Mr Zoran Stanišić, Mr Stanko Burić, Ms Stanica Marković, Mr Radovan Kadović, Mr Ranko Tomašević, Mr Novo Stanišić, Mr Branko Radulović, Mr Novak Nikolić, Mr Mihailo Popović, Mr Milan Golubović, and Mr Ranko Kovačević - are all Montenegrin nationals who were born in 1968, 1953, 1961, 1950, 1956, 1951, 1952, 1963, 1951, 1966, 1955, 1953, and 1955 respectively and live in Danilovgrad. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. The civil proceedings
7. On 14 January 2005 the applicants filed a claim for compensation (isplata zimnice) against their employer. 8. On 13 February 2006 the Court of First Instance (Osnovni sud) in Danilovgrad ruled in their favour, awarding them 150 euros (EUR) each, plus legal costs totalling EUR 1,875. 9. On 26 April 2006 the High Court (Viši sud) in Podgorica overturned the previous judgment and rejected the applicants’ claim, relying solely on the Act on Changes and Amendments to the Labour Act 2004 (Zakon o izmjenama i dopunama Zakona o radu, hereinafter “the Labour Amendments Act 2004”). At the same time, the applicants were ordered to pay jointly to their employer EUR 900 for legal costs. The applicants received this judgment on 23 May 2006 at earliest. 10. On 12 September 2006 the Supreme Court (Vrhovni sud) in Podgorica rejected the applicants’ appeal on points of law on procedural grounds (revizija se odbacuje). B. Other relevant information
11. On 28 February 2006 the Constitutional Court of Montenegro (Ustavni sud) declared the Labour Amendments Act 2004 unconstitutional (see paragraph 14 below). 12. On 18 April 2006 that decision was published in Official Gazette no. 24/06 (Službeni list br. 24/06), and thereby the said Act ceased to be in force (see paragraph 13, in particular Article 62 therein, and paragraph 16 below). II. RELEVANT DOMESTIC LAW AND PRACTICE
Constitutional Court Act of the Republic of Montenegro (Zakon o Ustavnom Sudu Republike Crne Gore; published in the Official Gazette of the Republic of Montenegro – OG RM - no. 21/93, hereinafter “the Constitutional Court Act 1993”)
13. The relevant provisions of the Act provided as follows:
Article 62
“When it is established that an Act [...] is not in accordance with the Constitution [...] that Act [...] ceases to be in force on the day when the Constitutional Court’s decision is published in the Official Gazette of the Republic of Montenegro.”
Article 69 § 1
“[Such an] Act [...] cannot be applied to matters (odnosi) which arose before the day when the decision of the Constitutional Court was published unless a final decision in the particular matter was rendered before that day.”
Article 70
“Those whose rights have been violated by final decisions rendered on the basis of an Act ... which the Constitutional Court established was not in accordance with the Constitution ... have the right to request the body in charge to change the final decision [in question]. A request to have [such a] decision changed shall be submitted within six months of the day when the decision of the Constitutional Court was published in the Official Gazette of the Republic of Montenegro.”
Article 71
“If the consequences of the implementation of the [unconstitutional] Act ... cannot be removed by having the impugned decision changed, the Constitutional Court can determine that the consequences be removed by restitutio in integrum, compensation, or in some other way.”
B. Decision of the Constitutional Court of the Republic of Montenegro (Odluka Ustavnog Suda Republike Crne Gore, published in the OG RM no. 24/06)
14. The relevant part of the Decision reads as follows:
“It has been established that the Labour Amendments Act 2004 (Official Gazette of the Republic of Montenegro, no. 79/04) is not in accordance with the Constitution of the Republic of Montenegro and it shall cease to exist on the day when this decision is published. 15. The Decision specified that the reason for declaring the above Act unconstitutional was that it had not been adopted in Parliament by an absolute majority of MPs, as required by the Constitution. 16. The Decision was published on 18 April 2006. Relevant case-law of the Constitutional Court
17. The Government submitted three decisions of the Constitutional Court of Montenegro, rendered in September 2003, December 2005 and July 2006, respectively, on the basis of Articles 70 and 71 of the Constitutional Court Act 1993. In all three decisions the Constitutional Court, in rejecting other claimants’ requests, had held that Article 70 actually provided for an individual the right to request the reopening of proceedings in which an impugned decision had been rendered. 18. In particular, in its decision of September 2003 the Constitutional Court had rejected an initiative to assess the constitutionality of Article 70 of the Constitutional Court Act 1993. 19. In December 2005 the Constitutional Court rejected a claimant’s request to amend a decision rendered by the Court of First Instance in November 2004, which first-instance decision had been based on a provision which was later, in April 2005, declared unconstitutional. 20. In July 2006 the Constitutional Court rejected a claimant’s request to remove the consequences he had allegedly suffered before November 2005 on account of the implementation of a decision of the Water Supply Company of 2002, the decision having been declared unconstitutional in November 2005. 21. In the latter two decisions, the claimants’ requests were rejected as they had failed to previously request the reopening of the proceedings in which the impugned decisions had been rendered. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22. The applicants complained under Article 6 § 1 of the Convention that the domestic civil proceedings had not been fair since the final judgment rendered against them had been based on an Act which had no longer been in force at the time. 23. The relevant part of Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”. Admissibility
24. The Government maintained that the applicants had not exhausted all effective domestic remedies. In particular, they had failed to request that the impugned decision be changed, in accordance with Articles 70 and 71 of the Constitutional Court Act 1993, and the Government referred to the case-law of the Montenegrin Constitutional Court in this respect (see paragraphs 13 and 17‑21 above). 25. The applicants contested that claim. In particular, they reiterated that at the time when the High Court ruled in their case the Labour Amendments Act 2004 had already ceased to be in force. 26. The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with a complaint after all domestic remedies have been exhausted, and recalls that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Bijelić v. Montenegro and Serbia, no. 11890/05, § 75, 28 April 2009). 27. Turning to the present case, the Court notes that the wording of Article 70 of the Constitutional Court Act 1993 (see paragraph 13 above, in particular Article 70 § 2 therein) implies that the remedy provided for therein referred to those cases where a certain provision was declared unconstitutional after the impugned decision had already been rendered, rather than to those where a relevant provision had been declared unconstitutional before a decision was adopted. The case-law submitted by the Government certainly appears to support this conclusion (see paragraphs 17-21 above). That being so, the Court considers that the remedy referred to by the Government was not available to the applicants. 28. In any event, the Court notes that the remedy in question was in practice a request to have impugned proceedings reopened (see paragraph 17 above). In this connection, it is recalled that a request for the reopening of proceedings which have already been concluded on the basis of a final court decision cannot usually be considered an effective remedy within the meaning of Article 35 § 1 of the Convention (see, among many others, Josseline Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002). The situation may be different if it can be established that under domestic law such a request can genuinely be deemed an effective remedy (see K.S. and K.S. AG v. Switzerland, no. 19117/91, Commission decision of 12 January 1994, Decisions and Reports (DR) 76-A, p. 70). However, the Government has submitted no case-law to that effect. Therefore, their objection in this regard must be dismissed even assuming that the remedy in question was available. 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
30. Relying on Article 6 § 1 of the Convention, the applicants complained about the arbitrariness of the final decision rendered against them, it being based on legislation no longer in force. 31. The Government noted that the impugned Act had been declared unconstitutional for formal reasons rather than substantial ones (see paragraph 15 above). 32. The Court has already held that no fair trial could be considered to have been held where the reason given in the relevant domestic decision was not envisaged by the domestic legislation and, therefore, was not a legally valid one (see, mutatis mutandis, De Moor v. Belgium, 23 June 1994, § 55 in fine, Series A no. 292‑A, where the competent domestic body refused to enrol the applicant on the list of “pupil advocates”, relying on a ground which was not provided in the relevant legislation at all; see also Dulaurans v. France, no. 34553/97, § 33-39, 21 March 2000). 33. Turning to the present case, the Court observes that the final decision rendered by the High Court against the applicants relied solely on an Act which had previously been declared unconstitutional and a relevant decision to that effect already published in the Official Gazette. Thus, the Labour Amendments Act 2004 had ceased to be in force and, as such, was not applicable in the applicants’ case, as provided by Article 69 § 1 of the Constitution in force at the time (see paragraph 13 above). Therefore, the only legal basis for the High Court’s decision was not valid at the relevant time. It is irrelevant in this connection whether the impugned piece of legislation was declared unconstitutional for formal or substantial reasons (see paragraphs 15 and 31 above). 34.

Article of the Convention at issue: Article 6
Outcome: violation