FIRST SECTION
CASE OF VLAHOVIĆ v. MONTENEGRO
(Application no. 62444/10)
 
JUDGMENT
 
Art 37 § 1 • New unilateral declaration submitted after restoration of application to Court’s list for failure to fulfil undertaking in previous declaration did not provide appropriate redress • Request to strike out application dismissed
Art 6 § 1 (civil) • Access to court • Art 1 P1 • Peaceful enjoyment of possessions • Unjustified non-enforcement of final domestic judgment and two administrative decisions in respect of the removal of unlawful constructions on the applicant’s plots of land
Art 46 • Execution of judgment • Individual measures
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
22 February 2024
 
FINAL
 
24/06/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vlahović v. Montenegro,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Péter Paczolay,
 Ivana Jelić,
 Erik Wennerström,
 Raffaele Sabato, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the application (no. 62444/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Zoran Vlahović (“the applicant”), on 15 October 2010;
the decision to give notice to the Montenegrin Government (“the Government”) of the complaint concerning non-enforcement of a domestic judgment and decisions delivered in favour of the applicant;
the decision to strike the application out of its list of cases in view of the respondent State’s unilateral declaration by which they undertook to ensure the enforcement of the domestic judgment and decisions and to pay the applicant non-pecuniary damage (see Vlahović v. Montenegro [Committee], no. 62444/10, 22 November 2016);
the decision to restore the application to the Court’s list of cases on 19 November 2020 on the applicant’s request since the domestic judgment and decisions at issue had remained unenforced;
the decision to re-communicate to the Government the complaint concerning non-enforcement of the domestic judgment and decisions delivered in favour of the applicant and to declare the remainder of the application inadmissible;
the parties’ observations;
the Croatian Government’s decision not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
 
Having deliberated in private on 30 January 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns a complaint by the applicant, under Article 6 of the Convention and Article 1 of Protocol No. 1, of non-enforcement of a domestic judgment and decisions delivered in his favour in 2010. THE FACTS
2. The applicant was born in 1964 and lives in Split, Croatia. He was granted leave to represent himself. 3. The Government were represented by their Agent, Ms. V. Pavličić. 4. The facts of the case may be summarised as follows. 5. The applicant is one of the co-owners of two plots of land, nos. 1084/4 and 1084/10, located in Herceg Novi. He owns one third and one half of the two plots respectively. At the relevant time a certain M.D. owned one eighteenth and one twelfth of the same plots. The land was registered as an uncategorised road. 6. In June 2005 M.D. constructed a sewage collection system on the two plots of land and paved the road in concrete. He did so without the prior approval of the other co-owners and without the authorisation of a competent body of the municipality of Herceg Novi (“the municipality”). 7. On an unspecified date thereafter the applicant and one of the other co-owners of the land instituted civil proceedings against M.D. for unlawfully building a sewage collection system and paving the road with concrete. The dispute was entered into the real estate registry (zabilježba spora) in November 2008. 8. In the course of the proceedings a witness who was a construction expert gave his findings. In particular, he found that the placement of the concrete on the ground to build the road had caused the flow of rainwater to accelerate along the roadway. He stated that the grating and the channel constructed on one part of the road were not sufficient to collect all the surface water from the newly created drainage basin (slivna površina). Therefore, in time, the unregulated drainage of surface water from the road paved in concrete would probably cause flooding and soil deposits (zemljani nanosi), thereby damaging the adjacent plots of land belonging to the claimants. Moreover, if the water from the paved road was not regulated, the water coming from the land of the respondent party would erode even the land on which the road had been constructed. The expert further stated that the sewage collection system had been constructed without the prior authorisation of the relevant administrative body, which also meant that it might not have been constructed in accordance with the relevant construction standards. 9. On 26 February 2010 the Herceg Novi Court of First Instance (Osnovni sud) found that M.D. had violated the applicant’s rights in respect of plots nos. 1084/4 and 1084/10 by unlawfully paving the entirety of the plots in concrete and constructing a sewage collection system on plot no. 1084/10. It ordered M.D. to remove the above-mentioned objects within fifteen days. 10. On 29 and 30 March 2010 the municipal police (komunalna policija) issued two decisions ordering M.D. to remove the unlawfully built sewage collection system and the concrete paving respectively. Those decisions were upheld on 27 April 2010 by the municipality Chief Administrator, acting as the second-instance administrative body. 11. On 18 May 2010 M.D. transferred his ownership rights to the land at issue (see paragraph 5 in fine above) to the municipality free of charge. 12. On 9 December 2010 the municipality requested the Real Estate Administration (Uprava za nekretnine) to be allowed to expropriate the plots of land in question. 13. Between 28 December 2010 and 6 May 2019 the municipal police issued a number of decisions postponing the enforcement of its decisions of March 2010 (see paragraph 10 above) for various reasons; all of those decisions were quashed by the Chief Administrator. 14. On 8 February 2011 the Podgorica High Court (Viši sud) upheld the first-instance judgment of 26 February 2010 in so far as relevant (see paragraph 9 above), rendering that judgment final. 15. On 15 April 2011 the Court of First Instance issued an enforcement order in respect of its judgment. On 11 October 2011 the High Court quashed it on the grounds that M.D. was no longer a co-owner of the land in question and in view of ongoing expropriation proceedings (see paragraphs 11 and 12 above). 16. On 19 March 2012 the Court of First Instance dismissed the applicant’s request that the municipality enforce the judgment, on the grounds that a final judgment had been delivered, not in respect of the municipality, but in respect of M.D. That decision was upheld on 24 May 2012 and the applicant was advised to initiate civil proceedings against the municipality. 17. On 17 April 2012 the Real Estate Administration rejected the municipality’s expropriation request (see paragraph 12 above). On 12 November 2012 the municipality submitted another expropriation request to the Real Estate Administration, but, after a remittal, the proceedings were stayed (prekida se postupak) on 29 May 2015. 18. On 8 April 2015 the Court of First Instance issued an interim measure, on a request by M.D. and a private company, prohibiting the removal of the concrete paving of the road and the sewage collection system, as ordered by the municipal police (see paragraph 10 above), until the termination of the expropriation proceedings. The court also found that should the decisions of the municipal police be enforced, the parties who had requested an interim measure and other occupants would not be able to live in their flats, thereby suffering nearly irreparable damage (teško nadoknadivu štetu). Notably, there was no other access road to their homes except the one which would be affected by the enforcement of the decisions and the occupants would not be able to use the water supply or sewage infrastructure necessary for the normal functioning of their households and businesses. On 1 June 2015 the Court of First Instance, as the second-instance enforcement court, rejected the applicant’s objection (odbacuje se prigovor) lodged in respect of the decision on the interim measure. 19. On 11 April 2017 the Supreme Court, while ruling on one of the claims for fair redress brought by the applicant in respect of lengthy enforcement proceedings, held, inter alia, that the expropriation proceedings could not be an obstacle for the enforcement of decisions ordering the removal of certain objects. 20. On 19 February 2021 the Real Estate and State Property Administration quashed the decision of 29 May 2015, which had stayed the expropriation proceedings (see paragraph 17 in fine above). 21. On 9 March 2021, after many unsuccessful attempts by the applicant to expedite enforcement of the decisions, the High Court ordered the urgent termination of the enforcement proceedings. It noted that the enforcement was considered final when the relevant decision had either been executed or the enforcement proceedings terminated. 22. On 27 April 2021 the Court of First Instance terminated the enforcement (obustavlja se izvršenje) of the judgment of 26 February 2010 and cancelled all the actions undertaken in that regard. The court found that there were circumstances entirely preventing enforcement (postoje okolnosti koje u cjelosti sprječavaju sprovođenje rješenja o izvršenju), notably that the respondent named in the judgment was no longer a co-owner of the land in question. The applicant was advised to exercise his right in respect of the municipality in separate civil proceedings, after which, if successful, he could initiate new enforcement proceedings. That decision was upheld on 13 September 2021. 23. On 12 August 2021, after a remittal, the Real Estate and State Property Administration delivered a decision expropriating the land in question in favour of the municipality so that an access road could be built in accordance with the Detailed Urban Plan. On 14 November 2022, after another remittal, the Ministry of Finance, as the second-instance body, quashed that decision. On 19 December 2022 the applicant contested the Ministry of Finance decision before the Administrative Court. 24. In the meantime, on 20 January 2022 the Constitutional Court dismissed a constitutional appeal lodged by the applicant on 31 May 2017 in respect of the non-enforcement. The court upheld, in substance, the reasoning given by the courts in the enforcement proceedings (see paragraphs 15 and 16 above). 25. On 27 May 2022 the State Prosecutor’s Office, while dismissing one of the criminal complaints lodged by the applicant in relation to the expropriation proceedings, held that the administrative (expropriation) proceedings could not in any way obstruct the enforcement of the final court judgment of 2010 ordering the removal of the unlawfully constructed objects. 26. Over several years the applicant repeated his request for enforcement on several occasions, both against M.D. and the municipality, but to no avail. In doing so he relied on section 28 of the Enforcement Act (see paragraphs 29 and 30 below). In one of its decisions, that of 9 August 2019, the Court of First Instance noted that the applicant had relied on that provision, but nevertheless upheld the previous findings, namely that the municipality had neither been a party to the civil proceedings nor been obliged by the relevant judgment to take any action. It dismissed all the applicant’s other submissions as unfounded. 27. On 16 June 2023 the Constitutional Court ruled in favour of the applicant and quashed the decision of 9 August 2019 (see the preceding paragraph). In particular, the Constitutional Court found that the Court of First Instance had failed to address the application of section 28 of the Enforcement Act on which the applicant had explicitly relied. The Constitutional Court found a violation of Article 6 of the Convention due to a lack of sufficient and relevant reasons in the decision of the Court of First Instance. 28. On 12 December 2023 the expropriation proceedings were pending before the Administrative Court (see paragraph 23 above), the interim measure was still in force (see paragraph 18 above) and the judgment and the two administrative decisions delivered in favour of the applicant (see paragraphs 9, 13 and 14 above) remained unenforced. RELEVANT LEGAL FRAMEWORK
29. Section 23 of the Enforcement Procedure Act 2004 (Zakon o izvršnom postupku, published in the Official Gazette of the Republic of Montenegro – no. 023/04) provided that enforcement could also be ordered on a request by a person who was not named as a claimant (povjerilac) in the enforceable decision, if he or she could prove that the relevant claim (potraživanje) had been transferred to him or her. It also specified that the same was applicable in the event that an enforcement was ordered against a person who was not named in the enforceable decision as a respondent (dužnik). 30. The Enforcement Procedure Act 2004 was in force until 25 September 2011, when it was replaced by the Enforcement Act 2011 (Zakon o izvršenju i obezbjeđenju, published in the Official Gazette of Montenegro – nos. 036/11, 028/14, 020/15, 022/17, 076/17 and 025/19). Section 28 of the new Act corresponds to section 23 of the previous Act. 31. Section 17 of the Enforcement Act 2011 provides that enforcement must be ordered on the basis of an enforceable document unless otherwise prescribed by law. Section 18 provides that, inter alia, an enforceable court judgment is an enforceable document. Section 22 provides that an enforceable document is suitable for the enforcement if it specifies the claimant and the respondent party, as well as the object, form and scope of the claim and the time-limit for fulfilling it. If the enforceable document does not specify a time-limit for the voluntary fulfilment of the claim, that time-limit is to be defined by an enforcement order. 32. Section 77 provides that in addition to other conditions under which an enforcement can be terminated, which are provided in the Act, an enforcement may also be terminated by a court of its own motion when an enforceable document has been quashed, overturned, declared null and void, that is, if a certificate of enforceability has been revoked. A decision on termination of enforcement annuls all the enforcement actions which were carried out, as long as doing so will not affect the acquired rights of third parties. THE LAW
Preliminary issue
33. The Government submitted a unilateral declaration on 30 November 2021 and requested that the application should be struck out of the list of cases in accordance with Article 37 of the Convention. They acknowledged a violation of Article 6 of the Convention. They also undertook to ensure that all the necessary steps were taken to speedily enforce the decisions in question after the completion of the expropriation proceedings or, if the land were expropriated, that prompt actions would be taken to bring the infrastructure in question in line with the relevant construction standards. 34. The applicant invited the Court to reject the Government’s unilateral declaration. He submitted that in their first unilateral declaration of 6 June 2016, the Government had already undertaken to take all the necessary steps to ensure the enforcement in question, without referring to expropriation, even though the expropriation proceedings had already been pending for more than three years at the time. They had failed to fulfil that undertaking. In their new unilateral declaration they proposed to wait for the completion of the expropriation proceedings and, furthermore, for the resolution of the case without any assurance that the enforcement would take place. In addition, the applicant submitted that the Government had proposed no compensation. 35. The Court notes that the relevant principles concerning unilateral declarations are set out in Tahsin Acar v. Turkey ((preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI). In particular, the Court considered that, under certain circumstances, it might be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It would, however, depend on the particular circumstances whether the unilateral declaration offered a sufficient basis for finding that respect for human rights as defined in the Convention did not require the Court to continue its examination of the case (Article 37 § 1 in fine) (ibid., § 75). 36. The Court further observes that the present application concerns non-enforcement of domestic decisions and that there have been a number of similar cases in respect of the respondent State (see, among many others, Boucke v. Montenegro, no. 26945/06, §§ 74-75, 79 and 89-94, 21 February 2012; Milić v. Montenegro and Serbia, no. 28359/05, §§ 63-65 and 68, 11 December 2012; Vukelić v. Montenegro, no. 58258/09, §§ 98-102, 4 June 2013; and Mijanović v. Montenegro, no. 19580/06, §§ 81-87, 17 September 2013). 37. Concerning the present application, the Court stresses that it already struck it out of the list of cases once on the basis of the Government’s undertaking to ensure the speedy enforcement of the judgment and decisions in question (see the procedure part above). However, this undertaking was not fulfilled for which reason the Court restored the application to its list of cases. It also observes that, in their new unilateral declaration, the Government do not propose to ensure the enforcement without delay but rather to await the conclusion of the expropriation proceedings first and then to further proceed depending on their outcome. It notes in this connection that the expropriation proceedings were first initiated in 2010 and that there is no indication as to when they might be concluded. Moreover, the Government’s proposal also includes an option not to enforce the decisions at all. Furthermore, the unilateral declaration neither contains any acknowledgment of a violation of Article 1 of Protocol No. 1 to the Convention nor provides for any compensation. 38. In view of the above the Court considers that the Government’s unilateral declaration does not provide appropriate redress to the applicant and the Court therefore rejects the Government’s request to strike the application out of its list. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION and Article 1 of protocol nO. 1
39. The applicant complained, under various Articles of the Convention, about the non-enforcement of the judgment and the administrative decisions relating to his property delivered in his favour (see paragraphs 9-10 and 14 above). The Court considers that the applicant’s complaint falls to be examined under Article 6 of the Convention and Article 1 of Protocol No. 1 (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). The relevant parts of the Articles in question read as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”. Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The parties’ submissions
40. The Government did not dispute that the enforcement proceedings had lasted a long time and had become even more complex on account of the change of ownership of part of the land, which had been the reason why the relevant judgment could not be enforced and why the applicant had to institute new civil proceedings against the municipality as the new owner. The municipal police’s decisions could not be enforced because of the interim measure issued in 2015, which was to remain in force until the expropriation proceedings were terminated. 41. The Government also submitted that there had been no violation of Article 1 of Protocol No.1 to the Convention. They acknowledged that there had been an interference with the applicant’s right to peaceful enjoyment of his possessions. They maintained, however, that the interference had been necessary in a democratic society and had been aimed at meeting the general interest of the community, notably by way of providing an access road to other houses, which was possible only by building it on plot no. 1084/4, as well as building the necessary water and sewage systems infrastructure. 42. The Government submitted that the expropriation, the aim of which was to build an access road on plot no. 1084/4, and in which there was a public interest, was a preliminary question. Following the termination of the expropriation proceedings, the municipality would initiate urgent repair of the road and the infrastructure so as to bring it in line with the relevant construction standards. The Government stated that that would be the only possible solution in the present case, bearing in mind the amount of time that had passed from the time when the relevant decisions had been delivered in the applicant’s favour and the present condition at the site. In that event the applicant would be entitled to compensation equivalent to the market value of the expropriated property. 43. The applicant contested the Government’s arguments and reiterated his complaint. In particular, he submitted that it would be absurd if enforcement could be avoided by transferring property from one person to another and if a claimant would be required to initiate new proceedings against every new owner, as in that way any enforcement could be obstructed endlessly.

Article of the Convention at issue: Article 1
Outcome: violation