FIFTH SECTION
CASE OF SINIŠTAJ v. MONTENEGRO
(Application no. 31529/15)
 
 
 
 
JUDGMENT
 
STRASBOURG
23 September 2021
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Siništaj v. Montenegro,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 Mārtiņš Mits, President,
 Jovan Ilievski,
 Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 31529/15) 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 Montenegrin national, Mr Anton Siništaj (“the applicant”), on 18 June 2015;
the decision to give notice to the Montenegrin Government (“the Government”) of the complaint concerning the length of the proceedings before the Constitutional Court and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 2 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the length of the proceedings, within the meaning of Article 6 § 1 of the Convention, before the Montenegro Constitutional Court. THE FACTS
2. The applicant was born in 1959 and lives in Tuzi. He was represented before the Court by Mr Prelević, a lawyer practising in Podgorica. 3. The Government were represented by their Agent, Ms V. Pavličić. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 5 August 2008, following an indictment filed on 7 December 2006, the High Court (Viši sud) in Podgorica found the applicant guilty of associating with others for the purposes of anti‑constitutional activities and preparing actions against the constitutional order and security of Montenegro, and sentenced him to six years’ imprisonment. That judgment was upheld by the Court of Appeal (Apelacioni sud) and the Supreme Court (Vrhovni sud) on 18 June 2009 and 25 December 2009 respectively. The proceedings involved sixteen other defendants. 6. On 26 March 2010 the applicant and one co-defendant lodged a constitutional appeal, complaining of a violation of the presumption of innocence, the right to a defence and the inviolability of the home, and of having been convicted on the basis of unlawfully obtained evidence. On 28 April 2011 he urged the Constitutional Court to rule on his constitutional appeal. 7. On 5 April 2013 the Constitutional Court did not adopt a draft judgment prepared by the judge rapporteur serving at the time. On 8 August 2013 that judge died, and the case was assigned to another judge. 8. On 27 December 2013 Parliament elected seven new judges to the Constitutional Court. 9. On 23 July 2014 the Constitutional Court dismissed the applicant’s constitutional appeal. That decision was served on the applicant’s representative on 18 December 2014. RELEVANT LEGAL FRAMEWORK
10. The Montenegro Constitutional Court Act 2008 (Zakon o Ustavnom sudu Crne Gore, published in the Official Gazette of Montenegro (OGM) no. 64/08) provided, inter alia, that a constitutional appeal could be lodged against an individual decision after all other effective legal remedies had been exhausted. If the Constitutional Court found a violation of a human right or freedom, it would quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which had given the quashed decision. This Act entered into force in November 2008. 11. The Amendments to the Constitution (Amandmani na Ustav Crne Gore, published in OGM no. 38/13) entered into force on 31 July 2013. They related, inter alia, to the composition of the Constitutional Court and the election, mandate and dismissal of its judges and president. 12. The Amendments to the Constitutional Court Act 2008 (Zakon o izmjenama i dopunama Zakona o Ustavnom sudu, published in OGM no. 46/13) entered into force on 10 October 2013. They provided, inter alia, that: (a) any constitutional appeals pending at the time would be dealt with pursuant to the amended provisions; (b) the Constitutional Court judges and its president at the time would continue their work until the new judges were elected; (c) the Rules of the Constitutional Court (Poslovnik Ustavnog suda) would be harmonised with the Amendments within thirty days; and (d) the Constitutional Court was to give its decision within eighteen months of the date when the proceedings before it had been initiated. 13. The Montenegro Constitutional Court Act 2015 (Zakon o Ustavnom sudu Crne Gore, published in OGM no. 11/15) entered into force on 20 March 2015, thereby repealing the Constitutional Court Act 2008. It provides, inter alia, that a constitutional appeal may be lodged against an individual decision, action or omission after all other effective legal remedies have been exhausted. It also provides that, in certain situations, an appellant may be awarded just satisfaction, and that the court must give its decision within eighteen months. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14. The applicant complained that the length of the proceedings before the Constitutional Court had been excessive, in violation of Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”
Admissibility
15. The Government submitted that the application had been lodged outside the six-month time-limit. They noted specifically that a constitutional appeal had not been an effective domestic remedy for length-of-proceedings complaints at the relevant time and that the applicant should have lodged his application within six months of the date when the Supreme Court’s decision had been served on him. 16. The applicant submitted that his constitutional appeal had not concerned the length of proceedings before the ordinary courts. It was thus irrelevant whether a constitutional appeal had been an effective remedy for such a complaint. Therefore, he had lodged his application within the six-month time-limit. 17. The relevant principles as regards the six-month time-limit are set out in, for example, Mocanu and Others v. Romania [GC] (nos. 10865/09 and 2 others, §§ 258-60, ECHR 2014 (extracts)). In particular, the six-month rule is autonomous and must be construed and applied to the facts of each individual case, so as to ensure the effective exercise of the right of individual petition. While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting-point of the six-month period (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012). 18. Turning to the present case, the Court notes that the applicant’s constitutional appeal did not concern the length of the proceedings before the ordinary courts, and that the Constitutional Court ruled on the merits. That being so, the Court considers that the six-month time-limit should be calculated as of the date of a decision of the Constitutional Court (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 130, 24 November 2015). The decision in question, delivered on 23 July 2014, was served on the applicant on 18 December 2014 and the application was lodged on 18 June 2015, that is, within six months. The Government’s objection in this regard must therefore be dismissed. 19. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

20. The applicant reaffirmed his complaint. He maintained that the legislative changes from 2013 could not and should not have affected the ruling in the ongoing proceedings, nor could the death of one of the judges justify the excessive length of those proceedings. 21. The Government acknowledged that the proceedings before the Constitutional Court had lasted more than four years, but maintained that this duration had been justified in the circumstances of the case. In particular, the case had been sensitive and complex, raising issues under several Articles of the Convention. It had been precisely due to the complexity of the case that the decision had not been adopted in April 2013 (see paragraph 7 above). Shortly thereafter, the case had had to be assigned to another judge, as the previous judge rapporteur had died (see paragraph 7 above). The court had also performed various procedural actions, notably obtaining the case file from the relevant court (pribavljanje spisa predmeta). In addition, there had been a number of important constitutional and legislative changes and seven new judges had been elected to the Constitutional Court in the course of 2013 (see paragraphs 11-12 and 8 above, in that order). All of the above-mentioned events had necessarily affected the length of the proceedings, which had therefore not been unreasonable or excessive. However, old cases pending before the Constitutional Court, including the applicant’s case, had been given priority treatment, resulting in a decision being adopted in his case in July 2014. Lastly, it had not been until October 2013 that the legislation had provided for an eighteen-month time-limit for proceedings before the Constitutional Court, to be calculated as of that date.

Outcome for Article 6: violation