FIFTH SECTION
CASE OF MASTILOVIĆ AND OTHERS v. MONTENEGRO
(Application no. 28754/10)
 
 
JUDGMENT
 
Art 35 § 3 (a) • Ratione personae • Court’s inability to establish the identity of some applicants with certainty • Lack of clarity in documents submitted before the Court and names on birth certificates not corresponding to those in domestic judgments
Art 6 § 1 (civil) • Access to court • Non-enforcement of final court judgments and court-approved settlements in favour of the applicants against a predominantly State-owned company, in the meantime insolvent • Debtor company, albeit a separate legal entity, lacking sufficient institutional and operational independence from the State to absolve the latter from responsibility

 
STRASBOURG
24 February 2022
 
FINAL
 
24/05/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mastilović and Others v. Montenegro,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Ganna Yudkivska,
 Stéphanie Mourou-Vikström,
 Lado Chanturia,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges, 
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 28754/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-five nationals of Bosnia and Herzegovina (“the applicants”), whose details are listed in the appendix, on 10 May 2010;
the decision to give notice of the application to the Montenegrin Government (“the Government”);
the parties’ observations;
the fact that the Government of Bosnia and Herzegovina have not expressed a wish to intervene in the present case, after being notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to do so;
Having deliberated in private on 18 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the non-enforcement of judgments and court-approved settlements in favour of the applicants against a predominantly State-owned company, which has since become insolvent, a complaint which falls to be examined under Article 6 of the Convention. THE FACTS
2. The applicants’ dates of birth and places of residence are set out in the appendix. They were initially represented by Mr B. Simović, a lawyer practising in Podgorica. On 3 July 2018 he was excluded from acting as a representative before the Court (see paragraphs 8-21 below). The first, tenth, seventeenth and nineteenth applicants appointed Mr M. Šipovac, a lawyer practising in Nevesinje, Bosnia and Herzegovina (BIH). The eleventh, eighteenth and twenty-third applicants were granted leave to represent themselves. The remaining applicants appointed Ms M. Simović, 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. The applicants’ claims
5. On 11 September 1994 the applicants were passengers on a bus operated by a “socially-owned” company (društveno preduzeće) (see, mutatis mutandis, R. Kačapor and Others v. Serbia, nos. 2269/06 and 5 others, §§ 6 and 71-75, 15 January 2008). The bus was involved in an accident in which the applicants suffered various injuries. 6. Between 1996 and 2005, in civil proceedings against the bus company, the seventh, twelfth, twentieth, twenty-first, twenty-second and twenty-fifth applicants were awarded compensation in respect of non-pecuniary damage (under court judgments or court-approved settlement agreements). The remaining applicants were awarded both compensation in respect of non-pecuniary damage and the costs of the proceedings. Some of the sums were in Yugoslav dinars (YUN), some in German marks (DEM) and some in euros (EUR). 7. On 26 February 1996 the “socially-owned” debtor was transformed into a predominantly State-owned joint stock company (dioničarsko društvo). On 26 May 1997 the Podgorica Commercial Court (Privredni sud) opened insolvency proceedings against the debtor company. On 23 December 2009 the court terminated (zaključio) the insolvency proceedings against the debtor but continued the proceedings against the debtor’s estate. This decision was upheld by the Court of Appeal (Apelacioni sud) on 9 April 2010. The relevant decisions issued in favour of the applicants (see paragraph 6 above) remain unenforced to date due to the insolvency proceedings in respect of the debtor company undergoing transition from a planned to a market economy (see paragraph 44 below). The applicants’ names, data and representation
8. In May 2010 Mr B. Simović submitted an application form on behalf of the applicants indicating the first applicant’s name and enclosing a collective authority form for all the applicants with photocopies of their alleged signatures. Neither the application form nor the authority form contained any identification data about the applicants such as dates or places of birth, addresses or telephone numbers. The names indicated for some of the applicants did not correspond to the signatures next to them. In particular, the first applicant’s first name was specified as “Dragica” in the application form but typed as “Slavojka” in the collective authority form. The signature next to it read Dragica. The first names of the second, fifth, tenth, twelfth, seventeenth and twentieth applicants also differed slightly from those in the signatures. The spelling of the second applicant’s name indicated that it was a woman. 9. In September 2010 Mr B. Simović submitted separate authority forms in which some of the applicants’ addresses were illegible. 10. In November 2010 he submitted certified authority forms for all the applicants, save for the tenth and twenty-fifth applicants. The signatures of at least sixteen applicants (the first, second, third, fourth, eighth, ninth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-first and twenty-third applicants) on these authority forms were different from the signatures on the authority forms submitted in September 2010. Many also differed from those on the collective authority form initially provided with the application form. 11. Some of the names also differed. In particular, the first applicant’s first name was no longer Dragica or Slavojka, but Draginja. The second applicant’s first name indicated that it was a man. The first names of the twelfth, nineteenth, twentieth and twenty-second applicants differed from those initially provided. The third, ninth and twentieth applicants’ surnames were different. The authority forms for the ninth and twentieth applicants contained both their maiden and married names. 12. The top left part of the authority form submitted in November 2010 bore the names of Mr B. Simović and Ms M. Simović, a trainee lawyer (advokatski pripravnik) at his law firm at the time. The authorisation statements specified that the applicants authorised Mr B. Simović to be their representative. Ms M. Simović’s name did not appear in the authorisation statements. 13. In July 2016 Mr. Simović lodged a new application with the Court on behalf of the same twenty-five applicants. Some of the applicants’ dates of birth and names differed from those in the present application. The Court requested Mr Simović to submit the applicants’ birth certificates. 14. In September 2016 the applicants’ birth certificates (izvod iz matične knjige rođenih) were submitted, specifying their names, including maiden and married names where applicable. 15. It appears from the birth certificates that the first names of the first, twelfth, seventeenth, nineteenth, twentieth and twenty-second applicants differed from those indicated in the relevant domestic decisions (see Appendix). 16. The decision apparently relating to the third applicant bore a different first name and her maiden name (see Appendix). Another court writ relating to the third applicant issued in the same set of domestic proceedings bore her first name and maiden name as indicated in her birth certificate. 17. The names of the second and ninth applicants in their birth certificates corresponded to the names in the domestic decisions and the authority forms. The domestic judgment for the ninth applicant bore her maiden name. 18. In February 2018 the Court invited the parties to comment on the above inconsistencies and on the applicants’ whereabouts. 19. In March 2018 the applicants’ initial representative corrected the second applicant’s name, which had been misspelled in the application form. He also specified the names of the other applicants as indicated in their birth certificates and submitted that the differences had been owing to clerical errors. He provided twenty new addresses, some of which still raised concerns about their veracity (for example, it would appear that at least one of the streets indicated did not actually exist). He also provided the telephone numbers of ten of the applicants. 20. The Registry attempted to contact the applicants for whom telephone numbers had been provided. It appears that some of them had never lived at the addresses indicated in the application form (the nineteenth and twenty-third applicants), one applicant had not been informed of the proceedings before the Court by Mr. B. Simović (the tenth applicant), one applicant could not be reached on the number provided (the twenty-fourth applicant) and the number provided for another applicant turned out to be non-existent (the twenty-fifth applicant). 21. On 3 July 2018 the applicants’ initial representative was excluded from acting as a representative before the Court in accordance with Rule 36 § 4 (b) of the Rules of the Court. The applicants appointed other representatives or chose to represent themselves (see paragraph 2 above). RELEVANT LEGAL FRAMEWORK
22. Section 342 of the 1977 Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia, nos. 004/77, 036/77, 006/80, 036/80, 043/82, 069/82, 058/84, 074/87, 057/89, 020/90, 027/90 and 035/91, and the Official Gazette of the Federal Republic of Yugoslavia nos. 027/92, 031/93, 024/94, 012/98, 015/98 and 03/02) provided, inter alia, that errors in names and other obvious mistakes in spelling would be corrected by the court at any time. The corrections were made by means of a separate decision and would be inserted at the end of the original decision. 23. The 2004 Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 022/04, 028/05 and 076/06, and the Official Gazette of Montenegro nos. 073/10, 047/15, 048/15, 051/17, 075/17 and 062/18) entered into force on 10 July 2004 and thus replaced the 1977 Civil Procedure Act. Section 351 thereof replicates section 342 of the earlier Act. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION and article 1 of protocol no. 1
24. The applicants complained under Articles 6 and 14 of the Convention about the non-enforcement of the final court decisions and court-approved settlements against the debtor company. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018; Kravchenko v. Russia, no. 34615/02, § 29, 2 April 2009; and Kešelj and Others v. Montenegro [Committee], no. 33264/11, § 16, 13 February 2018), the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”. AdmissibilityThe parties’ submissions

(a)   The Government
25. In their response to the Court’s letter (see paragraph 18 above), the Government submitted that they doubted the credibility of the documentation submitted. In particular, it had been impossible to properly identify the applicants on the basis of the documentation submitted and ascertain that they were the same as those who had been parties to the proceedings before the national courts. 26. They submitted that Mr B. Simović had taken certain steps before the Court on behalf of the applicants without their authorisation, which amounted to disrespect of the Court and abuse of the right of individual application. The initial application form had lacked the necessary details required by Rule 47 of the Rules of Court. In particular, it had collectively indicated the applicants’ names without any identification data. The signatures of the first, tenth, and twelfth applicants had differed from the names indicated, and the signature for the twenty-third applicant had been a mixture of Cyrillic and Latin, and it was unclear who had signed it. The signatures of the first applicant in the authority forms provided in September and November 2010 had been in different handwriting and with different first names. The authority form for that applicant had been certified in Novi Sad, a city in Serbia, and the link between that city and the applicant was unclear, as no address had been indicated for her. There had also been other failures and contradictions regarding the identity of some of the other applicants, such as different names, signatures, handwriting, particularly as regards the second, fifth, ninth, eleventh, twelfth, fourteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-third, and twenty-fourth applicants. The signature on the fifteenth applicant’s authority form had been in the same handwriting as the signature of the third, twenty-third and twenty-fourth applicants, raising doubts that the authority forms had been signed by the same person. 27. In their further observations, the Government explicitly reaffirmed the above submissions and maintained that the application should be declared inadmissible for abuse of the right of petition. They doubted the authenticity of the documentation as a whole, and that Ms M. Simović, the alleged new representative of some of the applicants, had acted in good faith. Notably, after the applicants’ initial representative had been restricted from representing them before the Court owing to his conduct, certain applicants had authorised his daughter, Ms. M. Simović, to be their representative. The authority forms submitted by the applicants’ previous representative had borne not only his name, but also his daughter’s name, which indicated that she had been involved in all the failures and abuses from the start. At the time the application had been lodged, she had been a trainee at her father’s firm, and she continued to practise law with him. If she were allowed to represent the applicants, this would de facto render meaningless the Court’s decision to restrict her father from representing them. The Government submitted her birth certificate as proof that she was the daughter of the applicants’ initial representative. 28. The Government also submitted that the names of some of the applicants as indicated in their birth certificates had not corresponded to the names indicated in the domestic judgments. They referred in particular to the first and twentieth applicants. The Government considered this important not only for the identification of the parties to the proceedings before the Court, but also for potential execution of a decision by the Court. (b)   The applicants
29. The first, tenth, seventeenth and nineteenth applicants left it to the Court to assess the representation of the other applicants. They submitted, however, that the authorisation of Ms M. Simović by the other applicants should not be to their detriment. The first applicant also maintained that her first name had been misspelled in the domestic judgment owing to an error by the domestic courts, which should not be to her detriment either. 30. The eleventh, eighteenth and twenty-third applicants, who represented themselves, made no comment in this regard. 31. The remaining applicants submitted that all the authorisations had been real and authentic, as verified by the Court. The Government’s submissions about their new representative were inappropriate and incorrect, as well as belittling and absurd. In particular, they discriminated against her on the basis of her being the daughter of their previous representative. In addition, the Government had obtained her birth certificate unlawfully, as she was the only one who could obtain it. It had been submitted without her consent, revealing her unique identification number (jedinstveni matični broj) and thereby breaching her right to privacy and personal data protection.

Outcome for Article 6: violation