Verdict in favor of Montenegro before European Court of Human Rights in Strasbourg

    #ConstitutionalCourtOfMontenegro #HumanRights #RealEstate #EuropeanCourtOfHumanRights #Article13 #HigherCourt #ConstitutionalCourt #SupremeCourt

    This verdict of the European Court is of particular importance because in the particular case, the European Court did not reject the application under the procedural conditions of inadmissibility in the part of the examination of the violation of Article 6 of the Convention but already entered the merits of the case and found that our state did not violate the applicants’ right… –>

    The European Court of Human Rights in Strasbourg issued a verdict in the Petrović and Others v. Montenegro case, which, in the part of the alleged violation of Article 1 of Portfolio 1 of the Convention, unanimously dismissed the application as inadmissible, and in part found that there had been no violation of Article 6 of the Convention (four for three).

    This verdict of the European Court is of particular importance because in the particular case, the European Court did not reject the application under the procedural conditions of inadmissibility in the part of the examination of the violation of Article 6 of the Convention but already entered the merits of the case and found that our state did not violate the applicants’ right.

    The application was filed for alleged violation of one of the aspects of Article 6 paragraph 1 of the Convention (right to a reasoned judgment) and Article 1 of Protocol No. 1 to the Convention (Protection of Property). The basis for the initiation of the petition was the civil dispute brought by the applicants against the state, seeking to recognise the property right of inheritance on a plot in the zone of the sea property.

    The applicants are four Montenegrin citizens who filed a case lawsuit in September 2009 with the Basic Court in Kotor for the determination of property rights based on the heritage, arguing that the disputed land was in the legal possession of their ancestors, i.e. their father and grandfathers, but the state was unreasonably registered as the owner in the cadastre.

    In March 2010, the Real Estate Directorate of the RU Tivat issued a decision permitting the division of land into two adjacent parcels, forests in the zone of the sea property, whose registered owner was at the time the Municipality. The municipality remained registered as the owner of one part, while the other part was recorded on the applicant’s ancestors (the father of the first and second applicants and the grandfather of the second and third applicants). In November 2011, the Basic Court in Kotor ruled against the first and second applicants and the father of the second and third applicants and found that the land in question really belonged to the ancestors of the applicants, i.e. father, grandfather, great-grandfather but the plaintiffs did not inherit him after the death of their ancestor in 1997, since that land was not owned by their ancestor at the time of his death. During the procedure it was established that the land in question was nationalised in 1990, which resulted from the copy of the register of the Municipality of Tivat. In addition, it has been established that the land in question is undisputed forest in the zone of the sea property, that it was a state property pursuant to Article 13 of the Law on State Property, and that on the basis of this, the plaintiffs can not ask for land. The aforementioned verdict was upheld by the Higher Court in Podgorica and the Supreme Court of Montenegro. Also, deciding on a constitutional complaint, the Constitutional Court of Montenegro found that in the specific case there was no violation of the right to a fair trial and property right.

    The applicants appealed to the European Court of Human Rights, complaining of the unlawful de facto expropriation of their property without any compensation (Article 1 of Protocol No. 1) and an arbitrary explanation of the decisions of the domestic courts (Article 6 of the Convention)

    Analysing the circumstances of the case,the Court accepted the Representative’s claim that the present application in respect of Article 1 of Protocol No. 1 was unacceptable ratione temporis, since the land in question was nationalised in 1990, before the deaths of the applicants’ ancestors and much before the Convention was ratified by Montenegro. Bearing in mind the fact that the seizure of property or other rights is in principle a momentary act and does not produce a lasting state of “deprivation of rights”, the Court finds that the present application is unacceptable ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3

    Regarding the alleged violation of Article 6 of the Convention or the alleged arbitrariness of the judgments of the domestic courts, the European Court accepted the Applicant’s allegations and recalled that the right to a reasoned judgment under Article 6 obliged the courts to give reasons for their decisions, but that can not be understood as an obligation to provide a detailed answer to each argument. In this respect, the European Court noted that the claimants solely demanded the right to inherit property, and that their last ancestor had not been registered as the owner of the parcel at the time of his death in 1997. The national courts gave concrete and explicit reasons for rejecting the claim, and the other allegations made by the applicants were irrelevant for the final decision in the present case.

    The European Court, by a majority of votes, found that there had been no violation of Article 6 of the Convention, and the judgment was accompanied by a separate opinion of the three judges on the disagreement over the previous decision in the section of Article 6 of the Convention.

    This judgment of the European Court of Justice will become final in accordance with the circumstances of Article 44 paragraph 2 of the Convention.

    Representative of Montenegro before

    The European Court of Human Rights,

    Valentina Pavličić

    Source: Government of Montenegro