CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 30 avril 2013

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Action report Barać and Others v. Montenegro, Application No. 47974/06 judgment of 13 December 2011, final on 13 March 2012   I.   Case description   This case concerns the violation of the applicants’ right to a fair trial on account of the fact that the domestic final judgment rendered against them had been based on a law which was no longer in force at the relevant time (violation of Article 6, paragraph 1).   The European Court stated in particular “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...” (§32). The Court observed furthermore that the final decision rendered by the High Court in Podgorica 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 (§33).   II.   Individual measures   According to the applicable legislation (Article 428a of the Civil Procedure Law), the applicants were entitled to request reopening of the impugned proceedings within three months following to the European Court’s judgment in this case. The applicants did not, however, lodge a request for reopening of the impugned civil proceedings.   The European Court has however awarded just satisfaction to the applicants in respect of the non ‑ pecuniary damage sustained.   In view of these facts, no individual measure is required.   III.   General measures   The Constitution of Montenegro provides that the courts shall administer justice on the basis of the Constitution, laws and ratified international treaties (Article 118). It further provides that any law must be compliant with the Constitution (Article 145).   The violation found in this case stems therefore from the misapplication of the legislation by the domestic courts in this particular case. The Government of Montenegro thus considers that the publication and dissemination of the European Court’s judgment in this case will suffice to prevent similar violations. The European Court’s judgment in this case was accordingly published in the “Official Gazette of Montenegro”, No. 17/2012 of 27 March 2012. The European Court’s judgment has also been published on the website of the Supreme Court of Montenegro, which made it available to all interested persons.   The government wishes to stress that it is aware of no other recorded case in Montenegro where national courts applied a law, which was previously proclaimed unconstitutional by the Constitutional Court. It can be therefore concluded that the application of the relevant provisions, which were declared unconstitutional, in this was an isolated occurrence. For this reason, the government considers that no other general measures, apart from publication and dissemination, are called for in this case.   IV.   Just satisfaction   The amounts awarded to the applicants in respect of non-pecuniary damages as well as costs and expenses were paid to the applicants within the deadline set by the European Court.   V. Conclusions of the respondent State   In view of the above facts, the Government of Montenegro considers that no individual measure is required, apart from the payment of the just satisfaction, and that the general measures adopted will prevent similar violations and that Montenegro has thus complied with its obligation under Article 46, paragraph 1 of the Convention. It is therefore proposed to the Committee of Ministers to adopt a final resolution closing the supervision of execution of this case.   Representative of Montenegro before the European Court of Human Rights Zoran Pažin