CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 décembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s20FC8552 { font-family:Arial; font-size:11.5pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 2 December 2016   SECOND SECTION Application no. 21712/16 Vuk Tomislav VUJISIĆ against Montenegro lodged on 13 April 2016 STATEMENT OF FACTS The applicant, Mr Vuk Tomislav Vujisić, is a Serbian national, who was born in 2005 and lives in Belgrade. He is represented before the Court by Ms M. Stojanović, his mother, who also lives in Belgrade, as his legal guardian ( zakonski zastupnik ). A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 25 August 2004, before the applicant was born, his father T died. On 25 January 2005 the applicant was born out of wedlock. On 12 November 2004 the First Municipal Court ( Prvi opštinski sud ) in Belgrade (Serbia) issued an interim measure prohibiting T’s two brothers, D and S, from selling, mortgaging or disposing of T’s property ( zabranjuje se preduzimanje akata raspolaganja, opterećenja i otuđenja ) including, inter alia , business premises situated in the exclusive zone of the Old Town of Budva (Montenegro) and ordered that the property be sealed. On 26   November 2004 the Real Estate Office in Budva registered the interim measure in the Real Estate Registry, and the premises were sealed on 7   December 2004. On 18 September 2008 the First Municipal Court in Belgrade established that the applicant, as T’s son, was his only legal heir and thus the owner of, inter alia , the business premises in Budva. This decision became final on 22   July 2009. On 7 November 2008 T’s brothers, D and S, leased the business premises to a company from Budva (“the company”) for a period of 15 years. On an unspecified date in 2009 the applicant instituted civil proceedings against D, S and the company seeking that the lease agreement be declared null and void. On 23 June 2009 the applicant filed a criminal complaint against an unknown person for breaking the official seal of the premises. There is no further information in the case file in this regard. On 16 October 2009 the First Municipal Court in Belgrade revoked the interim measure given that the judgment of 18 September 2008 had become final in the meantime. On 26 July and 21 October 2010 respectively, the Court of First Instance ( Osnovni sud ) in Kotor and the High Court ( Viši sud ) in Podgorica ruled in favour of the applicant considering, in substance, that the agreement which had disposed of the property subject to an interim measure was against imperative norms and as such null and void. The High Court also specified that the interim measure prohibited not only the sale and mortgage of the property, but also disposal of it, which included lease. On 23 February 2011 the Supreme Court ( Vrhovni sud ) in Podgorica overturned the previous two decisions and ruled against the applicant. The court held that the fact that sale, mortgage and disposal of the business premises at issue had been prohibited at the time when the agreement was made was not a reason for the lease agreement to be null and void “[...] because the object of the impugned agreement [was] possible, permitted and specified, because it represent[ed] a human action which [was] possible to undertake, which [was] not contrary to imperative norms, and at the time when the agreement had been concluded was realistically possible”. In the Supreme Court’s opinion the interim measure “might be possibly” ( može eventualno biti ) a ground for compensation. On 30 June 2015 the Constitutional Court dismissed the applicant’s constitutional appeal, considering that the proceedings at issue were fair. In particular, “the impugned judgment of the Supreme Court was based on the constitutionally-acceptable interpretation of the Obligations Act, it [did] not make an impression of arbitrariness, but contain[ed] clear and consistent reasons”. It also held that the applicant’s right under Article 1 of Protocol No. 1 had not been violated. This decision was served on the applicant on 22   October 2015. B.     Relevant domestic law Article 24 of the Constitution ( Ustav , published in the Official Gazette of Montenegro - OGM - no. 01/07) provides that the guaranteed human rights and freedoms can be restricted only by means of law within the constitutional limits to the extent necessary to meet the purpose for which the restriction was introduced in the first place in an open and democratic society. Restrictions cannot be put in place except for the purposes for which they were provided. Article 32 provides that everybody is entitled to a fair trial. Article 58 guarantees the right to property, and that one’s property rights cannot be restricted except when it is required in the public interest, in exchange for just compensation. Section 101 of the Obligations Act ( Zakon o obligacionim odnosima, published in OGM nos. 47/08, and 04/11) provides for, inter alia , nullity of an agreement which is contrary to imperative norms. Section 41 thereof provides that a contractual obligation must be “possible, permitted, and defined or definable” ( moguća, dopuštena i određena, odnosno odrediva ). Section 3 of the Property Act 1980 ( Zakon o osnovama svojinsko ‑ pravnih odnosa ; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 06/1980 and 36/1990, and the Official Gazette of the Federal Republic of Yugoslavia, no. 29/1996) provides that the owner has the right to possess his property, use it and dispose of it within the statutory limits and that everybody has a duty to refrain from violating the property rights of another person. The Property Act 2009 ( Zakon o svojinsko-pravnim odnosima ; published in OGM no. 19/09) repealed the previous Act but section 6 thereof corresponds to section 3 of the Property Act 1980. Article 381 of the Criminal Code of Montenegro ( Krivični zakonik Crne Gore ; published in the Official Gazette of the Republic of Montenegro nos.   70/03, 13/04 and 47/06, and the OGM nos. 40/08, 25/10, 73/10, 32/11, 64/11, 40/13, 56/13, 14/15, 42/15 and 58/15) provides, inter alia , that breaking or damaging an official seal of premises ( prostorije ) or entering sealed premises without breaking or damaging the seal is a criminal offence, for which a fine or a prison sentence of up to one year is provided. COMPLAINTS The applicant complains under Article 6 of the Convention about the arbitrary reasoning of the Supreme Court and under Article 1 of Protocol No. 1 about an alleged violation of his property rights caused thereby.     QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 6 § 1 of the Convention? In particular, did the applicant have a “fair hearing” in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in view of the reasoning of the Supreme Court (see Bochan v.   Ukraine (no. 2) [GC], no. 22251/08, §§ 61-62, ECHR 2015, and, mutatis mutandis , Anđelković v. Serbia , no. 1401/08, § 24 and §§ 27-29, 9   April   2013)?   2.     Has there been a violation of Article 1 of Protocol No. 1 in view of the alleged arbitrariness of the Supreme Court’s reasoning (see Broniowski v.   Poland [GC], no. 31443/96, §§ 143-144, ECHR 2004 ‑ V; Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002 ‑ VII; and Vulakh and Others v. Russia , no. 33468/03, § 44, 10 January 2012)? In particular, did the State ensure that the applicant’s property rights were sufficiently protected by law and that adequate remedies were provided by which he could seek to vindicate his rights (see, mutatis mutandis , Blumberga v.   Latvia , no. 70930/01, § 67, 14 October 2008)?