CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 octobre 2018

.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 } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 19 October 2018   SECOND SECTION Application no. 71075/17 Momčilo STJEPOVIĆ against Montenegro lodged on 21 September 2017 STATEMENT OF FACTS The applicant, Mr Momčilo Stjepović, is a Montenegrin national, who was born in 1947 and lives in Nikšić. He is represented before the Court by Ms S. Urošević, a lawyer practising in Nikšić. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows: Between January 2007 and April 2011 the Pension Fund ( Fond penzijskog i invalidskog osiguranja ) suspended the payment of the applicant’s entire pension as he had allegedly guaranteed the payment of other persons’ loans. In several sets of civil proceedings instituted by the applicant against the Pension Fund and the legal entities from which the loans had been taken, the courts established that the applicant’s signature on the relevant documents guaranteeing the loans, had been forged. The suspension of his pension was consequently revoked. In two subsequent sets of civil proceedings against, inter alia , the Pension Fund, the applicant was awarded compensation for the pecuniary damage he had suffered. These judgments have not been enclosed in the case file. On 23 August 2013 the applicant instituted another set of civil proceedings against the Pension Fund seeking compensation of non ‑ pecuniary damage on account of violation of his reputation, honour and personal rights. Notably, while his pension had been suspended (for more than four years) the applicant, who was the only provider in the family, had had no income whatsoever. In order for him and his family (his wife, who was unemployed, and his son, who was mentally disabled) to survive he practically had to beg around. He kept borrowing money from relatives, friends, and neighbours, some of whom had started avoiding him after a certain time, and asked for basic food supplies for free in nearby shops. In the course of the proceedings numerous witnesses confirmed the applicant’s claims, including neighbours and shop owners. An expert witness (a neuropsychiatrist) also provided his opinion. He submitted, in substance, that the impugned event had resulted in existential problems in the applicant’s family and a change of social status, which had caused stress to the applicant, an anxious depressive syndrome, and psychological instability of the applicant until the situation had been resolved. On 13 March 2015 the Court of First Instance ( Osnovni sud ) in Nikšić ruled in favour of the applicant, awarding him 6,000 euros. In doing so it relied on section 207 of the Obligations Act (see under B below). The court found that the liability of the Pension Fund had already been established in the civil proceedings for pecuniary damage. In particular, the court held that: “the Pension Fund had acted unlawfully, by allowing third persons to misuse [the applicant’s] personal documents and forge his signature, and by authorising his loan guarantees without his consent or presence, and by failing to establish the identity of persons who had signed the relevant documents, all of which was established from the final courts’ judgments. In the same proceedings it was established that the Pension Fund had allowed an abuse of the personal name and the personal documents of the applicant, thereby enabling third persons to sign in his name a document restricting his property rights; therefore authorised persons from the Pension Fund, that is the Pension Fund as the legal entity, was liable for the damage caused by one of its employees. In this way the respondent party unlawfully acted, abused and violated [the applicant’s] right to his personal name.” The court found a causal link between the Pension Fund’s unlawful actions, which had led to the applicant’s “existential collapse, a violation of his personal rights, honour and reputation, and the mental anguish he had suffered for nearly four years”, which had caused the applicant not only pecuniary but also non-pecuniary damage. It found that the applicant had been humiliated, people had felt sorry for him and had avoided him, thereby jeopardising his personal reputation and dignity, which were the basis of his personal integrity as a protected value. In its judgment the court also relied on the expert witness’ opinion. On 18 September 2015, following the Pension Fund’s appeal, the High Court ( Viši sud ) in Podgorica overturned the first-instance judgment and ruled against the applicant. The court held: “The fact that the Pension Fund acted unlawfully, as it was established in civil proceedings ..., cannot be a valid basis for the conclusion ... that it thereby harmed [the applicant’s] reputation and honour, and his personal name. It is not in dispute that the applicant initiated proceedings and prevailed. The opinion of the expert witness cannot serve as a valid basis for ruling in this matter, as the psychological disorder that the applicant suffered was caused by existential problems, mental illness of his son, and the change of social status, and not because of the actions of the Pension Fund and its abusive application of the law ( zloupotrebe prava ). This court considers that the actions of [the Pension Fund] in respect of the applicant could not have led to the said disorder ( poremećaji ) which would cause mental anguish which would justify compensation award within the meaning of section 207 of the Obligations Act. Notably, compensation of non-pecuniary damage [would be justified] in a case where there had been abusive application of the law which had resulted in such mental anguish as to justify awarding just satisfaction, which means that there is no ground for the liability of the respondent party.” On 9 December 2015 the applicant filed a constitutional appeal relying on, inter alia , Article 28 of the Constitution (see under B below) and Article   6 of the Convention. He submitted, inter alia , that the Pension Fund’s actions had led to his existential problems and the change of his social status. He also maintained that the expert witness had established a causal link between the Pension Fund’s unlawful actions and the mental anguish he had suffered as a result of the violation of his personal rights, honour and reputation. On 8 December 2016 the Constitutional Court dismissed the constitutional appeal finding that the impugned proceedings were in compliance with Article 6 of the Convention. It also held that Article 28 of the Constitution “was not relevant” (“ nije mjerodavna ”) for ruling in the case. This decision was served on the applicant on 27 March 2017. B.     Relevant domestic law Article 28 § 2 of the Constitution ( Ustav Crne Gore ; published in the Official Gazette of Montenegro - OGM - no. 01/07) guarantees, inter alia , dignity, inviolability of physical and psychological integrity, privacy and personal rights. The Obligations Act ( Zakon o obligacionim odnosima , published in OGM nos. 047/08, 004/11 and 022/17), which entered into force in 2008, was partially amended in April 2017. The relevant provisions, as in force at the time, provided as follows. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage. In particular, section 148(1) provided that whoever caused damage to somebody else was liable to compensation, unless he or she could prove that the damage was not his or her fault. Sections 151, 206 and 207 taken together provided, inter alia , that anyone who suffered mental anguish as a consequence of the violation of his or her reputation, honour or a breach of personal rights ( prava ličnosti ), was entitled, depending on the duration and intensity, to sue for damages in the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction, regardless of pecuniary damages, as well as in the absence thereof. COMPLAINT The applicant complains under Article 8 of the Convention that because of the unlawful actions of a State body he suffered mental anguish in breach of his right to respect for his private life. QUESTION TO THE PARTIES Do the facts of the case fall within the scope of private life? If so, has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article   8 §   1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article   8 §   2? Has there been a violation of the applicant’s right to respect for his private life, contrary to Article   8 of the Convention (see, albeit in context of Article 3, mutatis mutandis , Larioshina v. Russia (dec.), no.   56869/00, 23   April 2002, and Budina v. Russia (dec.), no.   45603/05, 18   June 2009? The Government are also invited to submit the decisions of the domestic courts issued in the proceedings for pecuniary damage (P.br.1236/09, Gž.   br.   2414/10-09, P.br.586/10 and Gž.br. 1257/2011-10).