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Eparhija Budimljanskoniksicka and Others v. Montenegro

Eparhija Budimljanskoniksicka and Others v. Montenegro

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Published by Howard Friedman

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Published by: Howard Friedman on Oct 23, 2012
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10/25/2012

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FOURTH SECTIONDECISION
Application no. 26501/05EPARHIJA BUDIMLJANSKO-
 NIKŠIĆKA and others
 against MontenegroThe European Court of Human Rights (Fourth Section), sitting on9 October 2012 as a Chamber composed of:Lech Garlicki,
President,
David Thór Björgvinsson,
 
Päivi Hirvelä,
 
George Nicolaou,
 
Zdravka Kalaydjieva,
 
 Nebojša
 
Vučinić
,
 
Vincent A. De Gaetano,
judges,
 and Lawrence Early,
Section Registrar,
 Having regard to the above application lodged on 15 June 2005,Having regard to the observations submitted by the parties,Having regard to the comments submitted by the Serbian Government, asa third-party intervener, pursuant to Article 36 § 1 of the Convention andRule 44 § 1 (b) of the Rules of Court,Having deliberated, decides as follows:
THE FACTS
1. The applicants are Eparhija Budimljansko-
 Nikšićka (“the firstapplicant”) with its seat in the monastery Đurđevi stupovi in Berane (“thesecond applicant”), monasteries Bijela from Šavnik (“the third applicant”),Podmalinsko from Šavnik (“the fourth applicant”), Dobrilovina fromMojkovac (“the fifth applicant”), Svete Trojice from Bijelo Polje (“the sixth
 
2 EPARHIJA BUDIMLJANSKO-
 NIKŠIĆKA AND OTHERS v.
MONTENEGRO DECISION
applicant”), Svete Trojice from Plav (“the seventh applicant”), Piva fromPlužine (“the eighth applicant”), Svetog Luke from Nikšić (“the ninth
a
 pplicant”), Kosijerevo from Nikšić (“the tenth applicant”), as well aschurches Sv. Vasilija Ostroškog from Nikšić (“the eleventh applicant”), andSvetog Apostola Petra i Pavla from Nikšić (“the twelfth applicant”), all part
of the Serbian Orthodox Church in Montenegro. They were represented
 before the Court by Ms V. Mijanović, a lawyer practising in Nikšić.
 2.
The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.
 
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarisedas follows.
1. The restitution proceedings
4. On unspecified dates immediately after World War II several plots of land were expropriated from the seventh and twelfth applicants, apparentlyin the absence of any decision to that effect.5. On various dates in 1946 several plots of land were expropriated fromthe second, third, fourth, fifth, sixth, eighth, ninth, tenth and eleventhapplicants by the relevant District Agricultural Commissions
decisions(
Sreska poljoprivredna komisija
). These decisions would appear to havebeen upheld by the State Agrarian Court (
 Zemaljski agrarni sud 
).6. On 18 March 2004 the applicants filed a request with the Governmentseeking restitution of the expropriated plots of land, relying on the JustRestitution Act 2002 (see paragraphs 16 and 18-19 below).7. On 19 May 2004 the applicants urged the Government to decide ontheir request.8. On 16 June 2004, not having received any response from theGovernment, the applicants initiated an administrative dispute (
upravnispor 
) before the Supreme Court (
Vrhovni sud 
) for “silence of administration”.
 9. On 22 September 2005 the Administrative Court, which, in themeantime, had taken over the competencies of the Supreme Court in respectof administrative disputes (see paragraph 35-36 below), ruled against theapplicants on the grounds that the Government had no jurisdiction to rule ontheir request.10. On 24 October 2005 the Administrative Court decision wasdispatched by regular post to the applicants
representative in the domesticproceedings.11. On 26 October 2005 the postman noted down that the applicants
 representative had moved from the address provided (
 preseljen sa dateadrese
).
 
EPARHIJA BUDIMLJANSKO-
 NIKŠIĆKA AND OTHERS v. MONTENEGRO DECISION
3
12. On 2 October 2006 the Administrative Court noted that its judgmentof 22 September 2005 could not be served on the applicants
representativeas he had changed his address, failing to inform the court of the new one.Pursuant to section 142 § 5 of the Civil Procedure Act, the court decidedthat all the relevant documents (
sva pismena u ovom sporu
) would be servedon the applicants by posting the documents on the court
s notice board.Accordingly, the decision was posted on the notice board the same day andremoved from it on 11 October 2006.
2. Other relevant facts
13. On 8 May 2003 the Constitutional Court declared a number of thecore provisions of the Just Restitution Act 2002 unconstitutional includingthose relating to restitution in kind as well as the composition and thecompetencies of the Restitution Commission (see paragraphs 29-31 below).14. The Just Restitution Act 2002 was never applied in practice. TheGovernment have never enacted secondary legislation needed for itsimplementation and nor has the Restitution Commission, which wassupposed to deal with restitution requests, or any other relevant body, everbeen established.15. On 8 April 2004 the Restitution of Expropriated Property Rights andCompensation Act entered into force, providing that the restitution of property to religious communities would be regulated by a separate law (seeparagraphs 32-34 below).
B. Relevant domestic law and practice
1. Just Restitution Act 2002 (Zakon o pravednoj restituciji, published inthe Official Gazette of the Republic of Montenegro - OG RM - nos.34/02 and 33/03)
16. Section 1 provided that restitution in kind should always be the rule
and other forms of compensation, specified in section 12, “only theexception”, where restitution was not possible due to legal or factual
 reasons.17. Section 3 §§ 2 and 3 provided that previous owners whose propertyrights had been taken away on the basis of,
inter alia
, a court judgment or adecision were also entitled to restitution.18. Section 5 § 1(3) provided that
de facto
expropriations of propertywould be treated in the same manner as expropriations carried out on legalgrounds.19. Section 10 § 6 provided that religious organisations or communities(
vjerska organizacija ili zajednica
) could be beneficiaries of the right torestitution in the same manner as natural persons.

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