Decision of Strasbourg Court in Favour of Tivat Citizen Opens Pandora's Box
June 16, 2020 - The practice of the Montenegrin State and local courts of restricting property rights of private property owners on the coast without paying fair compensation for property formally confiscated from them is illegal and violates the provisions of the European Convention on Human Rights.
This is the epilogue of the final verdict of the European Court of Human Rights in the case of "Nešić v. Montenegro" from 2018. In the verdict passed on 9th June, the European Court of Human Rights fully accepted the allegations from the lawsuit brought by Ilija Nešić from Krašići near Tivat, and represented by Law Firm "Miljanić" from Tivat, that the state of Montenegro was illegally denied ownership of his two plots on the seashore in that part of the Bay. In 1980, Nešić, who is a Serbian citizen, legally bought two plots on the coast in Krašići, with a total area of 349 square meters, from other individual private owners. Like most other people who were legal owners of land on the coast, Nešić had his property formally confiscated by the state of Montenegro, the latter invoking the Maritime Property Act of 1992 and the State Property Act of 2009, then registering itself as owner of plots on the coast, and leaving Nešić the right to use the properties. The state did this without passing an individual legal act; a decision on the expropriation of Nešić’s private property and the payment of the legally prescribed compensation for expropriation. Therefore, 11 years ago, Nešić began long and onerous court proceedings against the state of Montenegro. The Municipal Court in Kotor, the High Court in Podgorica and the Supreme Court of Montenegro did not accept the argument of the Serbian citizen and his lawyer Zoran Miljanić, and rejected all their petitions to return the name of Ilija Nešić to the cadastral records as the owner and not the user of two plots on the sea coast in Krašići. Even the Constitutional Court of Montenegro rejected the constitutional complaint filed by lawyer Miljanić in February 2016, citing Article 58 of the Constitution, which stipulates that “the right to property is guaranteed and that no one may be deprived or restricted of property rights, except when required by the public interest, and should be provided fair compensation.” Such an appeal was rejected by the panel of the Constitutional Court chaired by Judge Mevlida Muratović at the end of October 2017, stating that Nešić’s property rights “had not been violated”.
However, the Serbian citizen and his legal representatives from the law firm Miljanić did not give up and appealed to the European Court of Human Rights in Strasbourg, whose seven-member panel, headed by the presiding judge, Judge Robert Span, ruled in favor of Ilija Nešić on 9th June, stating that the action of the State of Montenegro against him was contrary to Article 1 of the First Protocol to the European Convention on Human Rights. The European Court did not accept the argument put forward by the permanent representative of Montenegro in Strasbourg, Valentina Pavličić, who disputed the merits of Nešić's petition. It is worth noting that before the panel of judges in Strasbourg Pavlilić, as a representative of the Government, did not dispute that there was "encroachment on the property rights" of Nešić and stated that "it was a matter of control over the use of property". Pavlilić claimed that the encroachment on Nesic's property rights was legal, that no de facto action had been taken to seize the disputed land from him, and that the encroachment on his rights was proportionate to the wider public interest.
"The Government also alleges that there were special circumstances which justified the absence of compensation, and given that the applicant (Nešić) would remain the legal holder of the right to use the land in question until its exclusion. In the event that the land was actually exempted, an expropriation procedure would be initiated and compensation would be consistently paid to it."- is part of the argumentation used in Strasbourg by the representative of Montenegro, Valentina Pavličić.
However, the European Court of Human Rights stated in the verdict that Nešić was the legal owner of that land and that by registering those properties with the state as the owner, which had previously been supported by all Montenegrin courts, his property had indeed been confiscated.
“His continued right to use the land in question does not change this, given the fact that he has lost ownership. Therefore, in this specific case, there was indeed an encroachment on the applicant's right to the peaceful enjoyment of his possessions, which led to the “confiscation” of his property within the meaning of the second sentence of Article 1 of Protocol No. 1,” reads the judgment of the European Court of Human Rights, placing special emphasis on the fact that the state never paid Nešić the legal compensation for his property that he registered in his own name, a fact not disputed by the state of Montenegro itself. Therefore, in its decision in the Nešić case, the European Court particularly problematized the actions of Montenegrin courts that had previously rejected his appeals and lawsuits against the state, finding that Nešić had legally lost property rights to the government, but at the same time acknowledging that removal of his property had not yet taken place through formal expropriation.
"It is unclear in this particular case as to when this expropriation would have been undertaken, given that the applicant (Nešić) is no longer the owner of the land in question," the European Court of Human Rights stated, emphasizing that the encroachment on Nešić’s property rights was inconsistent with the law and violated the provisions of Article 1 of Protocol 11 to the European Convention on Human Rights. "Since the Serbian citizen did not file a waiver, the European Court did not grant it, but obliged the state of Montenegro to reimburse a total of EUR 5,400 to Nešić within three months for court costs, both domestically and with the court in Strasbourg.
Miljanić: Huge consequences for Montenegrin judicial practice
Lawyer Zoran Miljanić
I am satisfied that the European Court of Human Rights, by passing such a judgment in the case of "Nesic v. Montenegro", fully confirmed our legal understanding of this case, which we have tried unsuccessfully for ten years now to impose as relevant before the domestic judiciary. This is of great professional satisfaction to our office,” stated lawyer Zoran Miljanić to “Vijesti”. He underlined that the European Court of Human Rights confirmed the positions of the Law Firm "Miljanic" "that there should be no transfer of private to state ownership without a corresponding individual legal act, as well as the payment of an appropriate fee."
"The European Court has clearly found that the different legal positions taken by the domestic regular courts, as well as the Constitutional Court in this case, constitute a violation of Article 1 of the First Protocol to the European Convention on Human Rights. We believe that this verdict will completely change case law when it comes to these and similar cases, as well as lead to changes in the regulations governing the matter as the European Court has taken a stand on “the ambiguity of the relevant law" in Montenegro,” Mijanić pointed out.
The verdict "Nesic v. Montenegro" apart from the fact that it should now automatically resolve numerous requests remaining in the cadastre from private property owners on the coast, and return to them the property that the state transferred to itself by decree referring to the Law on Maritime Property and the Law on State Property, could now result in huge claims for such illegal encroachment on the property rights of those individuals and lost profits, as they could not fully dispose of their own ancestral or legally purchased property.
