Cases, Materials and News on European Civil Procedure

European Court of Human Rights (Second Section) – Judgment 30 January 2018 – Brajović and Others v. Montenegro – Violation of Art. 6 (1) of the Convention – right to have any claim relating to civil rights and obligations brought before a court or tribunal – costs related to criminal proceedings

On 30 January 2018 the ECtHR issued a decision in the case Brajović and Others v. Montenegro (application no. 52529/12), concluding that there had been a violation of Article 6 § 1 (right to have any claim relating to civil rights and obligations brought before a court or tribunal) of the European Convention on Human Rights.

The Facts of the Case


The applicants are six Montenegrin nationals. They intervened, as injured party, in criminal proceedings, in the course of which they sought compensation for legal costs. On 14 October 2008 the High Court in Podgorica found the accused party guilty and, inter alia, ordered him to pay the applicants a sum for the costs of legal representation, corresponding approximately to 25% of the total sought by the applicants, without specifying what exactly was covered by that amount.

On 30 March 2009 the applicants appealed in respect of costs and expenses and in the meantime the convicted party and the High State Prosecutor appealed as well. On 22 September 2009 the Court of Appeal ruled on the appeals lodged by the other parties but not on the one lodged by the applicants. They learned of this judgment on 27 May 2010 when checking the case-file at the High Court.

On 28 May 2010 the applicants complained to the President of the Supreme Court that the Court of Appeal had failed to rule on their appeal. About one week later the President of the Supreme Court notified them that the case file had been sent at the Court of Appeal in order for it to rule on their appeal.

Given that in the meantime the applicants had learnt that the file had been archived in the High Court (contrary to what that court had said to the President of the Supreme Court), on 24 October 2011 they requested the President of the High Court to transmit the case file to the Court of Appeal. On 11 January 2012 the applicants complained again to the President of the Supreme Court. Eventually, the Court of Appeal did not rule on their motion.

In the meantime, the applicants sought relief before the civil courts but their complaints were dismissed on the basis of a res iudicata exception, given that the matter had been allegedly decided by the High Court and that the decision had already become final.

Decision of the Court

The Court held that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1. The right to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court.

In particular, the Court reiterated that Article 6 § 1 does not compel the States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees contained in Article 6.

In the case at stake, the Court found that the claim falled within the scope of Article 6 and that the applicants were not granted the right to a court, as described above. In conclusion, the Court found that there has been a violation of Article 6 and in particular of the right to a court.


Full text decision

Updated: February 6, 2018 — 11:02 am

Leave a Reply

Your email address will not be published. Required fields are marked *

EUCP © 2016 Frontier Theme