Constitutional Court: Courts arbitrarily expanded legal conditions for state liability

The Constitutional Court of Montenegro has determined, in two recent decisions, that Montenegrin courts cannot add conditions for state liability, in addition to those prescribed by law.

The Constitutional Court stated in a statement that the courts had arbitrarily expanded the legal conditions for state liability.

"Such conduct, as alleged, limits the right of citizens and legal entities to compensation for damage due to illegal or improper work of state bodies," the statement states.

In the first case, a judge at the Commercial Court instructed the company KIPS from Podgorica to initiate a separate lawsuit before that court, and it spent almost 14 euros on its conduct, only to find that it was unnecessary and contrary to the law.

"The company sought compensation from the state, but the Podgorica Basic and High Courts rejected it, explaining that there was no intention to cause it damage," the Constitutional Court said in a statement.

In another case, the company "Cijevna Komerc" purchased land from the Belgrade company "Omorika", which turned out to be owned by the company Drina from Goražde.

"The lawsuit claims that the state is jointly and severally liable because its authorities contributed to the conclusion of a void contract. The Supreme Court confirmed the position of the Podgorica High and Basic Courts that there was no irregular or illegal work, or 'intention or negligence', in the actions of state authorities," the Constitutional Court said in a statement.

The Constitutional Court determined that the requirement of "intent or negligence", which the courts had required, does not exist in the Law on Obligations, stating that the state is liable for damage caused by the illegal or improper work of state bodies.

"Such an interpretation would place an excessive burden on citizens, and on the other hand, the state would be enabled to avoid all the consequences of its own mistakes," states the Constitutional Court's decision in the case of the company Cijevna Komerc, adding: "The courts' reasoning that there is no liability of the state of Montenegro because there is no irregular or unlawful authority, or intent or negligence, in the actions of its bodies is constitutionally unacceptable, since with such an interpretation, the courts have, in fact, 'added in' the conditions - intent and negligence, which the legislator did not prescribe."

Citizens and legal entities, the judges of the Constitutional Court point out, do not have to prove intent or negligence, because this is only required in recourse litigation, when a state body as an employer would like to compensate for damage from an employee who caused it intentionally or through gross negligence.

"The court's conclusion is that the proceedings before the regular courts were not conducted in accordance with the right to a fair trial guaranteed by the European Convention on Human Rights, that is, that the decisions were arbitrary," the Constitutional Court said.

The Constitutional Court accepted the constitutional appeals in the case of the company "Cijevna Komerc" and returned the case to the Supreme Court, and in the case of the company KIPS to the High Court for retrial and decision.