Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34195/96

by PATENTNA PISARNA

against Slovenia

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 November 1996

by PATENTNA PISARNA against Slovenia and registered on 16 December 1996

under file No. 34195/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a company, registered in Ljubljana. It is

represented by its director Vlado Potrc.

A. Particular circumstances of the case

On 23 June 1992 the applicant company purchased from another

company part of a building in Ljubljana for offices. The offices are

in a new extension of an old building, which was nationalised in 1948.

A claim for restitution of the whole building was lodged under the

Denationalisation Act 1991 by the former owner.

The prosecutor filed an action against the purchaser (the

applicant) and the vendor, claiming that the purchase should be annuled

as the property was subject to denationalisation. The first instance

court in Ljubljana rejected the request on 29 June 1993. It found that

no legal grounds existed for prohibiting disposal of the building, as

restitution in kind would in any event be impossible, because the

majority of the building was used for cultural purposes.

The prosecutor`s appeal against the first instance judgment was

dismissed on 24 January 1994.

The state prosecutor lodged an appeal for safeguarding the law.

The Supreme Court of the Republic of Slovenia on 18 May 1995 decided

against the previous judgments and annulled the contract. The Court

found that the first and second instance courts erred in law as they

failed to take into consideration the provision of the

Denationalisation Act which provides for partial restitution if full

restitution is not possible. The decision was taken without a hearing,

in private, but in the presence of the state prosecutor.

The applicant lodged a constitutional complaint before the

Constitutional Court alleging violations of constitutional rights to

equality before the law (Article 14 of the Constitution), to the

exercise of and limitations on rights (Article 15 of the Constitution)

and to own property (Article 33 of the Constitution). The applicant

referred to equality before the law in the meaning of equal

consideration of equal facts and the application of the appropriate

legal norm in a case. The applicant then alleged that the Supreme Court

decision annuling the purchase of offices deprived it of the

constitutional right to own property.

On 24 April 1996 the Constitutional Court dismissed the complaint

on the ground that it disclosed no violation of the constitutional

rights. The applicant received its decision on 1 June 1996.

B. Relevant domestic law

Article 160 of the Constitution of the Republic of Slovenia

provides for the jurisdiction of the Constitutional Court. The

Constitutional Court has jurisdiction, amongst other matters, to

determine complaints of breaches of human rights and fundamental

freedoms by individual acts.

Article 50 of the Constitutional Court Act reads as follows:

"1. Any person may, under the conditions determined by

this Act, lodge a constitutional complaint with the

Constitutional Court if he/she believes that his/her human

rights and basic freedoms have been violated by an

individual act of a state body, local community body or

public corporation."

Article 22 of the Constitution reads as follows:

"Each person shall be guaranteed equality in the protection

of his/her rights in proceedings before the court, as well

as before any state body, local community body or public

corporation which determines the rights, obligations or

legal entitlements of such person."

COMPLAINTS

The applicant company alleges violations of Article 6 para. 1 of

the Convention.

It complains about the judgment of the Supreme Court as being

unjust from the point of view of its contents. It also claims that the

law was not correctly applied by the Supreme Court which resulted in

annulling the purchase.

The applicant company also alleges inequality of arms in that it

was not invited to the session of the Supreme Court while the state

prosecutor was present. Although both parties were asked to submit

their arguments in writing, only the prosecutor allegedly had a

possibility to orally set out the arguments.

THE LAW

1. The applicant complains about the Supreme Court judgment in

general as being in itself a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant case-

law (see eg. No. 458/59, Dec. 29.3.60, Yearbook 3, pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43, pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18, pp. 31, 45; No. 19890/92, Dec. 3.5.93, D.R. 74, p.

234).

It follows that this part of the applicant`s complaints is

manifestly ill-founded and must be rejected within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also alleges inequality of arms under Article 6

para. 1 (Art. 6-1) of the Convention in the proceedings before the

Supreme Court. He complains in particular about not being invited to

the session of the Supreme Court while the other party attended the

session.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant company disclose any appearance of

a violation of this provision as, under Article 26 (Art. 26), it may

only deal with the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

The mere fact that the applicant company has submitted its case

to the Constitutional Court does not in itself constitute compliance

with this rule. According to the Commission`s constant case-law the

applicant must have raised during the domestic proceedings concerned,

at least in substance, the complaint he is arguing before the

Commission (see No. 10307/83, Dec. 6. 3. 84, D.R. 37, pp. 113, 120;

No. 15669.89, Dec. 28. 6. 93, D.R. 75, p. 39).

In this respect, the Commission notes that the applicant did not

raise, either in form or in substance, in the proceedings before the

Constitutional Court, the complaint which the company now makes before

the Commission. In particular, although the complaints before the

Constitutional Court referred to the right to equality before the law

(Article 14 of the Constitution), they only referred to the proper

consideration of the facts and application of the law. There is no

reference in the constitutional complaint to the inequality alleged to

flow from the presence of the prosecutor in the proceedings before the

Supreme Court, nor a reference to either Article 22 of the Constitution

(equal protection of rights) or to Article 6 para. 1 (Art. 6-1) of the

Convention, which forms part of the Slovenian legal order.

Moreover, an examination of the case as it has been submitted

does not disclose the existence of any special circumstances which

might have absolved the applicant, according to the generally

recognised rules of international law, from raising his complaint in

the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected for non-exhaustion within the

meaning of Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PISARNA v. SLOVENIA

PISARNA v. SLOVENIA

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