THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60376/00 by NADBISKUPIJA ZAGREBAÄŒKA against Slovenia

The European Court of Human Rights (Third Section), sitting on 27 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve, judges , and Mr M. villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 20 June 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, the Zagreb Archdiocese ( Nadbiskupija Zagreba č ka ), is a juristic person whose seat is in Zagreb, Croatia. It is represented before the Court by Zvjezdana Znidarčić-Begović, a lawyer practising in Zagreb, Croatia.

A. The circumstances of the case

The facts of the case as submitted by the applicant may be summarised as follows.

On 7 June 1993 the Zagreb Archdiocese, acting through its legal representative, lodged with the Ministry of Culture of the Republic of Slovenia a claim for restitution of castle Mokrice, its outbuildings and surrounding estate together with related movables and works of art. It based its claim on sections 14 and 54 of the Denationalisation Act 1991. The castle and its estate are located on the territory of present-day Slovenia and were purchased in 1937 by the Zagreb Archdiocese Seminary. They were nationalized after the Second World War by Yugoslav authorities. In 1988, the castle and part of the estate were classified as Slovenian cultural and natural monuments.

On 25 July 1994 the Ministry of Culture dismissed the claim for restitution on the ground that section 14 of the Denationalisation Act 1991 gave the right to restitution of expropriated property to “churches and other religious communities, their institutions and orders, operating on the territory of Slovenia” on 7 December 1991, the date of the entry into force of the Act. It was generally known, however, that at that time the Zagreb Archdiocese exercised its activities in Croatia. The Zagreb Archdiocese was therefore not entitled to restitution. Further, the Ministry of Culture separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to the Municipality of Bre žice as the competent authority .

On 25 August 1994 the applicant instituted administrative litigation with the Supreme Court, asserting that the claim for the restitution of the property emanated from the Zagreb Archdiocese as part of the Catholic Church and the catholic religious community. It was clear that, regardless of its internal organisation, the Catholic Church was entitled to restitution under the Denationalisation Act 1991. Moreover, the Razkri ž je parish, located on Slovenian territory, belonged, in ecclesiastical administrative terms, to the Zagreb Archdiocese. This meant that the Zagreb Archdiocese was “operating on Slovenian territory” within the meaning of section 14 of the Denationalisation Act 1991 and was therefore entitled to restitution.

By a judgment of 23 January 1997, the Supreme Court rejected the applicant's claim and upheld the decision of the Ministry of Culture, holding that section 14 of the Denationalisation Act 1991, with special reference to the concept of “churches and other religious communities, their institutions and orders, operating on Slovenian territory”, should be interpreted narrowly.

It transpired from that provision that it was not the universal Catholic Church but its constituent juristic persons operating on the territory of Slovenia and registered as religious communities under the Legal Status of Religious Communities in the Republic of Slovenia Act 1967 that were entitled to restitution. The Catholic Church, as a much wider entity, did not therefore satisfy this criterion.

The Supreme Court also rejected the Zagreb Archdiocese's argument that the presence on Slovenian territory of a single parish belonging to the applicant in accordance with the internal organisation of the Catholic Church justified its claim to be operating on Slovenian territory. It held that this was not sufficient for the applicant to qualify as a Slovenian juristic person, since the greater part of its activities took place in another State where its seat was located and to the jurisdiction of which it was subject.

On 9 May 1997 the applicant lodged a constitutional appeal with the Constitutional Court, alleging that the Zagreb Archdiocese was a part of the Roman Catholic Church and that its internal organisation was regulated by the Code of canon law ( Codex iuris canonici ), promulgated on 25 January 1983. According to the provisions of this code, the supreme authority regulating the ownership of property was vested in the Pope. Since Article 7 of the Slovenian Constitution provided for the separation of Church and State and recognised their equality, this implied recognition of the internal organisation of the Catholic Church under the Code of canon law. There can consequently be no doubt that the Catholic Church was entitled to restitution. The decision of the Supreme Court, moreover, violated the right to own property, as protected by Article 67 of the Constitution.

On 30 November 1999 the Constitutional Court declared the applicant's constitutional appeal inadmissible, on the ground that it had no jurisdiction to review application of the law by ordinary courts. It found that the applicant essentially contested the Supreme Court's refusal to take into account the Code of canon law in determining the applicant's right to restitution. The Supreme Court's interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms. The decision was served on the applicant's lawyer on 21 December 1999.

B. Relevant domestic law and practice

1. The Constitution ( Ustava Republike Slovenije , Official Gazette no. 33/91)

Article 7

“The State and religious communities shall be separate. Religious communities shall enjoy equal rights; they shall pursue their activities freely. ”

Article 67

“The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social and environmental function. (...) ”

2. The Denationalisation Act 1991 ( Zakon o denacionalizaciji , Official Journal no. 27/91, with amendments)

At the time of the adoption of the Act, its sections 3, 4, 5, 10 and 13 limited the right to restitution of expropriated property to natural persons. The only exception were churches and religious communities, which were expressly recognised as beneficiaries under section 14 of the Act (see below). By the Constitutional Court's decision of 4 March 1993 (see below), the right to restitution was extended to all domestic juristic persons.

Section 2

“(...)

The conditions and the mode of denationalisation are determined by this Act. ”

Section 14

“The right to recovery of property is hereby given to churches and other religious communities, their institutions and orders operating on the territory of the Republic of Slovenia at the time of the coming into effect of this Act. ”

Section 54

“ (...)

5. The Ministry of Culture shall decide on denationalisation of objects specified in (...) of this Act (...)”

3. The Constitutional Court's case-law

On 4 March 1993 the Constitutional Court adopted a decision in a case brought by three legal persons (not party to the proceedings in this case) who challenged the constitutionality of several provisions of the Denationalisation Act 1991 (U-I-25/92). It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional. By altering the wording of sections 3, 4, 5, 10 and 13 of the Act, the Constitutional Court extended the right to restitution to all Slovenian legal persons. It held that section 14 thus acquired a new meaning. The Constitutional Court reasoned that:

“...the provision of section 14 is no longer contrary to the Constitution, because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities, their institutions and orders. With the annulment (...) of the pertinent legislative provisions, this provision was given a different content. It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities, their institutions and orders, that were operating on Slovenian territory at the time of the adoption of the Denationalisation Act 1991...”

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that arbitrary decisions of Slovenian administrative and judicial authorities violated its right to the protection of property. It claims to be a religious community operating on Slovenian territory and therefore to be entitled to restitution of expropriated property.

THE LAW

The applicant complains that the decisions of Slovenian administrative and judicial authorities violated its right to the protection of property, as guaranteed by Article 1 of Protocol No. 1, because they refused to grant it the status of a beneficiary of restitution of expropriated property. The pertinent part of that Article reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law (...)”

The Court firstly notes that all decisions of Slovenian administrative and judicial authorities were handed down after 28 June 1994, the date when the Convention and its Protocols entered into force with respect to Slovenia. The examination of the allegations of the applicant falls therefore under its jurisdiction ratione temporis (see Majarič v. Slovenia , no. 28400/95, § 31, 8 February 2000).

The Court also considers that the application should be treated as having been validly submitted by a church, classified as a “non-governmental organisation” within the meaning of Article 34 of the Convention (see Canea Catholic Church v. Greece , judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 30).

Concerning the alleged violation of Article 1 of Protocol No. 1, the Court notes that there is no right to restitution under the Convention and its case-law. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”, and neither can the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively, or a conditional claim which lapses as a result of the non-fulfilment of the condition  (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000 ‑ XII, Polacek and Polackova v. Czech Republic (dec.) [GC], no. 38645/97, § 62, 10 July 2002, and Bugarski and von Vuchetich v. Slovenia (dec.), no. 44142/98, 3 July 2001).

Since the Mokrice castle and its outbuildings were expropriated in the 1950's, it is clear that the applicant could not be said to have “existing possessions” within the meaning of Article 1 of Protocol No. 1.

It thus remains to be examined whether the applicant could have any “legitimate expectation” of realising its claim to restitution on the basis of the provisions of the Denationalisation Act 1991. The Court notes that, under section 14 of the Denationalisation Act 1991, only “churches and other religious communities, their institutions and orders, operating on Slovenian territory” were entitled to restitution. According to the terms of this section and the decision of the Supreme Court and that of the Constitutional Court in the present case, the applicant's right to restitution was conditional on its being a legal person operating on Slovenian territory.

The Court observes that the proceedings complained of concerned the question of whether or not the applicant fulfilled this condition. The Slovenian administrative and judicial authorities found that this was not the case.

The applicant's complaint therefore essentially amounts to an objection to the outcome of the proceedings before Slovenian administrative and judicial authorities and to the errors of interpretation and application of domestic law allegedly committed by them.

The Court recalls that while its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national administrative and judicial authorities, notably the courts, to interpret and apply domestic law (see, inter alia , S treletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97, 44801/98 , § 49, ECHR 2001-II, and Houfova v. Czech Republic (dec.), no. 58177/00, 1 July 2003).

In the Court's assessment, the national administrative and judicial authorities gave reasoned decisions, addressing all relevant submissions by the applicant (see Gospodinova v. Bulgaria , no. 37912/97, Commission decision of 16 April 1998). There is nothing to show that the conclusion of the national administrative and judicial authorities was arbitrary or contrary to the provisions of domestic law applied by them.

The Court finds that the applicant could therefore have no “legitimate expectation” of realising its claim to restitution of the Mokrice castle and the surrounding estate.

It follows that the complaint must be rejected, in accordance with Article 35 § 3 of the Convention, as incompatible ratione materiae with the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Mark villiger Georg Ress              Deputy Registrar President