FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52634/99 by Aleksandar FÃœTTERER against Croatia

The European Court of Human Rights ( Fourth Section ), sitting on 23 March 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, judges , [Note1]

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 16 June 1999 and registered on 16 November 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Croatian citizen, born in 1928 and living in Zagreb , Croatia.

A. Particular circumstances of the case

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

In 1990 the applicant’s mother lodged a claim with the Zagreb Municipal Court ( Općinski sud u Zagrebu ) alleging that the nationalisation of her property in 1960 was partly without a legal basis.

By the decision of 9 November 1994 the Municipal Court decided that it did not have jurisdiction.

On 30 November 1994 the applicant’s mother lodged an appeal against the Municipal Court’s decision.

On 15 September 1997 the applicant’s mother died and the applicant was proclaimed her only heir.

On 12 May 1998 the Zagreb County Court ( Županijski sud u Zagrebu ) annulled the Municipal Court’s decision and remitted the case to the first instance court for a new decision.

The Municipal Court has not yet reached a new decision.

On 30 October 1996 the Croatian Parliament enacted the Act on Restitution of and Compensation for Property Taken during the Yugoslav Communist Regime, that enabled former owners of confiscated and nationalised property to seek either restitution of or compensation for the property taken from them.

On 25 April 1997 the applicant’s mother lodged a request for restitution of her nationalised property with an administrative body, which has not yet issued a decision.

B. Relevant domestic law

The relevant articles of the Administrative Procedure Act ( Zakon o općem upravnom postupku ) provide as follows.

Article 218 § 1 provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to issue a decision within a period of one month after a party lodged a request. In all other, more complex, cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged.

Article 218 § 2 enables a party whose request, in matters where there is a right to appeal, has not been decided within the periods established in the previous paragraph to lodge an appeal as if his request had been denied.

The relevant provisions of the Administrative Disputes Act ( Zakon o upravnim sporovima ) provide as follows.

Article 26 enables a party, who instituted administrative proceedings with an administrative body to lodge a claim with the Administrative Court (so called administrative dispute - upravni spor ) in the following situations:

1. If the appellate administrative body did not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body does not issue any decision within an additional period of seven days the applicant may lodge a claim with the Administrative Court as if his request had been denied.

2. When a first instance administrative body does not issue a decision and there is no right to appeal, the applicant may directly lodge a claim with the Administrative Court under the conditions set out in paragraph 1 above.

3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days, in matters where there is a right to appeal, the applicant may lodge his request with the appellate administrative body.

Against the decision of the appellate body the applicant may lodge a claim with the Administrative Court. The applicant may also lodge a claim with the Administrative Court (under the conditions set out in paragraph 1 above), if the appellate body has not issued any decision.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings, both before the domestic courts and before the administrative bodies, regarding his mother’s request concerning her nationalised property was excessive.

He further complains under Article 1 of Protocol No. 1 that the failure of the administrative body to issue a decision upon his mother’s request for the restitution of property violated his right to property.

THE LAW [Note2]

1. The applicant firstly complains about the length of civil proceedings regarding his mother’s claim relating to her nationalised property.

The applicant invokes Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations (...), everyone is entitled to a (...) hearing within a reasonable time (...)”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note3] of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains that the length of the proceedings before the administrative body, concerning his mother’s request for restitution of property was excessive.

The Court notes that the applicant’s mother introduced on 25 April 1997 her request with the relevant administrative body which has not yet issued any decision. However, the applicant’s mother, and after her death the applicant, failed to pursue their request under the conditions set out in the Administrative Procedure Act and the Administrative Disputes Act. The Administrative Procedure Act enables the applicant whose request has not been dealt with within a period of one month (or in more complex matters two months) to lodge an appeal as if her request had been denied. Furthermore, according to the Administrative Disputes Act, if there was no right to appeal in such matters the applicant could have instituted administrative proceedings directly before the Administrative Court. Although the applicant had at his disposition remedies that would have enabled him to pursue his request and bring it before the Administrative Court and even, had that Court denied his request, to lodge a constitutional complaint, the applicant failed to do so.

In these circumstances, the Court, assuming that Article 6 § 1 of the Convention is applicable to the proceedings at issue, concludes that the applicant cannot complain about the length of the proceedings before the administrative body and this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

3. The applicant also complains that the failure of the administrative body to issue a decision upon his mother’s request for restitution of property violates his right to property under Article 1 of Protocol No. 1.

The Court observes that the applicant’s request for restitution of property is still pending before the first instance administrative body and that the applicant failed to bring the case before the Administrative Court. Therefore the applicant’s claim under Article 1 of Protocol No. 1 is premature.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint that the length of the proceedings regarding his mother’s request about her nationalised property before the domestic courts was excessive within the meaning of Article 6 § 1 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää              Registrar              President

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