FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46279/99 by Vera Å TAJCAR against Croatia

The European Court of Human Rights ( Fourth Section ) sitting on 20 January 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 ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 December 1998 by Vera Å tajcar against Croatia and registered on 19 February 1999 under file no. 46279/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Croatian citizen, born in 1915 and residing in Zagreb , Croatia . She is represented before the Court by her son, Mr Alan Dostal .

A. Particular circumstances of the case

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

The applicant claims that in 1943 her parents in law transferred to her by means of a sale contract a right to keep a pharmacy in Zagreb as a real right. Such a right was considered a property right that included a right to keep a pharmacy and the ownership of the pharmacy itself. In 1945 the contract between the applicant and her parents in law was annulled. On 28 February 1946 all property of the applicant's parents in law was confiscated.

On 30 October 1996 the Croatian Parliament enacted the Act on Restitution of and Compensation for Property Taken during the Yugoslav Communist Regime ( Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine ), that enabled former owners of confiscated and nationalised property to seek either restitution of or compensation for the property taken from them.

On 30 June 1997 the applicant lodged a request for restitution of the confiscated 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 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 ) provides as follows.

Article 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations:

1. If the appellate body does not issue a decision upon the applicant's appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days the applicant may lodge a claim with the Administrative Court .

2. When a first instance administrative body does not issue a decision and there is no right to an appeal the applicant may directly lodge a request with the Administrative Court .

3. If a first instance administrative body does not issue a decision upon the applicant's request within sixty days in matters where a right to an appeal exists, the applicant may lodge his request to the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings as well, and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph 1 (see above 1).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings before the administrative body related to her request for restitution of property taken during the communist regime was excessive.

She further complains under Article 1 of Protocol No. 1 that the failure of the administrative body to issue a decision upon her request for the restitution of property violated her right to property.

THE LAW

1 . The applicant firstly complains that the length of the proceedings before the administrative body, concerning her request for restitution of property was excessive.

The Court notes that the applicant introduced her request on 30 June 1997 with the relevant administrative body which has not yet issued any decision. However, the applicant failed to pursue her 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 an appeal in such matters the applicant could have instituted administrative proceedings directly before the Administrative Court . Although the applicant had at her disposition remedies that would have enabled her to pursue her request and bring it before the Administrative Court and even, if that Court would have denied her request, to lodge a constitutional complaint, the applicant failed to do so.

In these circumstances, the Court concludes that the applicant cannot complain about the length of 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.

2. The applicant further complains that the failure of the administrative body to issue a decision upon her request for restitution of property violates her 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,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President