FOURTH SECTION

DECISION

Application no. 47001/14 Gabrielle RAU and O thers against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 26 February 2019 as a Committee composed of:

Georges Ravarani, President, Marko Bošnjak, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 18 June 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the Austrian Government,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They are represented by B. Verstovšek, a lawyer practising in Celje, Slovenia.

2. The Slovenian Government (“the Government”) were represented by their Agent, Ms V. Klemenc, State Attorney. The Austrian Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by their Agent, Ambassador H. Tichy.

A. The circumstances of the case

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

4. Before the Second World War, the applicants ’ legal predecessor, F.A., was an industrialist and landowner with a large estate.

1. AVNOJ Decree

5 . During the Second World War, the partisan liberation forces in the then partly occupied Yugoslavia established the Anti-Fascist Council for the National Liberation of Yugoslavia ( Antifašističko viječe narodnog oslobođenja Jugoslavije – hereinafter “the AVNOJ”) which, inter alia , established the Democratic Federal Yugoslavia. On 21 November 1944 the AVNOJ, as the war-time legislative body, passed the Decree on the Transfer of Enemy Assets to the State, State Administration of the Assets of Absent Persons, and Seizure of Assets Forcibly Expropriated by the Occupying Authorities (hereinafter “the AVNOJ Decree”). Section 1 of the AVNOJ Decree prescribed that all property on the territory of Yugoslavia of: (1) the German Reich and its citizens; (2) all people of German descent ( narodnost ), except those who were fighting for the national liberation movement; and (3) all persons who had been criminally convicted by a military or civilian court and sentenced to confiscation of their property, would be nationalised on the day the decree came into effect, which was 6 February 1945. In 1946, the AVNOJ Decree was reaffirmed by the Transfer of Enemy Property to the State Act (hereinafter “the 1946 Act”), which reiterated that the property confiscated by virtue of section 1(1) and (2) of the AVNOJ Decree was transferred to the State on 6 February 1945.

2. F.A. and W.A. ’ s conviction for high treason

6 . After the Second World War, on 17 August 1945, the Maribor Military Court convicted F.A. and his wife, W.A., of high treason and sentenced them to imprisonment. The military court also ordered the confiscation of their entire property.

7. Based on the judgement of 17 August 1945 (see paragraph 6 above) the Šmarje pri Jelšah Local Court issued an order instituting confiscation proceedings against F.A.

3. Confiscation

8 . On 3 September 1945 the Šmarje pri Jelšah Local Confiscation Commission (hereinafter “the Local Confiscation Commission”) issued a decision confiscating F.A. ’ s property under section 1(1) and (2) of the AVNOJ Decree (see paragraph 5 above) and noting that F.A. was considered to be of German descent. The decision was appealed against by the administrator of F.A. ’ s estate; on 29 January 1946 the Celje District Confiscation Commission dismissed that appeal.

9 . On 22 September 1946 the Šmarje pri Jelšah Local Court issued an order that the ownership of F.A. ’ s property within its territorial jurisdiction be transferred in favour of the Federal People ’ s Republic of Yugoslavia ( Federativna ljudska republika Jugoslavija – “the F.P.R. Yugoslavia”) and appropriate changes be made in the Land Registry. As its legal bases the order states the decisions of local and district confiscation commissions (see paragraph 8 above). In its reasoning, the local court noted that F.A. and W.A. had been sentenced by a judgment of the Maribor Military Court to, inter alia , the confiscation of their entire property (see paragraph 6 above). However, W.A. had no property in the territorial jurisdiction of the Šmarje pri Jelšah Local Court and therefore no confiscation could be carried out against her. As for F.A., the court noted that given that he was of German descent his entire estate had been transferred to the F.P.R. Yugoslavia already by virtue of section 1(1) and (2) of the AVNOJ Decree.

10 . On 11 October 1946 entries were made in the Land Registry concerning the confiscated property in question, indicating the F.P.R. Yugoslavia as the new owner. They each read as follows:

“On the basis of the final decision of the local confiscation commission of Šmarje pri Jelšah dated 3 September 1945 no. ... on the basis of 1 and 2 Decree [sic] of the AVNOJ of 21 November 1944 and section 24 of Law no. 859 of 9 June 1945, Official Journal DFJ no. 40, the ownership is to be registered in favour of the F.P.R. Yugoslavia.”

4. Restitution of property

11 . Slovenia ’ s declaration of independence in 1991, together with the change of political and legal system, resulted in the enactment of legislation providing redress for different types of nationalisation or confiscation of property which had occurred under the previous regime. On 7 December 1991 the Denationalisation Act came into force, which provided, inter alia , for the property nationalised by virtue of the AVNOJ Decree to be returned to the previous owner or their legal successors (see paragraph 27 below). Moreover, where the property had been confiscated on the basis of criminal conviction which has subsequently been quashed, the convicted person or his or her heirs could claim its restitution under section 145 of the Enforcement of Criminal Sanctions Act (hereinafter “the Criminal Sanctions Act ”, see paragraph 26 below).

12 . The applicants first claimed restitution of the confiscated property in the denationalisation proceedings. To this end, they lodged claims under the Denationalisation Act against several municipalities and certain other entities who had certain titles over the property in question. Subsequently, on 14 June 1993 the Maribor Basic Court quashed F.A. ’ s criminal conviction.

13 . On 8 July 1996 the applicants withdrew their claims under the Denationalisation Act. On the same day they lodged a claim for restitution under the Criminal Sanctions Act with the Šmarje pri Jelšah Local Court (see paragraph 14 below). They lodged similar claims with three other local courts, namely the Brežice Local Court, the Krško Local Court and the Slovenska Bistrica Local Court, within whose territorial jurisdictions the property confiscated from F.A. was located. The applicants eventually succeeded with their claims lodged in respect of property situated within the territorial jurisdiction of those three courts after a number of appeals and remittals.

(a) Examination of the case by the first and second-instance courts

14 . On 26 April 2001 the Šmarje pri Jelšah Local Court rejected the applicants ’ claim for restitution on the grounds that it lacked jurisdiction to decide the case. The local court agreed with the respondents that F.A. ’ s property situated within its territorial jurisdiction had not been confiscated on the basis of the criminal judgment of the Maribor Military Court (see paragraph 6 above), but had been transferred to the F.P.R. Yugoslavia by virtue of the AVNOJ Decree.

15 . Following three remittals of the case by the Celje Higher Court (the last one being on 10 May 2006) , the Šmarje pri Jelšah Local Court, examining the case for the fourth time, issued, on 14 May 2009, an interim order granting the applicants ’ claims as regards the liability of the respondents to return the confiscated property, but reserved the decision on the quantum. The Local Court found that the confiscation proceedings had been initiated and concluded on the basis of the criminal judgment, not of the AVNOJ Decree. The respondents appealed.

16 . On 23 March 2010 the Celje Higher Court upheld the first-instance judgment and confirmed the Local Court ’ s reasoning that the competent authorities had regarded the criminal judgment of the Maribor Military Court (see paragraph 6 above) to be the relevant document for the purposes of executing the confiscation. Thus, in the Higher Court ’ s view, the Local Court had correctly established that it had been that judgment, and not the AVNOJ Decree, which had been the basis for the confiscation at issue. This decision was final ( pravnomočna ) within the meaning of the Civil Procedure Act (see paragraph 29 below).

(b) First set of proceedings before the Supreme Court

17. The respondents, namely the State and the Farmland and Forest Fund, lodged appeals on points of law against the Higher Court ’ s decision (see paragraph 16 above), advancing their argument that the confiscation at issue had been based on the AVNOJ Decree and had taken effect ex lege on 6 February 1945, submitting case-law in support of that view. They referred to the confiscation order of 22 September 1946 (see paragraph 9 above) in which it was stated that, since F.A. was a person of German descent, his entire estate had been transferred to the F.P.R. Yugoslavia by virtue of the AVNOJ Decree.

18 . On 11 May 2010 the applicants, in reply to the appeals on points of law, stated the following:

- the AVNOJ Decree was an uncivilised legal document, which discriminated on the basis of descent, and should be thus disregarded;

- F.A. ’ s wife was of Czech descent and thus their property should have not been confiscated under the post-war laws;

- the basis for the confiscation had been F.A. ’ s criminal conviction;

- the respondents should explain the State Attorney ’ s submissions in the light of a similar case before the European Court of Human Rights in which the State Attorney argued that that the individuals, who had been of German descent, could have chosen to claim restitution either by virtue of the Denationalisation Act or the Criminal Sanctions Act;

- the respondents were trying to create inequality just to defend their interest in the present proceedings.

19 . On 17 February 2011 the Supreme Court dismissed the appeals on points of law, referring to decision no. Up-969/08 of 13 May 2010 of the Constitutional Court (see paragraph 31 below) and finding that it was not compatible with the aim of redressing wrongs committed under the previous regime to tighten the standards and require an even stricter examination of the legal basis for the confiscation than the one conducted by the first and second-instance courts. In its view, the applicants could rely on the data in the Land Registry when citing the criminal judgment as the basis of the confiscation.

(c) First set of proceedings before the Constitutional Court

20 . The State and the Farmland and Forest Fund lodged constitutional complaints, reiterating their previous arguments. Moreover they argued that decision no. Up-969/08 (see paragraph 31 below) had been based on different facts than the case at issue. Furthermore, contrary to the finding of the Supreme Court, it was noted in the relevant Land Registry that the property at issue had been in fact confiscated under the AVNOJ Decree.

21 . The applicants objected, arguing, in particular, that other sets of proceedings concerning the applicants ’ legal predecessor ’ s property in Brežice, Krško and Slovenska Bistrica had already been concluded by final decisions recognising the criminal judgment as the legal basis for the confiscation (see paragraph 13 in fine above). The Šmarje pri Jelšah proceedings should thus not produce a different outcome, or else their constitutionally protected right to equal protection of rights in judicial proceedings and the right to judicial protection would be infringed. They also disputed the complainants ’ standing in the proceedings.

22 . On 7 June 2012 the Constitutional Court upheld the constitutional complaints and remitted the case to the Supreme Court for further consideration. The Constitutional Court held that, since the State Attorney ’ s Office and the Farmland and Forest Fund were participating in the restitution proceedings as respondent parties, they enjoyed all the procedural guarantees, including the right to lodge a constitutional complaint. It also pointed out that its precedent, specifically decision no. Up-969/08, should be applied by taking due account of all the factual and legal circumstances which were relevant to the assessment of that case, including that a criminal judgment had been entered into the Land Registry as the basis for the confiscation. It noted that in such cases the beneficiaries, who had within the time-limit set out in the Denationalisation Act lodged their claims, should not lose their right to restitution only because the courts eventually took the view that the property had been confiscated ex lege prior to criminal conviction. The Constitutional Court found that in the present case the Supreme Court had failed to take account of the facts underlying decision no. Up-969/08 and had relied only on an abstract principle concerning the aim of redressing wrongs committed under the previous regime. Moreover, the Supreme Court ’ s conclusion that the applicants could have relied on the data in the Land Registry and thereby on the fact that the criminal judgment was the basis of the confiscation (see paragraph 19 in fine above) was supported neither by the facts as established by the lower courts nor by the information in the case file.

(d) Second set of proceedings before the Supreme Court

23 . Following re-examination of the case, on 23 August 2012 the Supreme Court reversed its decision, quashed the decisions of the lower courts and dismissed ( zavrne ) the applicants ’ claim, basing its decision on section 389(1) and 384(4) of the Civil Procedure Act (see paragraph 29 below). The Supreme Court noted that, contrary to its previous view and referring to the Constitutional Court ’ s decision, the legal basis for confiscation was a relevant factor. The Supreme Court stated that in the decision no. Up-969/08 “the Constitutional Court had exceptionally decided differently because the [beneficiaries] relied on (what later turned out to be wrong) entry in the Land Registry ...” It went on to find that in the present case the legal basis for confiscation could be discerned from the entry in the Land Registry (see paragraph 10 above) and the confiscation order of 22 September 1946 (see paragraph 9 above), which both were based on the decisions of the local confiscation commission of 3 September 1945 (see paragraph 8 above) which had relied on AVNOJ Decree. In its view, the applicants had thus not been “misled” by the entry in the Land Registry and there were therefore no exceptional circumstances which would require that the applicants be given an opportunity to claim the restitution of property under the Denationalisation Act despite the expiry of the time-limit. The Supreme Court also explained that it was not within its powers to examine whether the confiscation commissions had correctly applied the AVNOJ Decree. It considered that the proper application of the substantive law required the dismissal of the applicants ’ claim.

(e) Second set of proceedings before the Constitutional Court

24 . The applicants lodged a constitutional complaint, reiterating their previous arguments and in particular submitting the following:

- the AVNOJ Decree had no legal effects on F.A. ’ s property because his wife was of Czech descent;

- three other sets of proceedings before different local courts concerning restitution of confiscated property based on the quashing of F.A. ’ s criminal conviction ended in the applicants favour;

- the Supreme Court ’ s decision was arbitrary as it did not take into account all evidence and did not address the applicants ’ arguments;

- individuals affected by the confiscation of property had a possibility to claim restitution under both the Denationalisation Act and the Criminal Sanctions Act - this had been acknowledged by the Government in one of their submissions in another case before the European Court of Human Rights and was supported by the Constitutional Court ’ s decision no. Up ‑ 969/08;

- it was not important what was entered into the Land Registry as the legal basis for the transfer of the property to the F.P.R. Yugoslavia. What was important was the fact that the applicants succeeded in three other sets of proceedings with identical claims;

- following the Supreme Court ’ s decisions of 25 March 1998 and 7 June 2001 (see paragraphs 32 and 33 below) the applicants had withdrawn their claim under the Denationalisation Act believing that they would be able to claim it under the Criminal Sanctions Act. However later the case-law changed and those who had not been pursuing both avenues were placed at disadvantage;

- the impugned Supreme Court decision had denied them judicial protection and violated their right to property.

25 . On 16 December 2013 the Constitutional Court decided not to accept the applicants ’ constitutional complaint for consideration, holding that the Supreme Court ’ s decision was not arbitrary, as it had taken due account of the decisive facts, including of the entry in the Land Registry (see paragraph 10 above) and the confiscation order of 22 September 1946 (see paragraph 9 above). The Constitutional Court addressed also the applicants ’ argument that at the time they had withdrawn their restitution claim under the Denationalisation Act they had been entitled to choose which proceedings to institute. Acknowledging that following the impugned Supreme Court ’ s judgement the applicants could not use any further remedies, the Constitutional Court considered that the applicants should have raised this argument before the lower courts. It noted in this regard that the legal basis for the confiscation had been in dispute throughout the proceedings, in which several decisions adopting opposing views had been taken. Moreover, the respondents had persistently challenged the legal basis of the confiscation, including in the remedies leading to the impugned Supreme Court ’ s decision. Yet, the applicants had failed to respond to that with the argument they were now bringing before the Constitutional Court. In view of that the Constitutional Court found that the applicants were precluded from bringing this complaint before it.

B. Relevant domestic law and practice

1. Legislation

26 . Under section 145 of the Criminal Sanctions Act (Official Gazette of the Socialist Republic of Slovenia no. 17/78 and Official Gazette of the Republic of Slovenia (hereinafter “the Official Gazette”) no. 59/02), if the sentence of confiscation has been quashed, the confiscated property is returned to the convicted person or his or her heirs (see paragraph 11 in fine above). The confiscated property can be returned in natura , in which case it can be claimed from either the State or a local authority, depending on to which entity the property was transferred, or, under certain conditions, compensation can be paid in lieu . The restitution claims under the Criminal Sanctions Act are to be lodged directly with the court and decided in non ‑ contentious civil proceedings.

27 . The Denationalisation Act (Official Gazette no. 27/1991 with amendments, see paragraph 11 above) sets out the beneficiaries which, among others, are those natural persons whose property was nationalised on the basis of the AVNOJ Decree (see paragraph 5 above). The restitution claims were to be lodged with the relevant administrative authorities, with the possibility of a subsequent judicial review by the administrative courts. The Denationalisation Act also applies to cases where the property had been confiscated by virtue of criminal judgments rendered before 31 December 1958. However, the provisions of the Denationalisation Act dealing with the scope and manner of restitution were to some extent different than those provided for by the Criminal Sanctions Act.

28 . On 5 November 1992 the Constitutional Court annulled the provision extending the applicability of the Denationalisation Act to cases of criminal confiscation in which the criminal conviction had already been quashed but the property had not yet been returned to the claimants, on the grounds that it retroactively interfered with the claimants ’ acquired rights. The Supreme Court (decision of 29 June 1995) interpreted that decision as conferring upon individuals who were entitled to claim restitution under section 145 of the Criminal Sanctions Act to claim it also under the Denationalisation Act, when their claim was covered also by the latter. However, it noted that the beneficiaries could not pursue their claim simultaneously in both set of proceedings and should be requested to choose one.

29 . The relevant provisions of the Civil Procedure Act (Official Gazette no. 26/99 with the relevant amendments) read as follows:

Section 319

“A judgment shall become final after it can no longer be subject to an appeal, in so far as it determines the claim raised in the action or the counterclaim.”

Section 367

“The parties may lodge an appeal on points of law against a final judgment rendered by the court of second instance within thirty days of the day of service of the copy of the judgment.”

Section 368

“An appeal on points of law shall be decided upon by the Supreme Court.”

Section 369

“An appeal on points of law shall not avert the execution of the final judgment against which it lies.”

Section 380

“If the [Supreme] court establishes that the substantive law was applied incorrectly, it shall allow the appeal on points of law and modify the impugned judgment.”

Section 384

“(1) Parties may lodge an appeal on points of law also against a [final] decision of the second-instance court ...

...

(4) The provisions of the present Act concerning an appeal on points of law against a judgment should apply, where appropriate, to the proceedings concerning an appeal on points of law also against a decision.”

30 . The Constitutional Court Act (Official Gazette no. 15/94 with relevant amendments) provides, in so far as relevant, as follows:

Section 50

“(1) Owing to a violation of human rights or fundamental freedoms, a constitutional complaint may, under the conditions determined by this Act, be lodged against individual acts by which State authorities ... decided the rights, obligations, or legal entitlements of individuals or legal entities.

...”

Section 51

“(1) A constitutional complaint may be lodged only after all legal remedies have been exhausted.

...”

Section 52

“(1) A constitutional complaint should be lodged within sixty days of the day the individual act against which a constitutional complaint is admissible is served [on the complainant].

...”

Section 59

“(1) By a decision the Constitutional Court either dismisses a constitutional complaint as unfounded or allows it and in whole or in part annuls or abrogates the individual act, and returns the case to the authority competent to decide thereon.

...”

2. Practice

(a) Constitutional Court ’ s case-law

31 . The legislation concerning restitution of nationalised property has been reviewed by the Constitutional Court on several occasions. In its decision no. Up-969/08 of 13 May 2010 the Constitutional Court emphasised that the purpose of both the Denationalisation Act and the Criminal Sanctions Act was to redress the wrongs and that the restitution of the confiscated property was in fact regulated in a uniform manner, albeit through two different Acts. As to the particular case at issue it noted, inter alia , “that it would be contrary to Article 33 of the Constitution [the right to own and inherit property] ... [if] the beneficiaries who within the deadline set out in section 64 (1) of the Denationalisation Act had claimed [under the Criminal Sanctions Act] restitution of the property confiscated by way of criminal conviction (and on its basis transferred to the state by [way of making an entry in] the Land Registry) would no longer have a right to restitution of that property only because the court had established during the proceedings that such property had been nationalised ex lege prior to the criminal conviction.”

(b) Supreme Court ’ s case-law

32 . Until 2002 only two decisions dealing with the question of application of the Criminal Sanctions Act were adopted. On 25 March 1998 the Supreme Court dealt with the case where the local confiscation commission ’ s decision was based on the claimant ’ s predecessor ’ s criminal conviction and related confiscation order. Despite the reference to the AVNOJ Decree in the introduction of the confiscation decision, the court, having regard to documents in the case-file, found that the ownership of the property confiscated under section 1(c) of the AVNOJ Decree had been transferred to the F.P.R. Yugoslavia when the criminal conviction became final (and not on 6 February 1945 when the AVNOJ Decree had come into force).

33 . On 7 June 2001 the Supreme Court found in a case where the legal successors had started proceedings under the Criminal Sanctions Act before the Denationalisation Act had been adopted, that the latter Act had given the beneficiaries additional possibility of claiming restitution of property confiscated on the basis of the AVNOJ Decree. The Supreme Court went on to say that it was not important to determine whether the AVNOJ Decree had had an effect already before the pronouncement of the criminal sanction. It noted that when the State had objected to the use of the proceedings under the Criminal Sanctions Act, the proceedings under the Denationalisation Act had already been precluded. Upholding such an objection would have therefore led to the claimants losing their opportunity to claim restitution despite the fact that they had properly instituted proceedings under the Criminal Sanctions Act.

34 . The Supreme Court subsequently reviewed a number of cases concerning restitution of nationalised property. In several decisions issued in the period between 2004 and 2009, it noted that when different legal basis existed for claiming restitutions the beneficiaries could choose which one to pursue. However, the onus to prove the facts relevant for the decision was on them. In this connection, the Supreme Court held that the fact that a confiscation had been ordered by a judgment convicting the owner did not preclude the possibility that the property had been transferred to the F.P.R. Yugoslavia on a different legal basis. In such a situation, when there had been both criminal conviction ordering confiscation as well as confiscation proceedings based on the owner ’ s descent, the court had to determine on which legal basis the property had been transferred to the F.P.R. Yugoslavia by examining the decisions issued for the purposes of confiscation, and, in particular, the data in the Land Registry. The beneficiaries could claim restitution under the Denationalisation Act regardless of whether the criminal conviction was quashed. However, they could claim it under the Criminal Sanctions Act only if this conviction had been the basis for the confiscation and had been subsequently quashed.

35 . After the Constitutional Court decision no. Up-969/08 (see paragraph 31 above), the Supreme Court found in a number of cases, in which a criminal conviction had been entered into Land Registry as the basis for confiscation, that the claimants had reasonably relied on such data and that dismissing their claim under the Criminal Sanctions Act would have been in breach of their right to restitution of their property.

COMPLAINTS

36 . The applicants complained, under Article 6 of the Convention, that the applicable case-law had been conflicting and that the legislation regulating restitution of property confiscated in the post-Second World War nationalisation process had lacked clarity and transparency, rendering the restitution proceedings unforeseeable as to the outcome and enabling the courts to arbitrarily change their rulings. The applicants further complained that domestic courts had repeatedly changed their decisions and the Supreme Court ’ s decision, which had reversed the lower courts ’ finings, had lacked relevant reasons.

37 . The applicants complained under Article 1 of Protocol No. 1 to the Convention about the dismissal of their restitution claim under the Criminal Sanctions Act. They alleged that they had been deprived of the possibility of having their property returned to them. In their submission, the domestic decisions had amounted to an unlawful and disproportionate interference.

38 . Lastly, the applicants complained under Article 13 that they had not had at their disposal any effective domestic remedy with which to complain of the violations of their Convention rights by the Supreme Court, as the Constitutional Court had rejected their complaint about a violation of their right to peaceful enjoyment of property without considering it on the merits.

39 . In their observations of 17 August 2016 the applicants also complained about excessive length of proceedings.

THE LAW

40. The Government argued that the applicants had failed to properly exhaust domestic remedies because neither in their reply to the respondents ’ appeal on points of law or in any other set of pleadings had they argued why they should have maintained their right to choose either of the two remedies after the expiry of the deadline. The Court takes note of this objection. However, it does not consider it necessary to examine it because the application is in any event inadmissible for the following reasons.

A. Complaints under Article 6 § 1 of the Convention concerning the alleged arbitrariness of the impugned restitution proceedings

41. The applicant s complained that the proceedings in question were conducted in breach of Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1 . The parties ’ arguments

42. The Government submitted that the interpretation of the relevant provisions of the Criminal Sanctions Act had been foreseeable, especially with the help of a legal professional. Relaying on Nejdet Åžahin and Perihan Åžahin v. Turkey ([GC], no. 13279/05, 20 October 2011), they argued that the fact that the applicants had disagreed with the interpretation in question did not mean that there had been a violation of Article 6.

43 . The applicants argued that the proceedings had been as a whole unfair. The legislation, which had lacked in clarity and quality, had allowed for arbitrariness, which had been obvious from the fact that the domestic courts, including the Supreme Court, had changed their decisions many times. In particular, the Supreme Court had departed from its previous case ‑ law and wrongly concluded that the basis for the confiscation had not been the criminal conviction.

44 . The applicants also submitted that the Supreme Court, which had changed a final decision in the case, had not addressed all the relevant facts and evidence. Its reasoning had been unreasonable and in breach of Article 6. Moreover, the Supreme Court should not have merely followed the Constitutional Court ’ s instructions. It should have remitted the case to the lower courts. The applicants also found it unacceptable that the State had complained of a violation of human rights to the Constitutional Court since the purpose of human rights was to protect individuals against the State.

45. The Austrian Government considered that the lack of any relevant case-law together with the vagueness of the legislation had created legal uncertainty at the time the restitution claims had had to be made.

2. The Court ’ s assessment

46 . The Court takes note of the applicants ’ argument that the restitution legislation ’ s lack of clarity and quality gave way to its unforeseeable and arbitrary application and that the reversal of the final judgment in their case was arbitrary and departed from the decisions taken in other similar cases (see paragraphs 43 and 44 above). In this connection, the Court reiterates that, in cases arising from individual applications, it is not its task to examine the domestic legislation in the abstract, but it must consider the manner in which that legislation was applied to the applicant in the particular circumstances (see Sirc v. Slovenia , (dec.) no. 44580/98, § 246, 22 June 2006). It further notes that save in the event of evident arbitrariness, it is not its role to question the interpretation of the domestic law by the national courts (see Ādamsons v. Latvia , no. 3669/03 , § 118, 24 June 2008). Similarly, on this subject, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Nejdet Şahin and Perihan Şahin , cited above, § 50). In previous decisions concerning conflicting court decisions, the Court has explained the criteria that guide its assessment, which consist of establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (ibid. §§ 52 and 53 ).

47 . The Court notes that while the applicants referred to the fact that the Supreme Court had reversed the final decision issued by the Celje Higher Court in their case (see paragraphs 16 and 23 above), they did not provide any arguments as to why this power of the Supreme Court would have been as such incompatible with the principle of legal certainty or the right of access to court, as considered, for instance, in Brumărescu v. Romania ([GC], no. 28342/95, § 62, ECHR 1999 ‑ VII) and Ryabykh v. Russia (no. 52854/99, §§ 54-56, ECHR 2003 ‑ IX) . That being said, the present case in any event significantly differs from the aforementioned cases in that the quashing of the Supreme Court ’ s judgment of 17 February 2011 (see paragraph 19 above) and the subsequent reversal of the final decision took place within the normal course of the use of legal remedies available to the parties within the domestic legal system (see paragraphs 29 and 30 above). In particular, the constitutional complaint was a domestic remedy available to the parties under section 50 of the Constitutional Court Act (see paragraph 30 above). It was subject to a time-limit of sixty days (ibid.). Moreover, the power of the Constitutional Court to quash an impugned judgment and to remit it for re-examination as well as the power of the Supreme Court to change the lower court ’ s decision were clearly set out in the Constitutional Court Act and the Civil Procedure Act respectively (see paragraphs 29 and 30 above). In this connection, the Court notes that the applicants ’ criticism relating to the State authorities ’ possibility to complain of a violation of human rights to the Constitutional Court (see paragraph 44 above) amounts merely to a disagreement with the interpretation or application of domestic law. It is noted in this connection that the State used the remedy in question as a party to the proceedings and the applicants did not demonstrate that the admission of its or the Farmland and Forest Fund ’ s constitutional complaints was unforeseeable or arbitrary (see the case-law quoted in paragraph 46 above). The Court accordingly finds that the Constitutional Court ’ s decision and the subsequent Supreme Court ’ s reversal of the Ljubljana Higher Court ’ s decision (see paragraphs 22 and 23 above) were not as such unforeseeable or otherwise in breach of the principle of legal certainty (contrast Brumărescu , cited above, § 62, and Ryabykh , cited above, §§ 54-56).

48. As regards the applicants ’ main argument – that the impugned decisions were in substance arbitrary and were not properly reasoned – the Court notes the following. Under the domestic law there were essentially two legal bases for claiming restitution of the property confiscated following the Second World War. If the property had been confiscated on the basis of the AVNOJ Decree because the owner had been, for instance, a German citizen or of German descent (section 1(1) and (2)) (see paragraph 5 above), his or her legal successors could institute denationalisation proceedings before the competent administrative authority, by virtue of the Denationalisation Act. If the property had been confiscated on the basis of a criminal conviction which had subsequently been quashed, the owner ’ s legal successors could claim its restitution before the competent court under the legislation concerning the execution of criminal sanctions, namely the Criminal Sanctions Act, as well as in the denationalisation proceedings, because the Denationalisation Act also covered certain instances of criminal confiscation (see paragraphs 11 and 26 to 28 above). In particular the domestic case-law provided for the right to choose proceedings, either under the Criminal Sanctions Act or the Denationalisation Act, in cases in which the criminal conviction had been the basis for the confiscation (see paragraph 32 to 34 above).

49. It is true that the Constitutional Court had previously established certain exceptions to the above rule concerning the legal basis of confiscation; specifically it found that when an entry in the Land Registry was erroneous, the claimants could nevertheless rely on it (see paragraph 31 and, as regards the subsequent Supreme Court ’ s case-law, paragraph 35 above). However, no such exception seems to have been applicable to the applicants ’ case – as ultimately found by the Constitutional and the Supreme Court. The Court observes in this connection that the applicants had withdrawn their claim under the Denationalisation Act already in 1996 and had at that point chosen to pursue proceedings only under the Criminal Sanctions Act (see paragraph 13 above). However, according to the data in the Land Registry the ownership of the property in question was transferred to the F.P.R. Yugoslavia on the basis of the local confiscation order in accordance with section 1(1) and (2) of the AVNOJ Decree, referring to the fact that F.A. was considered to be of German descent (see paragraphs 8 and 10 above). Likewise, the Šmarje pri Jelšah Local Court ’ s decision ordering the transfer of property (see paragraph 9 above) clearly refers to the aforementioned local confiscation order and explains, in relation to the criminal confiscation, that the property in question had already been transferred to the F.P.R. Yugoslavia by virtue of section 1(1) and (2) of the AVNOJ Decree. In view of the foregoing and on the basis of the domestic legislation and case-law as applied in the present case, the Court does not find the domestic courts ’ finding that the transfer of the property in question had been based on section 1(1) and (2) of the AVNOJ Decree and not on F.A. ’ s criminal conviction (meaning that the applicants had not been entitled to claim restitution under the Criminal Sanctions Act) manifestly unreasonable or arbitrary. The Court likewise does not consider the impugned domestic decisions to have been insufficiently reasoned.

50. The Court further notes that it has also not been demonstrated that there existed “profound and long-standing differences” in the relevant domestic case-law (see the case-law quoted in paragraph 46 above). While the Supreme Court ’ s judgment of 23 August 2012 (see paragraph 23 above) departed from the view taken in the Supreme Court ’ s judgment of 17 February 2011 (see paragraph 19 above), this came about as a result of the Constitutional Court ’ s remittal of the case, that aimed precisely at overcoming the inconsistencies caused by the Supreme Court ’ s initial decision (see paragraph 22 above). The Constitutional Court ’ s decision and the subsequent Supreme Court judgment (see paragraph 23 above) were thus part of the case-law development and this is not, in itself, contrary to the proper administration of justice (see Atanasovski v. “the Former Yugoslav Republic of Macedonia” , no. 36815/03, § 38, 14 January 2010).

51. In view of the above findings, the Court considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 1 of Protocol No. 1

52. The applicants complained of a violation of Article 1 of Protocol No. 1 which reads as follows:

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accor da nce with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. The parties ’ arguments

(a) The Government

53 . As regards the applicability of Article 1 of Protocol No. 1 to the Convention, the Government, referring to Brumărescu (cited above), agreed that since the applicants ’ claim had been upheld by a final judgment of the Celje Higher Court (see paragraph 16 above) as well as by the Supreme Court on 17 February 2011 (see paragraph 19 above), it was sufficiently established to qualify as an “asset” attracting the protection of Article 1 of Protocol No. 1.

54 . As to the clarity and consistency of the case-law, the Government argued that the case-law had been consistent between 2003 and 2010. Between 2010 and 2012 the Supreme Court had departed from that case-law by applying the Constitutional Court ’ s decision no. Up-969/08 in what was later found to be an erroneous way. During those two years the decisions in the applicants ’ favour had been taken in this and in three other similar restitution cases. In 2012 the Constitutional Court had reacted to the departure from the accepted case-law, which it had found arbitrary, by providing further guidelines in the decision of 7 June 2012 issued in the applicants ’ case (see paragraph 22 above). Subsequently the Constitutional Court ’ s guidelines had been consistently followed.

55. The Government disputed the applicants ’ reliance on the outcome of the proceedings in their other similar cases submitting that their outcome had been a result of the particular arguments raised therein.

(b) The applicants

56 . The applicants argued that they had a legitimate expectation to have the property return to them, based on the Criminal Sanctions Act and the Denationalisation Act, and on domestic case-law. They further maintained that in Brumărescu (cited above), the Court had also found that a final judgment had amounted to a property right. In their view, the domestic courts decisions had divested them of the opportunity to have the property returned to them. These decisions had been unlawful, since in accordance with domestic case-law the applicants had been entitled to lodge a restitution claim on the basis of both the Criminal Sanctions Act and the Denationalisation Act.

57 . In the applicants ’ view the legislation regulating restitution of property confiscated in the post-Second-World-War nationalisation process lacked clarity and enabled arbitrariness in its application. In their submission, they undoubtedly had a right to restitution but that right had been denied to them due to arbitrary and political decisions of the Slovenian courts. The Supreme Court had adopted two opposing decisions. The strict formal conditions for pursuing restitution claims had been incompatible with Article 1 of Protocol No. 1. The applicants had suffered disproportionate consequences.

58 . Furthemore, the applicants argued that the Constitutional Court and the Supreme Court had in their case suddenly introduced a distinction between different legal bases of restitution and had dismissed their claim in breach of law and in contradiction with the decisions issued in their other similar cases (see paragraph 13 in fine above) and the Supreme Court ’ s decision of 7 June 2001 (see paragraph 33 above).

(c) The Austrian Government

59. The Austrian Government made observations similar to those of the applicants. In particular, they considered that the present case concerned an expropriation without compensation, resulting from the inconsistent interpretation of the legal basis for the transfer of F.A. ’ s property by the domestic authorities. In their submission, the protection of the applicants ’ possession should have prevailed over the interest of case-law consistency. They further considered it problematic that the rights of the applicants had depended on a present day application of a wartime measure, namely the AVNOJ Decree.

2 . The Court ’ s assessment

60. The Court notes that the gist of the applicants ’ complaint under Article 1 of Protocol No. 1 relates to the restitution legislation and its application in the present case rather than to the reversal of the final decision as such (see paragraphs 37, 56, 57 and 58 above). It reiterates that the deprivation of ownership is in principle an instantaneous act (see Sirc , decision cited above, § 278), which in the present case took place in the aftermath of the Second World War and therefore long before 28 June 1994, when the Convention became applicable to Slovenia. It further observes that the proprietary interests based solely on the alleged operation of the restitution legislation are in the nature of claims and cannot accordingly be characterised as an “existing possession” within the meaning of the Court ’ s case-law (ibid.).

61. The Court further refers to its finding under Article 6 § 1 of the Convention (see paragraph 47 above) that the present case should by its nature be distinguished from Brumărescu (cited above). In addition to what has been observed with respect to the foreseeability of the reversal of the final decision in the present case, the Court also notes that in Brumărescu (cited above, § 70) the domestic courts ’ finding as to the applicant ’ s right was irrevocable; the judgment had been executed, and he had had peaceful enjoyment of his possession, as its rightful owner, for more than a year. No such thing has been argued in the present case. The Court does not therefore find it substantiated that the applicants ’ proprietary interests amounted to “possessions” within the meaning of Article 1 of Protocol No. 1.

62. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a) of the Convention, and must therefore be rejected in accordance with Article 35 § 4 of the Convention.

C. Remaining complaints

63. The applicants also complained that the proceedings in question had been conducted in breach of the reasonable time requirement provided in Article 6 § 1. Relying on Article 13 of the Convention, they alleged that their complaints had not been considered on the merits by the Constitutional Court. In the Court ’ s view these complaints fall to be examined under Article 6 § 1, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

1. The parties ’ arguments

64. The Government argued that applicants had had the possibility to lodge remedies, including a reply to the respondents ’ appeal on points of law and constitutional complaint .

65 . The Government further argued that the complaint concerning the length of proceedings had been lodged outside of the six-month time-limit, as it had been raised only in the applicants ’ observations.

66 . The applicants argued that they had not had any effective remedy against the second decision of the Supreme Court because the Constitutional Court had refused to consider their well-reasoned complaint on the merits (see paragraph 25 above). In particular, it had been unacceptable to have expected from them to predict the outcome of the proceedings and brought up the relevant arguments.

67 . Lastly, in their observations of 17 August 2016 the applicants complained about the length of the restitution proceedings.

68. The Austrian Government submitted that the applicants had not had access to court because the Constitutional Court had rejected their constitutional complaint. They also submitted that the length of the proceedings had been excessive.

2. The Court ’ s assessment

69 . The Court notes that the applicant s complained of not having had access to the Constitutional Court to challenge the Supreme Court ’ s decision (see paragraph 66 above). The Court reiterates that where a right claimed is a civil right, Article 6 is the lex specialis in respect of Article 13, the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, for example, Brualla Gómez de la Torre v. Spain , 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII). Furthermore, the “right to court”, of which the right of access is one aspect, is not absolute ; it is subject to limitations permitted by implication, particularly where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Brualla Gómez de la Torre , cited above, § 33). Having regard to the specific nature of the constitutional complaint and lack of any indication of arbitrary application of the relevant provision of the Constitutional Court Act to the applicants ’ case, the Court finds this complaint to be manifestly ill-founded (see, mutatis mutandis , SAZAS v. Slovenia (dec.) [Committee], no. 53257/13, § 26, 10 October 2017).

70. Accordingly, this part of the application should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

71. L astly, as regards the complaint concerning the alleged unreasonable length of the proceedings, the applicants explicitly raised it only in their observations of 17 August 2016 (see paragraphs 39 and 67 above). The Court notes that the proceedings in question were terminated on 16 December 2013 (see paragraph 25 above) and this complaint was thus introduced after the expiry of the six-month time-limit. Accordingly, this part of the application should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 March 2019 .

Andrea Tamietti Georges Ravarani Deputy Registrar President

Appendix

1. Gabrielle Rau is an Austrian national who was born in 1953 and lives in Vienna.

2. Johannes Attems is an Austrian national who was born in 1947 and lives in Vienna .

3. Eleonore Drasche-Wartinberg is an Austrian national who was born in 1943 and lives in Ebreichsdorf .