FOURTH SECTION

DECISION

Application no . 56928/08 Jasna DE MATEIS and O thers against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 7 February 2017 as a Committee composed of:

Nona Tsotsoria , President, Krzysztof Wojtyczek, Marko Bošnjak , judges,

and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2008,

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

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix.

2. The applicants are represented before the Court by Odvetniška pisarna Ivana Makuca , a law firm practising in Tolmin , Slovenia. The Slovenian Government (“the Government”) were represented by their Agent, Ms N. Pintar Gosenca , State Attorney.

3. On 17 November 2014 the application was communicated to the Government.

4. The Government of the Italian Republic and the Government of the Republic of Croatia, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not indicate that they intended to do so.

A. The circumstances of the case

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

1. The background of the case

6 . On 13 May 1948, as a part of the process of large-scale nationalisation of private property without compensation, the competent authority of the new socialist State of Yugoslavia issued an order confiscating all the property belonging to the applicants ’ legal predecessor, A.R.S., who had fled the country. The property thus became a part of the so ‑ called General People ’ s Property. All four applicants appear to be potential heirs to the confiscated property.

7 . Following the confiscation, J.G. brought a claim against the General People ’ s Property for the separation of part of the property that had been confiscated from A.R.S. ’ s holdings. He claimed to be the owner of four plots (hereinafter “the disputed property”) in the Kobarid cadastral community. The disputed property had once belonged to J.G. ’ s parents, but had later been sold to the Kobarid Agricultural Fund, which in turn had sold it to A.R.S. in 1940. J.G. maintained that A.R.S. had bought the disputed property on his behalf with a view to later transfer the property to J.G. He called three witnesses who confirmed his story.

8 . On 25 June 1948 the Tolmin Local Court ordered the General People ’ s Property to enter J.G. ’ s right of ownership into the land register against payment of the purchase price of 9,600 Yugoslav dinars.

2. The civil proceedings

9 . In 1990 the first and the fourth applicants and T.K., who appears to be the legal predecessor of the second and the third applicants, instituted civil proceedings against J.G. ’ s successors before the Tolmin Local Court. They applied for recognition of their ownership of the disputed property. Alternatively, they asked the court to declare the judgment of 25 June 1948 granting J.G. ’ s claim (see paragraph 8 above) null and void.

10. The Tolmin Local Court rendered a judgment in those proceedings on 25 September 1997, dismissing the application. The principal claim was dismissed because the claimants lacked legal standing. The alternative claim was dismissed because the claimants failed to show that the conditions for finding the 1948 judgment null and void were fulfilled.

11. The first and the fourth applicants and T.K. appealed against the judgment.

12. On 2 June 1999 the Koper Higher Court dismissed the appeal.

13. The first and the fourth applicants and T.K. lodged an appeal on points of law ( revizija ) with the Supreme Court.

14 . On 8 June 2000 the Supreme Court dismissed the appeal, confirming the reasoning of the higher court to the effect that the first and the fourth applicants and T.K. could not be recognised as having ownership of the disputed property. As to the alternative claim, the court found that the conditions for finding the 1948 judgment null and void were not fulfilled.

3. The administrative proceedings

15 . In 1995 the first and the fourth applicants and T.K. lodged an application for the restitution of A.R.S. ’ s property under the Denationalisation Act. As regards the disputed property, on 14 July 1997 the restitution proceedings were suspended until a final decision had been made in the civil proceedings on the validity of the judgment of 25 June 1948 (see paragraphs 9-14 above).

16 . On 20 June 2003 a decision concerning the disputed property was taken in the denationalisation proceedings. The Tolmin Administrative Unit granted the claim for restitution of the disputed property, finding that any alleged agreement between A.R.S. and J.G. (see paragraph 7 above) had not affected the former ’ s ownership of the disputed property.

17. The Slovenian Compensation Company, a State financial organisation vested with the power to settle obligations to beneficiaries under the Denationalisation Act, appealed against the decision of the Tolmin Administrative Unit, arguing that it had been established by the judgment of 25 June 1948 that the disputed property had been bought on behalf of J.G. and had therefore not belonged to A.R.S. The property had thus not been confiscated from A.R.S.

18 . On 13 April 2004 the Ministry of the Environment, Spatial Planning and Energy (hereinafter “Ministry”) annulled the decision of 20 June 2003 (see paragraph 16 above), agreeing with the Slovenian Compensation Company. The Ministry was of the view that the applicants could only claim the purchase price paid by J.G. for the disputed property in 1948 (see paragraph 8 above), but could not claim compensation for the value of the property. The Ministry remitted the case to the Tolmin Administrative Unit and instructed it to determine the amount of the purchase price paid by J.G. and to recognise the applicants the right to reimbursement of the purchase price.

19. The first and the fourth applicants and T.K. brought an administrative action against the Ministry ’ s decision, arguing that the disputed property had first been confiscated from their predecessor and only later bought by J.G. They argued that the Ministry ’ s decision was in contradiction to the view taken by the court s – including the Supreme Court – in the civil proceedings for the recogniti on of ownership (see paragraphs 9-14 above).

20. On 3 June 2005 the Administrative Court dismissed the action, agreeing with the reasoning of the impugned decision of the Ministry that the disputed property had not been confiscated from A.R.S.

21. The first and the fourth applicants and T.K. appealed against the judgment to the Supreme Court on the grounds of procedural irregularities, incorrect and incomplete establishment of facts and erroneous application of the law.

22. On 11 October 2007 the Supreme Court dismissed the appeal, endorsing the reasoning of the Administrative Court.

23. On 18 December 2007 the first and the fourth applicant lodged a constitutional complaint.

24. Sometime after the appeal to the Supreme Court had been lodged T.K. died.

25 . On 13 May 2008 the Constitutional Court rejected the applicants ’ constitutional complaint on the grounds that they had not exhausted the available remedies.

26 . The applicants have not notified the Court whether the Tolmin Administrative Unit had after the Ministry ’ s decision on remission (see paragraph 18 above) decided the 1995 application for the restitution (see paragraph 15 above). The Court therefore assumes that case is currently pending at the Tolmin Administrative Unit.

B. Relevant domestic law and practice

27 . Section 58 of the Denationalisation Act ( Zakon o denacionalizaciji , Official Gazette no. 27/91-I, with subsequent amendments) sets time-limits for the delivery of decisions and provides as follows:

“The decision of the body of first instance concerning the request ... must be issued and served on the applicant within one year at the latest of the filing of any such properly presented request. ... ”

28 . Section 222(4) of the General Administrative Procedure Act ( Zakon o splošnem upravnem postopku , Official Gazette no. 80/99, with subsequent amendments) entitles a party whose application has not been decided upon within the prescribed time-limit to lodge an appeal in the same way as if the application had been dismissed.

29 . Section 28 of the Administrative Dispute Act ( Zakon o upravnem sporu , Official Gazette no. 105/06, with subsequent amendments) entitles a party who has lodged an application with an administrative authority to institute administrative proceedings in the Administrative Court (administrative dispute) in the following cases:

“2. If the second-instance authority does not rule on the applicant ’ s appeal against the first-instance decision within 2 months or within a shorter period, if any, provided by a special regulation, and fails to render a decision upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his appeal had been dismissed.

3. The applicant may also take the administrative action of the preceding paragraph if the first-instance authority fails to render a decision against which there may be no appeal, and in the case where the authority has not rendered a final administrative act within three years of the beginning of the proceedings, irrespective of whether or not ordinary and extraordinary remedies have already been used in the proceedings, except if the proceedings were suspended.”

A similar provision was contained in section 26 of the former Administrative Dispute Act ( Zakon o upravnem sporu , Official Gazette no. 50/97, with subsequent amendments), which was in force until 31 December 2006.

30 . The Protection of the Right to Trial without Undue Delay Act ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , Official Gazette no. 49/06, with subsequent amendments – “the 2006 Act”,) provides for two remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline to be set ( rokovni predlog ) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of undue delay ( zahteva za pravično zadoščenje ). The above remedies are available to parties in judicial proceedings. For a detailed presentation of the 2006 Act, see Žunič v. Slovenia (( dec. ), no. 24342/04, §§ 16-26, 18 October 2007).

COMPLAINTS

31. The applicants complained under Article 6 of the Convention of the excessive length of the restitution proceedings.

32. The applicants further complained under Article 6 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention that the grounds on which the domestic courts had based their decisions in the restitution proceedings had been in contradiction to the grounds on which the courts had based their decisions in the civil proceedings concerning the same issue, that this had constituted discriminatory treatment and had effectively prevented them from having their denationalisation claim decided.

THE LAW

A. Preliminary issue of victim status

33. The Court notes that all four applicants appear to be potentially eligible to be the heirs of the disputed property (see paragraph 6 above). The first and the fourth applicant were parties to the domestic proceedings complained of. The second and the third applicant, on the other hand, are not mentioned as parties in the domestic decisions and therefore an issue arises as to their victim status in the proceedings before the Court. However, the Court considers it unnecessary to deal with this question because, in any event, the application is inadmissible for the following reasons.

B. The length-of-proceedings complaint

34. The applicants complained of the excessive length of the restitution proceedings invoking Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows:

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

35. The Government argued that the applicants had failed to exhaust the domestic remedies under the General Administrative Procedure Act (see paragraph 28 above) and the Administrative Dispute Act (see paragraph 29 above). The Government referred to the principles established in Sirc v. Slovenia (( dec. ), no. 44580/98, 16 May 2002), where the Court had held that parties to restitution proceedings have at their disposal remedies under the Denationalisation Act, the General Administrative Procedure Act and the Administrative Dispute Act that enable them to pursue their request and bring it before the administrative judicial authorities.

36. The applicants argued that they had exhausted all the available effective remedies and that the remaining remedies provided for by the domestic law were not effective.

37. The Court notes that the Denationalisation Act sets out a one-year time-limit for delivering a first-instance decision in denationalisation proceedings (see paragraph 27 above). Following the expiry of that time ‑ limit, the party to the proceedings can, under the General Administrative Procedure Act (see paragraph 28 above), lodge an appeal in the same way as if the application had been dismissed. This might be seen as a remedy aimed at speeding up proceedings. Furthermore, under the Administrative Dispute Act, if the appellate body had not ruled within seven days on the appeal after a subsequent request to that effect had been made, the parties can institute administrative proceedings directly before the Administrative Court (see paragraph 29 above). The Court has already found that the General Administrative Procedure Act and the Administrative Disputes Act have provided applicants with an effective remedy in respect of a complaint about the length of proceedings before lower administrative authorities (see Sirc , cited above). Moreover, before the Administrative Court, parties to the proceedings have the possibility to expedite the proceedings by using the remedies envisaged under the 2006 Act (see paragraph 30 above).

38. In the present case the applicants have failed to use any of the above remedies. The length-of-proceedings complaint is therefore inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.

C. The remaining complaints

39. The applicants complained that the decisions of the domestic courts had been contradictory, which had amounted to a violation of Article 6 § 1 of the Convention and of Article 1 Protocol No. 1 to the Convention, in conjunction with Article 14 of the Convention.

Article 1 of the Protocol No. 1 to the Convention and Article 14 of the Convention read as follows:

Article 1 of Protocol No. 1

“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 accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

40 . The Government maintained that the proceedings were still pending before the Administrative Unit after the Ministry had quashed the first ‑ instance administrative decision and remitted the case to the first ‑ instance body for reconsideration (see paragraphs 18 and 26 above). They further pointed out that once the Administrative Unit had decided on the case, the applicants would be able to avail themselves of the legal remedies available to them under the applicable law. The Government submitted a written explanation from the Constitutional Court from which it transpires that the constitutional complaint had been rejected on 13 May 2008 (see paragraph 25 above) because the administrative proceedings had still been pending.

41 . The applicants maintained that by lodging a constitutional complaint they had exhausted the domestic remedies available to them. The fact that the Constitutional Court rejected the complaint on the grounds of non ‑ exhaustion of the available remedies in their opinion resulted from a mistake in the interpretation of the Administrative Dispute Act. In particular, they pointed out that the Ministry had instructed the Administrative Unit that the applicants would only be entitled to the purchase price paid by J.G. (see paragraph 8 ) and not to the actual restitution (that is in natura or compensation).

42. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. In that connection the Court points out that any applicant must have provided the domestic courts with the opportunity, which is in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach (see, for example, Mifsud v. France ( dec. ) [GC], no. 57220/00 , § 15, ECHR 2002 ‑ VIII).

43. The Court notes that the proceedings are still pending before the Tolmin Administrative Unit (see paragraphs 18 and 26 above). As a consequence, on the one hand, their outcome is uncertain at present and, on the other hand, the applicants should be able to challenge their outcome, provided that it is not favourable to them, through the available remedies, including, ultimately, a constitutional complaint. In this connection, the Court finds no reason to conclude that the Constitutional Court would be precluded in the future from addressing the applicants ’ complain. In this connection, it notes that on 13 May 2008 the Constitutional Court has refused to consider the merits of the applicants ’ claim only because the administrative proceedings had been at that time still pending (see paragraphs 25 and 40 above).

44. Having regard to the foregoing, the Court considers that this complaint is inadmissible as being premature and must be rejected under 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 2 March 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President

Appendix