THIRD SECTION

CASE OF KRAČ UN v. SLOVENIA

( Application no. 18831/02 )

JUDGMENT

STRASBOURG

30 November 2006

FINAL

28/02/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kra č un v. Slovenia ,

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

Mr J. Hedigan , President , Mr B.M. Zupančič , Mr C. Bîrsan , Mrs A. Gyulumyan , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Berro-Lefevre, judges ,

and Mr V. Berger , Section Registrar ,

Having deliberated in private on 9 November 2006 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 18831/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Davorin Kračun (“the applicant”), on 21 November 2000 .

2 . The applicant was represented by Ms J. Jazbinšek Goričan , a lawyer practicing in Celje . The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič , State Attorney-General .

3 . The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

4 . On 13 September 2005 the Court decided to communicate the complaint s concerning the length of the proceedings and the lack of remedies in that respect to the Government . Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

5 . In a letter of 6 October 2005 , the Austrian Government informed the Court that they do not wish to intervene in the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1928 and lives in Vienna , Austria .

7 . On 19 August 1949 the Slovenska Bistrica Local Court ( Okrajno sodišče v Slovenski Bistrici ) convicted the applicant ' s father in a criminal trial and ordered the forfeiture of his property to the State .

On 25 June 1991 the Slovenia declared independence.

On 16 September 1991 the District Prosecutor lodged a request for protection of legality with the Supreme Court ( Vrhovno sodišče ) seeking a reversal of the 1949 judgment.

On 11 November 1991 the Supreme Court allowed the request and quashed the conviction .

8 . On 22 January 1992, further to the Supreme Court ' s judgment, the applicant, his mother and his siblings (“the plaintiffs ”) instituted proceedings against the Slovenske Konjice Municipality and two companies in the Maribor Basic Court, Slovenska Bistrica Unit ( Temeljno sodišče v Mariboru , Enota v Slovenski Bistrici ) seeking restitution of the movable and immovable property forfeited to the State by the 1949 judgment .

9 . On 27 October 199 3 the court issue d a partial decision upholding the plaintiffs ' claim in part . On 20 January 1994, following this decision, the court ordered that the plaintiffs ' names be registered in the Land Registry as the owners of the returned property.

10 . On 28 June 1994 the Convention took effect with respect to Slovenia .

11 . On 29 November 1994 the plaintiffs lodged preliminary written submissions .

12 . On 1 January 1995 the Slovenska Bistrica Local Court ( Okrajno sodišče v Slovenski Bistrici ) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.

13 . On 23 February 1995 the court held a hearing and the plaintiffs amended their claim so as to seek restitution of a part of the property also from the newly established municipalities of Zreče and Vitanje .

14 . On 24 October 1995 the plaintiffs lodged preliminary written submissions .

15 . On 6 November 1995 the plaintiffs lodged preliminary written submissions and amended their claim. They named the Republic of Slovenia as an additional defendant.

16 . On 11 December 1995 the court held a hearing and the case was settled in part .

17 . On 14 November 1995, 12 December 1996, 16 June 1998 and 9 March 1999 the plaintiffs filed supervisory complaint s due to the excessive length of the proceedings.

18 . On 27 June 1996 the applicants lodge d preliminary written submissions seeking compensation from the Republic of Slovenia for the property which could not be returned in natura .

19 . On 7 May 1999 the plaintiffs withdrew their claim in part.

20 . On 22 June 1999 the court held a hearing and joined the proceedings with another set of proceedings between the same parties. The court requested the plaintiffs to furnish some documents concerning the property sought and its ownership.

21 . On 16 July and 23 November 1999 the plaintiffs lodged preliminary written submissions and amended their claim so as to seek restitution of property and compensation from the Zreče Municipality and the Republic of Slovenia .

22 . On 30 November 1999 the court held a hearing and appointed an expert in construction engineering and an expert in agriculture.

23 . On 7 January 2000 the plaintiffs submitted the list of all the property sought as it existed at the material time.

24 . On 23 February 2000 the appointed expert in construction engineering delivered his opinion and on 20 September 2000 the expert in agriculture did the same. Upon request of the plaintiffs , the court sought additional opinions from the appointed experts.

25 . On 24 April 2001 the court held a hearing.

26 . On 18 February 2002 the appointed expert in construction engineering delivered an additional opinion. Since the appointed expert in agriculture died, the court appointed a new expert who delivered an expert opinion on 26 March 2002 .

27 . On 23 April 2002 the court held a hearing. The Public Prosecutor ' s Office, which was representing the defendants in the case, acknowledged the foundation of the claim .

28 . The hearing scheduled for 11 June 2002 was cancelled at the request of the applicants.

29 . On 27 June 2002 the court held a hearing , which was adjourned at the defendants ' request. The plaintiffs specified their claim as to the amount and form of restitution of property sought.

30 . On 16 September 2002, upon receiving comments from the defendants, the plaintiffs lodged preliminary written submissions.

31 . On 17 September 2002 the court held a hearing and upheld the plaintiffs ' motion to disjoin the claim laid to one plot of land.

32 . On 3 October 2002 the court delivered a written judgment ordering the Republic of Slovenia to pay the applicants damages in the amount of 109,636,373.70 tolars (approximately 457,500 euros). This decision became final on 25 October 2002 .

33 . The proceedings with regard to the disjoined claim continued under a new application number. The court scheduled several hearings which were all cancelled at the request of the parties who attempted to settle the case. However, no settlement was reached.

34 . On 26 September 2003 the plaintiffs lodged preliminary written submissions.

35 . On 28 September 2004 the court held a hearing and decided to appoint an expert in geodesy. The expert was appointed two days later.

36 . On 22 October 2004 the court held a hearing.

37 . On 21 January 2005 the court appointed an expert in urbanism. She delivered her opinion on 9 May 2005 .

38 . On 26 September 2005 the plaintiffs lodged preliminary written submissions specifying their claims.

39 . On 29 November 2005 the court held a hearing and heard the appointed expert. The court upheld the claim in part and ordered the defendants to pay damages. The decision was served on the plaintiffs on 23 December 2005.

40 . At an undetermined time the plaintiffs appealed to the Maribor Higher Court ( Vi šje sodišče v Mariboru ). The proceedings are still pending.

41 . At an undetermined time, the applicant instituted proceedings in the Ptuj District Court ( Okrožno sodišče na Ptuju ) against the Republic of Slovenia seeking pecuniary damages for the loss of profit incurred because he was unable to use property since the forfeiture. The proceedings are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

42 . Section 145 of t he 1978 Act on Implementation of Penal Sanctions, as amended ( Zakon o izvrševanju kazenskih sankcij , Official Journal nos. 17/78, 8/90) provides that i f the sanction of forfeiture of property is quashed, the forfeited property shall be restored to the person sentenced or his heirs.

43 . Section 145A applied the provisions of the Denationalisation Act regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of forfeited property.

44 . In accordance with Section 145C , the persons entitled to request restitution of property under Section 145A might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the dec ision on its restitution becomes final.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE S 6 § 1 AND 13 OF THE CONVENTION

45 . The applicant complained about the excessive length of the proceedings . He relied on Article 6 § 1 of the Convention, which reads as follows:

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

46 . In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

47 . The Government pleaded non-exhaustion of domestic remedies.

48 . The applicant contested that argument, claiming that the remedies available were not effective.

49 . The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001 and Lukenda v. Slovenia , no. 23032/02, 6 October 2005 ). In those cases the Court dismissed the Government ' s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant ' s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice.

50 . As regards the instant case , the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.

51 . The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Article 6 § 1

52 . The Government first submitted that the period to be taken into consideration began on 28 June 1994 , the day the Convention took effect with respect to Slovenia . As far as the end of the relevant period is concerned, the Government emphasised that the greater part of the applicant ' s claims was decided on 25 October 2002 and the proceedings which are still pending only concern one plot of land.

53 . Next, the G overnment argued that the proceedings at issue were extremely complex for they concerned a large property which could not be returned in natura as a whole. Assessing the value of the property and the entity liable to return some of the property was very complicated. Hence, the conduct of the first-instance court, which tried the case in accordance with its mandate and issued several decisions concerning the restitution during the proceedings, cannot be considered dilatory .

54 . Lastly , the G overnment claimed that the applicant substantially delayed the proceedings by submitting unspecified claims which he subsequently amended. It was not until 7 January 2000, when he and other plaintiffs submitted the complete list of the property sought and its status at the material time. The claim for the amount and form of restitution was not made until 27 June 2002 . Since the stake of the case w as considerable, the applicant should have exercised his rights more diligently.

55 . The applicant agreed that the proceedings were of some complexity. However, the parties to the proceedings managed to agree on most of their adverse positions regarding the case, which was done without the help form the court. Finally, the applicant emphasised that the proceedings have not yet terminated. The court did disjoin the claim concerning one plot of land, but this claim concerns the same case.

56 . T he proceedings at issue in the present case were instituted before 28 June 1994 , the day the Convention took effect with respect to Slovenia . Given its jurisdiction ratione temporis , the Court can only consider the period which have elapsed since this day, although it will have regard to the stage reached in the proceedings in the domestic courts on that date (see, for instance, Belinger , cited above, and KudÅ‚a v. Poland [GC], no. 30210/96, § 123, ECHR 2000 ‑ XI). Therefore, t he period to be taken into consideration began on 28 June 1994 , the day when the Convention entered into force with respect to Slovenia .

57 . The Court notes that most of the applicant ' s claims were decided by 25 October 2002 . However, one cl aim made in the proceeding at issue remains undecided. Therefore, the relevant peri od has not yet ended. It has thus lasted over twelve years and three months for two levels of jurisdiction.

58 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case , the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

59 . The Court , noting the type of the proceedings, the considerable size of the properly sought, the number of defendants involved in the proceedings and their uncertain standing, and the number of experts appointed to establish the facts of the case, finds that the proceedings a t issue were of some complexity. Considering that what was at issue in the domestic proceedings was of some importance to the applicant, the Court opines that his several amendments of the claims rendered the case more intricate. However, the Government failed to provide any explanation for the delays in the proceedings, among others, the period of over three years and six months which elapsed between two court hearings.

60 . Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.

There has accordingly been a breach of Article 6 § 1.

2. Article 13

61 . The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda , cited above) and sees no reason to reach a different conclusion in the present case .

62 . Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

63 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Pecuniary da mage

64 . The applicant claimed 1,261,753 euros (EUR) in respect of pecuniary damage.

65 . The Government contested the claim.

66 . The Court observes that under Section 145C of the 1978 Act on Implementation of Penal Sanctions the applicant can seek compensation because he was unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the dec ision on its restitution becomes final .

67 . The Court notes that the applicant apparently instituted such proceedings in the Ptuj District Court seeking damages for the loss of profits. Since these proceedings are still pending, the applicant ' s claim under this head is premature (see Sirc v. Slovenia (dec.), no. 44580/98, 22 June 2006) .

B. Non-pecuniary damage

68 . The applicant claimed 15,000 EUR in respect of non-pecuniary damage.

69 . The Government contested the claim.

70 . The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 9,600 under that head.

C . Costs and expenses

71 . The applicant also claimed approximately EUR 1,550 for the costs and expenses incurred before the Court.

72 . The Government argued that the claim was too high .

73 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Accordingly, in the present case , regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court.

D . Default interest

74 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible ;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,600 ( nine thousand six hundred euros) in respect of non-pecuniary damage and EUR 1,000 ( one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount s at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 30 November 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger John Hedigan Registrar President