AS TO THE ADMISSIBILITY OF
Application no. 44580/98
by Ljubo SIRC
The European Court of Human Rights (Third Section), sitting on 22 June 2006 as a Chamber composed of:
Mr J. Hedigan, President,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
Mr R. Pirnat, ad hoc judge,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 13 August 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court’s partial decision of 16 May 2002,
Having regard to the observations submitted by the respondent Government on 13 August 2002 and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr Ljubo Sirc, is a Slovenian and British national, born in 1920 and living in Glasgow (United Kingdom). He was represented before the Court from 12 August 2000 until 17 July 2002 by the firm Christian Fisher, Solicitors, and Mr Gordon Nardell, a barrister practising in London.
2. The respondent Government were represented by their Agent, Mr L. Bembič, State Attorney-General.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. Before the Second World War, the applicant’s family owned large amounts of various types of real estate located in Kranj and Ljubljana and in the surrounding area. The applicant’s father was the owner, inter alia, of a textile factory in Kranj. In 1941, its premises were taken over and the moveable assets of the business as well as stock were appropriated by the German occupying forces. In addition, the factory buildings were burnt down by the occupying forces at the end of the Second World War in 1945.
5. Following the end of the Second World War, the 1945 Yugoslav Act on the Treatment of Property which Owners were Obliged to Abandon during the Occupation or of Property appropriated by the Occupying Forces or their Collaborators provided for immediate restitution of confiscated property to the owners (“the 1945 Act”, see “Relevant domestic law and practice”). The applicant’s father submitted requests for restitution to the courts.
6. Subsequently, the factory land was returned to the applicant’s father together with a small proportion of the movable assets (including part of the machinery and stock).
7. On 12 August 1947 the Supreme Court convicted the applicant, the applicant’s father and several others of offences of collaboration with Western powers in the so-called “Nagode” trial. The proceedings have long since been recognised to have been a show trial.
8. The applicant was sentenced to death (later commuted to 20 years’ imprisonment) and his father to 10 years’ imprisonment. Both were sentenced to forfeiture of property to the State. However, at the time of the trial, the Sirc property consisted mostly of restitution or compensation claims.
9. According to the applicant, the sentence was enforced in two different ways. On the one hand, some assets were officially listed as appropriated by the State. These included approximately 15,000 m2 of factory land, returned machinery and items corresponding to more than two-thirds of the claims for the return of the remaining machinery filed under the 1945 Act, the Sirc family house with a small garden, a house in Ljubljana, shares in the Trbovlje coal-mining company, personal possessions and some 9,000 m2 of agricultural land belonging to the applicant’s mother.
10. On the other hand, the remaining assets such as items corresponding to outstanding claims introduced under the 1945 Act for restitution of, or compensation for, finished textiles, the Russian and Turkish cotton and one-third of the unreturned machinery became State property under the “general formula” of the forfeiture order.
11. The applicant’s father and the applicant were imprisoned from 1947 to 1950 and 1954, respectively. Before releasing the applicant from the prison, the communist police tried in vain to force him to become their agent.
12. Soon after his release in 1950, the applicant’s father died, leaving his entire estate to the applicant. Soon after his own subsequent release, the applicant fled to the United Kingdom and became a university lecturer in Glasgow, but continued to be harassed by the communists all through his 34 years of exile.
13. As to the compensation for the assets alienated from the factory by the German occupying forces, the Sirc family and the Federal Republic of Germany concluded on 17 March 1964 a settlement in Berlin for German marks (DEM) 1,000,000.
14. In 1989, the applicant was able to return to Slovenia.
2. Request for restitution and compensation under the 1978 Act on Implementation of Penal Sanctions and the adoption of the 1991 Denationalisation Act
15. On 31 January 1991 the Supreme Court ordered retrials of those convicted in 1947, including the applicant. On 5 April 1991, following the withdrawal of charges by the Public Prosecutor, the Ljubljana first-instance court terminated the proceedings and quashed the convictions.
16. On 3 June 1991, on the basis of Section 539 § 2 of the Criminal Procedure Act (“the CPA”) as in force at the time, the applicant lodged a request with the Ministry of Justice to give effect to his right to restitution of forfeited property and compensation for seven and a half years’ imprisonment.
17. At the material time, Section 145 of the 1978 Act on Implementation of Penal Sanctions as then applicable (“the 1978 Act”) regulated the restitution of, and compensation for, the property forfeited through penal proceedings (see “Relevant domestic law and practice”).
18. According to the applicant, that provision was interpreted by the domestic courts as putting the right to restitution of property forfeited in criminal proceedings on the same footing as a civil claim in tort. In particular, compensation awarded under Section 145 included damages for the owner’s inability to use the property during the period of forfeiture, and each asset was valued individually with due allowance for the effect of inflation, on the basis of expert evidence.
19. On 25 June 1991 Slovenia gained independence.
20. On 29 November 1991 the Denationalisation Act (“the DA”) was adopted, forming the basis for restitution of property (or its value) that had passed into State ownership after the Second World War. Its Section 92 provided that property forfeited in criminal proceedings that had terminated before 31 December 1958 should also be returned to previous owners under the DA (see “Relevant domestic law and practice”). One individual filed a constitutional initiative (ustavna pobuda) with the Constitutional Court challenging the constitutionality of Section 92.
21. On 27 May 1992, the Ministry having failed to respond to the applicant’s request, he instituted proceedings concerning some of the forfeited property in the Kranj Basic Court (Temeljno sodišče).
22. On 29 June 1992 the Kranj Basic Court rejected his claims, holding that the administrative authorities in charge of the denationalisation proceedings enjoyed jurisdiction. The applicant appealed against the decision.
23. On 19 July 1992 the applicant reiterated his earlier request lodged with the Ministry. On 20 October 1992 he filed additional submissions.
24. On 5 November 1992, the Constitutional Court rescinded Section 92 of the DA. That ruling was subsequently published in the Official Journal.
25. On 11 November 1992 the Ljubljana Higher Court rejected the applicant’s appeal against the decision of the Kranj Basic Court.
26. On 3 June 1993 the applicant filed additional submissions with the Ministry.
27. On 23 November 1993 the applicant reached an agreement with the Ministry of Justice as to the full settlement of compensation claims arising out of his unjust deprivation of liberty. DEM 80,000 were awarded to him on that basis.
3. New requests for restitution and compensation under the 1978 Act
28. Further to the fact that the agreement did not cover the applicant’s claims for restitution of, or compensation for, forfeited property, he initiated several sets of proceedings. They were divided into contentious (pravdni postopek) and non-contentious proceedings (nepravdni postopek). Currently, there are four sets of contentious proceedings and three sets of non-contentious proceedings pending before different levels of jurisdiction.
(a) The main set of contentious proceedings
29. On 1 April 1994 the applicant commenced proceedings in the Ljubljana Basic Court in respect of the contentious assets (i.e. those items not formally listed as forfeited by the State in 1947 – see “Background to the case”), claiming compensation amounting to 3,913,894.40 US dollars. He argued that he would have been able to secure compensation for these assets under the 1945 Act. In the framework of these proceedings, proof had to be adduced of the existence of each claim for these assets and the applicant’s ownership of the latter.
30. The (renamed) Ljubljana District Court (Okrožno sodišče) held a hearing on 19 January 1996.
31. On 21 November 1996, the Ljubljana District Court granted that part of the applicant’s claim relating to the Russian and Turkish cotton and some items of unreturned machinery. The Court awarded the applicant a total of 123,972,714.80 Slovenian tolars (“SLT”) (approximately USD 1 million at the 1996 exchange rate).
32. Both the applicant and the State Attorney-General acting on behalf of the Republic of Slovenia appealed to the Ljubljana Higher Court.
33. On 9 August 1997 the Parliament passed the Act on the Temporary Suspension of certain Provisions of the Act on Denationalisation and of the Act on the Implementation of Penal Sanctions (“the Temporary Suspension Act”). It had the effect of suspending extant claims under the 1978 Act, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998.
34. While those provisions were in abeyance, the Parliament passed the 1998 Act on Amendments and Supplements to the Act on Implementation of Legal Sanctions (the “1998 Act“). That Act added new Sections to the 1978 Act.
35. Section 145A applied the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958 (see “Relevant domestic law and practice”) .
36. The applicant and others filed constitutional initiatives challenging the 1998 Act before the Constitutional Court on the ground that its provisions were retroactive and discriminatory. On 16 July 1998 the Constitutional Court dismissed these initiatives (decision no. U-I-60/98 - see “Relevant domestic law and practice”).
37. The applicant also challenged the method of valuation of property as set out in the DA. On 18 March 1999 the Constitutional Court dismissed this initiative as well (decision no. U-I-137/98).
38. The proceedings continued in the Ljubljana Higher Court after expiry of the period of temporary suspension of the relevant provisions.
39. On 16 April 1999, the Ljubljana Higher Court quashed the Ljubljana District Court’s judgment of 21 November 1996 on the ground that the law had changed in the meantime and remitted the case.
40. In his written submissions of 18 January 2001, the applicant specified his claims in greater detail. He further explained that he was claiming compensation for the forfeited property that had not been properly listed.
41. On 29 January 2001 a hearing was held.
42. On 8 March 2001 the Ljubljana District Court gave judgment dismissing the whole of the applicant’s claims. On 11 September 2001 he appealed to the Ljubljana Higher Court. He filed additional submissions on 24 May 2002.
43. On 17 July 2002 the Ljubljana Higher Court upheld the first-instance judgment. The applicant than filed an appeal on points of law with the Supreme Court.
44. On 23 October 2003 the Supreme Court partially granted his appeal, relying on the provisions of Section 145 of the 1978 Act and referred that part of the case relating to the value of the machinery back to the first-instance court for re-examination. The Supreme Court first noted that the right under Section 145 was not a right to compensation but a right pertaining to unjust enrichment (neupravičena obogatitev). In addition, the provisions of the Civil Code were not applicable.
45. The Supreme Court considered that the aim of the provisions of the 1978 Act was to restore the situation to what it would have been had no transfer of property taken place. It was therefore necessary to determine whether or not the claims in question fell under the expropriation. The foundation of the applicant’s case brought under the 1978 Act was therefore conditional on the existence of claims under the 1945 Act and a genuine prospect of their being settled at the time of expropriation. The Supreme Court ruled that that was not the case concerning the remainder of the applicant’s request.
46. On 10 March 2004 the applicant lodged a constitutional appeal relying on Articles 14, 15, 22, 23, 26, 30 and 33 of the Constitution as well as on Articles 6 of the Convention and 1 of Protocol No 1. In particular, he contested the application solely of Section 145 of the 1978 Act and not also of the Criminal and Civil Codes. Moreover, the Supreme Court allegedly failed to follow the Constitutional Court’s decision rendered on 16 July 1998. He contended that his claims were viable and constituted classical tort claims, and that all elements of the State’s liability under the Civil Code were present.
47. On 14 February 2005 the Constitutional Court declared the applicant’s constitutional appeal concerning the dismissal of his claim admissible and rejected the remainder.
48. On 12 May 2005, reiterating the Supreme Court’s finding concerning this twofold condition for the foundation of the applicant’s claims under Section 145 of the 1978 Act and considering further that even another legal qualification of his rights per se would not secure the decision that he was seeking, the Constitutional Court dismissed his appeal. It also pointed out that, after the Second World War, the State acquired not only the actual property but also other claims pertaining to such property.
49. Since the applicant was contesting the interpretation of law, i.e. the finding of the lower courts concerning the viability of his claims, his allegations were of a fourth-instance nature. In addition, the previous decisions of the Constitutional Court did not assert that the applicant would have a right to compensation under the Civil Code for claims of which he had not been bereft. The Constitutional Court finally considered that the Supreme Court’s decision in general did not show arbitrariness.
50. In the framework of the remitted proceedings, on 24 May 2004 the Ljubljana District Court dismissed the part of the applicant’s request related to compensation for machinery amounting to 738,807.64 US dollars. The judgment was served on the applicant on 23 August 2004. He filed an appeal.
51. On 8 December 2004 the Ljubljana Higher Court quashed the judgment and remanded the case to the first-instance court.
52. On 14 March 2005, after a hearing, the Ljubljana District Court again rejected the applicant’s request. The applicant filed an appeal.
53. The proceedings are pending.
(b) The non-contentious proceedings and the contentious proceedings arising out of them
54. On 28 April 1993, in the framework of the non-contentious proceedings, four distinct claims concerning the forfeited property duly listed in 1947 (factory land, family house, spinning mill, three lots of machinery and various personal assets) were lodged with the Kranj, Kamnik and Ljubljana Basic Courts.
55. In the framework of these different sets of proceedings, the applicant and the State Attorney-General provided the court with extensive expert evidence as to the value of the assets.
56. In one set of the proceedings, on 9 September 1993, the applicant applied to the President of the Kranj Basic Court for an interim measure (začasna odredba) concerning the land. On 24 September 1993, the applicant’s request was granted pending the outcome of the proceedings.
57. The proceedings originally filed with the Kranj and Kamnik Basic Courts were subsequently transferred to the Ljubljana Basic Court.
(i) The non-contentious proceedings no. Nz 835/93
58. The applicant claimed restitution of land and buildings in natura and compensation for forfeited movable assets, i.e. textile machinery confiscated in factories in Kranj, Tržič and Škofja Loka and other property items, amounting to 1.322.284,92 US dollars.
59. At some stage, another set of proceedings was merged with the present one.
60. A hearing was held on 5 May 1994.
61. On 8 July 1994 the Ljubljana Basic Court partly granted the applicant’s request with regard to the restitution of land. The applicant challenged that ruling.
62. On 10 November 1994 another set of non-contentious proceedings was merged with the present proceedings.
63. On 30 December 1994 the Ljubljana Basic Court first quashed its earlier decision and subsequently returned to the applicant part of the immovable assets situated in Kranj.
64. On the same day, the court also decided that the applicant’s claims concerning compensation for his inability to make use of the assets were to be treated in contentious proceedings. That part of the applicant’s claim was separated and transferred to the Ljubljana District Court.
65. On 24 February 1995 the (renamed) Ljubljana Local Court ordered that the transfer of ownership concerning the returned land be entered in the land register of Kranj.
66. On 13 April 1995 another hearing was held by the Ljubljana Local Court.
67. On 7 July 1995 the applicant’s request related to the restitution of immovable assets situated in Kranj and in Stražišče was partially granted.
68. On 19 November 1996 the applicant applied for a new interim measure for the protection of the land, which was granted on 20 November 1996. The respondent parties challenged that decision.
69. On 22 January and 25 February 1997 the Ljubljana Local Court ordered the applicant to make payment of a provision to the valuation expert. The State Attorney-General and one of the other respondent parties appealed.
70. On 15 and 25 February 1997 the challenges made by the respondent parties were dismissed. They appealed.
71. On 25 February 1997 the Ljubljana Local Court also returned further land and a part of the family house to the applicant.
72. On 19 May 1998, at a hearing, the applicant withdrew one part of his claims concerning the restitution of the machinery. The court terminated that part of the proceedings and rejected his claim for compensation for one part of the machinery, in so far as it was directed against the Community of Kamnik and not the Republic of Slovenia.
73. On 21 April 1999 the Ljubljana Higher Court partly dismissed appeals against the first-instance rulings of 22 January, 15 and 25 February 1997, remitting the case to the Ljubljana Local Court in relation to the interim measures.
74. On 24 and 27 September 1999, acting on the basis of Section 24 of the amended DA, the applicant applied to the Ljubljana District Court for compensation for dilapidation of the property returned in 1994 and 1997.
75. On 19 September 2000 a hearing was held. The applicant insisted on restitutio in natura of the forfeited assets, whereas the persons holding them argued that this was not possible.
76. At a hearing of 24 October 2000, an expert valuer was appointed further to the adoption of the new legislation.
77. On 21 June 2001 another expert was appointed.
78. On 18 September 2003 the applicant filed his submissions, repeating his arguments that the proceedings concerning movables should be combined and separated from the proceedings regarding the land and buildings.
79. On 21 October 2005 the Ljubljana Local Court requested the Kranj District Court to consult the files relating to the confiscation of the Sirc property in 1947. On 14 November 2005 the Kranj Local Court replied that the files were stored in the Kranj History Archives (Zgodovinski arhiv Kranj).
80. On 2 December 2005 the Kranj History Archives forwarded some of the files to the Ljubljana Local Court. The remainder were not found.
81. A hearing was scheduled for 10 May 2006.
82. The proceedings are pending.
(ii) The non-contentious proceedings no. Nz 157/94
83. The applicant claimed compensation for forfeited immovable assets (looms in Kranj) amounting to 100,060 US dollars.
84. On 8 December 1993 and 5 July 1994 the applicant filed submissions.
85. On 30 December 1994 the Ljubljana Basic Court decided that the applicant’s claims concerning compensation for his inability to make use of the forfeited assets were to be treated in contentious proceedings. That part of the applicant’s claim was transferred to the Ljubljana District Court.
86. On 19 May 1998 the applicant withdrew part of his claim.
87. On 17 September 2001 the present set of non-contentious proceedings was merged with the following set of non-contentious proceedings.
(iii) The non-contentious proceedings no. Nz 280/93
88. The applicant claimed compensation for forfeited movable assets (parts of a spinning mill) amounting to 691,870 US dollars.
89. On 30 December 1994 the Ljubljana Basic Court decided that the applicant’s claims concerning compensation for his inability to make use of the machinery were to be treated in contentious proceedings.
90. On 30 November 1996 an expert opinion as to the valuation of the assets was drawn up.
91. On 18 February 1997 the State Attorney filed submissions.
92. On 25 February 1997 a hearing was held.
93. On 17 September 2001 the previous set of non-contentious proceedings was merged with the present set of proceedings.
94. A hearing was set for 18 September 2001.
95. On 8 October 2001 another hearing was held at which the applicant submitted a list containing all items of movable property for which he claimed compensation.
96. On 22 October 2001 the court held a hearing and decided to appoint an expert.
97. On 3 March 2003, the President of the court informed the applicant that his case would be transferred to another judge, specialized in denationalisation matters.
98. On 18 September 2003 the applicant filed his submissions, repeating his arguments that the proceedings concerning movables should be combined and separated from the proceedings regarding the land and buildings.
99. On 26 September 2003 the Bank of Slovenia was appointed as a financial expert in order to calculate within 30 days the monetary debts and claims of the applicant’s family firm in 1947.
100. On 20 January 2004 the court forwarded to the applicant the submissions filed by the State Attorney-General on 20 November 2002 and a letter of the Administrative Unit of Kranj filed in 2001.
101. On 18 August 2004 the Bank of Slovenia submitted its calculations.
102. On 27 August 2004 the State Attorney-General filed submissions as did the applicant on 8 October 2004.
103. On 23 March 2005 a new judge appointed in the case informed the applicant that she was to deal with his case and that she also had a number of old and complicated cases to examine.
104. The proceedings are still pending.
(iv) The current situation concerning the restitution of assets in the non-contentious proceedings
105. The situation in relation to the partially returned assets in the non-contentious proceedings is currently as follows:
- The factory land, some 600 m2 has been returned. The remaining 14,000 m2 (approx.) have yet to be returned, together with a small building. Some other structures on the land had been demolished, which has given rise to a claim for compensation.
- The upper storeys of the Sirc family house have been returned and are the subject of a claim in respect of dilapidation. However, the business premises on the ground floor have not been returned.
According to the applicant, in spite of his request for an interim measure, the company Ž was entered into the land registry as the owner during its privatisation proceedings and the applicant is obliged to purchase the premises from the company Ž before any compensation is awarded to him.
- Two plots of the garden have been returned and are the subject of dilapidations claims. However, the most valuable flat part has not been returned.
(v) The non-contentious proceedings no. Nz 11/93 and the proceedings before the administrative authorities in Ljubljana
106. On 17 November 1993 the applicant applied to the Community of Ljubljana for compensation in relation to 185 confiscated shares in the Trbovlje coal-mining company.
107. In domestic law there was a conflict of jurisdiction between the courts and administrative authorities concerning the shares.
108. On 4 May 1993 the claim was submitted also to the Ljubljana Basic Court which held a hearing on 5 May 1994. The same proceedings deal with the applicant’s claim in relation to the house which was the subject of a contract of sale in 1946 that was subsequently annulled as part of the process of forfeiture of assets.
109. On 24 June 1994 and 17 February 1997 the applicant filed submissions.
110. On 27 March and 8 May 2001 hearings were held by the (renamed) Ljubljana Local Court. At the first hearing, the applicant asserted that he was willing to withdraw the claim related to the house if I.K. and C.E., who had purchased it in 1946, succeeded in the proceedings they had initiated before the (renamed) Ljubljana Administrative Unit.
111. On 23 May 2001 the Ljubljana Administrative Unit also held a hearing. On 4 June 2001 the applicant filed further submissions.
112. On 12 June 2001 a hearing was held before the Ljubljana Local Court. Since the court found out that the proceedings concerning the same claims had been pending before the competent Administrative Unit, it postponed the hearing for an indefinite time.
113. On 17 January 2002 the applicant withdrew his request for compensation relating to the confiscated shares of the Trbovlje coal-mining company from the Ljubljana Local Court.
114. On an unknown date in 2002, the Ljubljana Administrative Unit awarded the applicant compensation for 185 shares.
115. On 8 July 2002 the court made enquiries concerning the state of the proceedings initiated by the buyers of the house with the competent Administrative Unit.
116. On 27 March and 28 May 2003 hearings were held.
117. On 16 April 2003 the State Attorney-General filed preparatory submissions.
118. At the hearing held on 28 May 2003, the applicant’s lawyer suggested that the proceedings be suspended pending the decision of the Ljubljana Administrative Unit.
119. In the course of the administrative proceedings initiated by the buyers of the house, on 23 December 2003 the Slovenian Compensation Society filed submissions which were forwarded to the claimants the following day. On 17 February 2004, a hearing was held by the Administrative Unit in those proceedings, at which it was decided to appoint a court evaluator.
120. The proceedings are pending.
(vi) The contentious proceedings rising out
of the non-contentious proceedings
no. II P 1015/95
121. On 30 December 1994 the Ljubljana Basic Court decided that the applicant’s claims concerning compensation for his inability to make use of the assets be transferred to the renamed Ljubljana District Court.
122. On 7 November 1996 the applicant amended his claims.
On 24 January 2002 the Ljubljana District Court asked the applicant whether or not the non-contentious proceedings were still pending.
123. On 3 December 2002 the Ljubljana District Court asked the applicant whether or not one set of the non-contentious proceedings had been terminated, with a view to fixing a date for a hearing. On 24 December 2002 the applicant informed the court that the proceedings were still pending.
124. A hearing was set for 20 December 2004. The applicant proposed that the hearing be postponed until the termination of the original set of non-contentious proceedings and that the three sets of contentious proceedings arising out of non-contentious proceedings be joined.
125. On 17 December 2004 the proceedings were stayed pending the outcome of the non-contentious proceedings.
(vii) The contentious proceedings rising out
of the non-contentious proceedings
no. II P 1016/95
126. In the beginning of 1995, the proceedings related to the applicant’s claims concerning compensation for his inability to make use of the assets started before the Ljubljana District Court.
127. A hearing was first set for 17 May 1996 and subsequently cancelled.
128. On 17 May 1996 the applicant filed submissions and on 7 November 1996 he amended his claim.
129. A hearing was set for 13 February 2001. Further to the applicant’s proposal, the court postponed the hearing until the final decision in the corresponding set of non-contentious proceedings.
130. The proceedings are pending.
(viii) The contentious proceedings rising
out of the non-contentious proceedings
no. II P 1017/95
131. In the beginning of 1995, the proceedings related to the applicant’s claims concerning compensation for his inability to make use of the assets started before the Ljubljana District Court.
132. On 25 October 1996 the applicant amended his claim.
133. On 17 March 1997 the Ljubljana District Court suspended further consideration of the applicant’s claims pending the ruling of the Ljubljana Local Court in the non-contentious proceedings.
134. On 3 December 2002 the Ljubljana District Court asked the applicant whether or not the non-contentious proceedings had been terminated so that a hearing could be scheduled. On 24 December 2002 the applicant informed the court that the proceedings were still pending.
135. The proceedings remain pending.
(c) Request for supervision related to the contentious and non-contentious proceedings
136. On 8 March 1996, further to the applicant’s request for supervision lodged with the Ministry of Justice, the latter informed him that the set of non-contentious proceedings relating to a considerable number of assets should be terminated within a reasonable time.
137. On 7 February 2000 the applicant raised the matter of the excessive length of proceedings with the Slovenian Embassy in Brussels through a Member of the European Parliament. The Ministry of Justice responded by making a request for supervision to the courts concerned. The replies of the Ljubljana District and Local Courts of 19 October, 7 November and 29 November 2000 were forwarded to the applicant.
138. The Ljubljana Local Court informed the applicant that the delays in the non-contentious proceedings were due to the scale and complexity of the matters at issue. It was also stated that the applicant’s cases were being examined and some partial decisions being taken. Some measures were adopted in order to expedite the proceedings. In order to accelerate the proceedings, on 19 September 2000 a programme for dealing with the backlog of cases was adopted.
139. In his request filed on 8 May 2001 with the Ministry, the applicant inquired about the state of the non-contentious proceedings concerning the Trbovlje coal-mine shares.
140. On 24 May 2001 the applicant again requested information concerning the state of non-contentious proceedings pending before the Ljubljana Local Court. The Ministry requested the court to prepare a report on the progress of the cases. Upon its receipt, on 5 July 2001 the Ministry informed the applicant about recent developments in different sets of non-contentious proceedings.
141. On 28 February 2003 the applicant filed a request for supervision with the President of the Local Court complaining about the long periods of inactivity with respect to several pending proceedings. In her reply of 1 April 2003, the President informed the applicant that the proceedings would be transferred to a new judge who was specialized in cases of this sort.
142. In August 2005 the applicant filed another request for supervision with the Ministry of Justice. The latter requested the Local Court of Ljubljana for information about the state of the proceedings, pointing to the increase in the number of length-of-proceedings applications against Slovenia pending before the European Court of Human Rights and drawing attention to the need to secure the right to proceedings of a reasonable length within the Slovenian judicial system.
4. The proceedings initiated on the basis of the Denationalisation Act in Ljubljana and Kranj
143. The applicant introduced two sets of proceedings before the Communities of Kranj and Ljubljana in order to claim compensation in respect of the requisitioned building land and a house formerly belonging to his mother as well as some of her personal possessions under the DA.
(a) The proceedings in Ljubljana
144. The proceedings before the Community of Ljubljana started on 6 February 1993.
145. On 18 November 1999 the Ljubljana Administrative Unit requested the applicant to complete his submissions. On 11 February 2000 the applicant submitted additional documents.
146. At an unknown date, the applicant submitted claims for loss of earnings during the period of forfeiture. These claims are being examined by the Ljubljana District Court.
147. On 23 May 2000 the Ljubljana Administrative Unit forwarded the request for compensation to the Slovenian Compensation Fund.
148. On 10 February 2003 the (renamed) Slovenian Compensation Society replied to the applicant. On 23 March 2004 the applicant, in turn, replied.
149. On 3 March 2005 the Slovenian Compensation Society requested additional documents which were supplied on 23 March 2005 in so far as available.
150. On 12 July 2005 the Slovenian Compensation Society questioned the nature of the applicant’s claim. That request was forwarded to the applicant on 18 August 2005 who replied on 5 September 2005.
151. On 29 September 2005 a hearing was held. On 12 October 2005 the applicant submitted an explanatory note.
152. On 12 January 2006 the Ljubljana Administrative Unit forwarded the documents to the Slovenian Compensation Society. On 6 February 2006 the latter replied that no new information was contained in the explanatory note. On 7 March 2006 the Ljubljana Administrative Unit forwarded this information to the applicant.
153. The proceedings are pending.
(b) The proceedings in Kranj
154. The proceedings before the Community of Kranj started on 4 May 1993.
155. A hearing was held on 27 May 1994.
156. The claim for restitution of the house resulted in a partial decision of 10 April 1998 returning the ground floor and a plot of land. The decision became final on 4 May 1998.
157. On 24 September 1999 the applicant submitted a claim for dilapidations of the returned property to the (renamed) Kranj Administrative Unit, on the basis of Section 24 of the amended DA.
158. On 8 August 2002 the Kranj Administrative Unit transferred part of the applicant’s claim to the Kranj District Court.
159. On 18 October 2002 the Kranj Administrative Unit issued a decision, fixing the amount of compensation at 53,641 €, payable in bonds of the (renamed) Slovenian Compensation Society, for a plot of land
160. On 31 January 2003 the Kranj District Court held a hearing. A new hearing was scheduled for 11 July 2003.
161. On 23 April 2003 the Kranj Administrative Unit, acting ex officio, re-opened the proceedings and amended its previous decision by awarding the applicant a higher compensation amounting to 157,936.84 DEM, payable in bonds. The applicant and the respondent, the Slovenian Compensation Society filed objections. The applicant replied on 4 June 2003.
162. On 8 September 2003 the applicant requested the annulment of the decision given on 18 October 2002 and a priority treatment of his appeal.
163. On 18 September 2003 the Ministry for Environment, Space and Energy rejected his request concerning the decision of 18 October 2002. By a separate decision, it also quashed the decision of 23 April 2003.
164. On 29 October 2003 the applicant instituted two administrative disputes before the Administrative Court and on 30 October 2003 he filed submissions with the Administrative Unit.
165. On 20 March 2004 the Administrative Unit Kranj issued a supplementary decision, fixing the amount of compensation at 49.047,67 DEM.
166. On 19 May 2004 the Kranj District Court issued an intermediary decision, considering that the applicant had a right to compensation since the alleged contracts had actually been acts of requisition.
167. On 14 September 2004, by separate judgments, the Administrative Court rejected the applicant’s requests. He lodged appeals with the Supreme Court. The proceedings are pending.
168. On 22 September 2004, after a hearing, the Kranj District Court fixed the amount of compensation. The applicant appealed.
169. On 26 January the Ljubljana Higher Court rejected the appeal. On 21 March 2005 the applicant filed an appeal on points of law with the Supreme Court which rejected it on 15 September 2005. The applicant than filed a constitutional appeal.
170. The proceedings are pending.
5. Other applications to the Constitutional Court
171. On 17 March 1997 the applicant challenged before the Constitutional Court the method of valuation of property based on the fixed exchange rate with the US dollars, as prescribed by the DA. The Constitutional Court dismissed that challenge on 2 March 2000.
172. The applicant also made an application to the Constitutional Court for a binding interpretation of the provisions of the 1945 and 1978 Acts, but this too was refused on 2 March 2000.
6. The request for war damages
173. On 27 June 2000 the applicant filed a request with the Office of the State Attorney-General for a part of the compensation that Austria had awarded to Slovenia as one of the legal successors of the SFRY on the basis of the Austrian State Agreement of 1959 for the damage caused by the German Army during its retreat in 1945 when it had burned the building of the Sirc textile factory. On 18 December 2000 the Office of the State Attorney-General replied that the matter was not within its jurisdiction.
174. The applicant has also submitted his request for compensation to the Individual Claims Committee of the Austrian Bank Holocaust Litigation Settlement and was awarded on 19 July 2004 approximately 5,000 US dollars.
B. Relevant domestic law and practice
1. The 1945 Act on the Treatment of Property which Owners were Obliged to Abandon during the Occupation or of Property appropriated by the Occupying Forces or their Collaborators
175. Section 1 of the 1945 Yugoslav Act on the Treatment of Property which Owners were obliged to abandon during the Occupation or of Property appropriated by the Occupying Forces or their Collaborators (Zakon o ravnanju z imovino, katero so lastniki morali zapustiti med okupacijo, ter z imovino, katero so jim odvzeli okupator ali njegovi pomagači, Official Journal of the Democratic Federative Yugoslavia, no. 36/45, and of the Federative People’s Republic of Yugoslavia, no. 105/46) provided for immediate restitution of confiscated property (immovable and movable assets, rights, enterprises with machinery and stock, etc.) to its owners. It also entitled the owners to claim compensation for damage to the property and for income or profit realised from the property by third parties. Pursuant to Section 2 (amended to become Section 5) compensation for such income and profit was to be quantified in accordance with the civil law.
2. The 1994 Act on Criminal Procedure
176. Sections 538 to 546 of the Act on Criminal Procedure (Zakon o kazenskem postopku, Official Journal no. 63/1994 and its amendments) provide for procedure for compensation, rehabilitation and making good of other rights of wrongly convicted or detained.
Section 538 § 1
“When extraordinary judicial review proceedings against a person, finally convicted or found guilty (...), then acquitted by such proceedings have been definitively discontinued or when such person has been finally acquitted of the charge brought against him or when the latter charge or the act of indictment has been dismissed, such person shall enjoy the right to compensation for the damage sustained by him as a result of his wrongful conviction ...”
Section 539 § 2 (as in force at the material time)
“Before filing the claim for compensation with the court the injured person shall address his claim to the Ministry of Justice in an attempt to come to an agreement as to the existence of the loss sustained and the nature and extent of the compensation sought.”
177. Further to the amendments, the claimant should now file his request with the State Attorney-General.
3. The 1978 Act on Implementation of Penal Sanctions, as amended and the 2000 Act on Implementation of Penal Sanctions
178. The 1978 Act on Implementation of Penal Sanctions, as amended (Zakon o izvrševanju kazenskih sankcij, Official Journal nos. 17/78, 8/90) originally excluded from restitution all those sentenced before 31 December 1958.
Section 145, as amended in 1990
“If the sanction of forfeiture of property is quashed, the forfeited property shall be restored to the person sentenced or his heirs.
If the restitution of property in whole or in part is physically or legally impossible, the actual value of that property at the time of the decision on its restitution, and according to the state of the property at the time of forfeiture, shall be paid by the socio-political unit to which the property was allocated. (...)”
179. The 2000 Act on Implementation of Penal Sanctions (Official Journal no. 22/2000) replaced the 1978 Act.
4. The 1991 Denationalisation Act
180. The Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) formed the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.).
181. Section 3 provides that all natural persons whose property had passed into State ownership on the basis of the listed legislation adopted in the aftermath of the Second World War are entitled to denationalisation. Section 4 further specifies that all other natural persons whose property was nationalised before 1963 are entitled to denationalisation.
182. Sections 2 and 42 to 44 provide that, where property cannot be returned in its original form, compensation is payable (not in cash but in State bonds payable in instalments over 15 years).
183. Section 44 provides that compensation for land and buildings is to be valued on a fixed system in accordance with the relevant regulatory texts and that the effect of inflation on business assets is to be calculated on the basis of a fixed US$ exchange rate determined by the Minister of Finance. Section 85 empowers various other Ministries to prescribe rules for valuation.
184. Section 92 of the 1991 Act extended its provisions to property forfeited in criminal proceedings that had terminated by 31 December 1958. That provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92).
5. The 1997 Act on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of the Act on Implementation of Penal Sanctions
185. Section 2 of the 1997 Act on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of the Act of Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/1997) suspended, inter alia, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, those proceedings concerning claims for the restitution of or payment of compensation for property confiscated by virtue of criminal judgments handed down before 31 December 1958 and subsequently annulled.
6. The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98)
186. The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) made minor amendments to Section 145 of the 1978 Act to make it clear that the obligation to meet claims for restitution lay in the first instance with the Republic of Slovenia rather than with individual socio-political units, thus confirming a ruling by the Constitutional Court in 1997.
187. It also added new Sections 145A and 145C to the 1978 Act. As far as the criminal proceedings terminated before 31 December 1958 are concerned, Section 145A replaced Section 145, applying the provisions of the DA 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. Section 145C expressly removed the right to compensation for the previous owner’s inability to make use of the property during the period of forfeiture.
188. Section 3 made the change applicable in non-contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings commenced before the Act came into force, but had not become final by that time.
189. In June 2002, further to the Constitutional Court’s ruling of 15 November 2001, Section 145C was amended again so that persons entitled 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 decision on its restitution becomes final.
7. The 1998 Act on Amendments of, and Supplements to, the Act on Denationalisation (Zakon o spremembah in dopolnitvah Zakona o denacionalizaciji, Official Journal no.65 /98)
190. Section 24 of the 1998 Act on Amendments of, and Supplements to, the Act on Denationalisation (Zakon o spremembah in dopolnitvah Zakona o denacionalizaciji, Official Journal no. 65 /98) provides that claims for compensation for dilapidation of returned property should be submitted not later than one year from the entry into force of the present Act.
8. The 1991 Constitution of the Republic of Slovenia
191. The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are relevant here:
“Laws and regulations must comply with the generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.”
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
“Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.
The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom.
Human rights and fundamental freedoms shall be restricted only by the rights of others and in such cases as are provided by this Constitution.
Legal protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed.
No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the ground that this Constitution does not recognise that right or freedom or recognises it to a lesser degree.”
“Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local community authorities and bearers of public authority that decide on his or her rights, duties or legal interests.”
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ...”
“Any person unjustly convicted of a criminal offence or deprived of his liberty without due cause has the right to rehabilitation and compensation, and other rights provided by law.”
“The right to private property and inheritance shall be guaranteed.”
“Laws and other regulations and general legal acts cannot have retroactive effect.
Only a law may establish that certain of its provisions have retroactive effect, if this is required in the public interest and provided that no acquired rights are infringed thereby.”
“The Constitutional Court shall hear:
... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ...
Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”
9. The 1994 Constitutional Court Act
192. The relevant provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču) read as follows:
“The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms...
Decisions of the Constitutional Court are legally binding.”
“1. The procedure for the assessment of the constitutionality
and legality of regulations and general acts issued for the exercise
of public authority shall begin with the submission of a written request
by the initiator or with a resolution of the Constitutional Court on
the acceptance of an initiative for the setting in train of procedures.
2. The assessment of the constitutionality and legality of regulations and general acts issued for the exercise of public authority shall also consist of an assessment of the conformity of laws and other regulations with ratified international treaties and the general principles of international law.”
“1. Any person may make a written initiative
to begin the procedure provided that such person adduces proof that
he or she has a legal interest.
2. Such legal interest shall be recognised if a regulation or general act for the exercise of public authority, submitted for assessment by an initiator, directly interferes with his or her rights, legal interests or legal position. ”
“Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”
“A constitutional appeal may be lodged only after all legal remedies have been exhausted.
Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.”
“1. The constitutional appeal must indicate the particular act which is the subject of the appeal and the facts of the alleged violation of human rights and basic freedoms on which it is based.
2. The constitutional appeal, acceptable only in written form, must be accompanied by a copy of the particular act which is the subject of the appeal and all other documents forming the basis of the appeal.
3. The appeal together with enclosures shall be lodged in triplicate.”
“If a constitutional appeal is admissible, it shall be examined by the Constitutional Court in private unless the Constitutional Court decides to hold a public hearing.”
10. The 1997 Administrative Disputes Act
193. The Administrative Disputes Act (Zakon o upravnem sporu) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings. Under Section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by Article 23 of the Constitution and compensation for any loss.
11. The 1994 Judicature Act
194. Section 72 provides that in the event of a delay in the proceedings any party may lodge a request for supervision (nadzorstvena pritožba) with the president of the court. The latter may request the presiding judge to report on progress in the proceedings, and is required to indicate any irregularities he finds in writing to the presiding judge. He may put the case on the priority list or set deadlines for procedural acts. If the delay has been caused by a heavy caseload, he may order the case concerned or other cases to be transferred to another judge. He may also propose measures under the provisions of the law regulating the judicial service.
195. If the request for supervision is lodged with the Ministry of Justice or the president of a higher instance court they will refer it to the president of the relevant court and may request a report on the measures undertaken to accelerate the proceedings.
12. Constitutional Court decisions
196. On 8 March 1998 the applicant challenged the 1998 Act by constitutional initiative (ustavna pobuda) before the Constitutional Court on the ground that its provisions were retroactive and discriminatory. He also challenged the method of valuation of property as set out in the DA.
On 16 July 1998, the Constitutional Court ruled (a joined decision no. U-I-60/98) that the disputed provisions of Sections 145A and 145C of the 1998 Act did not conflict with the Constitution because such interference with the constitutional rights granted in Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Constitution was indispensable for the protection of the rights of others claimant under the DA.
Placing unjustly convicted persons on an equal footing with all other rightful claimants regarding the redress of post-war wrongs was an appropriate means through which the legislator had achieved his aim. The principle of the Welfare State empowered the legislator, with due consideration paid to the right of all citizens to social security, to have regard to the financial resources of the State and, in cases which were constitutionally admissible, also to restrict certain rights accordingly.
The Constitutional Court also added that, when deciding, in November 1992 (decision no. U-I-10/92), to quash Section 92 of the DA, it had been unaware of the full extent of the property forfeited through criminal proceedings prior to 31 December 1958 and thus also of the financial obligations incumbent on the State.
The Constitutional Court ruled that Section 3 of the 1998 Act was in conformity with the Constitution notwithstanding the fact that it retroactively interfered with accrued rights because the retroactive effect of the Act was justified by the public interest, and since such interference, provided it be subjected to rigorous constitutional scrutiny, was in conformity with paragraph 3 of Article 15 of the Constitution.
It also emphasised the need, in the light of the Temporary Suspension Act and the 1998 Act, for swift completion of pending cases, all the more so as the restitution of property had twice been delayed by law and that the matter required an early solution.
197. On 18 March 1999 the Constitutional Court (decision no. U-I-137/98) dismissed the part of the applicant’s constitutional initiative made on 8 March 1998 concerning the method of valuation of property as set out in Section 44 of the DA. The Constitutional Court had previously separated that matter from its decision of 16 July 1998.
In particular, the applicant considered that compensation for forfeitured property that could not be returned in kind should have been calculated in accordance with the civil law (i.e. the law of tort). He also disputed the payment of compensation in the form of bonds issued by the Slovenian Compensation Fund (Slovenski odškodninski sklad), for which the State offered no guarantee. In his view, the previous owners who would receive so-called compensation of less than the market value of the forfeited property were discriminated against in comparison with those whose property could be returned to them in kind.
The Constitutional Court took the view that, guided by economic and political reasons (privatisation of property and redress of injustices), the legislator had regulated the new property relations ex nunc and decided not to have recourse to the civil law institution of restitutio in integrum. In determining the rights of the entitled persons in accordance with the actual circumstances and the law, the legislator had acted within his margin of appreciation. The Constitutional Court was also of the opinion that the actual circumstances, at the time of the enactment of the legislation and its application, determine the appropriate amount of compensation.
Moreover, the same method for the determination of the value of the forfeited property was applied also in cases where the property was to be returned in kind. Finally, the Constitutional Court had already ruled that the State’s unwillingness to offer a guarantee for the bonds was not to be construed as a refusal by the State to meet its obligations towards the entitled persons should the financial resources provided for by the law not be sufficient to cover the needs.
198. In 1998 the applicant also made an application to the Constitutional Court for a binding interpretation of the provisions of the 1945 Act and its amendments adopted in 1946. He challenged the valuation of the forfeited property given by the lower courts in the 1990s, concerning claims for restitution of property brought under the 1945 Act in relation to which proceedings had not been completed because of subsequent sentence to forfeiture of property. On 2 March 2000 the Constitutional Court rejected his application on the ground that such an interpretation did not fall within its jurisdiction.
199. On 2 March 2000 the Constitutional Court dismissed the applicant’s challenge concerning the fixed US dollar exchange-rate method of valuation prescribed by the 1991 Act.
200. On 15 November 2001 the Constitutional Court ruled that exclusion of claims for compensation for the inability to use or manage the property or in respect of lost profits for the period running from the quashing of the sentence of forfeiture until the decision on restitution became final was unconstitutional. In June 2002, the Parliament adopted a new wording of Section 145C.
1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the contentious, non-contentious and other proceedings brought to secure his right to restitution or compensation. Therefore, those proceedings concern the determination of a dispute about the applicant’s civil rights.
2. The applicant also complained under Article 13 that he had not had access to any effective machinery, before the judiciary or any other national authority, for ending the delay to the proceedings.
3. The applicant further considered that the Slovenian State’s retroactive legislative removal of his right to compensation on the basis of Section 145 of the 1978 Act and its replacement with a substantially less valuable right violated his right to a fair trial under Article 6 § 1 of the Convention, in particular the principle of equality of arms.
4. Referring to his arguments under Article 6 of the Convention (fair trial), the applicant also alleged a breach of his right to property under Article 1 of Protocol no. 1.
5. Finally, the applicant alleged a violation of Article 14 of the Convention in conjunction with both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the 1998 Act provided for different treatment of substantially identical claims on an arbitrary basis depending on whether the proceedings happen to have been completed before the entry into force of the 1998 Act or whether the proceedings concerned claims for restitution or compensation lodged by persons wrongfully sentenced to forfeiture of property after 1958.
A. Complaints under article 6 § 1 of the Convention (length of the proceedings)
201. The applicant complained that the length of the proceedings had been incompatible with the reasonable-time requirement, provided in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”
1. The parties’ submissions
(a) The Government
202. The right to a trial within a reasonable time was guaranteed by Article 23 of the Constitution. However, the applicant had failed to make any applications under the 1997 Administrative Disputes Act, which provided for judicial protection of that constitutional right during pending proceedings. In addition, further to Section 62 of the 1997 Administrative Disputes Act, claimants could also seek damages.
203. The same provision was applicable in the proceedings before the Constitutional Court in cases relating to Article 23 of the Constitution. A constitutional appeal could, in principle, be lodged only after the closure of administrative proceedings (Section 51 of the Constitutional Court Act).
204. The applicant had not availed himself of those remedies for the purpose of expediting the judicial proceedings and/or claiming compensation which could be regarded as both adequate and effective, not withstanding the relatively low number of such administrative disputes. Those remedies were available both in theory and in practice, and were accessible to him.
205. Furthermore, in the framework of the main set of contentious proceedings, the applicant failed to lodge a request for supervision with the Ministry of Justice. Following the amendments that had been made to the 1994 Judicature Act, the request for supervision had now obtained the required level of effectiveness.
206. As to the length of the proceedings instituted by the applicant, the reasons for the delays in the treatment of his claims were the extreme complexity of the legal issues and circumstances of a broader character. The change of the political system and the establishment of an independent State had important and far-reaching consequences.
207. In addition to ordinary cases, the Slovenian courts had to deal with other especially demanding cases concerning the transition period from socialist to a democratic legal order, the establishment of a new legal order and the disintegration of former Yugoslavia. Therefore, the degree of diligence by the courts should be considered in the light of general principle of adequate judicial protection. Overburdening of the courts could not be considered as a valid reason for protracted proceedings, although it is impossible not to take due account of the administrative and organisational measures concurrently taken in Slovenia.
208. The applicant himself has also contributed to the duration of the proceedings, since he did not define his claims clearly enough, modified them and was forced to ask the courts to stay certain sets of proceedings, such as the contentious proceedings.
209. Finally, by failing to avail himself of any of the legal avenues available to him, the applicant did not exhaust the domestic legal remedies as required by Article 35 § 1 of the Convention. There were no special circumstances existing in Slovenia that would excuse him from this duty.
(b) The applicant
210. The applicant contested the Government’s arguments related to the non-exhaustion of domestic remedies.
211. There was much scepticism as to the effectiveness of the remedies, namely an administrative dispute followed by a constitutional appeal, when it came to speeding up proceedings. In support of his argument, the applicant mentioned the resignation of the president of the Ljubljana Local Court given the lack of support she faced in her attempts to speed up the work of her court. In particular he drew attention to the delays in denationalisation proceedings.
212. As to the excessive length of the applicant’s proceedings, the sentence had been quashed in 1991 and, regard being had to the fact that the proceedings were still pending, this circumstance pointed not only to unreasonable delay but also to deliberate delay, attributable to the legal and political atmosphere in the country.
213. In general, the proceedings under the 1978 Act should be regarded as including the administrative stage which preceded the judicial stage, as provided by Section 539 of the CPA; the settlement signed in 1993 related only to the compensation for unjust imprisonment and did not concern his restitution claims. Hence, for the purposes of assessing the delay already affecting the proceedings as at 28 June 1994 (when the Convention came into force in respect of Slovenia), they should be considered to have started on 3 June 1991.
214. The proceedings were not particularly complex at the outset, whereas the legislative change may have added some complexity to the case as a whole. The proceedings have generally been administered slowly and inefficiently; there were lengthy periods of unexplained inactivity besides the period of legislatively ordered stay.
215. The applicant and his legal advisers have throughout sought to have the proceedings dealt with as expeditiously as possible and made repeated requests to the courts to make progress. All the claims were stated clearly from the beginning. However, due to the legal and factual uncertainty related to the change of the applicable legislation during the pending proceedings in the 1990’s and the fact that the claims related to the now rather remote situation in the immediate aftermath of the Second World War, he merely adjusted his conduct to the changing circumstances. Moreover, the constitutional initiatives lodged by the applicant did not lengthen the proceedings.
216. Finally, as to the Government’s arguments that he was responsible for the delays in the contentious proceedings, the District Court could not decide before the Local Court had given decisions in the original non-contentious proceedings.
2. The Court’s assessment
217. The Court notes that the present application is in this part 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.
218. 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.
219. The Court further notes that this part of 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. Complaints under article 13 of the Convention
220. The applicant complained that the remedies available in Slovenia in length-of-proceedings cases were ineffective. He relied on Article 13 of the Convention, which provides:
“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.”
1. The parties’ submissions
(a) The Government
221. The Government submitted that under the Slovenian system of legal remedies in length-of-proceedings cases it was possible not only to expedite the proceedings but also to make good any damage suffered. Those remedies were and remained effective in both theory and practice.
(b) The applicant
222. The applicant disputed that argument. The remedies relied on by the Government lacked in general the necessary quality of effectiveness postulated by Article 13.
2. The Court’s assessment
223. The Court reiterates that in the Kudła v. Poland judgment it decided that Article 13 of the Convention “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).
224. The Court considers that this part of the application raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
225. No other ground for declaring the complaint inadmissible has been established. It must therefore be declared admissible.
C. Complaints under article 6 of the Convention (fair trial)
226. The applicant complained that the Slovenian State’s retroactive legislative removal of his right to compensation on the basis of Section 145 of the 1978 Act and its replacement with a substantially less valuable right violated his rights to a fair trial under Article 6 § 1 of the Convention, in particular the principle of equality of arms. The legislative change was effected in pending proceedings to which the State was a party.
1. The parties’ submissions
(a) The Government
227. As far as the main set of contentious proceedings was concerned, the applicant had filed with the Constitutional Court in 1998 merely an initiative contesting the constitutionality of legislation regulating the restitution of property as amended in 1998. The fact that he had submitted claims for restitution with the competent authorities showed that he had legal interest in turning to the Constitutional Court. However, in the proceedings related to a constitutional initiative, the latter ruled only on the constitutionality of the regulation which could serve as basis for a decision in an individual case but not on the concrete findings in the applicant’s case. Therefore, he had not exhausted domestic legal remedies by filing only a constitutional initiative.
228. In addition, pending proceedings for review of constitutionality did not in principle have an impact on the implementation of challenged regulations in concrete cases, unless the Constitutional Court had suspended their implementation before the final ruling. Thus, the Constitutional Court did not suspend the implementation of the 1978 Act and its 1998 amendments but treated the constitutional initiatives challenging them with priority – within five months – and dismissed them on 16 July 1998. However, in some other case further to an initiative lodged on 21 September 1998, the Constitutional Court did suspend the implementation of amendments to the Denationalisation Act (“the DA”), but those proceedings lasted less than a month.
229. Moreover, the 1998 Act that the applicant was challenging was subsequently partially changed. Namely, on 15 November 2001 the Constitutional Court ruled that Section 145C as amended in 1998 was unconstitutional. The new Section 145C was adopted by the Parliament on 21 June 2002.
230. To conclude, the applicant had had a fair trial in the proceedings carried out so far, though it would be premature to rule on this issue since he had not filed any legal remedy or constitutional appeal against any individual act of a State authority. In addition, it was not always possible fully to ensure the principle of equality of arms because of the need to seek a balance between the interests of the individual and those of society.
(b) The applicant
231. A remedy could hardly be effective if the body handing down the final decision on the outcome of the constitutional appeal was one and the same, i.e. the Constitutional Court, which had previously dismissed his constitutional initiative challenging in abstracto the legislation applicable in cases such as his. The duplication of the procedure before the Constitutional Court was not logical and it only added to the length of the proceedings.
232. In addition, by virtue of Section 24 of the Constitutional Court’s Act, individuals might file a constitutional initiative only if they could show their legal interest, which meant that the challenged act directly interfered with their rights or legal interests, in fact with their legal position.
233. The legislative change was effected in pending proceedings to which the State was a party. The subsequent rulings of the Constitutional Court perpetuated that violation and directly interfered with his rights. The applicant relied on the principles established in the Stran Greek Refineries judgment of 9 December 1994, Series A no. 301-B, the Zielinski and Pradal & Gonzalez and Others v. France judgment [GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII, and the National & Provincial Building Society and others v. the United Kingdom judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII.
234. Therefore, the lack of equality of arms in the proceedings could be ascertained already after the dismissal of his constitutional initiative, as opposed to the Government’s view that the domestic remedies should be exhausted beforehand.
235. His complaints concerning the length of the proceedings and the legislator’s intervention were interconnected, since the change in the law that took place in 1998 would not have become applicable to his case, had the proceedings been completed within a reasonable time.
236. Finally, the applicant has made a number of observations about the general political climate that prevailed in the proceedings in the “Nagode” trial in 1947 and in communist regimes. According to him, the lack of impartiality and arbitrariness still obtained in the current proceedings in spite of the change in form. He argued that it was illusory for him to expect a fair trial in Slovenia, because the key politicians in the 1990’s with a communist background were closely linked to persons who organised the “Nagode” trial and mass murders in the late 1940. Moreover, all senior Slovenian judges were certified communists because they could not have become judges without having proved their “moral-political qualifications”, meaning their loyalty to the party. That was also valid for some of the Constitutional Court judges. For those reasons, the restitution of the family property was impeded by political bias.
2. The Court’s assessment
237. As to the applicant’s complaint under Article 6 related to the retroactive legislative intervention enacted by the Parliament in 1998, the Court firstly notes that the applicant filed his claims with the courts in 1993 and 1994 and that therefore at the moment of the adoption of the Temporary Suspension Act in 1997 and of the 1998 Act amending the relevant provisions of the 1978 Act, all sets of the applicant’s proceedings were pending.
238. The aim of the 1998 Act was to apply the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958, such as the applicant’s. He unsuccessfully challenged the relevant provisions of the 1998 Act before the Constitutional Court since the latter dismissed his initiative on 16 July 1998.
239. However, the Court notes the subsequent Constitutional Court’s decision on the non-conformity of the amended Section 145C with the Constitution and also the fact that that Section was changed by the Parliament in 2002.
240. As to the case at hand, the Court notes that, following the applicant’s constitutional appeal lodged on 10 March 2004, the main set of his contentious proceedings was partially terminated by a decision of the Constitutional Court of 12 May 2005.
241. When deciding on the applicant’s appeal on points of law and the constitutional appeal, both the Supreme Court and the Constitutional Court referred to Article 145 of the 1978 Act and not Sections added to the 1978 Act in 1998 which the applicant challenged before the Constitutional Court by means of the constitutional initiative.
242. Therefore it is superfluous to distinguish here between the constitutional initiative and the constitutional appeal since the Supreme Court and the Constitutional Court took no account of the added Sections.
243. That being said, the Court finds that the applicant’s complaints concerning the terminated part of the contentious proceedings amount essentially to an objection to the outcome of the proceedings before the Slovenian judicial authorities and to the errors of interpretation and application of domestic law allegedly committed by them.
244. The Court recalls that while its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national administrative and judicial authorities, notably the courts, to interpret and apply domestic law (see, inter alia, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97, 44801/98, § 49, ECHR 2001-II, and Nadbiskupija Zagrebačka v. Slovenia (dec.), no. 60376/00, 27 May 2004).
245. In the Court’s assessment, the national judicial authorities gave reasoned decisions, addressing all relevant submissions by the applicant. There is nothing to show that the conclusions of the national judicial authorities were arbitrary or contrary to the provisions of domestic law applied by them.
246. The Court further 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 Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII (extracts)).
247. The Court notes in this respect that the remainder of the main set of contentious proceedings and other sets of the applicant’s proceedings are still pending before different levels of judicial authorities. Since the fairness of the proceedings must be determined in the light of all the circumstances of the case, it considers, therefore, that the complaints relating to those proceedings are premature, since the domestic remedies have not been exhausted as required by Article 35 § 1.
248. Finally, as to the applicant’s allegations concerning the impartiality of the Slovenian judges in general and in particular of the Constitutional Court’s judges, the Court finds that the applicant did not adduce elements proving subjective and objective bias on the part of the members of the Slovenian judiciary (see Predojević and Others v. Slovenia (dec.), nos. 43445/98, 49740/99, 49747/99 et 54217/00, 9 December 2004).
249. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.
D. Complaints under Article 1 of Protocol No. 1
250. Referring to his arguments under Article 6 (fair trial), the applicant further considered that the Slovenian State’s retroactive legislative intervention breached also his right to property under Article 1 of the Protocol No. 1, which provides 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 accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ submissions
(a) The Government
251. It was in any event premature to rule on the applicant’s complaints under Article 1 of Protocol No. 1 since the proceedings were pending.
252. As to the restitution of property nationalised after the Second World War, persons whose property had been forfeited by virtue of a criminal conviction could have claimed its restitution either under the DA or under the 1978 Act.
253. On the one hand, where the criminal conviction was based on regulations quoted in Section 3 of the DA or any other regulation issued before 1963, restitution could be claimed regardless of the fact as to whether or not the sentence had been quashed. Such claims should have been filed within two years of the entry into force of the DA.
254. On the other hand, where the sentence had been quashed, claims could also be entered under the 1978 Act which formed part of the criminal legislation. In general, it was Sections 538 to 546 of the CPA which regulated rehabilitation and compensation as well as the procedure for the redress of infringements resulting from miscarriage of justice. The wrongly convicted person might also request compensation for loss of earnings.
255. The 1978 Act as amended in 1998 placed the rights of unjustly sentenced persons claiming restitution under that Act on a footing of equality with those of all other persons eligible for redress of post-war injustices under the DA.
256. In particular, the amended Section 145A applied the provisions of the DA to claims related to criminal proceedings terminated before 31 December 1958. Furthermore, under the amended Section 145C, the right to compensation by reason of the previous owner’s inability to make use of the property during the period of forfeiture and for loss of earnings was excluded in respect of persons unjustly sentenced before that date. The wording of the amended Section 145C was for all intense of purposes identical to that of Section 72 of the DA.
257. The Constitutional Court’s decision of 16 July 1998 reviewed the above-mentioned equalisation as a measure for adequate balancing of the redress of damage caused by nationalisation. In its submissions, the Government referred to the Constitutional Court’s reasoning (see “Relevant domestic law in practice”).
258. Moreover, on 15 November 2001, the Constitutional Court ruled that the amended Section 145C was unconstitutional for other reasons than those examined in 1998. In particular, it put claimants under the amended 1978 Act into a less favourable position than those under the DA. The new Section 145C, adopted by the Parliament in June 2002, now specified that the entitled persons might claim compensation for being unable to use, manage and maintain their property, as well as for loss of earnings, in respect of the period running from the quashing of their sentence until the decision on restitution becomes final.
259. Thus, the privileged position enjoyed by unjustly sentenced persons whose proceedings had ended before the entry into force of the 1978 Act in respect of compensation for the forfeiture of their property extended to loss of earnings only from the forfeiture until their sentence was quashed. Since the percentage of such persons is very small, the legislator had every reason to equalise the redress of wrongs as soon as possible. However, neither the legislator nor the Constitutional Court was empowered to interfere with the rights such persons had acquired before 1998.
260. In addition, unjustly sentenced persons were primarily entitled to restitution in kind where there were no actual or legal impediments. Where restitution in kind was no longer possible, compensation was to be paid in shares owned by the Republic of Slovenia, or in bonds issued specifically for that purpose. Rightful claimants were entitled to the present-day value of their property.
261. The applicant also introduced a constitutional initiative to challenge the subsidiary act which lay down coefficients of price increases expressed in US dollars and serving as a basis for determination of the value of nationalised property. On 2 March 2000 the Constitutional Court dismissed the applicant’s constitutional initiative, holding that it could review only the conformity of the subsidiary act with the main act and could not rule on an issue which was properly a matter for economic experts.
262. Finally, a substantial part of the forfeited property had already been returned to the applicant and he had also received compensation for the property that could not be returned in kind.
(b) The applicant
263. There was still a widely held propensity among law professors and other human rights specialists to deny that property was a human right.
264. Since the applicant’s right to restitution was vested in him upon his acquittal under the scheme of the 1945 and 1978 Acts, the legislative changes did in fact interfere with his rights protected by Article 1 of Protocol No. 1. In his view, in relation to each item of property, that right was a “possession” within the meaning of Article 1 of Protocol No.1. In addition, when the Ljubljana District Court first examined his case in the main set of contentious proceedings, his request was partially granted.
265. In so far as he was entitled to pecuniary compensation rather than actual restitution of property, he considered that he had acquired on that date, by operation of the law, a concrete right to receive that compensation under Section 145 of the 1978 Act as then in force, i.e. according to the law of tort.
266. For instance, compensation under the 1978 Act included damages for the owner’s inability to use the property; both the 1945 and 1978 Acts provided that rightful claimants were entitled to interest for the period of forfeiture of their property, whereas the amendments disallowed any payment of interest; compensation under the 1978 Act was to be paid in cash whereas, under the amendments, payment was to be made in State bonds; finally, the 1978 Act implied evaluation of land at market prices whereas the amendments laid down fixed prices for land, etc..
267. The change of the law effected by the 1998 Act was a deprivation of “possession” or at any rate a substantial interference with his right to peaceful enjoyment of that “possession”. The applicant considered that the intervention could not in the circumstances be regarded as proportionate.
268. In particular, following the legislative change, the pecuniary claims in relation to unreturned land and buildings would be substantially diminished; according to his estimates the DA values would be approximately 3/5 of the civil law values. The claims in relation to the family house and the garden would be reduced from some 264,000 US dollars to some 158,400 US dollars. Since the award would be payable in bonds rather than cash, there was a further diminution of 30 per cent, producing an overall loss of 153,120 US dollars. The value of the right to restitution of the factory land would likewise fall from the real present value of the asset (1,875,000 US dollars) to 787,500 US dollars, a loss of approximately 1,087,500 US dollars.
269. The applicant also contested the method of valuation of property based on the fixed exchange rate and challenged the Constitutional Court’s decision of 18 March 1999. The remaining claims in the contentious and uncontentious court proceedings (totalling approximately 6 million US dollars) would be reduced by application of the lower, fixed multiplier for inflation to some 4,4 million US dollars. That figure would be further reduced by 30 per cent as a result of payment in bonds, producing an overall loss of approximately 3,093,000 US dollars.
270. That legislative interference in 1998 was not necessary since compensation for what has been nationalised could have been covered out of the existing capital of the Slovenian State without endangering the Welfare State.
271. According to the figures published in 2001, denationalisation claims under Section 145 totalled USA 4,6 billion, which was less than a quarter of the capital available. It was interesting to note that the value of the capital seized forty years earlier amounted to one quarter of the existing capital; this could be attributable to poor management during the communist era.
2. The Court’s assessment
(a) Recapitulation of the relevant principles
272. The Court reiterates the principles that have been established by the case-law of the Court under Article 1 of Protocol No. 1 and that it has recently stated in its Kopecký v. Slovakia judgment ([GC], no. 44912/98, § 35, ECHR 2004-...):
(a) Deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, with further references).
(b) Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48, and Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II).
(c) An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or “assets”, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).
(d) Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).
In particular, the Contracting States enjoy a wide margin of appreciation with regard to the exclusion of certain categories of former owners from such entitlement. Where categories of owners are excluded in this way, their claims for restitution cannot provide the basis for a “legitimate expectation” attracting the protection of Article 1 of Protocol No. 1 (see, among other authorities, Gratzinger and Gratzingerova, cited above, §§ 70-74).
(e) On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1 (see Broniowski v. Poland [GC], 31443/96, § 125, ECHR 2004-...) .
(b) Application of the relevant principles to the present case
(i) General considerations
273. As concerns the case at hand, the Court takes note of the general context in which the relevant legislation was adopted and applied. Like several other States which passed over to a democratic system of government from the late 1980s onwards, Slovenia adopted new legislation with a view to providing redress for certain wrongs which had been committed under the preceding communist regime and which were incompatible with the principles of a democratic society.
274. The enactment of laws providing for rehabilitation, restitution of confiscated property or compensation for such property obviously involved comprehensive consideration of manifold issues of a moral, legal, political and economic nature. In a different context the Court has held that the national authorities of the Contracting States have a wide margin of appreciation in assessing the existence of a problem of public concern warranting measures and in implementing social and economic policies (see The Former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII). A similar approach is a fortiori relevant as regards legislation pertaining to denationalization.
275. The fact that the scope of restitution either under the 1978 Act or under the DA is limited and that restitution of property is subject to a number of conditions does not therefore, as such, infringe the applicant’s rights under Article 1 of Protocol No. 1.
276. This does not mean that the implementation by the national authorities of the relevant legal provisions in a particular case cannot give rise to an issue under Article 1 of Protocol No. 1. However, the Court must determine whether or not the applicant’s claims for restitution of, or compensation for the forfeited property in the terminated part of the contentious proceedings amounted to a “possession” within the meaning of that provision (see, mutatis mutandis, Kopecky, cited above, §§ 35-40, and von Maltzan and others v. Germany [GC], nos. 71916/01, 71917/01 and 10260/02, §§ 75-78, ECHR 2005-...).
277. The Court also reiterates that the remainder of the main set of the contentious proceedings and all other sets of proceedings are either still pending or the applicant did not pursue his claims to the Constitutional Court. The domestic legal avenues have thus not been exhausted as required by Article 35 § 1 of the Convention.
(ii) As to whether the applicant had “possessions” within the meaning of Article 1 of Protocol No. 1 in respect of the terminated part of contentious proceedings
278. The applicant based his claims on the provisions of the 1978 Act. He claimed that the proprietary rights were vested in him by the sole operation of that Act. However, regard being had to the fact that the applicant and his father were deprived of their property after the Second World War and that the deprivation of ownership is in principle an instantaneous act, the proprietary interests invoked by the applicant and based on the 1978 Act are therefore in the nature of claims and cannot accordingly be characterised as an “existing possession” within the meaning of the Court’s case-law (see Kopecky, cited above, § 41).
279. As to whether the applicant had at least a “legitimate expectation” that the claims would be determined in his favour, the Court reiterates that there is a difference between a mere hope of restitution, however understandable that hope may be, and a “legitimate expectation”, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova, cited above, § 73).
280. It therefore remains to be determined whether or not his claims were sufficiently established to attract the guarantees of Article 1 of Protocol No. 1. In this context, it may be of relevance whether a “legitimate expectation” of obtaining compensation arose for the applicant in the context of the proceedings complained of.
281. As already stated, the terminated part of the contentious proceedings concerned the forfeited property – i.e. claims on the basis of the 1945 Act – which was not properly listed at the moment of expropriation. The domestic courts had therefore to determine the existence of the applicant’s claims at the time of expropriation in the aftermath of the Second World War.
282. The Court refers here to its findings under Article 6 (fair trial) that the legislative change enacted by the Parliament in 1998 did not affect the outcome of the proceedings and that there is nothing to show that the conclusions of the national judicial authorities were arbitrary or contrary to the provisions of domestic law applied by them.
283. It is true that when the Ljubljana District Court examined the applicant’s claims for the first time on 21 November 1996, his request was partially granted. However, the first-instance judgment was subsequently overturned in the context of the same proceedings and without having acquired final and binding effect.
284. In the course of the remitted proceedings, the domestic courts ultimately dismissed his request. In particular, both the Supreme Court and the Constitutional Court pointed out that the foundation of the applicant’s claims under the 1978 Act depended on the viability of the original claims. The domestic courts eventually found that that was not the case.
285. It could therefore not be said that, when filing the claims, the request can be considered to be sufficiently established to qualify as an “asset” attracting the protection of Article 1 of Protocol No. 1. Neither did the first judgment delivered by the Ljubljana District Court invest the applicant with an enforceable right to compensation (see, mutatis mutandis, Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59, and Kopecky, cited above, § 59). That judgment was not sufficient either to generate a proprietary interest amounting to an “asset”.
286. It follows that the complaint under Article 1 of Protocol No. 1 relating to the terminated part of contentious proceedings is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.
287. This part of the application must therefore be rejected in accordance with Article 35 § 4 of the Convention.
E. Complaints under Article 14 of the Convention
288. The applicant also claimed to be the victim of discrimination in breach of Article 14 of the Convention taken in conjunction with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
1. The parties’ submissions
(a) The Government
289. Referring to its arguments under Article 6 of the Convention (fair trial) and Article 1 of Protocol No. 1, the Government submitted that it was premature to rule on this issue since the proceedings were still pending. In any event, the legislative change was enacted in order to equalise the rights of claimants under the 1978 Act with those of all other persons eligible for redress of post-war injustices under the DA.
(b) The applicant
290. For the purposes of both Article 6 § 1 of the Convention (fair trial) and Article 1 of the Protocol No. 1 in conjunction with Article 14, the 1998 Act provided for different treatment of substantially identical claims on an arbitrary basis depending on whether the proceedings to secure rights to restitution or compensation happen to have been completed before the entry into force of the 1998 Act or whether the proceedings concerned claims for restitution or compensation lodged by persons wrongfully sentenced to forfeiture of property after 1958.
291. The applicant considered that the persons who now claim restitution and compensation in respect of the property forfeited in Soviet-era criminal proceedings have suffered the same essential injustice of politically motivated prosecution and conviction, whether before or after that date. No legitimate aim was served by that difference.
292. To conclude, the Slovenian authorities displayed complete disregard for discrimination in every respect since the Constitutional Court had approved the discriminatory legislation made by the Parliament.
2. The Court’s assessment
293. According to the Court’s settled
case-law, Article 14 of the Convention complements the other substantive
provisions of the Convention and its Protocols. It has no independent
existence since it has effect solely in relation to the “enjoyment
of the rights and freedoms” safeguarded by those provisions. Although
the application of Article 14 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there can be
no room for its application unless the facts at issue fall within the
ambit of one or more of the latter (see Prince
Hans-Adam II of Liechtenstein, cited above, § 91, Gratzinger and Gratzingerova, cited above, § 76, and von Maltzan and others, cited above, § 116).
294. Having regard to the finding that Article 6 of the Convention and Article 1 of Protocol No. 1 are inapplicable, the Court holds that Article 14 of the Convention cannot be taken into account in the present case.
295. It follows that the complaint under Article 14 taken in conjunction, under Article 6 of the Convention (fair trial) and Article 1 of Protocol No. 1, is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of proceedings and the existence of effective remedy;
Declares the remainder of the application inadmissible.
Berger John Hedigan
SIRC v. SLOVENIA DECISION
SIRC v. SLOVENIA DECISION