[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF ČUDEN AND OTHERS v. SLOVENIA
(Application
no. 38597/03)
JUDGMENT
STRASBOURG
21 December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Čuden and Others v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mr V.
Zagrebelsky,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr V. Berger, Section
Registrar,
Having
deliberated in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38597/03) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Mrs Ana Čuden, Mrs Sonja Hauck, Mrs Antonija Čuden, and
Mr JoZe Kušar (“the applicants”), on 20 December
1999.
- The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney-General.
- The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which she was
a party was excessive. In substance, she also complained about the
lack of an effective domestic remedy in respect of the excessive
length of the proceedings (Article 13 of the Convention).
- On
20 January 2006 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
- The
applicant was born in 1932 and lives in DomZale.
- In
1949, the applicants' parents were convicted of “illegal
commerce” and sentenced to imprisonment with forced labour. In
addition, their property was forfeited to the State.
- On
30 September 1991 the Public Prosecutor's Office informed the
applicants that it had lodged a request for protection of legality
with the Supreme Court (Vrhovno sodišče)
challenging the 1949 judgment. On 17 October 1991 the court
upheld the request in part and annulled the judgment in the part
referring to forced labour and forfeiture of property.
- On
18 November 1991 the applicants instituted proceedings for
restitution of property in the Ljubljana Basic Court, Ljubljana Unit
(Temeljno sodišče v Ljubljani, Enota v Ljubljani)
against the Municipality of Ljubljana Vič-Rudnik and the
Republic of Slovenia. They also sought compensation for the forced
labour their parents were subjected to.
On 22
October 1993 the court delivered a partial decision whereby it
ordered the restitution of one of the plots of land claimed by the
applicants, which was an unencumbered public property at the time.
The decision became final on 9 December 1993.
On 28
June 1994 the Convention took effect with respect to Slovenia.
On 19
October 1994 the court delivered another partial decision whereby it
awarded compensation in the amount of 5,585,527 tolars (approximately
23,300 euros) to each of the applicants for the remaining confiscated
property. The compensation was to be paid by the Municipality
Ljubljana Vič-Rudnik.
- The
Municipality Ljubljana Vič-Rudnik appealed against the decision
of 19 October 1994 to the Ljubljana Higher Court (Višje
sodišče v Ljubljani). Applicants cross appealed.
- At
an undetermined time the Municipality Ljubljana Vič-Rudnik
rendered a decision concerning the house claimed by the applicant.
This decision made possible the restitution of a part of the property
in natura. The Municipality Ljubljana Vič-Rudnik
submitted this decision to the Ljubljana Local Court on 15 November
1994.
On 1
January 1995 the Ljubljana Local Court (Okrajno sodišče
v Ljubljani) gained jurisdiction in the present case as the
first-instance court following the reform of the Slovenian judicial
system. At the same time, following a reform of the system of local
governance, the Municipality Ljubljana became liable for the
restitution, instead of the Municipality Ljubljana Vič-Rudnik
(“the Municipality”).
On 10
February 1995 the Ljubljana Local Court issued a partial decision
returning this part of property to the applicants. That property
included also a house, except the attics which had been purchased by
a company SP and occupied by its employee M.Š.
- The
Municipality, the company SP and M.Š. appealed to the
Ljubljana Higher Court.
On 29
November 1995 the Ljubljana Higher Court allowed the appeals lodged
against the decisions of 19 October 1994 and 10 February 1995 and
remitted the case to the first-instance court for fresh examination.
- Between
18 January 1996 and 10 March 2006 the applicants lodged eleven
preliminary written submissions and/or adduced evidence with the
Ljubljana Local Court.
Of
the five hearings held between 2 April 1996 and 2 March 2006 none was
adjourned at the request of the applicant. However, one of the
scheduled hearings was cancelled at the applicants' request and the
scheduling of the next hearing adjourned sine die, because
they wished to retain a new lawyer.
During
the proceedings the court appointed an expert in construction
engineering and an expert in geodesy. The court also sought an
additional opinion from one of the appointed experts.
On 4
April 2001 and on 23 November 2004 the court requested the applicants
to amend their claims as required by the law. The applicants' replied
each time within a month and amended their claims.
During
the proceedings, the applicants lodged more than fifteen requests for
speeding up the proceedings with several institutions, including the
Ministry of Justice, the Prime Minister, the Ombudsman, the European
Commission and the European Parliament.
On 31
March 2006 the court dismissed the applicants' claims, because they
were not duly specified. The decision was served on the applicants on
5 May 2006.
- On
22 May 2006 the applicants appealed to the Ljubljana Higher Court.
The
proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the proceedings.
She relied on Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- In
substance, the applicant further complained that the remedies
available for excessive legal proceedings in Slovenia were
ineffective. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government pleaded non-exhaustion of domestic remedies.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that the present application is similar to the cases of
Belinger and Lukenda (see Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001 and Lukenda v. Slovenia,
no. 23032/02, 6 October 2005). In those cases the Court dismissed the
Government's objection of non-exhaustion of domestic remedies because
it found that the legal remedies at the applicant's disposal were
ineffective. The Court recalls its findings in the
Lukenda judgment that the violation of the right to a trial
within a reasonable time is a systemic problem resulting from
inadequate legislation and inefficiency in the administration of
justice.
- 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.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
- The
period to be taken into consideration began on 28 June 1994, the day
when the Convention entered into force with respect to Slovenia, and
has not yet ended. The relevant period has therefore lasted over
twelve years and four months for two levels of jurisdiction. Due to a
remittal, four instances have been involved.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- In
the light of all the circumstances of the case, the Court considers
the impugned proceedings somewhat complex.
- The
Court notes, on the one hand, that there were several periods of
inactivity that occurred in the proceedings, for example over six
years and eight moths elapsed between the hearings of 4 March 1997
and 17 December 2003. On the other hand, the Court notes during
this period a hearing was scheduled for 22 September 1998, but was
cancelled at the applicant's request.
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable-time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see Lukenda,
cited above) and sees no reason to reach a different conclusion in
the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law whereby the applicant could have obtained a ruling
upholding her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1.
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF PROTOCOL No. 7 AND
OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1
OF PROTOCOL No. 1
The
applicants complained about the non-enforcement of the Supreme
Court's judgment of 17 October 1991 claiming that following this
judgment they were entitled to restitution of the property
confiscated to their parents and to compensation for their parents'
wrongful conviction. They relied on Article 3 of Protocol No. 7,
which reads as follows:
“When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction
has been reversed, or he has been pardoned... the person who has
suffered punishment as a result of such conviction shall be
compensated according to the law or the practice of the State
concerned...”
Finally,
the applicants invoked Article 14 of the Convention alleging that not
all of the Slovenian citizens participating in the denationalisation
process were in an equal position and that priority treatment was
given to the applications lodged by persons with connections in the
political elites or to those who were members of the public
administration. In substance the applicants relied on Article 1 of
Protocol No. 1.
Article
14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground...”
Article
1 of Protocol No. 1 (protection of property) reads as follows
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law...”
A. Admissibility
- With regard to the alleged violation of Article 1 of
Protocol No. 1, the Court notes that there is no right to restitution
under the Convention and its case-law. The hope that a
long-extinguished property right may be revived cannot be regarded as
a “possession”, and neither can the hope of recognition
of the survival of an old property right which it has long been
impossible to exercise effectively, or a conditional claim which
lapses as a result of the non-fulfilment of the condition (see
Kopecký v. Slovakia [GC], no. 44912/98, ECHR 2004 ...,
and, mutatis mutandis, Sirc v. Slovenia (dec.), no.
44580/98, 22 June 2006).
It follows that the complaint under Article 1 of Protocol No. 1 is
incompatible ratione materiae with the provisions of the
Convention, within the meaning of Article 35 § 3 of the
Convention.
- In any event, in accordance with the Article 35 of the
Convention, the Court may only consider the complaints raised by the
applicant, after the applicant had exhausted all domestic remedies.
- In this respect the Court notes that following the
applicants' appeal of 22 May 2006 to the Ljubljana Higher Court, the
proceedings are still pending. The applicant's complaints made under
Article 1 Protocol No. 1, Article 3 of Protocol No. 7 and Article 14
of the Convention are therefore premature.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies within the meaning of Article 35
§ 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicants did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints under
Articles 6 and 13 of the Convention concerning the length of
proceedings, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there is no call to award the
applicant just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Corneliu Bîrsan
Registrar President
