(Application no. 38597/03)
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,
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:
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.
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.
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.
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.
The proceedings are still pending.
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
“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. Article 6 § 1
There has accordingly been a breach of Article 6 § 1.
2. Article 13
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...”
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.
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
FOR THESE REASONS, THE COURT UNANIMOUSLY
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