British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
KNEZ AND OTHERS v. SLOVENIA - 48782/99 [2008] ECHR 168 (21 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/168.html
Cite as:
[2008] ECHR 168
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
THIRD
SECTION
CASE OF KNEZ AND OTHERS v. SLOVENIA
(Application
no. 48782/99)
JUDGMENT
STRASBOURG
21
February 2008
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 Knez and Others v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Corneliu Bîrsan,
President,
Boštjan M. Zupančič,
Elisabet
Fura-Sandström,
Alvina Gyulumyan,
David
Thór Björgvinsson,
Ineta Ziemele,
Isabelle
Berro-Lefèvre, judges,
and Santiago Quesada, Section
Registrar,
Having
deliberated in private on 31 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 48782/99) 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 four Slovenian nationals, Mr MiklavZ Knez, Mr Igor Levstek, Ms
Silvija Oblak and Mr Aleksander Majdič on 7 January 1999.
On 7 August 2001 Mr Andrej Jakša also lodged his application,
pertaining to the same factual and legal background as the original
application.
Initially,
the applicants were represented by
the Vidovič-Horvat law firm from Ljubljana. In the latter stages
of the proceedings, Mr MiklavZ Knez, Mr Igor Levstek and Mr Andrej
Jakša were represented by Mr B. Grossman and Mr I.
Grossman, lawyers practising in Ljubljana,
and Mr Aleksander Majdič was represented by
the Jesenko Law Firm from Ljubljana. The Slovenian Government (“the
Government”) were represented by their Agent, Mr L. Bembič,
State Attorney-General.
On
4 November 2005 the Vidovič-Horvat law firm informed the Court
that it was no longer authorised to represent the applicant
Ms Silvija Oblak. The applicant did not reply to the Court's
subsequent inquiries relating to her legal representation.
The
applicants alleged under Article 6 § 1 of the Convention that
the length of the proceedings before the domestic courts to which
they were parties was excessive. They also invoked Article 13 of the
Convention, complaining about the lack of an effective domestic
remedy in respect of the excessive length of the proceedings. They
further alleged that the temporary suspension of and the amendments
to the Denationalisation Act and the Act on Implementation of Penal
Sanctions, the Act on Issuing State Bonds for Compensation of
Forfeited Property Due to the Quashing of the Sentence of Forfeiture
of Property, and the Constitutional Court's decisions of 16 July 1998
and 22 February 2001 violated their rights under Article 6 § 1
and Article 14 of the Convention, as well as under Article 1 of
Protocol No. 1 and Article 3 of Protocol No. 7 to the
Convention.
On
28 September 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. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, Mr MiklavZ Knez, Mr Andrej Jakša, Mr Igor Levstek,
Ms Silvija Oblak and Mr Aleksander Majdič are Slovenian
nationals, who were born in 1929, 1932, 1931, 1912 and 1922,
respectively, and live in Ljubljana, except Mr Aleksander Majdič,
who lives in Bled.
1. Background to the proceedings started by Mr MiklavZ
Knez and Mr Andrej Jakša
On
11 December 1946 the Ljubljana District Court convicted Mr T. K.,
who was a legal predecessor of Mr MiklavZ Knez and Mr Andrej Jakša,
and sentenced him to 10 years' deprivation of liberty with
forced labour, forfeiture of his property and of the property
belonging to the company I. K. (Mr T. K. and Mr MiklavZ Knez
were partners in the company I. K.) to the State. Mr T. K. was
also stripped of his civil and political rights for three years. On
31 January 1947 that judgment was upheld by the Supreme Court.
On
13 November 1991, after the independence of Slovenia and the change
of the political regime, the Public Prosecutor filed a request for
protection of legality against the criminal judgment. On 19 December
1991 the Supreme Court quashed the conviction.
On
7 September 1992 Mr T. K. lodged a request for compensation for
wrongful conviction with the Ministry of Justice.
On
18 January 1993 the newly incorporated company T. K., claiming to be
the legal successor of the company I. K., instituted proceedings
against a company PEKO and another party in the then Kranj Basic
Court (Temeljno sodišče v Kranju), seeking
restitution of or compensation for the property forfeited by the
company I. K.
The
company T. K. also filed a motion for a temporary injunction in order
to protect the property of the company PEKO in the process of
privatisation. At an undetermined time, the requested temporary
injunction was granted.
2. Proceedings to which Mr MiklavZ Knez and Mr Andrej
Jakša are parties
Request for restitution of, or compensation for, the
forfeited property
On 14 February 1994 fourteen individuals, including Mr T. K. and the
applicants Mr MiklavZ Knez and Mr Andrej Jakša, joined the
company T. K. in the above-mentioned proceedings. They also informed
the court that they had reached an out-of-court settlement with the
second adversary party to the restitution proceedings.
On
3 April 2001 the claimants modified their restitution claims and,
inter alia, included the Republic of Slovenia among the
adversary parties.
Between
13 December 2002 and 11 February 2005 the court held seven hearings,
at which it obtained two expert opinions, clarified the locus
standi of the parties to the proceedings and identified the exact
nature and scope of the property claimed.
On
22 May 2006 the court rejected all claims for restitution of or
compensation for the forfeited property.
On
18 October 2006 the Ljubljana Higher Court (Višje sodišče
v Ljubljani) set aside the judgment of 22 May 2006 and remitted
the case to the first-instance court for re-examination.
The
proceedings are pending.
3. Proceedings to which only Mr MiklavZ Knez is a party
Request for compensation for loss of profits
On
24 October 1994 the company T. K. and its partners lodged a request
with the Ministry of Justice in order to claim compensation for loss
of profits following the forfeiture of the company's property. On
11 January 1995 the Ministry rejected their request.
On
25 January 1995, the company T. K., Mr T. K. and the applicant
Mr MiklavZ Knez instituted proceedings against the Republic of
Slovenia in the Ljubljana District Court (OkroZno sodišče
v Ljubljani), seeking compensation in the amount of
1,286,943,751.05 Slovenian tolars (“SIT”) (10,397,865 US
dollars at the material time) for the loss of profits of the
confiscated company I. K. and the companies owned by it.
On
17 September 1998, on the applicant's request, the court decided not
to continue with the proceedings until the European Court of Human
Rights had decided upon the present application.
Mr
T. K., born in December 1901, died in October 1998.
On
3 July 2002 the court held a hearing, at which both parties agreed to
stay the proceedings until the proceedings concerning the restitution
of property were terminated.
The
proceedings are pending.
4. Proceedings to which Mr Igor Levstek and Silvija
Oblak were parties
Request for restitution of, or compensation for, the
forfeited property
The
applicant Mr Igor Levstek is an heir of Mr I. L. and Mrs N. L., who
were convicted on 12 January 1946 by the Supreme Court. Mr I. L. was
sentenced to death and Mrs N. L. to 8 years' imprisonment. They were
both also sentenced to forfeiture of their property to the State and
stripped of their civil and political rights. The applicant Ms
Silvija Oblak is an heir of Mr F. O., who was also convicted by the
above-mentioned judgment of 12 January 1946 and was sentenced to
15 years' deprivation of liberty with forced labour. He was also
sentenced to forfeiture of his property and stripped of his civil and
political rights.
On
20 February 1991, after the independence of Slovenia and the change
of the political regime, the Supreme Court granted the request for
reopening of the criminal proceedings lodged by Mr Igor Levstek and
Ms Silvija Oblak. On 29 March 1991 the Public Prosecutor
withdrew the criminal charges, following which the Ljubljana Basic
Court (Temeljno sodišče v Ljubljani) on 8 April
1991 terminated the criminal proceedings and set aside the judgment
of 12 January 1946.
On
15 May 1991 Mr Igor Levstek and Silvija Oblak, together with some
other individuals, started proceedings against the Republic of
Slovenia in the then Ljubljana Basic Court, Rakek Unit (Temeljno
sodišče v Ljubljani, Enota na Rakeku), seeking
restitution of forfeited property and compensation for the property
that could no longer be returned in natura, including loss of
profits.
On
5 November 1991 the court held a hearing, at which the applicants
supplemented their request with an additional list of forfeited
property.
On
2 December 1991 the court appointed an expert to evaluate the nature
and value of the property which the applicants claimed in the
restitution proceedings.
On
7 October 1993 the court held a hearing and subsequently adjourned it
for 30 days, in order to invite also the Cerknica Municipality and
the appointed expert to participate at the hearing.
On
15 October 1993 the applicants again supplemented their request with
an additional list of forfeited property.
On
6 December 1993 the court held another hearing, at which it decided
to issue a partial decision.
On
28 January 1994 the court granted the applicants compensation for the
forfeited property, but not for the loss of profits.
On
10 May 1994, the Ljubljana Higher Court upheld the judgment of the
first-instance court. The Republic of Slovenia lodged an appeal on
points of law to the Supreme Court against this decision.
On
4 November 1994 the Supreme Court set aside the decisions of the
second- and first-instance courts and remitted the case to the
first-instance court for re-examination.
On
19 April 1995 the re-named Cerknica Local Court (Okrajno sodišče
v Cerknici) held a hearing.
On
29 April 1998 the Republic of Slovenia requested an adjournment of
the next scheduled hearing, which was granted by the court. The
hearing was eventually held on 25 May 1998.
On
3 July 2000 the applicants withdrew their claims against the Cerknica
Municipality (Občina Cerknica) as one of the adversaries
in the proceedings, following which the court on 25 October 2000
terminated the proceedings relating to this part of the claim.
On
30 October 2000 the Republic of Slovenia requested the adjournment of
the next scheduled hearing, which was granted by the court. The
hearing was eventually held on 21 November 2000.
On
9 January 2001 and 28 June 2001 the court held two more hearings. At
the hearing held on 28 June 2001 the court issued an order by which
it decided upon the restitution of a part of the property.
On
21 September 2001 the court rectified the order of 28 June 2001.
On
25 October 2001 the court again rectified the order of 28 June 2001.
On
13 November 2002 the Ljubljana Higher Court upheld in part the appeal
of the Republic of Slovenia against the order of the first-instance
court.
On
25 March 2004 the Supreme Court dismissed the applicants' request to
appoint another court to decide on the case.
At
an undetermined time between 13 November 2002 and 1 December
2004 Ms Silvija Oblak, as well as some other claimants, ceased to be
parties to the proceedings.
On
8 July 2004 the Cerknica Local Court decided that it did not have
jurisdiction to rule on the part of the applicants' claims concerning
a property falling under the jurisdiction of another district court.
On
1 December 2004 the Ljubljana Higher Court decided that the Cerknica
Local Court should hear the case as far as it concerned the property
at issue.
On
30 March 2005 the Ljubljana Higher Court handed down the final
decision in respect of the conflict of jurisdiction and appointed the
Cerknica Local Court to decide also upon the property falling under
the jurisdiction of the Ljubljana Local Court.
On
21 June 2005 the first-instance court held a hearing and decided, due
to the applicant's partial withdrawal of his restitution claims, to
terminate the proceedings in the part relating to these claims.
On
16 November 2006 the first-instance court held a hearing, where it
decided on the remainder of the restitution claims. It granted to
each of the claimants, including the applicant Mr Igor Levstek,
compensation for the forfeited immovable property in the value of
269,407.52 German marks at the material time. In addition, it granted
to each claimant, including the applicant Mr Igor Levstek,
compensation for the forfeited movable property in the value of
19,276 US dollars at the material time. The judgment was served on
the applicant on 14 December 2006. None of the parties appealed.
5. Proceedings to which only Mr Igor Levstek is a party
Request for compensation for loss of profits
On
4 February 1994 Mr Igor Levstek, together with another individual,
lodged a request for compensation for loss of profits further to the
forfeiture of the property to the State, initially filed with the
Ljubljana Basic Court, with the Ministry of Justice. According to the
applicant's submissions, the Ministry instructed him to lodge the
request with the competent court.
On
26 October 1994 Mr Igor Levstek, together with another individual,
initiated proceedings against the Republic of Slovenia for
compensation for loss of profits with the Rakek Local Court (Okrajno
sodišče na Rakeku) in the amount of 439,475,000 SIT.
On
19 April 1995 the applicant modified his claims and requested the
amount of 439,475,000 SIT as covering also compensation for certain
property that could no longer be returned in natura.
On
11 October 1995 the court declared that it had no jurisdiction over
the case and submitted the case file to the Ljubljana District Court
(OkroZno sodišče v Ljubljani).
On
27 May 1997 the applicant again modified his request.
On
3 November 1997 the applicant urged the court to decide promptly on
the case.
On
25 November 1997 the court decided, at the Republic of Slovenia's
request, to stay the proceedings temporarily due to the new Act on
Temporary Suspension of Certain Provisions of the Denationalisation
Act and of the Act on Implementation of Penal Sanctions.
On
3 April 1998 the court terminated the proceedings following the
applicant's withdrawal of all claims.
On
17 September 1998 the Ljubljana Higher Court allowed the applicant's
appeal and set aside the decision of the first-instance court. The
applicant also appealed against this decision.
On
11 December 1998, at the applicant's request, the first-instance
court cancelled a scheduled hearing and decided not to continue the
proceedings until the European Court of Human Rights had decided upon
the present application.
On
6 April 2006 the applicant modified and partially withdrew his
claims.
On
30 August 2006 the court held a hearing and decided to adjourn it in
order to give the parties time to negotiate an out-of-court
settlement. The hearing was adjourned sine die due to the
replacement of the acting judge.
On
6 December 2006 the court held another hearing.
The
proceedings are pending.
6. Proceedings to which Mr Aleksander Majdič is a
party
Request for restitution of, or compensation for, the
forfeited property
On
20 July 1946 the Ljubljana District Court convicted Mr M. L., who was
a legal predecessor of the applicant Mr Aleksander Majdič, for
two offences and sentenced him to five years' deprivation of liberty
with forced labour for each offence and forfeiture of his property to
the State. He was also stripped of his civil and political rights. On
17 September 1946 the Supreme Court upheld the judgment.
On
12 October 1994, after the independence of Slovenia and the change of
the political regime, the Supreme Court quashed the convictions
against Mr M. L. following the Public Prosecutor's request for
protection of legality against the judgment.
At
an undetermined time, the applicant Mr Aleksander Majdič lodged
a request for compensation for the forfeited property with the
Ministry of Justice, which did not reply to it.
On
22 December 1994, the applicant started proceedings against the
Republic of Slovenia, the Vrhnika Municipality, the Logatec
Municipality, the Vič-Rudnik Municipality, the Municipality
Radlje ob Dravi and a company Liko Vrhnika in the then Ljubljana
Basic Court, seeking restitution of the forfeited property and
compensation for the property that could no longer be returned in
natura, as well as compensation for loss of profits. In addition,
he filed a motion for a temporary injunction in order to protect the
property of the company Liko Vrhnika, in the process of
privatisation.
On
27 December 1994 the court issued the requested temporary injunction.
On
27 March 1995 the applicant supplemented his request for restitution
of forfeited property.
On
4 April 1995 the court held a hearing and decided, inter alia,
that neither locus standi of the applicant nor the district
under whose jurisdiction the forfeited property fell was clearly
established.
On
16 May 1995 and 8 June 1995 the court held two more hearings. After
the hearing held on 8 June 1995 the court granted the applicant 90
days to specify his restitution claims and the legal ground on which
these were based.
On
8 June 1995 the court granted in part the objection against the
temporary injunction. The applicant, as well as the company Liko
Vrhnika and another adversary party, appealed against this decision.
On
29 August 1995 the applicant modified his claims.
On
7 September 1995 the applicant again modified his claims and
instituted proceedings against eleven additional parties. He also
filed a new motion for a temporary injunction.
On 25 September 1995 another individual joined the proceedings on the
applicant's side.
On
11 October 1995 the Ljubljana Higher Court requested the applicant to
correct his submissions, and on 26 October 1995 the applicant
requested the court to extend the deadline for submission of his
corrections.
On
27 March 1996 the Ljubljana Higher Court rejected the appeal of the
applicant against the decision on the temporary injunction and
decided in favour of the appeal lodged by the company Liko Vrhnika.
It set aside the decision of the first-instance court of 27 December
1994 and decided not to grant the temporary injunction.
On
21 November 1996 the Supreme Court rejected the request for revision
lodged by the applicant and upheld the decision of the Ljubljana
Higher Court of 27 March 1996.
On
18 March 1997 the first-instance court held a hearing and requested
the applicant to furnish relevant documentation supporting his
claims.
At
an undetermined time, but before 16 July 1998, the applicant
requested the court not to continue with the proceedings until the
Constitutional Court decided on his constitutional initiative,
challenging the amendments to the Act on Implementation of Penal
Sanctions.
On
16 April 1999 the applicant withdrew in part his request for
restitution of the forfeited property, and on 15 December 1999 he
submitted a renewed request without one of the previous adversaries.
On
27 January 2000 the court held a hearing and issued a partial
decision, granting restitution of 58 plots of land to the applicant.
On
6 April 2000 the Ljubljana Higher Court dismissed the appeal lodged
by the Republic of Slovenia and the Farmland and Forest Fund of the
Republic of Slovenia (Sklad kmetijskih zemljišč in
gozdov Republike Slovenije) and upheld the decision of the
first-instance court.
On
30 October 2002 the Supreme Court dismissed the adversaries' request
for revision and upheld the decision of the first- and
second-instance courts.
On
10 February 2004 the first-instance court requested the applicant to
supplement his submissions relating to the rest of his claims for
restitution of the forfeited property (about 150 plots of land) with
the relevant supporting documentation, and on 15 March 2004 urged the
applicant to respond.
On
19 May 2005 the court appointed an expert in geodesy to make an
assessment of the property that was still subject to the court
proceedings.
On
25 May 2006 the court held another hearing.
The
proceedings are pending.
Request for compensation for loss of profits
On
24 November 1997 the applicant lodged a request for compensation for
loss of profits, initially filed with the Ljubljana Basic Court, with
the Ministry of Justice. According to the applicant's submissions,
the Ministry failed to reply to the request.
On
23 February 1998 the applicant filed a claim against the Republic of
Slovenia with the Ljubljana District Court, seeking compensation for
loss of profits in the amount of 11,904,823,000 Slovenian tolars
(126,057,000 German marks).
On
18 October 1999 the applicant requested the court not to continue the
proceedings until the European Court of Human Right had decided upon
the present application.
On
29 March 2002 the court recommended the parties to seek an
out-of-court settlement and placed itself at their disposal to
mediate, which was refused by both parties.
On
14 June 2005 the applicant submitted to the court a statement, in
which he declared that he would under no circumstances claim the time
lapsed while waiting for the decision of the European Court of Human
Rights as an excessive delay in the domestic proceedings.
On
5 July 2005 and 18 August 2005 the Republic of Slovenia objected to
the proposal of the applicant for a temporary stay of the
proceedings.
On
30 September 2005 the court held a hearing, at which it dismissed the
applicant's request to stay the proceedings until the European Court
of Human Rights had decided upon his application and issued a
judgment. The applicant appealed against this decision.
On
22 March 2006 and 6 July 2006 the Ljubljana Higher Court returned the
case file to the first-instance court for rectification.
On
13 September 2006 the Ljubljana Higher Court partially allowed the
applicant's appeal and remitted the case in part to the
first-instance court for re-examination.
On
7 February 2006 the first-instance court held a hearing.
The
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution of the Republic of Slovenia
The
following provisions of the 1991 Constitution (Ustava Republike
Slovenije, Official Journal no. 33/91) are particularly relevant
for the present case:
Article 23
“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.”
Article 26
“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 ...”
Article 30
“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.”
2. The Act on the Protection of the Right to a Trial
without Undue Delay
The
Act on the Protection of the Right to a Trial without Undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Journal, No. 49/2006, “the 2006 Act”) has
been implemented since 1 January 2007. Under its sections 1
and 2, the right to a trial within a reasonable time is guaranteed to
a party to court proceedings, to a participant under the Act
governing non-contentious proceedings and to an injured party in
criminal proceedings.
Section
3 provides for two remedies to expedite pending proceedings - a
supervisory appeal (nadzorstvena pritoZba) and a motion for a
deadline (rokovni predlog) - and, ultimately, for a claim for
just satisfaction in respect of damage sustained because of the undue
delay (zahteva za pravično zadoščenje).
Section
25 lays down the following transitional rules in relation to
applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party had filed
a claim for just satisfaction with the international court before the
date of implementation of this Act, the State Attorney's Office shall
offer the party a settlement on the amount of just satisfaction
within four months after the date of receipt of the case referred by
the international court for the settlement procedure. The party shall
submit a settlement proposal to the State Attorney's Office within
two months of the date of receipt of the proposal of the State
Attorney's Office. The State Attorney's Office shall decide on the
proposal as soon as possible and within a period of four months at
the latest. ...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months after the date on which the party filed its proposal, the
party may bring an action before the competent court under this Act.
The party may bring an action within six months after receiving the
State Attorney's Office reply that the party's proposal referred to
in the previous paragraph was not acceded to, or after the expiry of
the period fixed in the previous paragraph for the State Attorney's
Office to decide to proceed with settlement. Irrespective of the type
or amount of the claim, the provisions of the Civil Procedure Act
concerning small claims shall apply in proceedings before a court.”
3. The Denationalisation Act
The
Denationalisation Act (Zakon o denacionalizaciji, Official
Journal no. 27/91) forms the basis for restitution of property
(or its value) that had passed into State ownership through previous
legislation (agrarian reform, nationalisation, confiscation, etc.).
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 by a legal act issued before 1963 are
entitled to denationalisation.
The
Denationalisation Act governs, inter alia, the form and scope
of restitution, the restrictions on restitution and the valuation of
property. In particular, it provides for several exceptions in which
the property should not be returned in natura, for example if
the property belongs to the natural or cultural heritage of the State
(Section 17). Furthermore, in its Sections 2 and 42 to 44 it provides
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).
In
accordance with Section 92, the Denationalisation Act originally
applied also to the restitution of property in cases where the
property was forfeited by virtue of criminal judgments handed down
before 31 December 1958. Since the restitution of property
to a wrongfully convicted person is otherwise governed by the Act on
Implementation of Penal Sanctions, which does not provide for the
above-mentioned restrictions on the restitution of the forfeited
property, Section 92 of the Denationalisation Act had an effect of
introducing a less favourable restitution regime where the criminal
judgment had been rendered before 31 December 1958. This
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, see below).
4. The Act on Temporary, Partial Suspension of
Restitution of Property
On
30 December 1995 the Act on Temporary, Partial Suspension of
Restitution of Property (Official Journal no. 74/95) entered into
force, which held in abeyance certain types of restitution
proceedings for a period of three years.
5. The Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act on
Implementation of Penal Sanctions
On
8 August 1997 the Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act of
Implementation of Penal Sanctions (Zakon o začasnem zadrZanju
izvajanja nekaterih določb zakona o denacionalizaciji in zakona
o izvrševanju kazenskih sankcij, Official Journal no.
49/97) was adopted. Its Section 2 suspended, originally until
20 December 1997 and subsequently, under new legislation,
until 31 March 1998, the proceedings concerning claims for
the restitution of or compensation for property, inter alia in
cases where the property was confiscated by virtue of criminal
judgments handed down before 31 December 1958.
6. The Act on Implementation of Penal Sanctions, as
amended
Prior
to the 1998 amendments, the Act on Implementation of Penal Sanctions
(Zakon o izvrševanju kazenskih sankcij, Official
Journal no. 17/78, 8/90) applied also to the restitution of property
forfeited by criminal judgments which were handed down before
31 December 1958 and were later quashed (see the
Constitutional Court's decision mentioned under “3. The
Denationalisation Act”)
In
1998, when certain provisions of the Act on Implementation of Penal
Sanctions were in abeyance (see under 5. The Act on the Temporary
Suspension of Certain Provisions of the Denationalisation Act and of
the Act on Implementation of Penal Sanctions), the Parliament passed
the 1998 Act on Amendments 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). That Act added new Sections to the Act.
As
far as claims for restitution of property forfeited by the criminal
judgments handed down before 31 December 1958 are
concerned, Section 145A replaced Section 145 and referred back
to the Denationalisation Act to govern the form and scope of
restitution, the restrictions on restitution and the valuation of
property, thus providing again for a less favourable restitution
regime than granted under the Act on Implementation of Penal
Sanctions. Section 145C expressly removed the right to compensation
for loss of profits due to the forfeiture of the property during the
period of forfeiture.
Section
3 made the change applicable also in non-contentious and contentious
proceedings concerning the restitution of confiscated property when
such proceedings had commenced before the Act came into force, but
had not become final by that time.
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 may now claim compensation for the loss
of profits incurred throughout the period running from the quashing
of the forfeiture of the property until the decision on its
restitution becomes final.
7. The Act on Issuing State Bonds for Compensation of
Forfeited Property Due to Quashing of the Sentence of Forfeiture of
Property
Article
1 of the Act on Issuing State Bonds for Compensation of Forfeited
Property Due to the Quashing of the Sentence of Forfeiture of
Property (Zakon o izdaji obveznic za plačilo odškodnine
za zaplenjeno premoZenje zaradi razveljavitve kazni zaplembe
premoZenja, Official Journal no. 49/99, “the State Bonds
Act”) provides:
“For the purposes of compensation for forfeited
property due to quashing of the sentence of forfeiture of property,
the Republic of Slovenia shall issue state bonds in the maximum value
of 20 milliards Slovenian tolars, in view of its obligations arising
out of final decisions on quashing the sentence of forfeiture of
property and out of setting the amount of compensation for the
forfeited property.
8. The Constitutional Court's decisions
On
5 November 1992 the Constitutional Court quashed Section 92
of the Denationalisation Act, which provided for the restitution of
property forfeited by virtue of criminal judgments which were handed
down before 31 December 1958 and later quashed on the basis
of extraordinary legal remedies, to be governed by the
Denationalisation Act (decision no. U-I-10/92). The court established
that the challenged provisions interfered with the effect of final
decisions on quashing the criminal judgments and retroactively
affected the rights of wrongfully convicted persons. According to the
court's findings, the restitution of this type of property should
instead be governed by the Act on Implementation of Penal Sanctions,
which provides for a more favourable restitution regime.
On
13 February 1998 the Constitutional Court upheld in part a
constitutional initiative lodged by the applicant Mr Igor Levstek and
some other individuals, challenging the provisions of the Act on the
Temporary Suspension of Certain Provisions of the Denationalisation
Act and of the Act on Implementation of Penal Sanctions (a joined
decision U-I-200/97). It ruled, inter alia, that the
legislator had not complied with the requirement of proportionality
when it suspended the two Acts and thus affected the human rights of
all the claimants in restitution proceedings in order to revise the
restitution regime applying to only some of them. The court
established a violation of constitutional rights protected under
Article 14 (right to equality before the law).
With
another constitutional initiative the applicants Mr Igor Levstek and
Mr Aleksander Majdič, as well as some other individuals,
challenged sections 145A and 145C of the Act on Implementation of
Penal Sanctions for introducing a less favourable restitution regime
where the property had been forfeited by a criminal judgment handed
down before 31 December 1958, by referring to the
Denationalisation Act to govern the restitution of this type of
property. The court held that the challenged provisions did not
conflict with the Constitution, because such interference with the
constitutional rights granted under 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 other claimants
under the Denationalisation Act, who were similarly entitled to
reparation for the wrongs perpetrated in the aftermath of the Second
World War (a joined decision no. U-I-60/98). The principle of the
Welfare State empowered the legislator, with due consideration 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 on
5 November 1992 to quash Section 92 of the
Denationalisation Act and to consider the Act on Implementation of
Penal Sanction as the appropriate basis to govern the restitution of
property forfeited by criminal judgments rendered prior to 31
December 1958 (decision no. U-I-10/92), 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 further ruled that Article 3 of the Act on
Amendments of, and Supplements to, the Act on Implementation of Penal
Sanctions was in conformity with the Constitution, notwithstanding
the fact that it retroactively interfered with acquired rights,
because the retroactive effect of the Act was justified by the public
interest.
On
22 February 2001 the Constitutional Court decided upon a
constitutional initiative filed by Mr Igor Levstek, Mr Aleksander
Majdič and Mr MiklavZ Knez against the State Bonds Act (a
decision U-I-175/99). It dismissed their complaint that fixing the
maximum amount of money the State is obliged to pay in order to
compensate all those whose property was unduly forfeited by a
criminal judgment was a discriminatory act, and that it violated
their right to full compensation for the forfeited property. The
court held that their right to compensation would be determined by a
competent court in accordance with the conditions and limitations as
set in the Act on Implementation of Penal Sanctions and not as set in
the challenged Act. By only alleging, in general terms, that the
fixed amount of money would not suffice to compensate all those who,
like the applicants, still claimed the forfeited property in the
restitution proceedings, the applicants did not demonstrate the
necessary legal interest to challenge the relevant Act.
THE LAW
I. APPLICATION OF ARTICLE 37 OF THE CONVENTION AS TO THE
APPLICANT Ms SILVIJA OBLAK
On
31 May 2006 the applicant Ms Silvija Oblak was requested by the Court
to clarify who was her current legal representative in the case.
After she failed to reply to the Court's inquiry, the Court sent her
a warning letter dated 7 July 2006, sent by registered
post, indicating that her application would be considered as
withdrawn if she did not respond to the Court's request. No reply has
been received to date.
The
Court recalls Article 37 of the Convention which, in the
relevant part, reads as follows:
“1. The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his
application;
...
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
The
Court notes that the applicant did not submit the requested
information even after she had received a remainder thereof and was
informed about the possible consequences of her failure to reply. The
Court therefore considers that the applicant does not intend to
pursue the application. The Court further observes that there are no
special circumstances relating to respect for human rights as defined
in the Convention and its Protocols which would require it to
continue with the examination of the application as far as it
concerns Ms Silvija Oblak.
In
these circumstances the Court considers that this part of the
application should be struck out of the list of cases of the Court in
accordance with Article 37 § 1 (a) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AS TO THE
LENGTH OF THE PROCEEDINGS AND OF ARTICLE 13 OF THE CONVENTION
The
applicants complained about the excessive length of the proceedings.
They 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 fair... hearing within a
reasonable time by [a] ... tribunal...”
The
applicants further complained that the remedies available for
excessively lengthy court proceedings in Slovenia were ineffective.
They relied on Article 13 of the Convention, which 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
1. As to the different set of proceedings pending
before first-instance courts to which Mr MiklavZ Knez, Mr Andrej
Jakša, Mr Igor Levstek and Mr Aleksander Majdič are
parties
The
applicants claimed that the remedies available were not effective.
The
Government contested that argument and pleaded non-exhaustion of
domestic remedies.
The
Court observes that since 1 January 2007, when the Act on the
Protection of the Right to a Trial without undue Delay (“the
2006 Act”) became operational, the applicants have been
entitled to seek acceleration of the impugned proceedings pending
before the domestic courts. The Court notes that in proceedings
pending at first or second instance, it is open to persons such as
the applicants to seek the acceleration of the proceedings under
sections 3, 5 and 8 of the 2006 Act by means of a supervisory appeal
and by a motion for a deadline. The latter constitutes, in substance,
an appeal against a decision on a supervisory appeal under certain
conditions. Moreover, the applicants may ultimately obtain further
redress through a compensatory remedy, by bringing a claim for just
satisfaction under Section 15 of the 2006 Act.
The
Court has already examined the aggregate of remedies provided by the
2006 Act for the purposes of Article 35 § 1 of the Convention.
It was satisfied that they were effective also in cases of
excessively long proceedings pending before first- and
second-instance courts, lodged before 1 January 2007, in
the sense that these remedies were in principle capable of both
preventing the continuation of the alleged violation of the right to
a hearing without undue delay and of providing adequate redress for
any violation that has already occurred (see Grzinčič v.
Slovenia, no. 26867/02, 3 May 2007, Korenjak v. Slovenia,
no. 463/03, 15 May 2007, Gliha and Joras v. Slovenia
(no. 72200/01, 6 September 2007, and Zunič v.
Slovenia (dec.), no. 4342/04, 18 October 2007).
The
Court observes in this respect that the proceedings to which Mr
MiklavZ Knez, Mr Andrej Jakša and Mr Aleksander Majdič
are parties, as well as the proceedings concerning compensation for
loss of profits to which Mr Igor Levstek is a party, are still
pending before the first-instance courts.
The
Court notes that Mr MiklavZ Knez, Mr Andrej Jakša, Mr Igor
Levstek and Mr Aleksander Majdič have not availed themselves of
any of the remedies provided for by the Act on the Protection of the
Right to a Trial without undue Delay and considers that they are
required by Article 35 § 1 of the Convention to use
those remedies. It follows that this part of the application must be
considered inadmissible under Article 35 § 1 of the
Convention for non-exhaustion of domestic remedies, and therefore
rejected in accordance with Article 35 § 4 of the Convention.
As
regards the applicants' complaint under Article 13 of the Convention,
the Court has already found that the 2006 Act does afford the
applicants effective remedies in respect of the complaint about the
length of the proceedings pending at first and second instance (see
§ 131 above). That finding is also valid in the context of
their complaint under Article 13 of the Convention. It follows that
this complaint is manifestly ill-founded and must therefore be
rejected in accordance with Article 35 § 3 and 4
of the Convention.
2. As to the terminated proceedings to which Mr Igor
Levstek was a party
The
applicant complained that the remedies available were not effective.
The
Government contested that argument and pleaded non-exhaustion of
domestic remedies.
The Court notes that the restitution proceedings to which Mr Igor
Levstek was a party and which started on 15 May 1991, terminated on
14 December 2006, when the decision of the Cerknica Local Court
was served on the applicant.
The Court further notes that this set of proceedings terminated
before the 2006 Act entered into force. The applicant could have
therefore only availed himself of the legal remedies available before
the 2006 Act became operational. It follows 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 applicants' 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 was 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
Government's objection must therefore be dismissed. The
Court further finds that the applicant's complaints relating to the
length of the proceedings are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. Nor is
this part of the application inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits as to the terminated proceedings to which Mr
Igor Levstek was a party
1. Article 6 § 1
(a) The parties' submissions
The
applicant maintained that it is first and foremost the suspension of
and amendments to the challenged legislation that were to blame for
the delays in the proceedings.
The
Government argued that the length of the proceedings was due to the
complexity of the case, both in terms of legal as well as factual
issues the courts had to deal with. The property claimed was
extensive and consisted of several items. It fell under the
jurisdiction of three different courts and even gave rise to a
conflict of jurisdiction, which was promptly solved. Moreover, in
order to assess its value and establish whether the conditions were
fulfilled for its restitution in natura, the court needed to
appoint an expert. The Government further maintained that all the
courts dealt with the case diligently and promptly throughout the
proceedings, whereas the applicant continuously delayed the
proceedings by modifying his claims on several occasions. Finally,
the Government acknowledged the importance of restitution claims for
the claimants in general, but pointed out that in cases where the
restitution in natura is no longer possible, the claimant is
entitled to compensation which includes interest running from the day
the criminal judgment was quashed. Protracted restitution proceedings
therefore did not deprive the claimant of proper compensation.
(b) The Court's assessment
In determining the relevant period to be taken into
consideration the Court notes that the proceedings at issue started
before 28 June 1994, the day the Convention took effect with respect
to Slovenia. Given its jurisdiction ratione temporis, the
Court can only consider the period which has elapsed since that date,
although it will have regard to the stage reached in the proceedings
in the domestic courts on that date (see, for instance, Belinger,
cited above, and Kudła v. Poland [GC], no. 30210/96,
§ 123, ECHR 2000 XI).
This
set of proceedings terminated on 14 December 2006, when the final
judgment of the Cerknica Local Court was served on the applicant. The
period to be taken into account is therefore 12 years, 5 months and
16 days, during which decisions were rendered at four instances and
three levels of jurisdiction were 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).
The Court notes that the considerable size of the property involved
and the need to obtain an expert report in order to establish the
facts of the case show that the proceedings at issue were of some
complexity. The Court further notes that what was at issue in the
domestic proceedings was of some importance to the applicant, but
considers that his modifications of the restitution claims rendered
the case more intricate. However, the Government failed to provide
any explanation for a number of delays and periods of total
inactivity of the judicial authorities, the latest being two and a
half years between the hearing held by the first-instance court and
the decision of the same court to terminate one part of the
proceedings following the withdrawal of some of the applicant's
claims.
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 Grzinčič,
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 his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE
14 OF THE CONVENTION, AND OF ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLE
3 OF PROTOCOL No. 7 TO THE CONVENTION
The
applicants complained that the temporary suspension of and amendments
to the Denationalisation Act and the Act on Implementation of Penal
Sanctions, the State Bonds Act and the Constitutional Court's
decisions of 16 July 1998 and 22 February 2001 violated
their right to a fair trial guaranteed under Article 6 § 1 of
the Convention, since they constituted an unfair interference by the
State in the pending proceedings to which the State was a party. They
also invoked Article 6 § 1 in conjunction with Article 14 of the
Convention, alleging that the challenged Acts discriminated against
those claimants for the restitution of forfeited property, whose
restitution proceedings were still pending before the courts when the
challenged legislation entered into force and introduced a less
favourable restitution regime. The applicants further complained that
the challenged Acts and the unreasonably long restitution proceedings
breached their right to property as guaranteed under Article 1 of
Protocol No. 1, arguing that from the moment the criminal judgments
were quashed, they had a “legitimate expectation” of
obtaining the full restitution of property forfeited by the
judgments, which, until the present day, had not occurred. In
addition, they claimed that the challenged Acts violated their right
to full compensation for wrongful conviction as guaranteed under
Article 3 of Protocol No. 7. Finally, the applicants invoked Article
1 of Protocol No. 1 and Article 3 of Protocol No. 7 in conjunction
with Article 14 of the Convention, alleging that the challenged Acts
deprived them of their property on a discriminatory basis, since
before the challenged legislation entered into force, the successful
claimants were entitled to full restitution.
Article
14 of the Convention reads:
“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.”
In so
far as relevant, Article 1 of Protocol No. 1 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...”
Article
3 of Protocol no. 7 provides:
“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, on the ground that a new
or newly discovered fact shows conclusively that there has been a
miscarriage of justice, 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, unless it is proved that the
non disclosure of the unknown fact in time is wholly or partly
attributable to him.”
In
respect of the aforementioned complaints the Court recalls 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)).
The
Court observes in this respect that the proceedings to which
Mr MiklavZ Knez, Mr Andrej Jakša and Mr Aleksander Majdič
are parties, as well as proceedings concerning compensation for loss
of profits to which Mr Igor Levstek is a party, are still pending
before the first-instance courts. 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 (see, Sirc v.
Slovenia (dec.), no. 44580/98, § 247, 22 June 2006).
The
Court further observes that the restitution proceedings to which Mr
Igor Levstek was a party terminated with the decision of the Cerknica
Local Court of 16 November 2006. In this respect the Court
notes that the applicant did not lodge any appeal against the
judgment of the first-instance court to the Ljubljana Higher Court
and, subsequently, to the Supreme Court and to the Constitutional
Court.
The
Court reiterates that in accordance with the Article 35 of the
Convention, the Court may only consider the complaints raised by the
applicant, after he has exhausted all domestic remedies.
Moreover,
an examination of the case as it has been submitted does not disclose
the existence of any special circumstances which might have absolved
the applicant, according to the generally recognised rules of
international law, from raising his complaints before the said
domestic courts.
It
follows that this part of the application relating to the proceedings
started on 15 May 1991 by Mr Igor Levstek must be considered
inadmissible for non-exhaustion of domestic remedies within the
meaning of Article 35 § 1 of the Convention.
In
view of the above, this part of the application must be rejected in
accordance with Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant Mr Igor Levstek claimed 10,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government contested the claim.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 9,000 under
that head.
B. Costs and expenses
The
applicant Mr Igor Levstek claimed approximately EUR 10,000 for the
costs and expenses incurred before the Court.
The
Government argued that the claim was too high.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. Regard being had to the information in its possession and
the above criteria, the Court considers it reasonable in the present
case to award the applicant the sum of EUR 1,000 for the proceedings
before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to strike the application out of its list of cases
in so far as it concerns Ms Silvija Oblak;
Declares the complaints of Mr Igor Levstek
concerning the length of the proceedings started on 15 May 1991 and
the lack of effective remedies admissible 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
(a) that
the respondent State is to pay the applicant Mr Igor Levstek, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage
and EUR 1,000 (one thousand euros) in respect of costs and expenses,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the application.
Done in English, and notified in writing on 21 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Corneliu Bîrsan
Registrar President
