by Gabriella LEONE
The European Court of Human Rights (Third Section), sitting on 23 June 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 30 April 2003,
Having regard to the Government’s settlement proposal made to the applicant,
Having regard to the applicant’s response to the Government’s submissions,
Having deliberated, decides as follows:
1. The applicant, Ms Gabriella Leone, is an Italian national who lives in Trieste. She was represented before the Court by Mr Ervin Dokič, a lawyer practising in Piran. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant’s grandfather, Mr J.S, was a Yugoslav national, who owned several plots of land on the territory of the Free Territory of Trieste (Svobodno trZaško ozemlje, “STO”). In 1954 the part of the territory on which Mr J.S. had his property came under the jurisdiction of the Federal People’s Republic of Yugoslavia. In 1970 Mr J.S. died and the property was inherited by his wife and two children, one of whom was also the applicant’s mother and her legal predecessor. All the heirs of Mr J.S. were of Italian nationality. In 1972 the amendments to the Administrative Act on Implementation of Laws and Other Federal Acts on the Territory coming under the Administration of the Federal People’s Republic of Yugoslavia were adopted (Uredba o izvajanju zakonov in drugih zveznih pravnih predpisov na ozemlju, na katerega se je razširila civilna uprava FLRJ, Official Gazette of the FPRY No. 56/54, Official Gazette of the SFRY No. 51/72, “the STO Administrative Act”). Under these amendments, the property of all foreign nationals was nationalised, further to administrative decisions issued with respect to each particular property. As regards the property once belonging to Mr J.S., the administrative decision on its nationalisation was issued in 1973. However, all the heirs of Mr J.S. were allowed to keep the nationalised property in their possession.
4. At an undetermined time in 1991 the applicant, together with two other persons, instituted civil proceedings in the Piran Local Court (Okrajno sodišče v Piranu) against the Municipality Piran (Občina Piran), claiming that the nationalisation of the property once belonging to Mr J.S. was illegal, and that they were legitimate heirs and owners of the property at issue. The Municipality Piran lodged a counter-claim, arguing that the possession of the property should be transferred to the municipality as the owner of the property.
5. On 15 March 2000 the Piran Local Court granted the claimants most of the claimed property. It established that nationalisation of the property under the amendments to the STO Administrative Act was based on the legal acts and nationalisation measures which had already been adopted in 1946 and which provided also for nationalisation of the property of foreigners, and whose application was extended in 1972 also to the territory of the former STO. However, since Mr J.S. was until his death a Yugoslavian national, the relevant legal acts adopted in 1946 could not have been applied with respect to his property, and his property could therefore not have been nationalised. The applicant appealed.
6. On 12 September 2000 the Koper Higher Court quashed the judgment of the first-instance court. It established that the first-instance court did not have the competence to review and to disregard the administrative decision by which the disputed property had been nationalised in 1973. Furthermore, with respect to the municipality’s counter-claim, the second-instance court returned the case for re-examination to the first-instance court. The applicant lodged an appeal on points of law.
7. On 17 October 2001 the Supreme Court dismissed the appeal on points of law lodged by the applicant and the two other claimants in the proceedings, holding that the value of the disputed property did not reach the minimum value of the dispute required for lodging of such a remedy. The minimum value to lodge an appeal on points of law had been raised by the new Civil Procedure Act of 1999 from 80.000 Slovenian tolars (“SIT”, approximately 600 EUR) up to 1.000.000 SIT (approximately 7.000 EUR). The applicant lodged a constitutional appeal.
8. On 20 February 2003 the Constitutional Court rejected the constitutional complaint lodged by the applicant. It established, inter alia, that the Supreme Court had correctly applied the new provisions of the Civil Procedure Act, which limited the right to lodge an appeal on points of law to the Supreme Court.
9. On 2 October 2002 the Piran Local Court decided on the municipality’s counter-claim. It took into account the outcome of the proceedings regarding the ownership of the property and the decision of the Koper Higher Court of 12 September 2000 in particular, as well as the outcome of the restitution proceedings, in which the Mr. J.S.’ heirs had not succeeded with their claim for restitution of the nationalised property. It therefore granted the transfer of the property at issue into the possession of the municipality. The applicant lodged an appeal to the Koper Higher Court.
10. On 3 February 2004 the Koper Higher Court upheld the first-instance court judgment of 2 October 2002.
B. Relevant domestic law
11. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.
12. Section 25 lays down the following transitional rules in relation to the applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained prior to implementation of this Act
“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has 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 of 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 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 of 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 of 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.”
13. The relevant provisions concerning just satisfaction provide as follows:
Section 15 - Just satisfaction
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.”
Section 16 - Monetary compensation
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts from 300 to 5,000 euros.”
Section 17 – Written statement
“(1) Given the circumstances of the case, the State Attorney’s Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney’s Office may in addition to the monetary compensation also make a written statement.
(2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay.
(3) A written statement shall be made by the State Attorney’s Office within the concluded settlement referred to in Article 19 of the present Act. At the party’s request, the written statement shall be published on the website of the State Attorney’s Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement.”
14. The applicant complained under Article 6 § 1 of the Convention about the excessive length of civil proceedings. She also complained under Article 6 § 1 that the increase by the 1999 Civil Procedure Act of the minimum value of the dispute required to appeal on points of law to the Supreme Court violated her right of access to court, and further, that the domestic courts wrongly interpreted and applied domestic law concerning nationalisation of property.
15. The applicant also complained under Article 13 of the Convention that she did not have an effective domestic remedy with respect to the length of proceedings, as well as with respect of the alleged deprivation of her right to lodge an appeal on points of law to the Supreme Court.
16. Finally, the applicant claimed that the wrong interpretation and application of domestic law concerning nationalisation of property, in particular with regard to nationalisation of property of foreigners, amounted also to a breach of her right to property under Article 1 of Protocol No. 1, considered alone and in conjunction with Article 14.
1. Complaint about the length of the proceedings and the lack of an effective remedy in that respect under Articles 6 and 13 of the Convention
17. The Court notes that, after the Government had been informed of the application on 20 February 2007 (Article 54 § 2(a) of the Rules of Court), the applicant received the State Attorney’s Office’s settlement proposal of 30 May 2007 under section 25 of the 2006 Act, acknowledging a violation of the right to a trial within a reasonable time and offering redress for non-pecuniary damage. It further notes that the applicant has since then been in a position either to negotiate a settlement with the State Attorney’s Office or, if that should be unsuccessful, to lodge a “claim for just satisfaction” in accordance with the relevant provisions of the 2006 Act (see “Relevant domestic law” above). The latter has been considered by the Court to constitute an appropriate means of redressing a breach of the reasonable time requirement of Article 6 that has already occurred (see Pohlen v Slovenia (dec.), no. 28457/03, §§ 40-43, 3 June 2008).
18. The Court reiterates 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
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the 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.”
19. Having regard to the foregoing, the Court considers that it is no longer justified to continue with the examination of the application with regard to the complaints concerning the length of proceedings and that this part of the application should be struck out of the list of cases in accordance with Article 37 § 1 (c). In reaching this conclusion, the Court has taken into account its competence under Article 37 § 2 of the Convention to restore a case to its list of cases if it considers that the circumstances justify such a course.
2. Remaining complaints
20. The applicant further complained about the breach of her right of access to court under Article 6 § 1 of the Convention and under Article 13 about the breach of her right to an effective remedy in this respect, as well as the alleged violation of her right to property under Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14 of the Convention.
21. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention in so far as it concerns the complaints about the length of proceedings under Article 6 and lack of effective remedies in this regard under Article 13 of the Convention,
Declares inadmissible the remainder of the application.
Santiago Quesada Josep Casadevall