AS TO THE ADMISSIBILITY OF
by Anita BLEKIĆ
The European Court of Human Rights (Third Section), sitting on 7 July 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 12 March 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Ms Anita Blekić, is a Slovenian national, who was born in 1935 and lived in Koper. She died on 30 October 2004, in the course of the proceedings, and she was represented before the Court by her husband Mr Kemal Blekić. Her heirs, Mr Kemal and Ms Vesna Blekić, the late applicant’s daughter, have elected to pursue the application before the Court.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of denationalisation proceedings (no. 351-205/99)
4. On 7 December 1993 the applicant instituted denationalisation proceedings with the Koper Municipality (Občina Koper) seeking restitution of nationalised land that had previously belonged to her late father. It seems that after the reform of public administration the case was transferred in due course to the Koper Administrative Unit (Upravna enota Koper, “KAU”).
5. On 4 May 1994 the administrative authority asked the applicant to complete her request, giving her detailed instructions regarding the missing documents.
6. On 28 June 1994 the Convention came into force in respect of Slovenia.
7. On 31 May and 28 July 1995 the applicant lodged two complaints, with the Ministry of the Environment and Spatial Planning (Ministrstvo za okolje in prostor, “MESP”) and the Ministry of Agriculture, Forestry and Food (Ministrstvo za kmetijstvo, gozdarstvo in prehrano, “MAFF”) respectively, on account of KAU’s failure to render a decision (silence of administrative authorities, pritoZba zaradi molka organa). She did not, however, pursue the complaints further as prescribed by law.
8. On 21 and 22 September 1995 KAU forwarded progress reports on the case to both ministries, emphasizing that the applicant’s request was incomplete. Afterwards the applicant submitted several documents but, despite KAU’s instructions, failed to duly complete the request.
9. On 27 January 1998 and 20 July 1999 hearings were held by the administrative authority regarding the correct completion of the request.
10. On 8 May 2000 KAU issued a decision rejecting the applicant’s request for denationalisation in part and upholding the remainder. She appealed to the MESP.
11. On 16 May 2000 KAU appointed an expert surveyor.
12. On 15 September 2000 MESP issued a decision upholding the appeal and remitting the case for re-examination.
13. On 29 January 2001 the expert opinion was issued.
14. On 16 August 2001 the applicant lodged a complaint with MAFF and MESP on account of KAU’s failure to render a decision (pritoZba zaradi molka organa).
15. On 27 September 2001 the administrative authority invited the applicant’s attorney for a consultation regarding the completion of the request.
16. On 20 December 2001 the administrative authority held a hearing.
17. On 21 December 2001 the applicant’s attorney withdrew from the case.
18. On 8 January 2002 the administrative authority appointed an expert in building construction.
19. On 1 July 2002 the administrative authority received the expert’s opinion.
After several requests from KAU for the applicant to complete the request for denationalisation, she duly completed it on 22 July 2002.
20. On 5 and 26 September 2002 two hearings were held.
21. On 5 November 2002 KAU issued a partial decision holding that the Slovenian Compensation Fund (Slovenska odškodninska druZba, “SCF”) was to pay the applicant compensation for part of the nationalised property. The SCF lodged an appeal with MESP.
22. On 27 January and 21 February 2003 the applicant lodged two complaints, with MAFF and MESP, for failure to render a decision (pritoZba zaradi molka organa).
23. On 17 March 2003 MESP issued a decision and remitted part of the case for re-examination.
24. On 26 May 2003 and 12 January 2004 KAU issued two partial decisions. The SFC appealed against both decisions.
25. On 11 July 2003 the administrative authority accepted that M.B., the applicant’s sister-in-law, had locus standi as a third party in the domestic proceedings for one parcel of the disputed nationalised property.
26. On 25 March 2004 MESP allowed the two complaints and annulled the partial decisions. MESP reduced the amount of damages awarded for part of the nationalised property and remitted the remainder of the case to KAU for re-examination
27. On 12 July 2004 the administrative authority held a hearing.
On 30 October 2004 the applicant died. On 3 May 2005 her husband (Mr Kemal Blekić) and her daughter (Ms Vesna Blekić) were declared the sole heirs (hereinafter referred to as the heirs) in the inheritance proceedings and they continued the applicant’s claims before the Slovenian authorities and domestic courts as provided by the Denationalisation Act.
28. On 3 December 2004 and 2 February 2005 the administrative authority held hearings.
29. On 1 April 2005 the heirs lodged a hierarchical complaint against the public officer dealing with the case, requesting her to step down.
30. On 18 April 2005 KAU issued a partial decision. Both parties appealed to MESP.
31. On 19 October 2005 the heirs lodged a complaint with MESP for failure to render a decision (pritoZba zaradi molka organa).
32. On 28 October 2005 MESP upheld the heirs’ appeal, annulled KAU’s partial decision and remitted the case for re-examination.
33. On 21 April 2006 the heirs lodged another complaint with MESP for failure to render a decision (pritoZba zaradi molka organa).
34. On 19 July 2006 the heirs instituted proceedings against MESP with the Nova Gorica Administrative Court (Upravno sodišče Republike Slovenije, Oddelek v Novi Gorici), for failure to render a decision in the pending denationalisation proceedings.
35. On 1 September 2006 the Nova Gorica Administrative Court dismissed the claim as premature, since the heirs had failed to comply with the set time-limits and therefore to properly avail themselves of the above-mentioned remedy.
36. On 11 December 2006 the heirs lodged another complaint with the MESP for failure to render a decision (pritoZba zaradi molka organa).
37. On 19 February 2007 KAU issued a decision regarding one plot of nationalised land. Both parties appealed.
38. On 20 July 2007 MESP rejected both appeals as unfounded.
39. On 18 September 2007 the heirs challenged the Ministry’s decision before the Nova Gorica Administrative Court.
40. On 16 November 2007 a judgment was issued, rejecting the heirs’ claim as unfounded.
41. On 19 March 2008 the Nova Gorica Administrative Court issued a judgment following an appeal against MESP’s decision of 20 July 2007 lodged by the third party in the proceedings (see paragraph 25 above).
42. On 29 April 2008 the administrative authority requested the heirs to pay the procedural costs as provided for in the decision issued on 19 February 2007.
43. On 20 May 2008 the administrative authority lodged a request for enforcement against the heirs, which was withdrawn on 28 May 2008.
44. On 24 February 2009 the heirs lodged a complaint with the MESP for failure to render a decision.
2. Second set of denationalisation proceedings (no. 321-30/2002)
45. On 5 July 1994 the applicant lodged another request for restitution of nationalised property with KAU.
46. On 19 February 2002 KAU issued a partial decision rejecting the applicant’s request for being lodged out of time (the deadline for submitting requests for denationalisation expired in December 1993).
47. On 8 March 2002 the applicant appealed to the Ministry of Agriculture, Forestry and Food (Ministrstvo za kmetijstvo, gozdarstvo in prehrano, “MAFF”).
48. On 27 January 2003 the applicant lodged a supervisory complaint with MAFF as it had not rendered a decision on her appeal of 8 March 2002.
49. On 7 February 2003 MAFF issued a decision dismissing the applicant’s appeal on procedural grounds.
50. On 7 March 2003 the applicant instituted proceedings in the Administrative Court seeking annulment of MAFF’s decision.
51. On 14 November 2003 a decision was issued dismissing the applicant’s claim. The decision was served on the applicant on 24 December 2003.
52. On 7 January 2004 the applicant appealed to the Supreme Court (Vrhovno sodišče). On 14 July 2005 the Supreme Court dismissed the applicant’s appeal.
53. On 26 October 2005 the heirs lodged a constitutional complaint with the Constitutional Court (Ustavno sodišče).
54. On 22 September 2006 the Constitutional Court rejected the heirs’ constitutional complaint as unfounded.
3. Non-contentious proceedings (no. N 51/91)
55. On 17 May 1991 the applicant lodged a request with the Koper District Court (Okrajno sodišče v Kopru) for determination of damages for the seized property.
56. On 28 January 1997 a hearing was held and she withdrew the request as premature, due to the pending denationalisation proceedings.
B. Relevant domestic law
1. The 1991 Act on Denationalisation
57. Section 15 of the Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) determines legal succession conditions and provides as follows:
“Should the recoverers referred to in Articles (...) be deceased or legally proclaimed as such, their legal successors shall be considered as the recoverers.
58. Sections 52 to 57 of the 1991 Denationalisation Act specify which administrative authorities have jurisdiction in matters regulated by the Act. Section 58 sets time limits for delivery of decisions and provides as follows:
“The decision of the body of first instance concerning the request (...) must be issued and served on the applicant within one year at the latest following the filing of any such properly presented request.
2. The 1999 Administrative General Procedure Act
59. Section 222 § 1 of the Administrative General Procedure Act (Zakon o splošnem upravnem postopku, Official Journal no. 24/06) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to give a decision within one month of the submission of an application. In all other cases the administrative body is obliged to give a decision within two months.
60. Section 222 § 4 entitles a party whose application has not been decided upon within the time limits set out in paragraph one to lodge an appeal as if the application had been denied.
3. The 1997 Administrative Disputes Act
61. Section 28 of the Administrative Disputes Act (Zakon o upravnem sporu, Official Journal no. 105 /06) entitles a party having lodged an application with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following cases:
2. If the appellate body does not rule on the applicant’s appeal against the first-instance decision within 2 months or within a shorter period, if any, provided by law, and fails to make an award upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his request had been dismissed.
3. The applicant may also act in accordance with the preceding paragraph when an administrative body of the first-instance fails to give a decision from which no appeal lies.
4. If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual’s application within 2 months or within a shorter period, if any, provided by law, the individual may then submit his application to the appellate administrative body. Should the latter find against him, the individual may then bring an administrative action. The individual may also bring an administrative action under the conditions set out in paragraph 2.”
4. 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”)
62. See domestic law in the Court’s judgment Grzinčič v. Slovenia (no. 26867/02, 3 May 2007).
63. The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of proceedings and the lack of effective remedies regarding the undue length of proceedings.
I. AS TO THE LOCUS STANDI OF MR KEMAL AND MS VESNA BLEKIĆ
64. The Court must first address the question whether Mr Kemal and Ms Vesna Blekić have standing to pursue the application originally lodged by the applicant Vesna Blekić, who died on 30 October 2004, in the course of the proceedings before the Court.
65. The late applicant’s next of kin, Mr Kemal and Ms Vesna Blekić, declared in December 2008 that they wished to pursue their late wife’s and mother’s application before the Court.
66. The Government argued that since the applicant had died and her heirs had not immediately expressed the wish to continue the proceedings before the Court, the future processing of the case was unjustifiable. They proposed that the Court strike the case out of its list of cases.
67. The Court recalls that in various cases where an applicant died in the course of the proceedings it has taken into account the wishes of the applicant’s heirs or close family members to pursue the proceedings before the Court (see, for example, X. v. France, 31 March 1992, § 26, Series A no. 234-C).
68. Turning to the circumstances in the present case, it has to be noted that after the applicant’s death her legal successors, Mr Kemal and Ms Vesna Blekić, took over the domestic proceedings in the late applicant’s stead, as provided by Article 15 of the Denationalisation Act. Moreover, they continued the correspondence with the Court by submitting documents diligently and therefore showed a clear intent to pursue the application as persons entitled for the purposes of denationalisation under the domestic law. The fact that the heirs sent the official written statement to the Court belatedly thus does not affect their standing in the case.
69. The Court therefore considers that the conditions for striking the case out of the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at the heirs’ request.
70. For reasons of convenience, the present decision will continue to refer to Mrs Blekić as the applicant.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
71. The applicant complained that the length of the proceedings had been excessive. 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...”
The Court will examine separately the three sets of proceedings:
1. The first set of denationalisation proceedings
72. The Government argued that the denationalisation proceedings were very complex and that the major part of the delay was due to the applicant’s inability to complete the request. The request was duly completed on 22 July 2002, which is more than eight years after the proceedings had commenced. The Government also argued that for such a complex case the applicant and subsequently her heirs should have had legal representation, which they did, but only for a very short period (see paragraph 17).
73. The heirs contested those arguments.
74. The Court notes that the period to be taken into consideration began on 28 June 1994, the date when the Convention came into force in respect of Slovenia, and ended on 19 March 2008. The proceedings as a whole therefore lasted 13 years and 8 months.
75. The proceedings before the lower administrative authorities ended on 20 July 2007 (see paragraph 38) when the Ministry’s decision was issued, and lasted 13 years and 1 month.
76. Considering the total duration of the proceedings before the lower administrative authorities, an issue might arise as to the reasonable-time requirement. However, the Court notes that the applicant and her heirs failed to pursue the application under the conditions set out in the 1991 Act on Denationalisation and the 1997 Administrative Disputes Act in cases of protracted duration of proceedings before lower administrative authorities (see paragraphs 59 to 61 above). Despite lodging numerous complaints for failure to render a decision (pritoZba zaradi molka organa), they failed to properly exhaust the available domestic remedies.
77. In these circumstances, the Court concludes that the applicant and subsequently her heirs cannot complain about the length of the proceedings before the lower administrative authorities since they did not, as required by Article 35 § 1 of the Convention, exhaust the remedies available under Slovenian law. This part of the application must therefore be rejected under Article 35 § 4 of the Convention (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002).
78. The Court further observes that there were two sets of proceedings pending before the administrative courts. The first set was instituted on 19 July 2006 (see paragraph 34) as a domestic remedy for undue delay in administrative proceedings and lasted less than two months (see paragraph 61 above). The second set were appeal proceedings following the Ministry’s decision of 20 July 2007, which lasted six months.
79. The Court notes that the first set of proceedings before the Administrative Court terminated before 1 January 2007, the date when the Act on the Protection of the Right to a Trial without Undue Delay (the 2006 Act) came into force. Since the application was communicated to the Government before 1 January 2007 (see Grzinčič v. Slovenia, cited above, § 67), the applicant could only have availed herself of the legal remedies available before the 2006 Act became operational. The present application is thus similar to the case of Lukenda (see 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 at that time were ineffective.
80. As to the second set of proceedings the Court observes that they terminated after 1 January 2007, when the 2006 Act came into force, introducing new domestic remedies in the event of unduly long proceedings pending at first or second instance on 1 January 2007 (see Grzinčič v. Slovenia, no. 26867/02, judgment, 3 May 2007).
81. However, regardless of the above, the Court finds that the first set of proceedings before the administrative courts lasted less than two months (from 19 July 2006 to 1 September 2006) and the second set six months (from 18 September 2007 to 19 March 2007), which is not excessive, and therefore this part of the application is manifestly ill-founded and must be rejected under Article 35 § 4 of the Convention.
2. The second set of denationalisation proceedings
82. The Court notes that the second set of denationalisation proceedings started on 5 July 1994. On 19 February 2002 the administrative authority dismissed the applicant’s request as having been lodged out of time, since the deadline for lodging restitution requests set by the Denationalisation Act expired in December 1993. The applicant and her heirs afterwards challenged that decision at every possible level and failed on procedural grounds.
83. As to the length of the proceedings before the lower administrative authority, which lasted seven years and seven months, the Court observes that even if it were to examine the length issue, the applicant’s failure to comply with the requisite procedure meant that she failed to exhaust the domestic remedies (see paragraphs 76 and 77 above).
84. As to the proceedings before the domestic courts, the Court notes that the proceedings became final on 22 September 2006, before the 2006 Act came into force. The applicant could therefore only have availed herself of the legal remedies available before 1 January 2007 (see paragraph 79 above).
85. However, even assuming that the appeals following the administrative authority’s decision could be considered as effective – although they were bound to be unsuccessful as the applicant’s request was lodged out of time – the Court observes that the proceedings before the domestic courts lasted three years and six months (from 7 March 2003 to 22 September 2006) for three levels of jurisdiction, which is not excessive (see Krajnc v. Slovenia (dec.), no. 75616/01, 29 June 2006, § 28). This complaint is therefore manifestly ill-founded and must be rejected under Article 35 § 4 of the Convention.
3. Non-contentious proceedings
86. As far as the non-contentious proceedings are concerned, the Court observes that they ended on 28 January 1997. The application lodged in March 2002 does therefore in this part not comply with the six-month time limit. It follows that this complaint must be rejected under Article 35 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
87. The applicant also complained of the lack of an effective domestic remedy in respect of the excessive length of the proceedings. Article 13 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.”
88. As to the parts of the first and second set of denationalisation proceedings before the lower administrative authorities, the Court has already found that the General Administrative Procedure Act and the Administrative Disputes Act did provide the applicants with an effective remedy in respect of their complaint about the length of the proceedings before the lower administrative authorities (see paragraphs 76 and 77 above).
89. As to the parts of the first and second set of denationalisation proceedings before the domestic courts that terminated before the 2006 Act, the Court considers, having regard to its decision on Article 6 § 1 (see paragraph 81 above), that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see G.C. v. The United Kingdom, no. 43373/98, § 53, 19 December 2001, and Lukenda v. Slovenia (no. 2), no 16492/02, § 22, 13 April 2006).
90. As to the part of the first set of denationalisation proceedings before the domestic courts that terminated after the 2006 Act became operational (see paragraph 80 above), the Court has already found that the 2006 Act does afford the applicant effective remedies in respect of the complaint about the length of the proceedings pending at first and second instance.
91. As to the non-contentious proceedings, the Court notes that this complaint was lodged outside the six-month period.
92. It follows that the above complaint regarding Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall