European Court of Human Rights

THIRD SECTION

DECISION

Applications nos. 9691/03, 39043/03, 29238/05 and 50291/06
by JoZica GOŠNJAK - KUŠTER and 3 others

against Slovenia

The European Court of Human Rights (Third Section), sitting on 8 September 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,

Having regard to the above applications,

Having regard to the Government’s submissions and the applicants’ response to the Governments submissions,

Having deliberated, decides as follows:

THE FACTS

The applicants are all nationals of Slovenia (see the attached appendix). Ms JoZica Gošnjak-Kušter was represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. Mr Emil-Milan Podpečan was represented before the Court by Mr Franc Repnik, a lawyer practising in Celje. Mr Damjan Hren and Ms Danica Šraj were represented before the Court by Mr Zlatko Lipej, a lawyer practising in Medvode.

The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.

A.  The circumstances of the case

The applicants were parties to civil proceedings which terminated before 1 January 2007.

In addition, it is observed that Mr Podpečan was a party to two sets of proceedings. In the first set of proceedings he claimed the restitution of property nationalised from his mother in 1946, whereas in the second set of proceedings he sought that the decision by virtue of which his mother’s property was taken be declared null and void. The two proceedings terminated with the Supreme Court’s judgments of 16 March 2005 and 17 April 2003, respectively, by which all the applicant’s claims were rejected. The applicant did not lodge a constitutional appeal.

B.  Relevant domestic law

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.

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 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.”

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the civil proceedings had been excessively long. They also relied on Article 13 of the Convention, complaining that they did not have an effective domestic remedy in this regard.

In addition, Mr Podpečan complained under Article 1 of Protocol No. 1 that he was deprived of the property he unsuccessfully claimed in the restitution proceedings, and under Article 3 of Protocol No. 4 that nationalisation measures carried out in 1946 resulted in de facto expulsion of Yugoslavian nationals.

THE LAW

In the present cases, the Court notes that, after the Government had been informed of the applications in 2008 and in 2009, respectively (Article 54 § 2(a) of the Rules of Court), all the applicants received the State Attorney’s Office’s settlement proposals 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 (see the appendix). It further notes that the applicants have since 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).

The Court refers to 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.

Having regard to the foregoing, the Court considers that it is no longer justified to continue with the examination of the applications nos. 9691/03, 29238/05, 50291/06, and the part of the application no. 39043/03 in which Mr Podpečan complained about the length of proceedings and the lack of effective remedies in this respect, and that they 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.

As regards Mr Podpečan’s remaining complaints, the Court observes that with regard to his complaint under Article 1 of Protocol No. 1 concerning deprivation of the property that he unsuccessfully claimed in the restitution proceedings, the applicant did not avail himself of a constitutional appeal. It follows that this complaint must be declared 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 Mr Podpečan’s complaint under Article 3 of Protocol No. 4 that the nationalisation measures allegedly led to expulsion of Yugoslavian nationals, the Court recalls that it has jurisdiction to examine applications only to the extent that they relate to events which occurred after the Convention entered into force with respect to the relevant Contracting Party. In the present case, the property of the applicant’s mother was nationalised in 1946, which is long before 28 June 1994, when the Convention entered into force with regard to Slovenia. This complaint must therefore be declared incompatible ratione temporis with the provisions of the Convention, and rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to strike the applications nos. 9691/03, 29238/05, 50291/06, and the part of application no. 39043/03 in which Mr Podpečan complained about undue length of proceedings under Article 6 § 1 and lack of effective remedies in this respect under Article 13 of the Convention out of its list of cases;

Declares the remainder of the application no. 39043/03 inadmissible.

Stanley Naismith Josep Casadevall
Deputy Registrar President

Appendix