KODERMAC proti Slovinsku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25630/02
by Friderika KODERMAC
against Slovenia

The European Court of Human Rights (Third Section), sitting on 23 November 2006 as a Chamber composed of:

Mr J. Hedigan, President,
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 17 June 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Friderika Kodermac, is a Slovenian national who was born in 1923 and lives in Solkan.

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

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The first set of proceedings

On 30 April 1992 the applicant and her four relatives lodged a request for restitution of the expropriated building and a compensation for the nationalised plot of land. Apparently, she made a similar request on 24 May 1993.

On 1 September 1992 the Nova Gorica Municipality (Občina Nova Gorica, “the Municipality”) rejected the applicant’s claim for restitution because the previous owner, the applicant’s brother-in-law, was not a citizen of Yugoslavia at the time of the expropriation.

The applicant appealed to the Ministry of the Environment and Spatial Planning (Ministrstvo za okolje in prostor, “the Ministry”).

On 26 November 1992 the Ministry dismissed the appeal.

At an undetermined time, the applicant instituted administrative proceedings in the Supreme Court (Vrhovno sodišče) against the Ministry contesting its decision of 26 November 1992.

On 10 March 1994 the court upheld the applicant’s claim and annulled the Ministry’s decision on procedural grounds. The Ministry subsequently re-examined the case.

On 21 April 1994 the Ministry annulled the Municipality’s decision and remitted the case for fresh consideration.

On 28 June 1994 the Convention took effect with respect to Slovenia.

On 7 September 1994 the Municipality again rejected the applicant’s claim because the applicant’s brother-in-law, was not a citizen of Yugoslavia and because her husband was not the owner of the property sought. The decision was served on the applicant on 15 September 1994.

On 26 September 1994 the applicant appealed to the Ministry.

On 12 June 1995 the Ministry dismissed the appeal. The parties to the proceedings did not contest the Ministry’s decision.

On 26 April 1996, following the judgment of the Nova Gorica Local Court in another set of proceedings (see below paragraph13), the applicant lodged a request for reopening of the proceedings concerning the restitution of building.

On 3 October 1997 the Nova Gorica Administrative Unit (Upravna Enota v Novi Gorici, “the Unit”) rejected the applicant’s request to reopen the denationalisation proceedings to declare her deceased husband a beneficiary of restitution.

On 29 October 1997 the applicant appealed to the Ministry.

On 4 March 1998 the Ministry allowed the appeal, annulled the Unit’s decision, and allowed the reopening of the proceedings.

On 30 November 2000 the Unit granted the applicant’s claim and awarded the applicant compensation for expropriated property. It rejected her claim for restitution in natura.

On 22 December 2000 the applicant appealed to the Ministry.

On 19 May 2001 the Ministry dismissed her appeal.

On 30 August 2001 the applicant instituted an administrative dispute in the Administrative Court (Upravno sodišče), contesting the decision of 19 May 2001.

On 12 April 2002 the court dismissed the applicant’s claim.

On 10 May 2002 the applicant appealed to the Supreme Court.

On 16 April 2003 the court dismissed the appeal.

The judgment was served on the applicant on 14 May 2003.

2. The second set of proceedings

In the meanwhile, on 13 January 1993 the applicant and her family instituted civil proceedings with the Nova Gorica Local Court (Okrajno sodišče v Novi Gorici) against the applicant’s relatives who were her co-plaintiffs in the proceedings before the Municipality. The applicant claimed that her deceased husband and not her brother-in-law had been the owner of the expropriated building.

On 5 March 1996 the court issued a judgment finding that the applicant’s husband was the owner of the nationalised building. The judgment became final on 6 April 1996.

3. The third set of proceedings

On 6 December 2004 the Nova Gorica Local Court delivered a judgment in another set of proceedings to which the applicant was a party. The court decided that the applicant’s husband was the owner of the nationalised plot of land.

On 25 May 2005, following the judgment of 6 December 2004, the applicant sought restitution of this plot of land.

On 1 August 2005 the Unit upheld her claim in part and the Slovene Compensation Corporation (Slovenska odškodninska družba) was ordered to pay compensation to the applicant.

On 11 August 2005 the Slovene Compensation Corporation appealed to the Ministry.

On 11 April 2006 the Ministry allowed the appeal, decreased the amount of compensation awarded to the applicant and remitted a part of the case to the Unit for fresh examination.

The proceedings are still pending.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that her right to a fair trial was violated by an excessive length of proceedings. In substance, she also complained under Article 13 about the lack of an effective domestic remedy in respect of the excessive length of the proceedings. She also complained under Article 1 of Protocol No. 1 that she was deprived of property in the denationalisation proceedings.

THE LAW

1. The applicant claimed she was wrongly deprived of property, which had been nationalised to her husband. She relied on Article 1 of Protocol No. 1, which 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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court recalls that it may only deal with complaints submitted by the applicant after all domestic remedies have been exhausted according to the generally recognised rules of international law.

In this respect the Court observes, firstly, that the applicant did not lodge a constitutional appeal with the Constitutional Court against the decision of the Supreme Court of 16 April 2003 in the first set of proceedings. The complaints referring to the restitution of the building should therefore be rejected for failure to exhaust domestic remedies, within the meaning of Article 35 § 1 of the Convention.

Secondly, the Court observes that the applicant’s claims concerning the restitution of the plot of land in the third set of proceedings are still pending before the Nova Gorica Administrative Unit. This complaint is therefore premature.

It follows that complaints made under Article 1 of Protocol No. 1 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant complained about the excessive length of the proceedings. 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...”

In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention 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.”

The Government pleaded non-exhaustion of domestic remedies.

The applicant contested that argument, claiming that the remedies available were not effective.

1. As to the first set of proceedings

a) As to the proceedings before the request for reopening was lodged

The Court recalls that in accordance with Article 35 § 1 of the Convention it can only examine the complaints which were submitted to it within six months after the last impugned decision was rendered by the domestic authorities.

In this respect the Court notes that the proceedings before the Nova Gorica Municipality terminated on 12 June 1995, the day the Ministry dismissed the appeal against the Municipality’s decision. This decision became final. The applicant addressed her complaints against these proceedings to the Court on 17 June 2002.

Accordingly, the applicant’s complaints made under Articles 6 and 13 were lodged outside the six month period. They must therefore be declared inadmissible in accordance with Article 35 §§ 1 and 4.

b) As to the proceedings concerning the request for reopening

The Court recalls that Article 6 § 1 is not applicable to the determination of a request for reopening of proceedings. Nonetheless, the proceedings concerning the re-examination of a civil right or obligation do fall within the scope of this provision, where the reopening was granted (see Sablon v. Belgium, no. 36445/97, § 87, 10 April 2001).

It follows that the complaints under Article 6 § 1 in the part referring to the examination of the request of 26 April 1996 for reopening of proceedings are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. They must therefore be rejected in accordance with Article 35 § 4.

The Court recalls that Article 13 requires the State to provide an effective legal remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Sürmeli v. Germany [GC], no. 75529/01, § 98, 8 June 2006). Considering that the complaint about the excessive length of the proceedings is incompatible ratione materiae with the provisions of the Convention, the Court finds that the applicant did not have an arguable claim that her right to an effective remedy within the meaning of Article 13 was violated. Therefore, this claim does not reveal any appearance of violation of this provision.

Accordingly, this complaint is manifestly ill-founded and must be declared inadmissible in the meaning of Article 35 §§ 3 and 4 of the Convention.

c) As to the proceedings following the reopening

The period to be taken into consideration began on 4 March 1998, the day the reopening of proceedings was allowed, and ended on 14 May 2003, the day the Supreme Court’s judgment was served on the applicant. It therefore lasted over five years and 2 months. Two levels of administrative jurisdiction and two levels of court jurisdiction were involved.

The Court notes that until 30 August 2001, the day the applicant appealed to the Administrative Court, the restitution proceedings had been pending before the administrative bodies. In these circumstances, the Court finds that that the applicant cannot complain about the length of this part of the proceedings since she has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Slovenian law (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002).

As to the remainder of the relevant period, which is over one year and eight months long, 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).

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 not excessive. The applicant’s complaint is therefore manifestly ill-founded. It must be rejected within the meaning of Article 35 §§ 4 and 5.

Considering that the complaint about the excessive length of the proceedings is inadmissible as manifestly ill-founded, the Court finds that the applicant did not have an arguable claim that his right to an effective remedy within the meaning of Article 13 was violated. Therefore, this claim does not reveal any appearance of violation of this provision.

Accordingly, this complaint is manifestly ill-founded and must be declared inadmissible in the meaning of Article 35 §§ 3 and 4 of the Convention.

2. As to the second set of proceedings

The Court notes that the proceedings before the Nova Gorica Local Court were terminated by the decision of 5 March 1996 against which the parties to the proceeidngs did not appeal. The applicant addressed her complaints against these proceeidngs to the Court on 17 June 2002.

Accordingly, the applicant’s complaints made under Articles 6 and 13 were lodged outside the six month period, as required by Article 35 § 1. They must therefore be declared inadmissible in accordance with Article 35 §§ 1 and 4.

3. As to the third set of proceedings

The period to be taken into consideration began on 25 May 2005, the day the applicant sought restitution of property with the Nova Gorica Administrative Unit and has not yet ended. It therefore lasted over one year and five months and two levels of administrative jurisdiction have been involved.

The Court notes that the proceedings had been pending before the administrative bodies. In these circumstances, the Court finds that that the applicant cannot complain under Articles 6 § 1 and 13 of the Convention about the length of the proceedings and lack of effective remedies in this respect, since she has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Slovenian law (see Sirc v. Slovenia, cited above).

This part of the application must therefore be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger John Hedigan
Registrar President