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THIRD
SECTION
CASE OF GERDEN v. SLOVENIA
(Application
no. 44581/98)
JUDGMENT
STRASBOURG
18
March 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 Gerden v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and
Santiago Quesada, Section Registrar,
Having deliberated
in private on 26 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 44581/98) against the
Republic of Slovenia lodged with the European
Commission of Human Rights (“the Commission”) under
former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovenian national, Mr Franc
Gerden (“the applicant”), on 12 October 1998.
- The
applicant was represented by Mr H. Đjurković, a lawyer
practising in Koper. The Slovenian Government (“the
Government”) were represented by their Agent, Mr L. Bembič,
State Attorney-General.
- The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which he was
a party was excessive. He 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. He further alleged that
the amendments to the Act on Implementation of Penal Sanctions
violated his rights under Article 6 § 1 (unfair trial), Article
14, Article 1 of Protocol No. 1 and Article 3 of
Protocol No. 7 to the Convention.
- On
29 August 2006 the
Court decided to give notice of the complaints concerning the length
of the proceedings and the lack of remedies in this respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Trebnje.
1. Background of the case
- On
24 September 1946 the Ljubljana Division Military Court (Divizijsko
vojaško sodišče v Ljubljani) convicted the
applicant’s uncle and legal predecessor, Mr A.Z., of the
offence of collaboration with the “Black Hands”
organisation during the Second World War. He was sentenced to
10 years’ deprivation of liberty with forced labour and
forfeiture of property to the State. The applicant’s uncle
lodged an appeal with the Military Court of the IVth Army
(Vojaško sodišče IV. armije), which was
dismissed on 25 October 1946. Following the conviction, the
immovable assets belonging to the applicant’s uncle were
expropriated by a ruling of the Grosuplje District Court (Okrajno
sodišče v Grosupljem), rendered on 22 November 1946.
- The
applicant’s uncle died on 4 September 1949, bequeathing his
movable assets to his sister, the applicant’s mother. She died
in 1973, leaving her property to the applicant and his brother and
sister.
- In
1991, after the establishment of independence of the Republic of
Slovenia and the change of the political regime, the applicant’s
aunt requested the retrial of her brother, the applicant’s
uncle. On 19 March 1993 the Ljubljana Basic Court, Ljubljana Unit
(Temeljno sodišče v Ljubljani, Enota v Ljubljani)
acceded to her request and re-opened the criminal proceedings.
Following the withdrawal of all charges by the Prosecutor General, on
2 September 1993 the court terminated the proceedings and
quashed the conviction. The decision became final on
19 September 1993.
2. Request for restitution of, or compensation for, the
forfeited property
- On
3 December 1993 the applicant initiated proceedings against the
Grosuplje Municipality before the Ljubljana Basic Court, Grosuplje
Unit (Temeljno sodišče v Ljubljani, Enota v
Grosupljem), in order to obtain restitution of or compensation
for the immovable assets forfeited by his uncle, invoking the Act on
Implementation of Penal Sanctions. The forfeited property consisted
of the following items: four houses, several plots of land, a hayrack
and other farm outbuildings.
-
On 1 April 1994 the applicant modified his request and included the
Republic of Slovenia as an additional defendant in the restitution
proceedings. He also urged the court to start processing his case.
- On
5 December 1994 the court cancelled a scheduled hearing and adjourned
it sine die.
- The
applicant again modified his request and included the Municipality of
Ivančna Gorica and the Municipality of Dobrepolje among the
defendants.
- On
21 April 1995 the court held a hearing, at which it decided to
appoint an expert in building construction and an expert in
agriculture.
- On
1 March 1996 the applicant again modified his request in order to
include among the defendants also the Farmland and Forest Fund of the
Republic of Slovenia (Sklad kmetijskih zemljišč in
gozdov, “the Fund”). He also lodged a request for a
temporary injunction, and urged the court to deal promptly with the
case.
- On
19 March 1996 the court held another hearing, at which it decided to
grant the requested temporary injunction. It also ordered the Fund to
return three plots of land to the applicant. The Fund appealed.
- The
court upheld the appeal and changed its decision of 19 March 1996.
That decision became final on 31 May 1996.
- On
9 August 1997 the Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act on the
Implementation of Penal Sanctions entered into force. It had the
effect of suspending extant restitution claims under these two acts,
originally until 20 December 1997 and subsequently, under new
legislation, until 31 March 1998. While those provisions
were in abeyance, the Parliament passed the Act on Amendments and
Supplements to the Act on Implementation of Penal Sanctions (see
under “The Relevant Domestic Law and Practice”).
- Between
10 September 1998 and 16 September 2003 the court held four
hearings. At the hearing held on 10 September 1998 the court
issued an order appointing an expert in building construction and an
expert in agriculture. Neither the applicant nor his legal
representative attended the hearing held on 12 September 2000. At the
hearing held on 7 October 2002 the court decided to appoint another
expert in building construction instead of the appointed one.
- On
3 October 2003 the court terminated the restitution proceedings due
to the withdrawal of all the applicant’s claims on 1 October
2003. The applicant subsequently recalled his withdrawal and lodged
an appeal against the decision of the court of 3 October 2003.
-
On 4 November 2003 new claimants – further legal successors of
the applicant’s uncle – requested to join the proceedings
on the applicant’s side and appealed against the decision of
the court of 3 October 2003 to terminate the proceedings. On 3
November 2004 the court quashed its decision of 3 October 2003 and
decided to continue with the restitution proceedings.
- On
21 April 2005 the re-named Grosuplje Local Court (Okrajno sodišče
v Grosupljem) awarded compensation in bonds of the Slovenian
Compensation Society amounting to 179,225,156 Slovenian tolars
(“SIT”) (EUR 747,838) to be divided among the heirs of
the late A.Z., from whom the property had been forfeited in 1946. The
judgment became final on 23 May 2005.
3. Request for compensation for loss of profits
- On
2 September 1996, on the basis of Sections 538 and 539 of the
1994 Act on Criminal Procedure, the applicant, his sister and
his nephew lodged a formal request with the Ministry of Justice in
order to secure their right to compensation for loss of profits
amounting to 198,726,975.80 SIT.
- On
9 December 1996, further to the failure of the Ministry to respond to
their request within the prescribed period of three months, they
commenced proceedings in the Ljubljana District Court (OkroZno
sodišče v Ljubljani). At that time, the lost profits
were estimated by the applicant and his relatives at 198,726,975.80
SIT, from lost rent and income from the cultivation of the land.
- On
24 March 1998 the court cancelled the scheduled hearing sine die
due to the sick leave of the acting judge.
- On
3 June 1998 and 11 June 1998 the applicant urged the court to deal
promptly with their case and to set the date for the first hearing.
- On
6 July 1998 the court held a hearing, at which it decided to appoint
an expert in building construction and an expert in agriculture. It
further decided, with the consent of the parties, to adjourn the
hearing until the Constitutional Court decided upon the applicant’s
constitutional initiative challenging the amendments to the Act on
Implementation of Penal Sanctions.
- On
23 March 2000 the court released the expert from his duties and
appointed another expert in building construction.
- On
21 February 2003 the applicant lodged a supervisory appeal in order
to accelerate the proceedings before the court. The acting judge
reported that the court was waiting for the final decision in the
restitution proceedings.
- On
10 April 2003 the court held a hearing, at which the Republic of
Slovenia requested the court to stay the proceedings until a final
decision was taken in the restitution proceedings on the applicant’s
right to restitution of the forfeited property. The court granted the
request and on 5 May 2003 decided to await the decision in the
restitution proceedings. According to the reasoning of the court, the
issues dealt with in the restitution proceedings were of a
preliminary nature for the court, since the amount of the
compensation for loss of profits depended on the question whether the
claimant was awarded the restitution of property in natura, or
in the form of compensation for the forfeited property.
- On
6 December 2005 the court held a hearing and rejected all the
applicant’s claims. The applicant did not appeal, whereas his
relatives did. As for the applicant, the judgment became final on
21 December 2005.
II. THE 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 ...”
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) 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
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. It held in abeyance certain types of restitution proceedings
for a period of three years.
5. The 1997 Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act on
Implementation of Penal Sanctions
- On
9 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) entered into force. Its Section 2 suspended, originally
until 20 December 1997 and subsequently, under new
legislation, until 31 March 1998, proceedings concerning
claims for the restitution of or compensation for property, inter
alia in cases where the property had been 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 had been handed down before
31 December 1958 and had later been quashed (see the
Constitutional Court’s decision mentioned under “3. The
Denationalisation Act”).
- The
1998 Act on Amendments of, and Supplements to, the Act on
Implementation of Penal Sanctions (Zakon o spremembah in
dopolnitvah Zakona o izvrševanju kazenskih sankcij,
Official Journal no. 10/98) added new Sections 145A and 145C to the
Act. As far as claims for restitution of property forfeited by
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 that
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 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 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 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 had been
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 the quashing of 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 provided for a more favourable restitution regime.
- On
13 February 1998 the Constitutional Court upheld in part a
constitutional initiative 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 had 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 that there was a violation of the
constitutional rights protected under Article 14 (right to equality
before the law).
- Following
a constitutional initiative lodged by the applicant and some other
individuals, the Constitutional Court was called on to rule on the
constitutionality of Sections 145A and 145C of the Act on
Implementation of Penal Sanctions, which refer to the
Denationalisation Act to govern the restitution of property forfeited
by criminal judgments handed down before 31 December 1958, and thus
provide for a less favourable restitution regime. 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 of
16 July 1998). The principle of the Welfare State empowered the
legislator, with due consideration paid 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AS TO THE
LENGTH OF THE PROCEEDINGS AND 13 OF THE CONVENTION
- The
applicant complained about the excessive length of the proceedings.
He 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
applicant further complained that the remedies available for
excessive length of court proceedings in Slovenia were ineffective.
He 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
- The
Government pleaded non-exhaustion of domestic remedies.
-
The applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that in the two sets of proceedings to which the
applicant was a party, the judgments became final on 23 May 2005
and 21 December 2005, respectively. It follows that both sets of
proceedings had terminated before the Act on the Protection of the
Right to a Trial without undue Delay entered into force. The
applicant could therefore only have availed himself of the legal
remedies available before the Act became operational. The present
application is thus 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,
ECHR 2005-X, see also Grzinčič
v. Slovenia, no. 26867/02, judgment, 3 May 2007). 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. 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 furthermore finds that the applicant’s complaint relating
to the length of the proceedings is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Article 6 § 1 of the Convention
(a) The parties’ submissions
- The
applicant maintained that the courts and the Republic of Slovenia as
a defendant in both sets of proceedings continuously delayed the
proceedings. In particular, he argued that it was not necessary for
the court to await the decision of the Constitutional Court in order
to decide the case, and further, that he was compelled to modify his
claims on several occasions due to the legislation that had changed
during the proceedings and which affected also the identity of the
subjects liable for the restitution of property.
- The
Government claimed that the length of the two sets of proceedings was
due not only to the complexity of the case, but first and foremost to
the applicant’s conduct. They complained in particular that the
applicant modified his claims before the courts and initiated the
constitutionality review procedure, the outcome of which the court
then had to await. As for the second set of proceedings, the
Government further claimed that it could not have been dealt with
more promptly, as the court had to await the final decision in the
first set of proceedings.
(b) The Court’s assessment
(i) Period to be taken into consideration
- In determining the relevant period to be taken into
consideration, the Court notes that the first set of proceedings
started on 3 December 1993, that is, before 28 June 1994 when
the Convention took effect with respect to Slovenia. Given its
jurisdiction ratione temporis, the Court can only consider the
period which elapsed after 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).
As far as the end of the period is concerned, the date to be taken
into account with regard to the first set of proceedings is 23 May
2005, when the judgment of the Grosuplje Local Court became final.
The period to be taken into account in the first set of proceedings
is therefore nearly 10 years and 11 months, during which the
applicant’s case was dealt with by one level of jurisdiction.
- As
for the second set of proceedings, the Court notes that it started on
9 December 1996, when the applicant lodged his request for
compensation for loss of profits with the Ljubljana District Court.
The date to be taken into account as the end of the second set of
proceedings is 21 December 2005, when the proceedings became
final with regard to the applicant. The second set of proceedings
therefore lasted 9 years and 12 days, during which the case was
dealt with by one level of jurisdiction.
- 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 need to obtain expert reports in order to
establish the facts of the case shows that the proceedings at issue
were of some complexity. The Court also takes into account that what
was at issue in the domestic proceedings was of some importance to
the applicant. The Court further considers that the modifications of
the applicant’s claims, his non-attendance of the scheduled
hearing, his withdrawal of all his restitution claims and his
subsequent recall of the withdrawal contributed to prolonging the
proceedings. However, the Government, on the other hand, failed to
provide any explanation for a number of delays and periods of
inactivity of the judicial authorities. Thus, the court dealing with
the first set of proceedings only held its first hearing almost a
year and a half after the applicant had lodged his request for the
restitution of the property. Furthermore, the same court needed more
than three years from its decision to obtain an expert report until
it in fact appointed the expert. The same court also appears to have
been totally inactive during the period between the fourth and fifth
hearings, during which more than two years had passed. Similarly, the
court in the second set of proceedings stayed completely inactive for
over a year and a half after the Constitutional Court had delivered
the judgment the court was waiting for.
- 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 of the Convention
- 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). In this respect the Court notes that the objections and
arguments put forward by the Government in respect of the legal
remedies available before the Act on the Protection of the Right to a
Trial without undue Delay entered into force, 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.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AS TO THE
RIGHT TO A FAIR HEARING, ARTICLE 14, ARTICLE 1 OF PROTOCOL NO. 1
AND ARTICLE 3 OF PROTOCOL NO. 7 TO THE CONVENTION
- The
applicant further complained that the amendments to the Act on
Implementation of Penal Sanctions violated his 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. In substance, he also
invoked Article 6 § 1 in conjunction with Article 14 of the
Convention, alleging that the challenged amendments discriminated
against those claimants for the restitution of forfeited property
whose restitution proceedings were still pending before the courts
when the challenged legislation introducing a less favourable
restitution regime entered into force. The applicant also complained
that the challenged amendments breached his right to property as
guaranteed under Article 1 of Protocol No. 1, arguing that from the
moment the criminal judgment was quashed, he had a right to obtain
the full restitution of the property forfeited by the quashed
judgment, as guaranteed by the Act on Implementation of Penal
Sanctions at the material time, that is, before the challenged
amendments entered into force. In addition, he claimed that the
challenged amendments violated his right to full compensation for the
wrongful conviction as guaranteed under Article 3 of Protocol No. 7.
Finally, the applicant 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 amendments deprived him
of his property on a discriminatory basis, as 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.”
- The
Court observes that the applicant’s remaining claims all
concern the amendments to the Act on Implementation of Penal
Sanctions as adopted in 1998. In this respect, the Court reiterates
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 further observes that on 21 April 2005 the Grosuplje Local
Court took the final decision with regard to the applicant’s
claims for the restitution of forfeited property and awarded him
compensation for the forfeited property. Furthermore, on 6 December
2005 the Ljubljana District Court took a final decision with regard
to the applicant’s claims for compensation for loss of profits.
- The
Court further observes that the applicant did not lodge any appeal
either against the judgment of the Grosuplje Local Court of
21 April 2005 or against the judgment of the Ljubljana
District Court of 6 December 2005 to the Ljubljana Higher 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 (see, Sirc
v. Slovenia (dec.), no. 44580/98, § 247, 22 June 2006).
- 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 must be considered
inadmissible for non-exhaustion of domestic remedies within the
meaning of Article 35 § 1 of the Convention and rejected in
accordance with Article 35 § 4 of the Convention.
III. 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 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 some
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 8,000 under that head.
B. Costs and expenses
- The
applicant claimed EUR 3,656 for the costs and expenses incurred
before the Court, and EUR 1,983 for the costs and expenses incurred
before the domestic courts.
- The
Government argued that the claim was excessively high and was not
supported by any documents as far as the costs and expenses incurred
before the domestic courts were concerned.
- 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. The Court further
notes that the proceedings before the domestic courts were not at all
aimed at remedying the violations of the Convention rights alleged by
the applicant before the Court (see
Scordino v. Italy (no. 1) no.
36813/98, 29 March 2006). It therefore considers that the
applicant cannot claim the reimbursement of costs incurred before the
domestic courts. 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
- Declares the complaint concerning the excessive
length of the proceedings and the lack of remedies with regard to
excessive length of the proceedings admissible, and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as to the length of the proceedings;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight 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 applicant’s
claim for just satisfaction.
Done in English, and
notified in writing on 18 March 2008, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
