CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 novembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     Communicated on 17 November 2014   FIFTH SECTION Application no. 56928/08 Jasna DE MATEIS and others against Slovenia lodged on 20 November 2008 STATEMENT OF FACTS The applicants, Mrs Jasna De Mateis, Mr Ive Krnić, Mrs Rudica Krnić and Mrs Barbara Moro, were born in 1935, 1939, 1968 and 1963, respectively. The first and the fourth applicants are Italian nationals and live in Italy, while the second and the third applicants are Croatian nationals and live in Croatia. The applicants are represented before the Court by Odvetniška pisarna Ivana Makuca, a law firm practising in Tolmin, Slovenia. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. After the Second World War Slovenia became a constituent part of the newly formed Democratic Federal Yugoslavia. The new socialist State implemented extensive political and economic changes, including a large-scale nationalisation of private property without paying compensation. In this framework, on 13 May 1948 the competent authority, the so-called General People’s Property, issued an order confiscating all property belonging to the applicants’ predecessor A.-R.S., who had already fled the country, on the ground that he had collaborated with the occupation forces. Following the confiscation of A.-R.S.’s property, Mr J.G. lodged a claim against the General People’s Property for separation of a part of the confiscated property from A.-R.S.’s estate. He claimed to be the owner of four plots consisting of two buildings and two grasslands (hereinafter “the disputed property”) in the Kobarid cadastral community. The disputed property had once belonged to J.G.’s parents, but had later been sold to the Kobarid Agricultural Fund, which in turn had sold it to A.-R.S. in 1940. In this connection, J.G. maintained that A.-R.S. had bought the disputed property on his behalf, as he himself had been exiled during the War. For this reason he had not yet been able to pay A.-R.S. back the purchase price. J.G. called three witnesses who confirmed his story, and on 25 June 1948 the Tolmin Local Court ordered the General People’s Property to enter J.G.’s right of ownership into the land register against payment of the purchase price of 9,600 Dinars. In 1990 the first and the fourth applicants and the legal predecessor of the second and the third applicants instituted civil proceedings against J.G.’s successors before the Tolmin Local Court. They requested, in their capacity as A.-R.S.’s successors, to be recognised the right of ownership over the disputed property. Alternatively, they requested the court to declare the judgment of 25 June 1948 granting J.G.’s claim null and void. They maintained that J.G.’s family had been encumbered by debt, hence they had had to sell their property. In 1940, when the Kobarid Agricultural Fund went bankrupt, A.-R.S., according to the applicants a successful tradesman, bought the disputed property on his own behalf. The applicants further alleged that J.G. had not had the necessary means to pay for the disputed property, and neither had he had any serious intention of buying it. He had simply used A.-R.S.’s absence in order to claim the disputed property by means of false representations and witness statements. Finally, the applicants pointed out that their predecessor had had no possibility to participate in the proceedings. Moreover, in 1995 the first and the fourth applicants and the legal predecessor of the second and the third applicants lodged a request for restitution of A.-R.S.’s estate under the Denationalisation Act which came into force on 7 December 1991 and constituted the legal basis for the restitution of property that had passed into the State ownership by virtue of the post-war land reforms. As regards the disputed property, on 14 July 1997 the restitution proceedings were suspended until the final decision was made in the civil proceedings on the validity of the judgment of 25 June 1948. On 25 September 1997 the Tolmin Local Court rendered a judgment in the civil proceedings, dismissing the applicants’ claim for the recognition of ownership over the disputed property. The court confirmed that on 7   September 1940 A.-R.S. had bought the property in question and had been entered in the land register as its owner. On 3 June 1948 a note had been made in the land register of the confiscation proceedings against him. Subsequently, on 23 April 1949 J.G. had been registered as the new owner of the land. On this basis, the local court concluded that A.-R.S.’s property had been confiscated by the State before 25 June 1948, the date on which J.G. had been established as the owner of the disputed property. Thus, as A.-R.S. had not been a party to the civil proceedings instituted by J.G. in order to claim the ownership of that property, the local court decided that also the applicants as his legal successors lacked legal standing to claim the recognition of ownership over the disputed property or, in substance, the reopening of the proceedings. In view of the fact that the property had first been confiscated from A.-R.S. and only later bought by J.G., the local court took the view that the judgment of 25 June 1948 had no legal effect on A.-R.S.’s property and that the issue of its restitution should be decided in the denationalisation proceedings. The first and the fourth applicants and the legal predecessor of the second and the third applicants appealed against the judgment. On 2 June 1999 the Koper Higher Court dismissed the appeal, confirming that as a result of confiscation, A.-R.S. had lost, and the State had acquired ex lege , ownership of the disputed property. In the higher court’s opinion, as the applicants did not allege that, after losing ownership of the property in question, their predecessor or themselves had managed to reclaim the title of ownership at any point, they were not entitled to claim this title from J.G.’s successors. Moreover, as neither the applicants nor A.-R.S. had been parties to the proceedings for separation of property instituted by J.G. in 1948, they were not bound by the effect of res judicata of the judgment of 25 June 1948. Therefore, according to the higher court, the applicants had no substantive legal basis to challenge that judgment. The first and the fourth applicants and the legal predecessor of the second and the third applicants lodged an appeal on points of law before the Supreme Court. On 8 June 2000 the Supreme Court dismissed the applicants’ appeal on points of law, confirming the reasoning of the higher court to the effect that the applicants could not be granted recognition of ownership of the disputed property. According to the Supreme Court, even assuming that the grounds on which the claim was made, namely that the judgment of 25 June 1948 was null and void and that the disputed property should not have been considered to be separated from A.-R.S.’s estate in favour of J.G., were well-founded, the disputed property would once again belong to the confiscated estate, and not to the applicants. On 20 June 2003 a decision concerning the disputed property was adopted in the denationalisation proceedings. The Tolmin Administrative Unit granted the claim for the restitution of the disputed property lodged by the first and the fourth applicants and the legal predecessor of the second and the third applicants, finding that any agreement between A.-R.S. and J.G. had not affected the former’s ownership of the disputed property. At the time of the confiscation, A.-R.S. had been the only factual and registered owner of the property, which then ex lege became people’s (public) property. According to the administrative unit, the disputed property had first been confiscated from the applicants’ predecessor, and only later, by virtue of the judgment of 25 June 1948, was the ownership transferred to J.G. In reaching this conclusion, the administrative unit relied on the judgments of the Tolmin Local Court of 25 September 1997, the Koper Higher Court of 2 June 1999 and the Supreme Court of 8 June 2000 rendered in the civil proceedings for the recognition of ownership. The Slovenian Compensation Company, a State financial organisation vested with the power, among other things, to settle obligations to beneficiaries under the Denationalisation Act, appealed against the decision of the Tolmin Administrative Unit, arguing that it had been established, by virtue of the judgment of 25 June 1948, that the disputed property had been bought on behalf of J.G., and therefore never belonged to A.-R.S. Thus, the property had not been confiscated from A.-R.S. On 13 April 2004 the Ministry of the Environment, Spatial Planning and Energy annulled the decision of the Tolmin Administrative Unit, agreeing with the Slovenian Compensation Company that the disputed property had been bought on behalf of J.G. and, consequently, had not been confiscated from A.-R.S. The Ministry was of the view that the applicants could only claim the purchase price paid by J.G. for the disputed property in 1948, but could not claim compensation for the value of the property. The Ministry remitted the case to the Tolmin Administrative Unit in order to decide whether the applicants could claim restitution of the amount paid by J.G. as purchase price. The first and the fourth applicants and the legal predecessor of the second and the third applicants brought an administrative action against the decision of the Ministry, arguing that the disputed property had first been confiscated from their predecessor, and only later bought by J.G. They reiterated that A.-R.S. had been unable to participate in the proceedings instituted by J.G. Moreover, they claimed that the Ministry’s decision was in complete contradiction with the view taken by the courts – including the Supreme Court – in the civil proceedings for the recognition of ownership. On 3 June 2005 the Administrative Court dismissed the action, agreeing with the reasoning of the impugned decision of the Ministry that the disputed property had not been confiscated from A.-R.S. The court established that the transfer of ownership was effected by virtue of the judgment of 25 June 1948, whereby J.G. had successfully enforced his right of separation of property from the confiscated estate of A.-R.S. against payment of a certain sum of money to the State. Moreover, in 1949 the ownership title in the land register had been transferred from A.-R.S. to J.G. Thus, the Administrative Court concluded that the disputed property had never been confiscated from A.-R.S. The first and the fourth applicants and the legal predecessor of the second and the third applicants appealed against the judgment before the Supreme Court on the grounds of procedural irregularities, incorrect and incomplete establishment of facts and erroneous application or law. On 1 January 2007 the new Administrative Dispute Act entered into force which changed the system of remedies available in the administrative action proceedings and limited the grounds on which an appeal could be lodged against the first-instance judgments rendered in the administrative proceedings by the Administrative Court. Thereafter, an appeal could only be lodged to challenge the facts, in so far as the Administrative Court established them differently than the administrative authorities. In other cases in which an appeal was no longer available, the first-instance judgments could be challenged by means of an appeal on points of law. On 11 October 2007 the Supreme Court examined the applicants’ appeal in accordance with the transitional provisions of the new Act. Establishing that the appeal could be considered as such also under the new Act, the Supreme Court examined, inter alia, the applicants’ complaints regarding the incorrect establishment of facts. However, the court followed the reasoning of the Administrative Court and reached the same conclusion, namely that the disputed property had not been confiscated from A.-R.S. The first and the fourth applicant lodged a constitutional complaint, arguing, inter alia , that the Supreme Court’s reasoning of the impugned judgment was in direct opposition with the reasoning given in the Supreme Court’s judgment of 8 June 2000 by which that court had dismissed their claims in the civil proceedings. On 13 May 2008 the Constitutional Court rejected the applicants’ constitutional complaint on the ground that they did not exhaust the available remedies. COMPLAINTS The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that view on which the domestic courts, including the Supreme Court, based their decisions in the restitution proceedings was in complete contradiction with the view on which the courts, including the Supreme Court, based their decisions in the civil proceedings concerning the same issue, namely the restitution of, or compensation for, the property once belonging to their predecessor. Moreover, the applicants complain that the contradictory decisions dismissing their claims constituted discriminatory treatment in violation of Article 14 of the Convention. They further complain under Article 1 of Protocol No. 1 to the Convention that they were denied legal protection against the unjustified confiscation of property. Lastly, the applicants complain under Article 6 about the excessive length of the restitution proceedings. QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in the determination of their civil rights and obligations in the restitution proceedings under the Denationalisation Act, in accordance with Article 6 § 1 of the Convention? In particular, were the decisions of the domestic authorities, including the Supreme Court, in the restitution proceedings in breach of the principle of legal certainty, considering that they took opposite view to that expressed by the courts, including the Supreme Court, in the civil proceedings for the recognition of the right of ownership of the disputed property on the issue of whether the disputed property had been confiscated from the applicants’ predecessor? Did the applicants exhaust the domestic remedies in relation to the above complaint in accordance with Article 35 § 1 of the Convention?   2.     Was the length of the restitution proceedings under the Denationalisation Act compatible with the requirements of Article   6   §   1 of the Convention?