Johanna WEISS v Slovenia - 37169/03 [2012] ECHR 344 (14 February 2012)

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The European Court of Human Rights (Fifth Section), sitting on 14 February 2012 as a Committee composed of:

Ann Power-Forde, President,
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the comments submitted by the respondent Government and by the applicant,

The applicant, Mrs Johanna Weiss, is an Austrian national who was born in 1927 and lives in Graz. She is represented before the Court by Mr Jerman, a lawyer practising in Maribor. The Slovenian Government (“the Government”) are represented by their Agent.

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

On 7 May 1993, under the provisions of the 1991 Denationalisation Act, the applicant filed a request for restitution of/compensation for the property expropriated from her late mother after the Second World War, on account of the fact that she was of German origin and had left the former Yugoslavia before 28 August 1945. Under the amended Section 35 of the Citizenship of the Democratic Federal Yugoslavia Act 1945, all citizens of the previous Kingdom of Yugoslavia acquired citizenship of the new State, with the exception of persons of German origin, having left the territory before 28 August 1945 and of disloyal behaviour to the interests of the Yugoslav nations during the German occupation (see Krisper v. Slovenia, no. 47825/99, § 11, 23 March 2006). The request was filed with the then Municipality of Maribor.

On 24 August 1993 the request was transferred to the Ministry of Culture since it concerned real estate classified as cultural monument.

The denationalisation proceedings were stayed in order to determine, in a separate set of preliminary proceedings on determination of citizenship under Section 63 of the Denationalisation Act, the citizenship of the applicant’s mother. The 1991 Denationalisation Act sets as one of the conditions for the restitution of/compensation for nationalised property the claimant to had been a Yugoslav national at the moment of the taking of property.

On 29 May 2001 the Ministry of Culture rejected the claim. On 9 July 2001 the applicant initiated an administrative lawsuit.

On 26 October 2004 the Administrative Court issued a decision staying the denationalisation proceedings until a final decision on citizenship. The applicant lodged an appeal. On 23 March 2006 the Supreme Court, acting as a second-instance court, rejected the appeal concerning the staying of proceedings.

Further to the Administrative Court’s judgment of 6 December 2006 rejecting the applicant’s request concerning her mother’s citizenship which became final on 17 January 2007, the proceedings were resumed and on 2 October 2007 the Administrative Court rejected the applicant’s claim. After the first-instance judgment had become final, the applicant filed an appeal on points of law.

On 21 February 2008, after the Supreme Court’s decision of 15 November 2007 establishing that the applicant’s mother was a Yugoslav national at the relevant time, the Supreme Court granted the appeal and remitted the case.

On 18 March 2008 the Administrative Court referred the case back to the Ministry of Culture for consideration.

On 21 April 2010, after a hearing held on 4 March 2010, the Ministry for Culture partially granted the applicant’s request and returned to the applicant real estate in Maribor in the value of DEM 234.032,53 at the time of the taking of property and compensation in State bonds of the Slovenian Compensation Society (Slovenska odškodninska druZba) in the amount of DEM 27.115,62. In addition, the leases concluded in the meantime by the Municipality of Maribor with the tenants were to be regulated under the provisions of the Housing Act 2003. The Ministry of Culture also established that the applicant’s mother, who had acquired Austrian citizenship in 1949, had received no compensation under Article 27 of the Austrian State Treaty (Österreichischer Staatsvertrag) for the property expropriated by the former Yugoslavia after the Second World War. She was therefore entitled to denationalisation under Section 10 of the 1991 Denationalisation Act.

On 18 November 1993 the Maribor Administrative Unit issued a decision establishing that the applicant’s mother had not been a Yugoslav national at the time of the taking of property.

On 7 April 1995, following an appeal, the Ministry of the Interior upheld the Administrative Unit’s decision.

On 18 May 1995 the applicant instituted an administrative dispute before the Supreme Court, acting as a first-instance court in administrative matters at the material time.

On 22 August 2000 the Supreme Court rejected the applicant’s request. She lodged a constitutional complaint.

On 11 December 2001 the Constitutional Court declared the case admissible and on 10 January 2002 issued a decision remitting the case for re-examination before the Administrative Unit, considering in particular that the alleged disloyal behaviour should be re-examined. Previously, the lower domestic authorities had considered disloyal behaviour to be a legal fiction which could not be challenged (see Krisper, cited above, §§ 30-34).

On 22 November 2004 the Maribor Administrative Unit issued a decision establishing that the applicant’s mother had not been a Yugoslav national at the relevant time. An appeal was lodged.

On 6 December 2006 the Administrative Court gave a judgment rejecting the applicant’s request. On 17 January 2007 the judgment of 6 December 2006 became final. The applicant lodged an appeal on the points of law.

On 15 November 2007 the Supreme Court gave a judgment. The Supreme Court quashed the decisions of the lower administrative authorities and established that the applicant’s mother had been a Yugoslav national from 28 August 1945 until the independence of Slovenia and a Slovenian national from 25 June 1991 until her death on 12 November 1998.

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. ...”

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.

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.

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”)

See domestic law in the Court’s judgment Grzinčič v. Slovenia (no. 26867/02, §§ 36-48, 3 May 2007).

The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings on determination of citizenship and, implicitly, of the denationalisation proceedings before the administrative authorities and domestic courts to which she was a party was excessive. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

The applicant complained about the excessive length of the proceedings on determination of citizenship and, implicitly, about the length of the denationalisation 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, 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.”

The Government stated that the denationalisation proceedings were still pending before the Ministry of Culture and pleaded non-exhaustion of domestic legal remedies both before lower administrative authorities and before the courts.

In addition, as to the proceedings on determination of citizenship before lower administrative authorities, the applicant did not lodge a complaint concerning the failure of the administrative authority to render a decision within the prescribed time-limit (molk organa) under Section 222 of the General Administrative Procedure’s Act or an action against the failure to render a decision under Section 28 of the Administrative Disputes Act (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002; and Blekić v. Slovenia (dec.), no. 14610/02, §§ 76-77, 7 July 2009). As to the court proceedings on determination of citizenship, the respondent Government contended on the one hand that their duration from 13 October 2005 until 15 November 2007 was not excessive in view of the Court’s case-law (two years and one month before two levels of jurisdiction, the Administrative Court and the Supreme Court) and, on the other hand, that the applicant had failed to exhaust domestic legal remedies. On 1 January 2007 when the 2006 Act became applicable, those proceedings were pending before the Supreme Court. The applicant could have therefore availed herself of the new remedies at her disposal. She also failed to avail herself of any of these remedies in the denationalisation proceedings.

The Government also stated that the 2006 Act offered protection of the right to trial without undue delay only to parties in judicial proceedings. In the framework of proceedings under the 2006 Act it was therefore not possible to find a breach of the right to a swift trial in an administrative procedure.

The Court considers firstly that two sets of proceedings before both the lower administrative authorities and the administrative courts should be taken as a whole since the proceedings on determination of citizenship are preliminary proceedings in connection with the denationalisation proceedings (compare, for instance, Krisper v. Slovenia, no. 47825/99, §§ 67 68, 23 March 2006). Since the latter concern the restitution of property, the proceedings as a whole concern the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention (see J.S. and A.S. v. Poland, no. 40732/98, §§ 49-54, 24 May 2005; and Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR-XII) .

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. (see, among many other authorities, Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI).

As far as Slovenian length-of-proceedings cases are concerned, the Court has taken the view that the mere fact that an applicant had lodged his or her application before the implementation of the 2006 Act did not absolve him or her from exhausting the remedies available under the 2006 Act (see Korenjak v. Slovenia (dec.) no. 463/03, §§ 63-71, 15 May 2007). The Court also found that the aggregate of remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance was effective (see Korenjak, cited above, § 62). The applicants were therefore required to make use of the acceleratory remedies if the proceedings were pending before the first- or second-instance court (ibid.), and were also required to use the compensatory remedy provided that, after exhausting the acceleratory remedies, they had reasonably prompt access to it (see Lesjak v Slovenia, no. 33946/03, §§ 34-35 and 37, 21 October 2009; and Nezirovič v. Slovenia (dec.), no. 16400/06, 25 November 2008).

In the present case, the Court observes that, on 1 January 2007, the day the 2006 Act came into force, the denationalisation proceedings were pending before the Administrative Court which gave a judgment dismissing the applicant’s claim on 2 October 2007, after the Administrative Court’s judgment of 6 December 2006 on determination of citizenship had become final. The applicant filed appeals on points of law against both first-instance judgments. The Supreme Court first decided in the proceedings on the determination of citizenship on 15 November 2007 that the applicant’s mother had been Yugoslav and subsequently Slovenian citizen. As a consequence, on 21 February 2008 the Supreme Court granted the applicant’s appeal on points of law in the denationalisation proceedings, remitting the case to the Administrative Court. On 18 March 2008 the latter in turn remitted the case to the Ministry of Culture which partially granted the applicant’s restitution claim on 21 April 2010. The proceedings before the Ministry as to the remainder of the applicant’s claim are pending.

The Court further observes, as the Government also submitted, that there are distinct remedies available under the domestic law in cases of excessively long judicial proceedings pending at first and second instance under the 2006 Act (see Knez and Others v. Slovenia, no. 48782/99, §§ 131 133, 21 February 2008; and Gliha and Joras v Slovenia (dec.), no. 72200/01, 6 September 2007) or in cases of excessively long proceedings pending before the lower administrative authorities.

As to the judicial part of the proceedings pending before the Administrative Court on 1 January 2007 when the 2006 Act became applicable and terminated on 18 March 2008, the Court notes that the applicant failed to use any remedies available under the 2006 Act either before the first-instance court (see Grzinčič v. Slovenia, no. 26867/02) or before the Supreme Court (see Nezirovič, cited above, § 28). In addition, the Court observes that after the application of the 2006 Act the judicial proceedings were rather swift, lasting approximately one year and three months for two levels of jurisdiction (see for example Šilc v. Slovenia, no. 45936/99, (dec.), 29 June 2006; and Batka v. Slovakia, no. 67168/01 (dec.), 30 September 2003).

Similarly, as to the proceedings before the lower administrative authorities which have continued before the Ministry of Culture after the termination of the judicial part of the proceedings on 18 March 2008, the Court notes that the applicant has failed to pursue the application under the conditions set out in Section 58 of the 1991 Denationalisation Act, Section 222 of the General Administrative Procedure Act and Section 28 of the Administrative Disputes Act in cases of the failure of the administrative authority to render a decision within the prescribed time-limit (molk organa) (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002; and Blekić v. Slovenia (dec.), no. 14610/02, §§ 76-77, 7 July 2009).

In view of the above, the Court considers that in the present case the applicant failed to lodge a supervisory appeal and a motion for a deadline in order to speed up the proceedings and to obtain redress for delays already occurred in judicial proceedings after 1 January 2007 when the 2006 Act entered into force.

As to the proceedings before the Supreme Court, the Court has found that the remedies available to the applicants under the 2006 Act were not considered to be effective at the material time (see Lesjak, cited above, §§ 40-45 and 55). However, given that the first-instance proceedings terminated on 2 October 2007, the applicant would have had a reasonable chance of satisfying the criteria for the admission of the compensation claim by availing herself properly and without delay of the acceleratory remedies in the judicial part of the proceedings.

In conclusion, the Court finds that in the situation such as the present one, an applicant is required under the 2006 Act to make a real attempt to exhaust the acceleratory remedy, at least to secure his or her access to a compensation claim in the framework of judicial proceedings. In the present case, the applicant did not make such an attempt nor did she provide a convincing explanation for her failure to do so.

Similarly, the Court notes that the applicant has not used any remedies available under the 1991 Denationalisation Act in combination with the General Administrative Procedure Act and the Administrative Disputes Act in order to speed up the proceedings pending before the lower administrative authorities after 18 March 2008 when the case had been remitted to the Ministry of Culture.

This part of the application must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

Having regard to the foregoing, the applicant’s complaint under Article 13 that the remedies at her disposal for excessively lengthy proceedings were ineffective must be declared manifestly ill-founded under Article 35 § 3 of the Convention (see Nezirović, cited above, §§ 39-43).

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

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You are here: BAILII >> Databases >> European Court of Human Rights >> Johanna WEISS v Slovenia - 37169/03 [2012] ECHR 344 (14 February 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/344.html Cite as: [2012] ECHR 344