BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF GLUHAR v. SLOVENIA
(Application
no. 14852/03)
JUDGMENT
STRASBOURG
21
December 2006
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 Gluhar v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr V. Berger, Section
Registrar,
Having deliberated
in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14852/03) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovenian national, Ms Ana Marija Gluhar (“the
applicant”), on 30 April 2003.
- The
applicant was represented by the lawyer, Ms Darja
Roblek. 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 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).
- On
16 September 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
- The
applicant was born in 1938 and lives in Zirovnica.
1. Denationalisation proceedings
- On
1 June 1994 the Ljubljana Center Municipality (Občina
Ljubljana Center) issued a denationalisation decision in favour
of deceased I.Z., ordering the return of the ownership of certain
real estate that he had owned prior to 1948. The decision was issued
on the basis of a request made on 8 March 1993 by A.P. –
one of the potential heiresses and a later possessor of the
denationalised property of I.Z.
- On
1 March 1995 the Administrative Unit of Ljubljana (Upravna enota
Ljubljana, Izpostava Center) – responsible for
denationalisation proceedings after the reform of the public
administration – reopened the denationalisation proceeding in
part.
- A.P.
filed an appeal against the decision of 1 March 1995; she also
requested that the decision of 1 June 1994 be annulled. The appeal
was rejected on 5 January 1996 by the Ministry of Economy
(Ministrstvo za gospodarske dejavnosti).
- On
14 February 1996 A.P. instituted administrative dispute against the
decision of the Ministry of Economy.
- On
15 July 1997 the applicant submitted an application for joining the
proceedings as an intervening party. On 16 August 1997 a copy of
A.P.'s claim was served on the applicant.
- On
21 February 2001 the Administrative Court (Upravno sodišče)
issued a judgment upholding the claim, annulling the decision of
5 January 1996 and referring the case to the Ministry of
Environment and Spatial Planning (Ministrstvo za okolje in
prostor). The judgment was served on the applicant on an
unspecified date.
- On
19 March 2001 the applicant lodged an appeal against the
Administrative Court's judgment.
On 26
March 2003 the Supreme Court (Vrhovno sodišče RS)
rejected the appeal.
- Subsequently,
on 9 October 2003 the Ministry of Environment and Spatial Planning
(paragraph 11 above) annulled the decision of 1 March 1995,
but rejected A.P.'s request for annulment of the decision of 1 June
1994.
14. On
3 December 2003 A.P. lodged a (new) request for annulment of the
decision of 1 June 1994.
On 22
December 2003 the Ljubljana Administrative Unit declared the
denationalisation decision of 1 June 1994 void and ordered that the
previous ownership regarding the real estate in question be entered
into the Land Registry. The request for denationalisation of 8 March
1993 was sent to the competent department of the Ljubljana
Administrative Unit which was expected to decide on the request.
- On
16 April 2004, the Ljubljana Local Court (Okrajno sodišče
v Ljubljani) issued a decision concerning the change in the Land
Registry.
On 10
June 2004 the same court rejected the applicant's objection.
On 8
December 2004 the Ljubljana Higher Court (Višje sodišče
v Ljubljani) rejected the applicant's appeal. The decision was
served on the applicant on 27 December 2004.
- It
appears that the denationalisation proceedings are still pending
before the Ljubljana Administrative Unit (see paragraph 14 above).
2. Inheritance proceedings
- On
19 December 1996 the applicant, who claimed to be an heiress to I.Z.,
lodged with the Ljubljana Local Court (Okrajno sodišče
v Ljubljani) a request to open inheritance proceedings in respect
of the real estate restored by the denationalisation decision of 1
June 1994 (see paragraph 6 above).
On 6
March 2001 and 25 March 2002, respectively, two apparent relatives
submitted an application to join the inheritance proceedings.
A
hearing was held on 7 October 2002.
- On
2 February 2003 the Ljubljana Local Court discontinued the
inheritance proceedings finding that the denationalisation
proceedings were still pending. It held that it would only be
possible to reinstate them again when the denationalisation
proceedings became final. The decision was served on the applicant on
15 March 2003.
- On
27 March 2003 the applicant lodged an appeal against the decision to
discontinue the inheritance proceedings.
On 20
April 2004 the court requested the applicant to pay fees for the
appeal.
- According
to the Government, on 15 October 1998 and 11 September 2002 two
applicant's lawyers cancelled their authority for representation. On
5 April 2004, she appointed a third lawyer.
- On
6 May 2004 the applicant requested the continuation of the
inheritance proceedings in respect of the property which was
reinstated by the Ljubljana Administration Unit's denationalisation
decision of 9 January 2004 in apparently separate
proceedings. She proposed that the court acquired the information
about remaining heirs by means of announcement in the Official
Journal.
- On
30 September 2004 the court asked the applicant to inform the court
whether she still insisted on appeal of 27 March 2003. On
13 October 2004 the applicant confirmed that she was still
interested in pursuing her appeal.
- On
15 October 2004 the applicant supplemented the appeal.
The
proceedings are pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the inheritance
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.”
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 the present application is 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, 6 October 2005). 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 were ineffective. The Court recalls its
findings in the Lukenda judgment that the violation of the
right to a trial within a reasonable time is 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
Court further notes that the application 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
- The
Court at the outset notes that the applicant's complaint essentially
concerns the length of the inheritance proceedings. The
Court however acknowledges that the two sets of the proceedings
appear to be related and that the inheritance proceedings were
ultimately discontinued pending the outcome of the denationalisation
proceedings. The Court will thus consider the conduct of the
denationalisation proceedings, in which the applicant was given a
status of intervening party, as a relevant factor in assessing the
reasonableness of the length of the inheritance proceedings.
a) Period to be taken into consideration
- The
period to be taken into consideration began on 19 December 1996,
when the applicant lodged a request for inheritance proceedings in
respect of I.Z.'s denationalized property, and has not yet ended.
Therefore, they have lasted more than nine years and ten months.
- As
to the denationalisation proceedings the Government argued that the
relevant period started to run only on 15 July 1997, the day the
applicant had requested to join the proceedings as an intervening
party. The Government, in addition, asserted that these proceedings
ended with the Supreme Court's judgment of 26 March 2003.
The
Court does not consider it necessary to establish the starting point
as concerns the length of the denationalisation proceedings (see
paragraph 31 above). The Court however notes that there is no
indication in the case-file that, in the denationalisation
proceedings, a final decision has been issued insofar.
b) The reasonableness of the length of the
proceedings
- In
respect of the inheritance proceedings, the Government argued that
the case was a complex one, in particular because not all heirs of
I.Z. were identified and because the denationalisation decision was
partly annulled. Moreover, the changes in the applicant's legal
representation also contributed to the length of the proceedings.
As to
the denationalisation proceedings, the Government submitted that the
case was a complex one and that certain delays could be attributed to
the reorganization of the administrative judicial system (upravno
sodstvo) in 2000.
- 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).
- As
regards the denationalisation proceedings, the Court attaches
importance to two periods of inactivity for which the State was
essentially responsible: the delay in the proceedings before the
Administrative Court, which were pending for five years (see
paragraphs 9-11 above), and the delay of two years between the
lodging of an appeal and the delivery of the Supreme Court's judgment
(see paragraph 12 above). The Court moreover notes that the
proceedings are pending before the competent department of the
Ljubljana Administrative Unit for almost three years while there is
no indication of any progress being made insofar (paragraph 14
above).
As to
the argument based on the reorganization of the administrative
judicial system, it must not be forgotten that Article 6 § 1
imposes on the Contracting States the duty to organise their judicial
systems in such a way that their courts can meet each of its
requirements (see, among many other authorities, the Tusa v.
Italy, judgment of 27 February 1992, Series A no. 231-D, p. 41, §
17).
37.
The Court notes that the inheritance proceedings have lasted for more
than nine years and ten months which is a considerable length of
time. Such length is excessive all the more in view of the fact that
the proceedings were discontinued awaiting the conclusion of
denationalisation proceedings. The latter are again pending before
the first-instance administrative authorities.
The
Court considers that the conduct of the applicant or the complexity
of the legal and factual issues, including the denationalisation
proceedings, cannot justify such a length.
- The
Court moreover notes that, while it appears that the progress of the
inheritance proceedings was obstructed by the annulment of the
denationalisation decision and the subsequent proceedings, it was
only on 2 February 2003 that the court discontinued the
inheritance proceedings. It is also striking that, in the inheritance
proceedings, the court has still not decided on the applicant's
appeal of 27 March 2003.
- 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
- 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). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see Lukenda,
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 her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1.
II. 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 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim.
- As
far as the applicant's claim may refer to pecuniary damage, the Court
notes that the applicant could seek reimbursement before domestic
courts; it therefore rejects this claim (see Lukenda, cited
above, § 59). The Court, however, considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards her EUR 3,200 under that head.
B. Costs and expenses
- The
applicant claimed also costs and expenses incurred before the Court.
She however did not clearly specify her claim.
- The
Government did not provide any comments in this respect.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
her 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. Although the applicant did not specify her claim, the Court
considers, having regard to the information in its possession and the
above criteria, that the applicant, who was represented by the lawyer
but apparently produced all submissions by herself, must have had
expenses with the proceedings before the Court and considers it
reasonable to award her EUR 600.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 3,200
(three thousand two hundred euros) in respect of non-pecuniary damage
and EUR 600 (six hundred 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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Corneliu Bîrsan
Registrar President
