Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no.39485/14
Savo PEČENKO
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 6 March 2018 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2014,
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
1. The applicant, Mr Savo Pečenko, is a Slovenian national who was born in 1957 and lives in Ljubljana.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms T. Mihelič Žitko, State Attorney.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Civil proceedings
4. On 15 November 1991 the applicant submitted a request for the purchase of a previously socially-owned flat under the favourable terms of the 1991 Housing Act (see paragraph 20 below). On 18 January 1992 the Ljubljana Municipality (“the Municipality”) informed him that the flat at issue had been nationalised and that such immovable property could not be purchased (see paragraphs 21 and 23 below).
5. Subsequently, the applicant brought a civil action against the Municipality, seeking the conclusion of a contract to buy the flat at issue.
6. On 18 June 1996 the Ljubljana Local Court granted the applicant’s claim, holding that the Municipality had failed to prove that the flat in question had been nationalised (see paragraph 23 below). The Municipality was ordered to conclude the purchase contract with the applicant and to grant him permission to register his title to the flat in the land register. In the event of its failure to do so, the terms of the judgment were to replace the parties’ agreement to conclude a contract. On 26 September 1996 the judgment became final. On 12 October 1996 its terms replaced the agreement.
7. On 20 November 1996 the applicant paid the requested price for the flat. However, he had not requested that his alleged ownership right be registered in the land register.
8. On 22 November 1996 the State Attorney’s Office applied to the Ljubljana District Court for the reopening of the civil proceedings because it had obtained new evidence that the previous owners had lodged a restitution claim with respect to the flat at issue. Enclosed with the application was, inter alia, a denationalisation request of 29 November 1993 (see paragraph 10 below). On 3 December 1996 the application for reopening of the proceedings, together with the enclosures, was served on the applicant’s lawyer.
9. On 15 May 2001 the Ljubljana District Court, in the applicant’s presence, decided to stay the proceedings in respect of the reopening of the civil proceedings pending the outcome of the denationalisation proceedings. By an order of 19 November 2010 it decided to continue the proceedings. The applicant appealed, arguing that the denationalisation proceedings had not been concluded. According to the applicant’s submission of 7 March 2016, the reopening of the civil proceedings was, on that date, still under consideration.
2. Denationalisation proceedings
10. On 29 November 1993 the legal successor of the previous owners lodged a denationalisation request, claiming in natura restitution of the building in which the flat at issue was situated. On 18 November 1996 the Ljubljana Administrative Unit (“the Administrative Unit”) prohibited the Municipality from transferring the property at issue until the denationalisation proceedings had finally been concluded (see paragraph 23 below). On 22 November 1996 this prohibition was entered in the land register and thus became effective.
11. On 23 April 2008 the Administrative Unit, noting that the proceedings in respect of the reopening of the civil proceedings were still pending (see paragraph 9 above), granted the denationalisation request and ordered that the flat at issue be returned to the legal successor of the previous owners. On 10 May 2008 the decision became final. The change of the flat’s legal status was entered in the land register.
12. On 1 October 2008 the applicant’s lawyer received the decision.
13. On 17 October 2008 the applicant asked to be granted the status of a party to the denationalisation proceedings and lodged an appeal against the decision of 23 April 2008. He argued that the impugned denationalisation decision interfered with his property rights, recognised by the final civil judgment of 18 June 1996 (see paragraph 6 above), and that he should have been given the possibility of participating in the denationalisation proceedings. He maintained that the Administrative Unit had not informed him of such proceedings. The applicant further argued that had he had a chance to comment on the relevant facts and evidence before the denationalisation decision had been issued, the decision would have been different.
14. On 25 January 2011 the Administrative Unit rejected both the applicant’s request to be granted the status of a party and his appeal. As to the first,it found it belated because, under section 139 of the General Administrative Procedure Act (hereinafter “the GAPA-86” – see paragraph 25 below), such a request could only be made in the course of proceedings until such time as the denationalisation decision had been issued. As to the appeal, the impugned decision had already become final in the administrative proceedings (dokončna odločitev). The applicant’s appeal could therefore be examined either as an application for reopening of the denationalisation proceedings, on the grounds that a person who should have participated in the proceedings had not been given the chance to do so, or as a request for annulment. If considered as the first, it had been lodged too late as it transpired from the case file and the applicant’s submissions that his lawyer had already learned of the contested decision by phone on 27 August 2008. Furthermore, it could be lodged only by someone whose rights and obligations stemmed from the 1991 Denationalisation Act, whereas the applicant had not been an owner of the property when the latter had been nationalised, nor had he put forward arguments for being granted the status under section 60(2) of the Act (see paragraph 24 below). If considered as a request for annulment, the applicant had not stated any grounds for nullity.
15. The applicant appealed. He maintained that he had not been informed of the contested decision until 1 October 2008, when it had been served on his lawyer (see paragraph 12 above). Furthermore, he argued that the Administrative Unit had been aware of the final civil judgment and had thus been obliged to inform the applicant about the commencement of the denationalisation proceedings. He contended that following the final civil judgment he had had neither a chance nor a reason to seek participation in the denationalisation proceedings.
16. On 3 May 2011 the Ministry of Economy (“the Ministry”) dismissed the appeal. It observed that the applicant must have found out about the denationalisation proceedings by 22 November 1996, when the Municipality had lodged an application for the reopening of the civil proceedings (see paragraph 8 above). Other tenants from the same building who had been granted the status of a party in the denationalisation proceedings had applied for it in time (before the impugned decision was issued) and had claimed that they had invested in the flats that were the subject of the proceedings (see paragraph 24 below). As to the applicant’s application for reopening of the proceedings, he had neither claimed nor proven that he should have the status of a party to the denationalisation proceedings under the Denationalisation Act (see paragraph 24 below).
17. Subsequently, the applicant brought an administrative action against the denationalisation decision (see paragraph 11 above) and the above-mentioned administrative decisions regarding his participation in the proceedings (see paragraphs 14 and 16 above). On 27 October 2011 the Administrative Court dismissed his action, reiterating the arguments of the administrative authorities. It found, in particular, that the applicant’s request to be granted the status of a party and his application for the reopening of the denationalisation proceedings had been belated, and that he had provided no grounds for his request for annulment. The administrative authorities had not been obliged to notify the applicant of the denationalisation proceedings of their own motion on the basis of section 140 of the GAPA-86 (see paragraph 25 below) because the applicant was not considered to be a party under section 60 of the 1991 Denationalisation Act. It further rejected the applicant’s action regarding the 2008 decision on the basis of section 17 of the Administrative Dispute Act (see paragraph 28 below). The Administrative Court held that as the applicant had lacked locus standi in the administrative proceedings under section 49 of the GAPA-86, he could not have applied for a judicial review of the contested decision either.
18. The applicant lodged both an appeal and an appeal on points of law, maintaining that he had not been informed of the denationalisation proceedings, nor had the denationalisation decision been served on him. On 6 September 2012 the Supreme Court dismissed his appeal and rejected his appeal on points of law as inadmissible. It reiterated that, in accordance with section 17 of the Administrative Dispute Act and its well-established case-law, locus standi in the administrative proceedings was a precondition for an examination on the merits of an administrative action.
19. On 19 November 2013 the Constitutional Court refused to consider a constitutional complaint lodged by the applicant, finding that it did not concern an important constitutional issue or entail a violation of human rights which would have serious consequences for him. On 22 November 2013 this decision was served on the applicant.
B. Relevant domestic law
1. The 1991 Housing Act (Official Gazette no. 18/91 with relevant further amendments)
20. Under the 1991 Housing Act, which came into force on 19 October 1991, former holders of a specially protected tenancy or, under certain conditions, their family members, were given the possibility of purchasing the flats they occupied on favourable terms, paying a much lower price than the estimated value (sections 117-124).
21. Ownership of flats which had become socially-owned property after having been previously nationalised was transferred to the municipalities (section 113(2)). Under section 115, the municipalities became the defendant party in denationalisation proceedings.
22. Amendments to the 1991 Housing Act adopted in 1994 determined that former holders of a specially protected tenancy who occupied previously nationalised flats which had not been returned to the previous owners (because no restitution request had been filed, or such request had been rejected) were allowed to purchase the flats they occupied (amended sections 117 and 123). A more detailed account of the provisions of the 1991 Housing Act is contained in Berger-Krall and Others v. Slovenia (no. 14717/04, §§ 18-23, 12 June 2014).
2. The 1991 Denationalisation Act (Official Gazette No. 27/1991 with relevant further amendments)
23. Under section 88 of the 1991 Denationalisation Act the ownership of socially-owned property could not be transferred before the expiry of the statutory time-limit (7 December 1993) for lodging restitution claims regarding previously nationalised property. Any legal transaction concluded in contravention of that rule was considered void.
24. Under section 60, the parties to denationalisation proceedings were the previous owners, their heirs and the entities responsible for restitution, as well as anyone else who had the right to participate in the proceedings in order to protect their own rights or legal interests. The Act was amended in 1998 (Official Gazette No. 65/98) to provide that anyone who had invested in nationalised real estate before 7 December 1991 could also be a party to any proceedings which might lead to a ruling on that person’s rights deriving from the investments concerned. A more detailed account of the provisions of the 1991 Denationalisation Act is contained in Berger-Krall and Others (cited above, §§ 24-30, 12 June 2014).
3. Relevant provisions concerning the administrative procedure
25. Under section 139 of the GAPA-86 (Official Gazette of the SFRY no. 47/86 with further amendments), as it stood at the relevant time, a person could demand to be recognised as a party throughout the course of administrative proceedings. Where necessary, those conducting the administrative proceedings had to notify the party of his or her rights and of the legal consequences of any omissions to act (section 140).
26. The status of a party could be granted to anyone (a) who had initiated the administrative proceedings; (b) against whom the proceedings had been instituted; and (c) who had the right to participate in the proceedings in order to protect their rights or legal interests (section 49).
27. Under sections 260 and 263 of the 2006 General Administrative Procedure Act (Official Gazette no. 24/06 with further relevant amendments, hereinafter “the GAPA-06”), anyone who should have participated in administrative proceedings but was not given such an opportunity may request the reopening of those proceedings within one month of finding out about the final decision.
28. Under section 17 of the Administrative Dispute Act (Official Gazette no. 105/06 with further amendments) an administrative dispute may be initiated with the administrative court by anyone who participated in the administrative proceedings as a party or a third-party intervener.
COMPLAINTS
29. The applicant complained under Articles 6 and 13 of the Convention that notwithstanding a final judicial decision upholding his proprietary entitlement to the flat at issue, he had been prevented from participating in the denationalisation proceedings regarding that same flat.
30. The applicant also complained that the denationalisation proceedings, in which he had been unable to participate, had led to the deprivation of his property in breach of Article 1 of Protocol No. 1.
THE LAW
31. The applicant complained under Articles 6 and 13 of the Convention that he had been denied an opportunity to participate in the denationalisation proceedings. He further complained, relying on Article 1 of Protocol No. 1, of the deprivation of his property in those proceedings.
32. In so far as relevant, the relevant provisions of the Convention read as follows:
Article 6
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 13
“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.”
Article 1 of Protocol No. 1
“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.”
A. Arguments of the parties
1. The Government
33. The Government argued that the applicant had failed to comply with the applicable procedural requirements, namely the time-limit for applying to participate in the denationalisation proceedings, and thus to properly exhaust domestic remedies. The applicant had learned of the ongoing denationalisation proceedings by 3 December 1996, when the application for reopening of the civil proceedings supported by the appended documents had been served on his lawyer (see paragraph 8 above). He had had eleven years to apply for participation in the proceedings, but had failed to do so without providing any explanation for the omission. Moreover, the applicant was a lawyer, so he should have been aware of the consequences of not using the available remedies properly.
34. The Government further submitted that the applicant had had no “possession” within the meaning of Article 1 of Protocol No. 1, as a final judgment issued by the civil court had replaced the contract to buy the flat on favourable terms (see paragraph 6 above). Consequently, the applicant had not become the owner of the flat, but had only obtained legal entitlement to request the entry of his alleged property right in the land register.
2. The applicant
35. The applicant disputed the Government’s argument that he should have requested participation in the denationalisation proceedings. He argued that the administrative authorities should have notified him of the ongoing denationalisation proceedings and given him an opportunity to participate. They had been aware of the final civil judgment but had decided to ignore it. He maintained that they should not have simply neutralised the effects of the final civil judgment in the administrative proceedings without his participation. Moreover, it should not have been simply presumed that he had been informed of the “interference with his right”. He had attempted to be included in the denationalisation proceedings when he had found out about the impugned denationalisation decision.
36. As for the Government’s ratione materiae objection (see paragraph 34 above), the applicant argued that he had obtained ownership of the flat at issue when the civil judgment had become final. He submitted that the flat remained in his possession.
B. The Court’s assessment
1. Complaint under Article 6 of the Convention
37. As to the applicant’s complaint under Article 6 of the Convention, the Court notes that the applicant alleged that he had not been notified of the ongoing denationalisation proceedings and had not been given an opportunity to participate in the proceedings.
38. The Court notes at the outset that the applicant’s applications to participate in the proceedings and for the reopening of the denationalisation proceedings were rejected on procedural grounds. In particular, the administrative authorities found that both applications, aimed at including the applicant in the denationalisation proceedings, had been lodged out of time (see paragraphs 14 and 16 above). The Court also notes that the administrative courts confirmed that the administrative authorities’ decisions had been legally and factually correct (see paragraph 17 above).
39. The Court also notes that under domestic law as it stood at the relevant time, a person who wanted to participate in denationalisation proceedings in order to defend his or her legal interests could be granted locus standi to do so, even if he or she had not been officially notified of the proceedings (see paragraph 25 above). Namely, he could (a) apply for the status of a party by the end of the administrative proceedings (see paragraph 25 above); or (b) apply for the reopening of the proceedings within a month of finding out about the administrative decision (see paragraph 27 above). The Court observes that both of those options were available to the applicant.
40. The Court considers that the applicant failed to rebut the findings of the domestic authorities and the Government’s statement that he had been aware of the denationalisation proceedings for several years but had not sought to join the proceedings until it was too late. It notes, in particular, that the application lodged by the State Attorney’s Office in 1996 for the reopening of the civil proceedings, which had been served on the applicant’s lawyer, had included a copy of the denationalisation request submitted by the legal successor of the previous owner regarding the flat at issue (see paragraph 8 above). The State Attorney’s application, together with the enclosures, had been notified on the applicant’s lawyer as early as 3 December 1996. Furthermore, the applicant was present when in 2001 the civil court decided to stay the proceedings in respect of the reopening of the civil case pending a decision in the denationalisation proceedings (see paragraph 9 above). Lastly, from 1996 onwards the land register contained an entry regarding the denationalisation proceedings for the flat at issue (see paragraph 11 above).
41. In light of the applicable legal provisions, and bearing in mind that it is primarily for the national authorities to interpret and apply domestic law, especially rules of a procedural nature, such as time-limits for filing documents or for lodging appeals (see, mutatis mutandis, Cañete de Goñi v. Spain, no. 55782/00, § 36, ECHR 2002-VIII), the Court finds that the time-limit requirements for requesting participation in the denationalisation proceedings were applied in a reasonable and foreseeable manner in the applicant’s case. His failure to request participation in the denationalisation proceedings within the given time-limits can therefore be attributable to his own lack of diligence and no appearance of a violation of the principles enshrined in Article 6 § 1 of the Convention can be disclosed in present case.
42. It follows that the applicant’s complaint under this provision should be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Complaint under Article 13 of the Convention
43. The Court recalls that where the Convention right asserted by the individual is a “civil right”, the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports 1997-VIII, and Kudła v. Poland, no. 30210/96, § 146, ECHR 2000-XI). Having regard to its above findings under Article 6 § 1 of the Convention, the Court considers that the applicant’s identical complaint under Article 13 of the Convention is without merit for the very same reason (see paragraph 41 above) and must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Complaint under Article 1 of Protocol No. 1
44. As regards the complaint under Article 1 of Protocol No. 1, the Court notes that the Government objected that this complaint was incompatible ratione materiae (see paragraph 34 above). However, the Court considers that it is not necessary to examine this issue, since this complaint is in any case inadmissible for the following reason.
45. The Court reiterates its established case-law to the effect that all complaints intended to be made at international level should have been aired before the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III).
46. Turning to the present case, the Court reiterates its finding that the applicant’s standing as a party to the denationalisation proceedings had not been recognised because he had applied for it too late (see paragraph 40 above). Consequently, he had no standing in the dispute before the administrative courts, which rejected his administrative action against the denationalisation decision on procedural grounds (see paragraphs 17 and 18 above), and were thus precluded from examining it on the merits.
47. In these circumstances, where failure to respect procedural rules constitutes the reason for the refusal of a remedy, the Court cannot consider that the requirement asto the exhaustion of domestic remedies has been satisfied (see, amongst many other authorities, Craxi v. Italy (dec.), no. 63226/00, 14 June 2001, with further references). The Court therefore finds that the applicant failed to exhaust domestic remedies, which he himself considered as an effective legal avenue to protect his alleged property rights (see paragraph 13 above). It follows that the applicant’s complaint under Article 1 of Protocol No. 1 should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 March 2018.
Andrea Tamietti Vincent A. De Gaetano
Deputy Registrar President
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