FOURTH SECTION
DECISION
Application no. 26501/05
EPARHIJA BUDIMLJANSKO-NIKŠIĆKA and others
against Montenegro
The European Court of Human Rights (Fourth Section), sitting on 9 October 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 15 June 2005,
Having regard to the observations submitted by the parties,
Having regard to the comments submitted by the Serbian Government, as a third-party intervener, pursuant to Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Eparhija Budimljansko-Nikšićka (“the first applicant”) with its seat in the monastery Đurđevi stupovi in Berane (“the second applicant”), monasteries Bijela from Šavnik (“the third applicant”), Podmalinsko from Šavnik (“the fourth applicant”), Dobrilovina from Mojkovac (“the fifth applicant”), Svete Trojice from Bijelo Polje (“the sixth applicant”), Svete Trojice from Plav (“the seventh applicant”), Piva from Plužine (“the eighth applicant”), Svetog Luke from Nikšić (“the ninth applicant”), Kosijerevo from Nikšić (“the tenth applicant”), as well as churches Sv. Vasilija Ostroškog from Nikšić (“the eleventh applicant”), and Svetog Apostola Petra i Pavla from Nikšić (“the twelfth applicant”), all part of the Serbian Orthodox Church in Montenegro. They were represented before the Court by Ms V. Mijanović, a lawyer practising in Nikšić.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The restitution proceedings
4. On unspecified dates immediately after World War II several plots of land were expropriated from the seventh and twelfth applicants, apparently in the absence of any decision to that effect.
5. On various dates in 1946 several plots of land were expropriated from the second, third, fourth, fifth, sixth, eighth, ninth, tenth and eleventh applicants by the relevant District Agricultural Commissions’ decisions (Sreska poljoprivredna komisija). These decisions would appear to have been upheld by the State Agrarian Court (Zemaljski agrarni sud).
6. On 18 March 2004 the applicants filed a request with the Government seeking restitution of the expropriated plots of land, relying on the Just Restitution Act 2002 (see paragraphs 16 and 18-19 below).
7. On 19 May 2004 the applicants urged the Government to decide on their request.
8. On 16 June 2004, not having received any response from the Government, the applicants initiated an administrative dispute (upravni spor) before the Supreme Court (Vrhovni sud) for “silence of administration”.
9. On 22 September 2005 the Administrative Court, which, in the meantime, had taken over the competencies of the Supreme Court in respect of administrative disputes (see paragraph 35-36 below), ruled against the applicants on the grounds that the Government had no jurisdiction to rule on their request.
10. On 24 October 2005 the Administrative Court decision was dispatched by regular post to the applicants’ representative in the domestic proceedings.
11. On 26 October 2005 the postman noted down that the applicants’ representative had moved from the address provided (preseljen sa date adrese).
12. On 2 October 2006 the Administrative Court noted that its judgment of 22 September 2005 could not be served on the applicants’ representative as he had changed his address, failing to inform the court of the new one. Pursuant to section 142 § 5 of the Civil Procedure Act, the court decided that all the relevant documents (sva pismena u ovom sporu) would be served on the applicants by posting the documents on the court’s notice board. Accordingly, the decision was posted on the notice board the same day and removed from it on 11 October 2006.
2. Other relevant facts
13. On 8 May 2003 the Constitutional Court declared a number of the core provisions of the Just Restitution Act 2002 unconstitutional including those relating to restitution in kind as well as the composition and the competencies of the Restitution Commission (see paragraphs 29-31 below).
14. The Just Restitution Act 2002 was never applied in practice. The Government have never enacted secondary legislation needed for its implementation and nor has the Restitution Commission, which was supposed to deal with restitution requests, or any other relevant body, ever been established.
15. On 8 April 2004 the Restitution of Expropriated Property Rights and Compensation Act entered into force, providing that the restitution of property to religious communities would be regulated by a separate law (see paragraphs 32-34 below).
B. Relevant domestic law and practice
1. Just Restitution Act 2002 (Zakon o pravednoj restituciji, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 34/02 and 33/03)
16. Section 1 provided that restitution in kind should always be the rule and other forms of compensation, specified in section 12, “only the exception”, where restitution was not possible due to legal or factual reasons.
17. Section 3 §§ 2 and 3 provided that previous owners whose property rights had been taken away on the basis of, inter alia, a court judgment or a decision were also entitled to restitution.
18. Section 5 § 1(3) provided that de facto expropriations of property would be treated in the same manner as expropriations carried out on legal grounds.
19. Section 10 § 6 provided that religious organisations or communities (vjerska organizacija ili zajednica) could be beneficiaries of the right to restitution in the same manner as natural persons.
20. Section 11 § 1 provided that if the property had been taken on the basis of Republic regulations or by a Republic body action (radnjom), the debtor (obveznik restitucije) was the Republic of Montenegro. Section 11 § 3 provided that if the property subject to restitution was owned by a natural or legal person, the debtor was that person.
21. Section 12 provided that when the right to restitution could not be in kind, it could be exercised, inter alia, by providing other property of the same value or by compensation.
22. Section 33 § 1 provided that the Government of Montenegro would establish a Restitution Fund within 60 days as of the date of entry into force of the Act.
23. Section 36 § 1 provided that restitution requests would be dealt with by a Restitution Commission.
24. Section 39 prohibited the disposal of the property subject to restitution pursuant to the Act (zabranjen je promet) until the relevant restitution proceedings had been concluded.
25. Section 40 § 1 provided that the Government would enact a decree on regulations and the implementation of the Act within 60 days of the date of entry into force of the Act.
26. Section 40 § 2 further provided that these regulations would further define the modalities of the Act, including the establishing and functioning of the Restitution Commission and the Restitution Fund.
27. Section 40 § 3 provided that at least half of the members of the restitution commissions would be representatives of former owners.
28. The Act entered into force on 10 July 2002.
2. Decision of the Constitutional Court of the Republic of Montenegro (Odluka Ustavnog suda Republike Crne Gore; published in the OG RM no. 33/03)
29. On 8 May 2003 the Constitutional Court established that a number of provisions of the Just Restitution Act 2002 were unconstitutional and that they should cease to have effect as of the date of publication of its decision.
30. The Constitutional Court held, inter alia, that restitution in kind would be in breach of existing property rights. Other unconstitutional provisions referred mostly to the composition and competencies of the Restitution Commission, and the limitations imposed by the Act on current owners of property subject to restitution. In particular, it was held that: (a) the Restitution Commission’s competence to decide on the restitution of property taken by virtue of final court judgments was contrary to the principle of separation of powers; (b) the prohibition imposed on current owners to dispose of their property which was subject to restitution proceedings until the relevant proceedings had been concluded, was contrary to the current owners’ property rights; and (c) the provision that previous owners could be members of the Restitution Commission was unacceptable because of their interest in the outcome of the proceedings.
31. The decision was published on 2 June 2003.
3. Restitution of Expropriated Property Rights and Compensation Act 2004 (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju; published in the OG RM nos. 21/04, 49/07 and 60/07)
32. Sections 6 and 8 § 1 provide that natural persons, endowments and other non-profitable legal persons (zadužbine i druga nekomercijalna pravna lica) are entitled to restitution or compensation in accordance with this Act.
33. Section 8 § 2 provides that the conditions, method and the procedure for the restitution of property to religious communities will be regulated by a separate law.
34. The Act entered into force on 8 April 2004 thereby repealing the Just Restitution Act 2002.
4. The Courts Act (Zakon o sudovima; published in the OG RM nos. 5/02 and 49/04)
35. Sections 23 and 24 provided that an Administrative Court would be set up for the territory of Montenegro, and that its competencies would include, inter alia, deciding in administrative disputes on the lawfulness of administrative decisions (o zakonitosti upravnih akata) and other individual decisions.
36. Section 132 provided that the Administrative Court would become operational by 31 December 2004.
5. The General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in the OG RM no. 60/03)
37. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal with the appellate body as if his request had been refused. If the appeal is not allowed, the appellant can directly initiate an administrative dispute before the court with jurisdiction.
6. The Civil Procedure Act (Zakon o parničnom postupku; published in the OG RM nos. 22/04, 28/05 and 76/06
38. Section 127 § 1 provides that court documents (pismena) shall be delivered via the regular post, but may also be delivered by a designated court employee, an authorised legal person registered for delivery, directly in court or in another manner as provided for by this Act.
39. Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative.
40. Section 135 § 1 provides that the delivery can be effected any day between 7 a.m. and 8 p.m. at the flat or at the business premises of the person on whom a document is to be served. If the delivery cannot be effected at the address and at the time provided for in paragraph 1 of this section it can be effected at any time and at any place.
41. Section 140 provides that if a registered person (subjektu upisanom u registar) cannot be served at the registered address, the documents will be posted on the court’s notice board. Eight days thereafter the delivery shall be deemed to have been fully effected.
42. Section 142 § 5 provides, inter alia, that if during the proceedings a party or his/her representative changes the address to which the documents should be delivered they are obliged to immediately inform the court thereof. If they fail to do so, the court will order that the documents be posted on the court’s notice board. The delivery shall be deemed to have been effected eight days after the document has been posted on the notice board.
COMPLAINTS
43. The applicants complained under Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 about the breach of their property rights and discrimination in that respect, the length of the proceedings concerning their administrative action, as well as the lack of an effective domestic remedy.
THE LAW
A. Article 1 of Protocol No. 1 and Article 14 of the Convention
44. The applicants complained that the Montenegrin Government’s failure to decide on their restitution request in accordance with the Just Restitution Act 2002 breached their property rights, in particular their “legitimate expectation” to re-acquire the property which had been taken away from them after the Second World War.
45. They also complained that they were discriminated against as the Restitution of Expropriated Property Rights and Compensation Act 2004 distinguished between natural persons on the one hand, and religious communities on the other hand, by providing that a separate law would be enacted in respect of restitution of property rights to the latter.
46. Article 1 of Protocol No. 1 provides:
“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.”
47. Article 14 of the Convention provides:
“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.”
1. The parties’ submissions
(a) The Government
48. Relying on Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, ECHR 2005‑V, the Government submitted that Article 1 of Protocol No.1 did not guarantee the right to obtain property, and that a “legitimate expectation” must be based on something more than a mere hope. The applicants had no “legitimate expectation” as the Just Restitution Act 2002 had practically ceased to be in force following the Constitutional Court’s decision of June 2003 declaring a number of its essential provisions unconstitutional, thus making the application of what was left of it impossible (see paragraphs 29-31 above). As, inter alia, the provision relating to the composition of the Restitution Commission had also been declared unconstitutional it was impossible to establish the said Commission until such time as this issue had been legally regulated.
49. As the impugned Act had been both adopted and its substantial part declared unconstitutional before the Convention and Protocol No. 1 thereto entered into force in respect of Montenegro on 3 March 2004 the Court lacked jurisdiction ratione temporis to examine the applicants’ complaints. The subsequent failure of the applicants’ request for restitution was not sufficient to establish the Court’s competence ratione temporis to rule on the matter. In this respect, the Government referred in particular to Blečić v. Croatia [GC], no. 59532/00, ECHR 2006‑III.
50. In any event, even if the said provisions had not been declared unconstitutional the Government had not been a competent body to decide on the applicants’ restitution request, a matter of which they had been aware; nor was the submission of their request to the Government sufficient to establish the Government’s competence to rule thereon.
51. The legislation enacted in 2004 provided that the restitution of property to religious communities would be regulated by a separate piece of legislation. In accordance with the relevant case-law, in particular Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, 10 July 2002, the State enjoyed a wide margin of appreciation in deciding whether to exclude from the restitution process certain categories of legal subjects (pravnih subjekata).
52. They further maintained that the applicants’ complaint in respect of discrimination was totally unsubstantiated. In particular, the Just Restitution Act 2002 had not been applied in practice at all, not only in respect of the applicants but to no one else as well, whereas the Restitution of Expropriated Property Rights and Compensation Act adopted in 2004 treated all religious communities in the same way.
53. Lastly, the applicants’ request for the Court to rule on the merits of their restitution request was inadmissible as the Court could not act as a court of fourth instance.
(b) The applicants
54. The applicants submitted that by failing to act in accordance with the Just Restitution Act and to establish the Restitution Commission and other relevant bodies envisaged therein the Government had caused them damage and made it impossible for them to exercise their right to restitution or compensation.
55. They further maintained that the fact that some of the provisions had been declared unconstitutional was irrelevant for their restitution request. Section 12 of the Just Restitution Act, in particular, provided that property could be returned in kind, substituted with another property of the same value or claimants could be compensated. These options protected current owners’ rights thus enabling the Government to decide on their request without causing damage to other natural or legal persons. The fact that the Restitution Commission could not be established as the provision regulating its composition had been declared unconstitutional could have been easily overcome by bringing it into line with the Constitution. The Government must bear responsibility for failing to do so. Instead of amending the existing legislation the Government enacted a new law, which excluded the applicants’ as beneficiaries, thus creating legal insecurity and discriminating against them.
56. The Government’s objection with regard to the Court’s jurisdiction ratione temporis and their reference to Blečić was misplaced. In particular, Blečić related to tenants’ rights with no ownership rights involved. Further, the Just Restitution Act was still in force when the Convention entered into force in respect of Montenegro and the Government’s acting in the present case violated the applicants’ restitution rights as acknowledged by the said Act. As their request had been submitted when the Just Restitution Act was still in force there was no sense in commenting on the legislation enacted in 2004.
57. Lastly, the applicants maintained that it was a well-known fact that they had been discriminated against and that the very purpose of the legislation enacted in 2002 was to partly eliminate the effects of that discrimination. They concluded that the application was admissible and that there had been a violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention.
(c) The third party
58. The Serbian Government, as a third party, submitted that the applicants’ complaint was within the Court’s competence ratione temporis, as the entire procedure initiated by the applicants had been conducted after 3 March 2004. In this respect they referred in particular to Šilih v. Slovenia [GC], no. 71463/01, § 165, 9 April 2009.
59. They acknowledged that some of the provisions of the Just Restitution Act had been declared unconstitutional in 2003 and that the respondent State had never enacted the secondary legislation needed for the implementation of this Act. However, section 10 § 6 thereof, which provided that the religious communities had been entitled to restitution in the same manner as natural persons, had remained in force. Therefore, on 3 March 2004, when the Convention entered into force in respect of the respondent State, the applicants had property rights pursuant to the said provision, or at least a legitimate expectation that they were entitled to restitution. By adopting new legislation in 2004 Montenegro had interfered with these rights or, at least, with the applicants’ legitimate expectation to enjoy them.
60. As a result of the subsequent Montenegrin legislature’s failure to enact the separate legislation concerning religious communities the applicants’ restitution claim had remained undetermined for more than seven years. In this respect they referred in particular to Immobiliare Saffi v. Italy [GC], no. 22774/93, § 70, ECHR 1999‑V, and Kutić v. Croatia, no. 48778/99, § 33, ECHR 2002‑II. Such attitude could not be considered to be within the respondent State’s wide margin of appreciation but rather a miscarriage of justice, amounting to a violation of Articles 6, 13 and Article 1 of Protocol No. 1.
61. Lastly, the applicants in the present case were clearly discriminated against as the respondent State had concluded an agreement with the Holy See, Article 12 of which provided that the property, which had been expropriated or nationalised without adequate redress, would be returned “in accordance with the law governing the matter of restitution in the respondent State, under previous agreement with the competent church authorities”. As the respondent State had provided no reasonable or objective explanation for such different treatment Article 14 in conjunction with Article 1 of Protocol No. 1 was also applicable.
(d) The Montenegrin Government’s comments on the third party’s submission
62. The agreement concluded between Montenegro and the Holy See six years after the present application had been lodged with the Court was totally irrelevant and represented an unacceptable intervention in the internal affairs of the respondent State and its bilateral relations with the Holy See.
63. The Montenegrin Government recalled that it was impossible to establish the Restitution Commission as the relevant provision had been declared unconstitutional, inter alia, because former owners could be in a position to decide on their right to restitution, which was contrary to fundamental principles and unacceptable in any serious legal procedure.
64. They maintained that there were two relevant periods in the present case: the one before the Constitutional Court’s decision and the other period thereafter, when the Just Restitution Act had no longer been a meaningful legal document and thus it had been absolutely impossible to implement it. Therefore, the expectations of the applicants could be assessed only with regard to the period before the Constitutional Court rendered its decision, which was outside the Court’s jurisdiction ratione temporis. To hold otherwise would lead to a retroactive implementation of the Convention. In this respect they recalled Blečić, cited above.
65. The Serbian Government’s reference to Šilih had no basis, as the factual and legal circumstances of these two cases were totally different. Kutić was also not comparable to the present case, as in that case domestic compensation proceedings had been stayed, whereas the proceedings in the present case before the Administrative Court had been concluded by a judgment within a reasonable time.
2. The Court’s assessment
(a) Article 1 of Protocol No. 1
66. The Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of this provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 60, ECHR 2000‑XII).
67. “Possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised, that is that he or she will obtain effective enjoyment of a property right. On the other hand, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which has lapsed as a result of the failure to fulfil the condition (see, for example, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, 10 July 2002, § 69, as well as Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001‑VIII). A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see Kopecký v. Slovakia [GC], no. 44912/98, § 49, ECHR 2004‑IX). No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset (see Baťa v. the Czech Republic (dec.), no. 43775/05, 24 June 2008).
68. Once a Contracting State, having ratified the Convention and Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1 (see Kopecký v. Slovakia [GC], cited above, § 35(d), and Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004‑V).
69. However, Article 1 of Protocol No. 1 does not impose any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention, nor does it impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).
70. Turning to the present case, the Court notes that the applicants’ property had been taken from them shortly after the World War II, many years before the Convention and Protocol No. 1 thereto entered into force in respect of the respondent State. Accordingly, in so far as it can be understood that the applicants implicitly complained about the expropriation itself, the Court is not competent ratione temporis to examine the circumstances of the expropriation or the continuing effects produced by it up to the present date (see, mutatis mutandis, Prince Hans-Adam II of Liechtenstein v. Germany [GC], cited above, § 85). Subsequent to this measure the applicants had not been able to exercise any owner’s rights in respect of the property at issue. In these circumstances, they cannot, for the purposes of Article 1 of Protocol No. 1, be deemed to have retained a title to property. Their request, therefore, did not concern “existing possessions” as they did not have the status of owners but were merely claimants.
71. As to whether the applicants had at least a “legitimate expectation” that their restitution request would be determined in their favour, the Court notes that at the time when they requested restitution the Just Restitution Act was still in force. However, it is also clear that the said Act was never applied and that the necessary secondary legislation was never enacted. Furthermore, a number of its core provisions had been declared unconstitutional already in 2003, which was before the respondent State ratified the Convention on 3 March 2004 and before the applicants filed their request, including the provisions which concerned the restitution in kind, the creation of relevant bodies in charge of restitution and compensation, their composition and competencies (see paragraphs 29-31 above).
72. The applicants in the present case thus relied on legislation whose key provisions had been declared unconstitutional before the entry into force of the Convention and Protocol No. 1 thereto in respect of Montenegro. The legislation relied on by the applicants was officially repealed in 2004.
73. The Court considers that, in such circumstances, it was unrealistic to expect that the applicants’ request, or anybody else’s for that matter, would be determined at all, let alone favourably. The only chance of their request succeeding lay in having the unconstitutional provisions amended and brought into line with the Constitution in force at the time, as suggested by the applicants themselves (see paragraph 55 above), or in having new relevant provisions introduced.
74. However, the belief that the law then in force would be changed cannot be regarded as a form of legitimate expectation for the purposes of Article 1 of Protocol No. 1. The Court has consistently considered that there is a difference between a mere hope of restitution, however understandable that hope may be, and a legitimate expectation, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova (dec.) [GC], cited above, § 73, and Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332).
75. The Court accordingly concludes that the applicants did not have a claim which was sufficiently established to be enforceable, and they therefore cannot argue that they had a “possession” within the meaning of Article 1 of Protocol No. 1. Nor do they have such a claim under the current legislation which simply envisages that the applicants’ situation will be regulated by a separate piece of legislation. The scope of that legislation has never been defined, and there is no indication as to the modalities for the restitution of property including the procedures and responsible authority. The Court reaffirms that Article 1 of Protocol No. 1, as reiterated above, does not impose any general obligation on the Contracting States to restore property transferred to them before they ratified the Convention, nor does it impose any restrictions on their freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners. Consequently, the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1.
76. It follows that the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
(b) Article 14 in conjunction with Article 1 of Protocol No. 1
77. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Conventions and its Protocols. It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions, and to this extent it is autonomous, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], cited above, § 91).
78. Given that the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention is incompatible ratione materiae, the complaint under Article 14 in conjunction with that Article is equally incompatible ratione materiae within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention (see, mutatis mutandis, Gratzinger and Gratzingerova (dec.) [GC], cited above, §§ 73-76).
B. Article 6 § 1 of the Convention
79. The applicants also complained under Article 6 § 1 of the Convention about the length of the administrative proceedings in view of the fact that they learned about the decision of the Administrative Court of 22 September 2005 only in the course of the proceedings before this Court.
80. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a ... hearing within a reasonable time by a [a] ... tribunal...”
1. The parties’ submissions
81. The Government submitted to the Court the Administrative Court’s ruling on the applicants’ administrative dispute claim rendered on 22 September 2005 and maintained that the proceedings were thus concluded in an efficient and timely manner. The judgment could not be served on the applicants’ representative as he had changed his address in the meantime, failing to inform the court of a new one, contrary to his statutory obligation. Pursuant to the Civil Procedure Act (see paragraphs 38-42 above) the court posted the judgment on its notice board and it was considered thereby that it had been duly served. In any event, the applicants could obtain a copy of the judgment at the court at any time since then had they only expressed an interest in so doing, which they had not. The Government concluded that the procedure before the Administrative Court complied with the standards enshrined in Article 6.
82. The applicants maintained that they received the said decision only when the Government had submitted it together with their observations on the admissibility and merits in the present case. They further maintained that the Government’s submission that their representative in the domestic proceedings had changed his address was not correct and submitted a certificate issued by the Bar Association confirming that the address of their representative, registered with the said Association, remained unchanged until 27 December 2006.
83. The third party submitted that the applicants’ restitution claim had remained undetermined for a number of years due to the failure of the respondent State to enact separate legislation in respect of religious communities, and that this amounted to a violation of, inter alia, Article 6 § 1 (see paragraph 60 above).
2. The Court’s conclusion
84. The Court notes that the applicants filed their claim on 16 June 2004 and the Administrative Court, which had in the meantime taken over the competencies with regard to administrative disputes, ruled thereon on 22 September 2005 (see paragraph 9 above).
85. The delivery of this decision was attempted two days later. While the applicants’ representative in the domestic proceedings had not changed his address registered with the Bar Association before 27 December 2006, it is also clear that the attempt at delivery failed due to his absence from that address. The Administrative Court, in consequence, decided to serve the decision by posting it on its notice board.
86. In view of the relevant provisions of the Civil Procedure Act (see paragraphs 40-42 above), the domestic court made use of the available domestic procedural tools to have the applicants’ representative served formally with the said decision.
87. As the Administrative Court, as one level of jurisdiction, decided on the applicants’ claim within a year and three months, the Court considers that the applicants’ complaint with regard to the reasonable time requirement contained in Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Article 13 of the Convention
88. Lastly, the applicants complained under Article 13 of the Convention that they had not had an effective domestic remedy for their complaints under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.
89. Article 13 provides 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.”
90. Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172). The criteria for considering a claim as “arguable” cannot be construed differently from the criteria applied when declaring claims “manifestly ill-founded” (see Powell and Rayner, cited above, § 31, and Kienast v. Austria, no. 23379/94, § 54, 23 January 2003).
91. Since the applicants’ complaints under Articles 6 and 14, and Article 1 of Protocol No. 1 have been declared “manifestly ill-founded” and incompatible ratione materiae, respectively (see paragraphs 87, 76 and 78 above), the Court considers that they cannot be regarded as “arguable” for the purposes of Article 13. The applicants’ complaint under Article 13 taken in conjunction with the said Articles is thus likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy