Communicated on 25 August 2015
FIFTH SECTION
Application no. 39485/14
Savo PEČENKO
against Slovenia
lodged on 22 May 2014
STATEMENT OF FACTS
The applicant, Mr Savo Pečenko, is a Slovenian national, who was born in 1957 and lives in Ljubljana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Civil proceedings
The applicant was living as a tenant in a socially-owned flat administered by the Ljubljana Municipality (hereinafter the “Municipality”). In 1991 he sought to exercise his right to purchase the flat he was occupying on favourable terms under the 1991 Housing Act. The Municipality informed the applicant that the flat could not be purchased as it might be returned to the pre-Second World War owners (hereinafter the “previous owners”) under the Denationalisation Act. Under the terms of that Act no transfer of ownership of socially-owned property was allowed before the expiry of the statutory time-limit for bringing restitution claims with regard to the previously nationalised property.
Subsequently, the applicant brought a civil action against the Municipality seeking conclusion of a purchase contract. On 18 June 1996 the Ljubljana District Court upheld the applicant’s claim after the Municipality had failed to prove that the property in question had been nationalised or confiscated and that a restitution claim had been lodged for its return. The Municipality was ordered to conclude a purchase contract with the applicant, and in case of its failure to do so, the terms of the judgment were to replace the parties’ agreement. On an unspecified date the judgment became final.
On 20 November 1996 the applicant paid the purchase price.
On 22 November 1996 the State Attorney’s Office requested the Ljubljana District Court to reopen the proceedings (an extraordinary review) on the ground that the Municipality had obtained new evidence which showed that a restitution claim had in fact been lodged by the previous owners on 29 November 1993. According to the request for reopening, that evidence had not previously been submitted to the court owing to the lack of coordination between different Municipality departments.
On 15 May 2001, the Ljubljana District Court stayed the decision on reopening pending the outcome of the denationalisation proceedings.
By an order of 19 November 2010 the District Court decided to continue the proceedings of reopening. The applicant appealed against the decision, arguing that the denationalisation proceedings have not yet been concluded. According to the applicant, his appeal is still under consideration.
2. Denationalisation proceedings
On 29 November 1993 the legal successor of the previous owners lodged a claim for restitution in natura in respect of the building in which the applicant’s flat was situated, alleging that the property had been confiscated in 1942, and prior to that had belonged to a private company owned by her legal predecessors.
On 18 November 1996 an entry was made into the Land Register prohibiting the transfer of the property at issue due to the commencement of the denationalisation proceedings.
At the hearing of 27 March 2008 held by the Ljubljana Administrative Unit (hereinafter the “Administrative Unit”), the Municipality representatives explained that a purchase contract had been concluded with the applicant for the flat which he was occupying and which was situated in the building subject to restitution, and that the request for reopening of the civil proceedings in the applicant’s case had not yet been decided.
By a decision of 23 April 2008, the Administrative Unit granted the restitution claim and returned the flat which the applicant was occupying to the “previous owners”. The Administrative Unit held that the conditions for restitution of the flat were fulfilled, as the Denationalisation Act provided that all purchase contracts for immovable property subject to restitution which had been concluded after the entry into force of that Act were null and void. On 10 May 2008 the decision became final.
On 1 October 2008 the decision was served on the applicant, after his lawyer acquired information that the denationalisation proceedings were concluded.
On 16 October 2008 the applicant lodged an application to be granted the status of a party to the denationalisation proceedings, as well as an appeal against the decision of 23 April 2008, seeking its annulment. He argued that the administrative decision on restitution of the flat to the previous owners interfered with his property rights recognised by the final judgment of 18 June 1996, yet he had not been given the possibility to participate in the denationalisation proceedings.
By a decision of 25 January 2011 the Administrative Unit rejected both the applicant’s application for participation in the proceedings and his appeal. It observed, firstly, that since the contested decision had already become final, the applicant’s appeal could be examined either as a request for reopening of the denationalisation proceedings or as a request for annulment. If considered as a request for reopening of the proceedings, the application had been lodged outside the statutory period of one month from 27 August 2008, the date on which the applicant had been informed of the contested decision by telephone. If, however, considered as a request for annulment of the contested decision, the Administrative Unit held that the applicant had failed to invoke any specific grounds for nullity; in any event, none of those grounds were applicable.
As to the applicant’s application to be granted the status of a party, the Administrative Unit held that it was belated since it would have had to be lodged before the issue of the contested decision. The Administrative Unit further observed that only a person whose rights and obligations were affected by the denationalisation proceedings could lodge a request for reopening of the proceedings. In the present case, the applicant did not belong to any of the categories of persons who, by virtue of the Denationalisation Act, had the status of parties to the proceedings. According to the Administrative Unit, the only purpose of the denationalisation proceedings was to decide upon the right of restitution of the previous owner. In view of that, the applicant who had sought to purchase the flat at issue in the civil proceedings which were still pending and in accordance with the provisions of the Housing Act, could not participate in the denationalisation proceedings.
On 14 February 2011 the applicant appealed. He argued, first of all, that he had been informed of the contested decision only on 1 October 2008, after it had been served on his lawyer. Secondly, in the applicant’s opinion, the fact that the request for reopening of the civil proceedings in his case was pending could not constitute a valid ground for not granting him the status of a party. Thirdly, the administrative decision interfered with his property rights recognised by a final judicial decision. Fourthly, the Administrative Unit was aware of the existence of the abovementioned final judgment and was thus under an obligation to inform the applicant about the commencement of the denationalisation proceedings. Finally, the applicant complained that the Administrative Unit should have treated his application as an appeal.
On 3 May 2011 the Ministry of Economy (hereinafter the “Ministry”) dismissed the appeal. It firstly observed that only a person who claimed a personal and direct legal interest could participate in the denationalisation proceedings. According to the Ministry, the final judicial decision delivered in the civil proceedings did not confer on the applicant a legal interest to participate in the denationalisation proceedings. The fact that the applicant had been granted the right to purchase the flat by virtue of the Housing Act did not confer on him a legal but only a material interest in the denationalisation proceedings. Also, although the applicant had paid the purchase price for the flat at issue, no contract had been concluded with him by the Municipality. In the light of these considerations, the Ministry held that the applicant had not obtained ownership over the flat at issue, and neither was he entitled to request reopening of the denationalisation proceedings. By the same token, the applicant was not entitled to request the decision on restitution to be annulled.
On 15 June 2011 the applicant brought an administrative action before the Administrative Court for annulment of the contested administrative decisions rendered by the Administrative Unit and the Ministry. He reiterated that he had had no possibility to participate in the denationalisation proceedings. Moreover, he argued that although the 1996 judgment was subject to a request for reopening of the civil proceedings, it was still a final decision constituting a proof of his ownership and the Administrative Unit had no authority to prejudge the final decision of the civil court. The applicant further asserted that impossibility to participate in the proceedings constituted a ground of nullity.
On 27 October 2011 the Administrative Court dismissed the applicant’s application. It observed, in particular, that the Administrative Unit was not required to inform the applicant of the denationalisation proceedings as he did not fall into any category of persons who could be recognised locus standi under the applicable rules of domestic law. The Administrative Court further noted that the applicant’s request for the annulment of the contested decision had to be rejected on the ground that he had failed to specify the ground of nullity and the administrative authority had had sufficient basis to consider that there existed no ground of nullity.
On 17 November 2011 the applicant appealed before the Supreme Court, reiterating that he was not given an opportunity to participate in the denationalisation proceedings. He alleged that on 23 April 2008 he had acted immediately after being informed of the contested decision which interfered with his property rights.
On 6 December 2012 the Supreme Court dismissed the applicant’s appeal. It firstly noted the applicant’s argument that on 23 April 2008 he had immediately requested to be recognised locus standi was a new argument which was not raised before the lower instances and was wholly unsubstantiated. The Supreme Court noted that the applicant not being recognised locus standi could not request judicial review of the contested decision.
Meanwhile, on 2 December 2011 the applicant lodged an appeal on points of law before the Supreme Court in which he essentially reiterated the arguments raised before the lower instances.
On 6 December 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible.
On 24 November 2012 the applicant filed a constitutional complaint, again reiterating the arguments advanced before the lower courts.
On 19 November 2013 the Constitutional Court rejected the constitutional complaint as inadmissible. On 22 November 2013 this decision was served on the applicant.
B. Relevant domestic law
For the relevant background concerning socially-owned flats and “specially protected tenancy” in the former Socialist Republic of Slovenia see Berger-Krall and Others v. Slovenia (no. 14717/04, §§ 7-43, 12 June 2014).
According to Section 60 of the 1991 Denationalisation Act (as amended), in addition to the persons entitled to restitution of their or their predecessors’ nationalised property and the entities liable for restitution (usually municipalities), the status of party to the denationalisation proceedings was also recognised to any person who had invested in nationalised property, whenever and insofar as the proceedings might lead to a ruling on that person’s rights deriving from the investments concerned.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that the issue of the decision on restitution of the flat he has been occupying has interfered with his possessions as he obtained a final judicial decision upholding his proprietary entitlement to that flat.
He further complains that he was denied, in breach of Articles 6 and 13 of the Convention, participation in the denationalisation proceedings and thus could not challenge the interference with the final judgment granting him title to the property at issue.
QUESTIONS TO THE PARTIES
1. Does the applicant have a possession within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Stretch v. the United Kingdom, no. 44277/98, §§ 33-35, 24 June 2003)?
2. If so, has there been an interference with the applicant’s peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1, in view of the ownership title acquired by the so-called previous owners in the denationalisation proceedings and/or the prolonged period during which the request for reopening of the civil proceedings has been pending (see, mutatis mutandis, Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 58-60, Series A no. 52; Skrzyński v. Poland, no. 38672/02, §§ 70-75, 6 September 2007, and Rysovskyy v. Ukraine, no. 29979/04, § 70, 20 October 2011)?
3. If the answer to the second question is affirmative, has the interference been in the public interest and in accordance with the conditions provided for by law? Moreover, has it been necessary and proportionate for the purposes of Article 1 of Protocol No. 1? Has the applicant been afforded effective access to judicial procedures to defend his proprietary interests against those of the previous owners (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002‑VII)?
4. Having regard to the fact that the previous owners were granted restitution of the property in question after the judgment ordering the property to be sold to the applicant had already acquired finality, has there been a breach of the res judicata principle contrary to Article 6 of the Convention?
Full & Egal Universal Law Academy