Communicated on 11 January 2016
FOURTH SECTION
Application no. 47001/14
Gabrielle RAU and others
against Slovenia
lodged on 18 June 2014
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
Before the Second World War, the applicants’ legal predecessor, F.A., who was “of German origin” (poreklo), was an industrialist and landowner with a large estate.
During the Second World War, the partisan liberation forces in the then partly occupied Yugoslavia established the Anti-Fascist Council for the National Liberation of Yugoslavia (hereinafter “the AVNOJ”) which, inter alia, established the Democratic Federal Yugoslavia (later the Socialist Federal Republic of Yugoslavia). On 21 November 1944 the AVNOJ, the war-time legislative body, passed the Decree on the Transfer of Enemy Assets to the State, State Administration of the Assets of Absent Persons, and Seizure of Assets Forcibly Expropriated by the Occupying Authorities (hereinafter “the AVNOJ Decree”). Section 1 of the AVNOJ Decree prescribed that all property on the territory of Yugoslavia of: (a) the German Reich and its citizens; (b) all people of German origin, except those who were fighting for the national liberation movement; and (c) all persons who had been criminally convicted by a military or civilian court and sentenced to confiscation of their property, would be nationalised on the day the decree came into effect, which was 6 February 1945. Section 4 of the AVNOJ Decree provided that in a case where no judgment had yet been adopted or no proceedings had yet been instituted, state or regional commissions for the detection of crimes committed by members of the occupying forces and their collaborators were to request interim orders confiscating the property of such persons and, at the same time, to initiate appropriate proceedings before the civil or military courts. In 1946, the AVNOJ Decree was reaffirmed by the Transfer of Enemy Property to the State Act (hereinafter “the 1946 Act”), which reiterated that the property confiscated by virtue of section 1(a) and (b) of the AVNOJ Decree was transferred to the State on 6 February 1945. Moreover, the 1946 Act included an obligatory interpretation of section 1(b) of the AVNOJ Decree whereby it only applied to persons of German origin who were found to have been disloyal to the liberation movement. In addition, as regards section 1(c), the Act specified that the confiscation took effect on the day the judgment became final.
After the Second World War, on 17 August 1945, the Maribor Military Court convicted F.A. and his wife, W.A., of high treason and sentenced them to imprisonment. The military court also ordered the confiscation of their entire property. In the introductory part of the judgment containing F.A.’s and W.A.’s personal details, the military court noted that they were Yugoslav citizens.
Based on that judgment and relying on the Confiscation of Property Act of 9 June 1945, on 12 December 1945 the Šmarje pri Jelšah Local Court issued an order instituting confiscation proceedings against F.A.
On 15 January 1946 the Šmarje pri Jelšah Local Court received two orders of the Šmarje pri Jelšah Local Confiscation Commission (hereinafter “the Local Confiscation Commission”) of 3 September 1945 for the confiscation of F.A.’s property under section 1(a) and (b) of the AVNOJ Decree. The orders were joined to the case file pertaining to the criminal confiscation. The orders were appealed against by the administrator of F.A.’s estate; on 29 January 1946 the Celje District Confiscation Commission dismissed that appeal.
On 22 September 1946 the Šmarje pri Jelšah Local Court issued, on the basis of the decisions of the Local Confiscation Commission, an order confiscating F.A.’s property within its territorial jurisdiction. The court ordered that the transfer of ownership to the State be entered into the land register. In its reasoning, the local court noted that F.A. and W.A. had been sentenced by the judgment of the Maribor Military Court to, inter alia, the confiscation of their entire property. However, W.A. had no property in the territorial jurisdiction of the Šmarje pri Jelšah Local Court. As for F.A., the court noted that he was of German origin and thus his entire estate had been transferred to the State already under section 1(a) and (b) of the AVNOJ Decree.
F.A. and his wife disappeared in unexplained circumstances while serving their prison sentences.
Subsequently, the legislature of the then Socialist Republic of Slovenia passed the ECS Act which provided that the property confiscated from a person convicted of a criminal offence which had been subsequently quashed was to be returned to that person or his or her heirs.
Slovenia’s declaration of independence in 1991, together with the change of political and legal system, resulted in the enactment of legislation providing redress for different types of nationalisation or confiscation of property which occurred under the previous regime. On 7 December 1991 the Denationalisation Act came into force which provided, inter alia, for the property nationalised by virtue of the AVNOJ Decree to be returned in natura or for compensation to be awarded. The Denationalisation Act initially also applied to cases where the property had been confiscated by virtue of criminal judgments rendered before 31 December 1958. However, since the provisions of the Denationalisation Act dealing with the scope and manner of restitution were less favourable to claimants than those provided for by the ECS Act, on 5 November 1992 the Constitutional Court annulled the provision extending the applicability of the Denationalisation Act to cases of criminal confiscation in which the criminal conviction had already been quashed but the property had not yet been returned to the claimants, on the grounds that it retroactively interfered with the claimants’ acquired rights. The regular courts interpreted that decision as conferring upon individuals whose criminal convictions had been quashed an entitlement to seek restitution both on the basis of the Denationalisation Act and the ECS Act. Nevertheless, it appears that claimants were required by the courts to choose between one and the other legal basis and were not able to base their claims on both relevant acts.
The applicants first claimed restitution of the confiscated property in the denationalisation proceedings. To this end, they lodged claims under the Denationalisation Act with Brežice Municipality, Krško Municipality, Slovenska Bistrica Municipality and Šmarje pri Jelšah Municipality, as well as with the Ministry of Culture.
Subsequently, on 14 June 1993 the Maribor Basic Court quashed F.A.’s criminal conviction and discontinued the criminal proceedings against him.
On 30 December 1995 the Restitution of Property (Temporary or Partial Suspension) Act was enacted. It suspended, for a period of three years, the denationalisation proceedings pertaining to certain types of property, and also affected the denationalisation proceedings to which the applicants were parties.
On 8 July 1996 the applicants withdrew their claims under the Denationalisation Act and on the same day lodged a claim for restitution under the ECS Act with the Šmarje pri Jelšah Local Court. They lodged similar claims before three other local courts, namely the Brežice Local Court, the Krško Local Court and the Slovenska Bistrica Local Court, within whose territorial jurisdictions their property was located. The applicants eventually succeeded with their claims lodged in respect of property situated within the territorial jurisdiction of those three courts after a number of appeals and remittals.
The State Attorney’s Office, representing the Republic of Slovenia, one of the defendant parties liable for restitution (together with a number of municipalities, the Ministry of Culture, the Farmland and Forest Fund and some public entities), took the view that the property in question had not been confiscated on the basis of the criminal judgment of the Maribor Military Court, but directly under the AVNOJ Decree; it argued that this was because the decree had already become effective on 6 February 1945, that is to say before the criminal judgment had been rendered, and because F.A. was of German origin.
On 26 April 2001 the Šmarje pri Jelšah Local Court rejected the applicants’ claim for restitution on the grounds that it lacked territorial jurisdiction to decide the case. The local court agreed with the defendant party that F.A.’s property situated within its territorial jurisdiction had not been confiscated on the basis of the criminal judgment of the Maribor Military Court, but had been transferred to the State by virtue of the AVNOJ Decree. The Local Court therefore considered that restitution ought to be sought in the denationalisation proceedings before the competent administrative authorities.
The applicants appealed against the local court’s decision, emphasising that even the AVNOJ Decree (in its section 4) expressly provided that in the absence of a criminal judgment special commissions were to request interim orders confiscating the property and to initiate appropriate proceedings. Thus, in the applicants’ view, the AVNOJ Decree did not preclude confiscation being initiated on the basis of judicial decisions rendered in criminal proceedings. Moreover, in the case of F.A., the criminal judgment had become final before the Local Confiscation Commission issued its confiscation order. In addition to this, the latter’s orders became final after the expiry (on 15 November 1945) of the statutory time-limit accorded for the confiscation commissions to complete their tasks. The applicants asserted that the Local Court had interpreted the AVNOJ Decree to their disadvantage and in an arbitrary manner. They further pointed out that the criminal judgment in respect of F.A. had been quashed. Thus, the only remaining reproach on which the confiscation could be based was his German origin. In the applicants’ view, if the confiscation order based solely on origin was to remain in force, it would imply that the authorities supported the former regime’s policy of assigning collective guilt on the basis of ethnic origin. It would also contravene the principle of non-discrimination enshrined in the Constitution, as well as Article 1 of Protocol No. 1 to the Convention.
On 27 June 2002 the Celje Higher Court allowed the applicants’ appeal, accepting their argument that F.A.’s property had not been transferred to the State on 6 February 1945 when the AVNOJ Decree became effective. The Higher Court emphasised that, since the criminal judgment ordering the confiscation of F.A.’s property had been quashed, the applicants had acquired the right to seek restitution under section 145 of the ECS Act. The case was remitted to the Šmarje pri Jelšah Local Court for further consideration.
On 30 June 2003 the Šmarje pri Jelšah Local Court issued an interim and partial order to the effect that the applicants were entitled to seek the restitution of the confiscated property under the ECS Act. In its reasoning, the Local Court relied on the grounds given by the Higher Court.
The State Attorney’s Office and the Farmland and Forest Fund appealed, defending their view that the property in question had been confiscated by virtue of the AVNOJ Decree and that the applicants should bring their restitution claims under the Denationalisation Act.
On 22 September 2004 the Celje Higher Court, departing from its previous ruling, allowed the appellant parties’ appeal with the reasoning that the case-law with regard to the effects of the AVNOJ Decree had initially been inconsistent, but had eventually been harmonised to hold – a view also endorsed by the Supreme Court and the Constitutional Court – that the transfer of property under the AVNOJ Decree had taken effect on 6 February 1945. According to the Higher Court, the restitution procedures under the ECS Act and the Denationalisation Act entailed different criteria; therefore, it was important to establish whether it had been the criminal judgment or the AVNOJ Decree which had served as a legal basis for the transfer of F.A.’s property to the State. The case was remitted to the Šmarje pri Jelšah Local Court for further consideration.
Following the Higher Court’s departure from its previous approach, on 14 July 2005 the Šmarje pri Jelšah Local Court again rejected the applicants’ claims, reasoning that it lacked territorial jurisdiction to hear the case and that restitution should be sought under the Denationalisation Act.
On 28 November 2005 the applicants appealed, reiterating their previous arguments and emphasising that, given the statutory requirement for the post-war transfer of property to the State to be based on individual confiscation orders, the transfer could only have become effective once a criminal judgment had become final. They added that the Maribor Military Court’ judgment had unequivocally stated that their legal predecessor had been the owner of the property in question on 17 August 1945. They further emphasised that by relying on the provisions of the AVNOJ Decree to decide on its territorial jurisdiction, the Šmarje pri Jelšah Local Court had attempted to legitimise an act that was unconstitutional, unlawful, immoral and inconsistent with the general principles of law recognised by civilised nations. The applicants also referred to two other final decisions rendered by the Ljubljana Higher Court and the Maribor Higher Court concerning their similar claims for restitution made in other courts’ territorial jurisdictions. They pointed out that both courts had ruled in their favour and emphasised that a different decision in the proceedings in question would be inconsistent with the principle of legal certainty. In conclusion, the applicants pointed out that they had put their faith in the legal system and had relied on the decisions of the courts, including the Supreme Court, in some other similar cases. In this connection, they referred to the argument made by the State Attorney General in a similar case before the Strasbourg Court to the effect that individuals could choose to claim restitution of the confiscated property either under the Denationalisation Act or under the ECS Act.
On 10 May 2006 the Celje Higher Court, departing again from its previous view, allowed the applicants’ appeal, stating that the AVNOJ Decree did not constitute a relevant legal basis which would need to be examined in the proceedings pending under the ECS Act. Having examined a number of historical facts and documents, the Higher Court established that in 1946 some courts in other territorial jurisdictions, which had conducted confiscation proceedings against F.A., had declared the criminal judgment of the Maribor Military Court to be the legal basis for the confiscation. In the Higher Court’s view, the same judgment should not have produced different effects across different territorial jurisdictions. Thus, the Higher Court considered that on 22 September 1946, when the Šmarje pri Jelšah Local Court had issued the confiscation order against F.A., he had still owned the property in question. In addition, it appeared from the case file that the Šmarje pri Jelšah Local Court had in fact enforced the criminal judgment of the Maribor Military Court. In this light, the Celje Higher Court concluded that F.A.’s property had been transferred to the State on the basis of the criminal judgment, which had subsequently been quashed. The case was remitted to the Šmarje pri Jelšah Local Court for further consideration.
On 14 May 2009 the Šmarje pri Jelšah Local Court, hearing the case for the fourth time, issued an interim order granting the applicants’ claims as regards the liability of the defendant parties to return the confiscated property, but reserved the decision on the quantum. Summarising all the facts established in the earlier stages of the proceedings, the Local Court agreed that it was not only section 1 of the AVNOJ Decree that was relevant to the case, but also section 4, which provided that the confiscation would be decided in judicial proceedings. Equivalent provisions were included in the Transfer of Enemy Property to the State and on the Sequestration of the Property of Absent Persons Act; equally, all other relevant post-war legislation also provided for the processing of confiscation orders in judicial proceedings. The Local Court thus adopted the view that the confiscation proceedings had been initiated and concluded on the basis of the criminal judgment, not of the AVNOJ Decree. Lastly, the Local Court pointed out that the circumstances on which confiscation had been based, such as one’s nationality or national origin, could have been disputed or unclear; the court in post-war Yugoslavia had thus been executing the transfers of property to the State on the basis of administrative or judicial decisions only, and not ex lege under the AVNOJ Decree.
The State Attorney’s Office and some other defendant parties appealed, yet again reiterating their position that F.A.’s property had been confiscated under the AVNOJ Decree and that any administrative or judicial decisions rendered after 6 February 1945, when the property had been transferred ex lege, were merely declaratory.
On 23 March 2010 the Celje Higher Court upheld the first-instance judgment and confirmed the Local Court’s reasoning that, according to the case file pertaining to the confiscation at issue, the competent authorities had regarded the criminal judgment of the Maribor Military Court to be the relevant document for the purposes of executing the confiscation. Thus, in the Higher Court’s view, the Local Court had correctly established that it had been that judgment, and not the AVNOJ Decree, which had been the basis for the confiscation at issue.
The State Attorney’s Office and the Farmland and Forest Fund lodged appeals on points of law against the Higher Court’s judgment, further advancing their argument that the confiscation at issue had been based on the AVNOJ Decree and had taken effect ex lege on 6 February 1945. The appellants supported that view with legal theory and practice and referred to the confiscation order of 22 September 1946 in which it was clearly stated that, since F.A. was a person of German origin, his entire estate had been transferred to the State by virtue of the AVNOJ Decree. Any subsequent decision, such as a criminal judgment, could not have invalidated the effects of the AVNOJ Decree, which had been a general regulation.
On 11 May 2010 the applicants, in reply to the appeals on points of law, adduced the argument that the appellants had ignored the legal foundations on which their case was based. The AVNOJ Decree had been adopted by an undemocratic entity and had been applied in an undemocratic country which had committed severe violations of human rights, as had been confirmed by the authorities of the independent Republic of Slovenia. Nevertheless, the obligatory interpretation of section 1(b) of the AVNOJ Decree, adopted on 8 June 1945, provided that no property would be confiscated from Yugoslav citizens of German origin whose spouses were of another recognised nationality. The applicants emphasised that W.A. had been of Czech origin and thus neither she nor her husband had been liable to confiscation of property under section 1 of the AVNOJ Decree. In view of this, the applicants reiterated their view that the confiscation of their legal predecessor’s property had been executed on the basis of the criminal judgment. Again, the applicants referred to the argument made by the State Attorney General in a similar case before the Strasbourg Court that individuals could choose to claim restitution either by virtue of the Denationalisation Act or the ECS Act. They complained that the appellants parties were attempting to deny them that choice by arguing that it did not exist and did not apply to them. The applicants further pointed out that such a change of opinion had created inequality between litigants claiming restitution.
On 17 February 2011 the Supreme Court dismissed the appeals on points of law, relying on decision no. Up-969/08 of the Constitutional Court, which had emphasised that the dismissal of a claim for restitution under the ECS Act on the grounds that the claim should be brought under the Denationalisation Act violated the right to private property, in so far as restitution could no longer be enforced on account of the expiry of the time-limit (time-limit after which a right can no longer be enforced) for bringing restitution claims under the Denationalisation Act. The Supreme Court further referred to three of its own earlier decisions in which it had adopted the same view. It pointed out that the Constitutional Court had emphasised in its decision that the purpose of both the Denationalisation Act and the ECS Act was to redress the wrongs and that the restitution of the confiscated property was in fact regulated in a uniform manner, albeit through two different Acts. Thus, it was not compatible with the aim of redressing wrongs committed under the previous regime to tighten the standards and require an even stricter examination of the legal basis for the confiscation than the one conducted by the first- and second-instance courts. In conclusion, the Supreme Court noted that the applicants could rely on the data in the land register in which the criminal judgment was entered as the basis of the confiscation.
The State Attorney’s Office and the Farmland and Forest Fund lodged constitutional complaints, reiterating their previous arguments and pointing out that the relevant case-law of both the Supreme Court and the Constitutional Court stated that the AVNOJ Decree had taken effect ex lege on 6 February 1945 and that any individual decisions rendered thereafter had been merely declaratory. Moreover, decision no. Up-969/08 had been based on different facts than the case at issue, since the applicants in that case had lodged a claim for restitution under the Denationalisation Act before the expiry of the time-limit for bringing such claims, while in the present case a claim under the Denationalisation Act had been withdrawn, which had not been a correct procedural step to take. Further, the complainants submitted that, contrary to the finding of the Supreme Court, it was noted in the relevant land register that the property at issue had been confiscated under the AVNOJ Decree. Moreover, despite the fact that both complainants were public bodies, they claimed to be entitled to complain of a violation of their human rights in so far as they acted jure gestionis and their actions thus remained within the private sphere. The State Attorney’s Office and the Farmland and Forest Fund lastly argued that the applicants’ claim, if successful, would have serious consequences for them, and that they thus met the statutory requirements to have a constitutional complaint considered on the merits.
The applicants objected, arguing that the State Attorney’s Office and the Farmland and Forest Fund lacked legal standing to appear before the Constitutional Court: the first represented the State; the second managed assets. Owing to the nature of their activities, they could not be victims of human rights violations and thus were not entitled to lodge a constitutional complaint. As to their complaints, the applicants dismissed them as unfounded, pointing out that the Supreme Court’s decision had been based on the views expressed by the Constitutional Court and thus had not been arbitrary. The applicants moreover emphasised that because the criminal judgment had been executed by the Brežice, Krško, Slovenska Bistrica and Šmarje pri Jelšah local courts, the restitution proceedings should be considered as joint proceedings, and not as four separate actions. Since the three other sets of proceedings concerning the applicants’ legal predecessor’s property in Brežice, Krško and Slovenska Bistrica had already been concluded by final decisions recognising the criminal judgment as the legal basis for the confiscation, the applicants took the view that the Šmarje pri Jelšah proceedings should not produce a different outcome, or else their constitutionally protected right to equal protection of rights in judicial proceedings and the right to judicial protection would be infringed.
On 7 June 2012 the Constitutional Court upheld the constitutional complaints and remitted the case to the Supreme Court for further consideration. First or all, the Constitutional Court held that, since the State Attorney’s Office and the Farmland and Forest Fund were participating in the restitution proceedings as respondent parties, they enjoyed all the procedural guarantees involved, including the right to lodge a constitutional complaint. As to the alleged arbitrariness of the impugned judgment of the Supreme Court, the Constitutional Court pointed out that those precedents should be applied by taking due account of all the factual and legal circumstances which were relevant to the assessment of the case. In the Constitutional Court’s case no. Up-969/08 the applicants had lodged the restitution claim under the ECS Act before the expiry of the preclusive time-limit laid down in the Denationalisation Act for bringing restitution claims under that Act, relying on, inter alia, the fact that a criminal judgment had been entered into the land register as the basis for the confiscation. However, the preclusive time-limit under the Denationalisation Act had elapsed by the time that the regular courts had taken the view that the claim at issue could not be brought under the ECS Act, but only under the Denationalisation Act. In view of that, the applicants in case no. Up-969/08 had been finally precluded from requesting restitution through any type of proceedings. The Constitutional Court had considered that the lack of a legal avenue through which to reclaim the confiscated property had constituted a violation of their right to peaceful enjoyment of property and had remitted the case to the competent local court for further consideration. In the applicants’ case, however, the Supreme Court had not conducted an assessment of whether the facts of the case corresponded to the facts established in case no. Up-969/08. Moreover, the Supreme Court’s conclusion that the applicants could rely on the data in the land register in which the criminal judgment was entered as the basis of the confiscation was supported neither by the facts as established by the lower courts nor by the case file.
On reconsideration, on 23 August 2012 the Supreme Court reversed its decision, quashed the decisions of the lower courts and dismissed the applicants’ claim. The Supreme Court pointed out that the confiscation order of 22 September 1946 had been based on the decisions of the Local Confiscation Commission, which in turn had been based on the AVNOJ Decree. Moreover, it was on the basis of those decisions of the Local Confiscation Commission that the transfer of property had been entered in the land register. The Supreme Court added that it was not competent to examine whether the confiscation commissions had correctly applied the AVNOJ Decree. In light of these findings, the Supreme Court took the view that the applicants were not entitled to claim restitution of their property under the ECS Act.
In the three other sets of proceedings concerning the applicants’ claims pertaining to their legal predecessor’s property in Brežice, Krško and Slovenska Bistrica, the Supreme Court found that the basis for the confiscation orders and the transfers of property in the land register was, contrary to the situation in Šmarje pri Jelšah, the criminal judgment of the Maribor Military Court. Despite the declaratory nature of the entries in the land register the Supreme Court held that the lower courts had been correct in drawing conclusions as to the basis of the confiscation from those documents.
The applicants lodged a constitutional complaint, reiterating their previous arguments and also adding that in its second examination of the case the Supreme Court had failed to assess whether the views expressed in the Constitutional Court’s decision no. Up-969/08 applied to the facts of their case, which was no less arbitrary than its previous finding that decision no. Up-969/08 had been applicable to their case. The applicants further pointed out that they had also claimed restitution in the denationalisation proceedings but had later withdrawn their claim because they had been entitled to bring their claim under the ECS Act. They referred to the Supreme Court’s decisions nos. II Ips 516/96 of 25 March 1998 and II Ips 147/2001 of 7 June 2001 in which the court had taken the view that it was not relevant whether the AVNOJ Decree had taken effect before or after a criminal judgment had been rendered, and that all persons who had been convicted and later exonerated could claim restitution under the provisions of the ECS Act, in so far as the criminal judgment provided for confiscation of their property. The applicants pointed out that the case-law had later changed and had, in certain cases, eliminated the option of claiming restitution either under the ECS Act or under the Denationalisation Act. However, in their view, claimants such as themselves, who had acted appropriately to avoid bringing two claims concurrently on different legal bases, were disadvantaged by this in contravention of the Constitution.
On 16 December 2013 the Constitutional Court dismissed the applicants’ constitutional complaint, holding that the Supreme Court’s judgment was not arbitrary, as it had taken due account of the decisive facts which had influenced its decision no. Up-969/08. As to the second complaint that the initial option to claim restitution either under the ECS Act or the Denationalisation Act had later been eliminated, the Constitutional Court held that the applicants had failed to bring it before the lower courts. While it was true that the impugned decision had been taken only following an appeal on points of law, the Constitutional Court was of the view that, since the issue of legal basis had been open throughout the proceedings, the applicants could at any stage have anticipated a decision such as that which had ultimately been rendered by the Supreme Court. Thus, they could have pursued the argument already in their replies to the legal remedies lodged by the defendant parties, but had not done so.
B. Relevant domestic law
Under section 145 of the ECS Act, if the original confiscation decision has been quashed, the confiscated property is returned to the convicted person or his or her heirs. The confiscated property can be returned in natura, in which case it can be claimed from either the State or a local authority, depending on to which entity the property was transferred. If the return of the confiscated property or its individual parts is no longer possible on account of factual or legal obstacles, the claimants are entitled to obtain compensation for the confiscated property in the amount of the actual value of said property as evaluated at the time of the adoption of the decision on the return of property, taking into account the state of the property at the time of the confiscation.
In 1998 the legislature amended the ECS Act by adding sections 145a, 145b, 145c and 145č pertaining to property which had been confiscated prior to 1959. The amended Act excludes the general provisions of section 145 on the type and scope of return of property in those cases where the confiscation decision was pronounced prior to 31 December 1958. Instead, it specifies that the provisions of Chapter III of the Denationalisation Act, containing particular criteria for the valuation of property, restrictions regarding return in natura, and the exclusion of compensation for certain types of damage sustained as a result of the confiscation, are to apply in those cases.
COMPLAINTS
The applicants complain under Article 1 of Protocol No. 1 to the Convention that the domestic courts have violated their right to obtain restitution of the property confiscated from their legal predecessor after the Second World War, as the applicable legislation and the case-law have conferred upon them a legitimate expectation that they could obtain restitution under both the Denationalisation Act and the Enforcement of Criminal Sanctions Act. Thus, the domestic courts’ decision that they could not claim restitution of the property in question under the latter Act deprived them of the possibility of having their property returned to them, since the time-limit for lodging a restitution claim under the Denationalisation Act had meanwhile expired.
The applicants further complain, under Article 6 of the Convention, that the legislation regulating restitution of property confiscated in the post-Second World War nationalisation process lacked clarity and transparency, rendering the restitution proceedings unforeseeable as to the outcome and enabling the courts to arbitrarily change their rulings.
Lastly, the applicants complain under Article 13 that they did not have at their disposal any effective domestic remedy with which to complain of the violations of their Convention rights by the Supreme Court in its judgment of 23 August 2012, as the Constitutional Court rejected their complaint about a violation of their right to peaceful enjoyment of property as not having been properly exhausted before the lower instances.
QUESTIONS TO THE PARTIES
1. Did the applicants properly exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as regards their complaint, under Article 1 of Protocol No. 1 to the Convention, that there had existed and should continue to exist a choice for claimants to claim restitution under either the Enforcement of Criminal Sanctions Act (“the ECS Act”) or the Denationalisation Act in cases such as their own where post-Second World War confiscation had been ordered by a criminal judgment but also fell within the scope of the Decree on the Transfer of Enemy Assets to the State, State Administration of the Assets of Absent Persons, and Seizure of Assets Forcibly Expropriated by the Occupying Authorities (“the AVNOJ Decree)?
2. Is the applicants’ claim for restitution of their legal predecessor’s property sufficiently reliable to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, considering that their entitlement to restitution under the ECS Act was initially sustained by a final and enforceable judicial decision confirmed by the Supreme Court, whose decision was however quashed by the Constitutional Court?
3. Assuming that the applicants had a “possession”, did the quashing of the Supreme Court’s judgment of 17 February 2011, and the subsequent reversal of the final decision conferring upon them entitlement to restitution, constitute an unjustified interference with the applicants’ peaceful enjoyment of property as guaranteed under the same provision?
In particular, did the view that restitution could only be claimed under the ECS Act if it had been established that the confiscation ordered by a criminal judgment had not also fallen within the scope of the AVNOJ Decree provide the applicants with a reasonable opportunity to obtain restitution of their legal predecessor’s confiscated property, considering that such a decision involved interpreting the legal effects of the AVNOJ Decree and relying on individual documents issued in the confiscation proceedings or as a result of such proceedings (for example, confiscation orders and entries of the transfers of property in the land register)?
Moreover, was the view that restitution could only be claimed through the ECS Act if it had been established that the confiscation ordered by a criminal judgment had not also fallen within the scope of the AVNOJ Decree already present in the domestic case-law when the applicants lodged their claims under the ECS Act, or was it a later development?
Lastly, was the interpretation by the domestic courts of the legal effects of the AVNOJ Decree and of the relevance of the individual documents by reference to which the legal basis for the confiscation had been established consistent and foreseeable?
4. Did the domestic courts’ case-law concerning the legal basis on which claims for restitution of property confiscated after the Second World War could be made (including the interpretation of the legal effects of the AVNOJ Decree – which resulted in the view that restitution can only be claimed by virtue of the ECS Act if it is established that the confiscation ordered by a criminal judgment had not also fallen within the scope of the AVNOJ Decree – and of the relevance of individual documents (for example, confiscation orders and entries of the transfer of property in the land register) for the determination of this legal basis) satisfy the principle of legal certainty inherent in Article 6 § 1 of the Convention; that is to say, at the time of the introduction of the applicants’ claims under the ECS Act was it reasonable and sufficiently foreseeable to enable them to effectively assert their right to restitution?
5. Did the applicants have effective access to a court, as required by Article 6 § 1, in respect of their complaint that the Supreme Court’s second judgment of 23 August 2012 had violated their right to peaceful enjoyment of property?
Appendix
Gabrielle RAU born on 05/01/1953 is an Austrian national who was born in 1953, lives in Vienna and is represented by B.VERSTOVŠEK Johannes ATTEMS born on 05/10/1947 is an Austrian national who was born in 1947, lives in Vienna and is represented by B.VERSTOVŠEK Eleonore DRASCHE - WARTINBERG born on 03/12/1943 is an Austrian national who was born in 1943, lives in Ebreichsdorf and is represented by B.VERSTOVŠEK
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