THIRD SECTION
DECISION
Application no. 45941/99
by Rajko TURK and Others
against Slovenia
The European Court of Human Rights (Third Section), sitting on 12 December 2006 as a Chamber composed of:
MrJ. Hedigan, President,
MrB.M. Zupančič,
MrC. Bîrsan,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 16 January 1999,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
Originally, the application was lodged by Rajko Turk, Josip Turk and Milica Abram. They were born in 1933, 1929 and 1937 respectively. Rajko and Josip Turk, both Slovenian nationals, live in Ljubljana. They are represented before the Court by Igor Dernovšek and Alenka Sočan Žitnik, lawyers practising in Ljubljana. Ms Abram, a Slovenian national, died on 21 January 2000, after the lodging of the aplication. Her brothers, the first two applicants, are her legal heirs. Ms Abram was also represented by Igor Dernovšek and Alenka Sočan Žitnik
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
On 14 July 1945 the Ljubljana District Military Court (Vojaško sodišče ljubljanskega vojnega področja) convicted R.T., the applicants’ father, and others of the offence of collaboration with the occupying forces during the Second World War. R.T. was sentenced to 2 years’ deprivation of liberty with forced labour. He was also stripped of his political and civil rights for 6 years and ordered to forfeit all his property to the State. The applicants’ father together with other convicted persons lodged an appeal with the Higher Military Court of the Yugoslav Army (Viši vojni sud Jugoslavenske armije), which on 28 August 1945 upheld the first-instance judgment in respect of R.T. who died in 1971.
After the change of the political regime, on 17 October 1991 the Supreme Court partly granted the request for protection of legality (zahteva za varstvo zakonistosti) filed by the Public Prosecutor. R.T. was cleared on certain counts and his sentence reduced accordingly, including that part of it involving forfeiture of property.
2. Request for restitution of, or compensation for, the forfeited property
On 20 November 1991 Parliament passed the Denationalisation Act (the “DA”), forming the basis for restitution of property (or its value) that had passed into State ownership through previous legislation after the Second World War (agrarian reform, nationalisation, confiscation, etc.). Section 92 of that Act provided that property forfeited in criminal proceedings that had terminated before 31 December 1958 should also be returned to previous owners in the framework of the denationalisation proceedings and not in the framework of the criminal legislation.
On 12 March 1992 the applicants, acting under Section 92 of the DA, introduced proceedings before the Community of Ljubljana with a view to the restitution of, or compensation for, the property forfeited in Ljubljana.
However, on 5 November 1992 the Constitutional Court rescinded Section 92 of the DA. That ruling was published in the Official Journal on 27 November 1992.
On 29 December 1992, under Section 145 of the 1978 Act on Implementation of Penal Sanctions as amended in 1990 (the “1978 Act”), the applicants commenced “uncontentious” proceedings no. Nz 49/93 (nepravdni postopek) in the Ljubljana Basic Court (Temeljno sodišče) and withdrew the denationalisation claims filed with the Community of Ljubljana. In addition, the applicants applied for an interim measure concerning some plots of land.
Following the applicants’ proposal dated 15 June 1994, the court proceedings were divided into five different sets of proceedings (nos. Nz 49/93, Nz 393/94, 394/94, 395/94 and 396/95).
On 7 February 1996, further to the Supreme Court’s ruling in similar cases that claims for compensation where restitution of property was no longer possible could not be directed against the Republic of Slovenia, the applicants directed their claims, save one (no. Nz 49/93), against various municipalities [further to the reform of the administrative authorities, communities have become municipalities].
On 28 February 1996, in the proceedings no. Nz 394/94, the Ljubljana District Court (Okrajno sodišče) [its new style further to the reform in 1995] ordered the Municipality of Ljubljana to pay the applicants compensation for the forfeited land amounting to 5,225,035,00 SIT with interest. On 15 July 1996 the respondent party appealed.
On 4 April 1997, in the proceedings no. Nz 393/94, the Ljubljana District Court ordered the restitution of land and a house. In the same proceedings, on 24 June 1997 the Ljubljana District Court ordered the Municipality of Ljubljana to pay the applicants further compensation for the forfeited land in an amount of 51,669,127.61 SIT with interest. On 5 September 1997 the respondent party appealed.
On 1 July 1997, in the proceedings no. Nz 396/94, the Ljubljana District Court ordered the Municipalities of Bled, Bohinj and Radovljica to pay the applicants compensation for the forfeited land to the tune of 10,786,681.00 SIT with interest. On 1 September 1997 the respondent parties appealed.
On 9 July 1997, in the proceedings no. Nz 49/93, the Ljubljana District Court ordered the Municipality of Ljubljana and the Republic of Slovenia to pay the applicants further compensation for the forfeited land and buildings amounting to 47,351,189.96 SIT and 207,866,754,00 SIT, for the company amounting to 15,311,040.06 SIT and for the securities amounting to 2,579,096.31 SIT, with interest. On 29 July 1997 the Municipality of Ljubljana appealed.
On 3 July 1997, in a set of proceedings started by the Municipality of Grosuplje, the Constitutional Court ruled that the obligation to meet claims for restitution filed under Section 145 of the 1978 Act laid with the Republic of Slovenia rather than with individual socio-political units (decision no. U-I-43/96). That ruling was published in the Official Journal on 25 July 1997.
On 9 August 1997 Parliament passed the Act on the Temporary Suspension of certain Provisions of the DA and of the 1978 Act (“the Temporary Suspension Act”). That Statute had the effect of suspending extant claims under the 1978 Act, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998.
While those provisions were in abeyance, on 28 January 1998 Parliament passed the 1998 Act on Amendments and Supplements to the 1978 Act (the “1998 Act“), which came into force on 13 February 1998. That Act added new Sections to the 1978 Act.
Section 145A replacing Section 145 applies the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958. Section 3 made the change applicable in pending proceedings concerning the restitution of confiscated property commenced under the 1978 Act. Furthermore, compensation is payable in State bonds.
On 20 February 1998 the applicants challenged the 1998 Act, in particular its Section 3, before the Constitutional Court, on the ground that it was retroactive and discriminatory. On 16 July 1998 the Constitutional Court dismissed their challenge in a joined decision no. U-I-60/98 (see “Relevant domestic law and practice”).
The different sets of “uncontentious” proceedings continued in the Ljubljana Higher Court after the expiry of the period of temporary suspension of the relevant provisions and adoption of the 1998 Act.
On 7, 14 and 21 October and on 5 November 1998 the latter quashed the decisions handed down by the Ljubljana District Court on the grounds, inter alia, that the Republic of Slovenia replaced the respondent municipalities as the entity responsible for the payment of compensation and that the amount of the latter should henceforth be quantified in accordance with the new legislation, with due regard to the Constitutional Court’s rulings.
Subsequently, the proceedings no. Nz 394/94 became no. Nz 342/98 and the proceedings no. 49/93 became no. Nz 353/98. In the last set of proceedings, the court appointed the court valuator who submitted his report.
In another set of proceedings (no. Nz 396/94 which became no. Nz 338/98), a hearing was held on 19 September 2002.
On 6 September 2004 the Ljubljana District Court joined the proceedings nos. Nz 393/94, Nz 342/98 and Nz 395/94 into the proceedings Nz 393/94.
In that set of proceedings, on 21 September 2004 the Ljubljana District Court gave a partial decision, ordering the Republic of Slovenia to pay the applicants compensation in an amount of 13,547.85 EUR, in State bonds. On 3 November 2004 the decision became final.
On 10 December 2004 the Ljubljana District Court gave another partial decision in those proceedings, ordering the Republic of Slovenia to pay the applicants further compensation in an amount of 90,216.44 EUR with interest, in State bonds.
The proceedings are still pending.
B. Relevant domestic law and practice
1. The 1978 Act on Implementation of Penal Sanctions, as amended and the 2000 Act on Implementation of Penal Sanctions
The 1978 Act on Implementation of Penal Sanctions, as amended (Zakon o izvrševanju kazenskih sankcij, Official Journal nos. 17/78, 8/90) and the 2000 Act on Implementation of Penal Sanctions (Official Journal no. 22/2000) originally excluded from restitution all those sentenced before 31 December 1958.
Section 145, as amended in 1990
“If the sanction of forfeiture of property is quashed, the forfeited property shall be restored to the person sentenced or his heirs.
If the restitution of property in whole or in part is physically or legally impossible, the actual value of that property at the time of the decision on its restitution, and according to the state of the property at the time of forfeiture, shall be paid by the socio-political unit to which the property was allocated. (...)”
The 2000 Act replaced the 1978 Act. However, the provisions of Sections 145 and 145A to 145Č, added by the 1998 Act, remain in force.
2. The 1994 Act on Criminal Procedure
The Act on Criminal Procedure (Zakon o kazenskem postopku, Official Journal no. 63/1994) provides, inter alia, as follows:
Section 538 § 1
“When extraordinary judicial review proceedings against a person, finally convicted or found guilty (...), then acquitted by such proceedings have been definitively discontinued or when such person has been finally acquitted of the charge brought against him or when the latter charge or the act of indictment has been dismissed, such person shall enjoy the right to compensation for the damage sustained by him as a result of his wrongful conviction.”
3. The 1991 Denationalisation Act
The DA (Zakon o denacionalizaciji, Official Journal no. 27/91) forms the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.). It provides, in its Sections 2 and 42 to 44 that, where property cannot be returned in its original form, compensation is payable (not in cash but in State bonds payable in instalments over 15 years).
Section 44 provides that compensation for land and buildings is to be valued on a fixed system in accordance with the relevant regulatory texts. Section 92 of the DA extended its provisions to property forfeited in criminal proceedings that had terminated by 31 December 1958. That provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92).
4. The 1997 Act on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of the Act on Implementation of Penal Sanctions
Section 2 of the 1997 Act on the Temporary Suspension of Certain Provisions of the DA and of the 1978 Act (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/1997) suspended, inter alia, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, those proceedings concerning claims for the restitution of or payment of compensation for property confiscated by virtue of criminal judgments handed down before 31 December 1958 and subsequently annulled.
5. The 1998 Act on Amendments of, and Supplements to, the 1978 Act on Implementation of Legal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98)
The 1998 Act on Amendments of, and Supplements to, the 1978 Act on Implementation of Legal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) added to the 1978 Act new Sections 145A, 145B, 145C and 145Č.
Section 145A replacing Section 145 applies the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958. Section 145B provides that the issue of State bonds in which compensation would be payable would be regulated separately. Section 145C expressly removes the right to compensation for the previous owner’s inability to make use of the property during the period of forfeiture.
Section 3 of that Act made the change applicable in “uncontentious” and “contentious” proceedings concerning the restitution of confiscated property when such proceedings commenced before the Act came into force, but had not become final by that time.
The Act also made minor amendments to Section 145 of the 1978 Act to make it clear that the obligation to meet claims for restitution lay in the first instance with the Republic of Slovenia rather than with individual socio-political units, thus confirming the Constitutional Court’s ruling in 1997.
6. The 1991 Constitution of the Republic of Slovenia
The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are relevant here:
Article 8
“Laws and regulations must comply with the generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.”
Article 14
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
Article 15
“Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.
The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom.
Human rights and fundamental freedoms shall be restricted only by the rights of others and in such cases as are provided by this Constitution.
Legal protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed.
No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the ground that this Constitution does not recognise that right or freedom or recognises it to a lesser degree.”
Article 22
“Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local community authorities and bearers of public authority that decide on his or her rights, duties or legal interests.”
Article 23
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
Article 30
“Any person unjustly convicted of a criminal offence or deprived of his liberty without due cause has the right to rehabilitation and compensation, and other rights provided by law.”
Article 33
“The right to private property and inheritance shall be guaranteed.”
Article 155
“Laws and other regulations and general legal acts cannot have retroactive effect.
Only a law may establish that certain of its provisions have retroactive effect, if this is required in the public interest2 and provided that no acquired rights are infringed thereby.”
Article 160
“The Constitutional Court shall hear:
... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ...
Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”
7. The Constitutional Court’s rulings
1. On 3 July 1997, in a set of proceedings started by the Municipality of Grosuplje, the Constitutional Court ruled that the obligation to meet claims for restitution filed under Section 145 of the 1978 Act laid with the Republic of Slovenia rather than with individual socio-political units (decision no. U-I-43/96). That ruling was published in the Official Journal on 25 July 1997.
2. In addition, on 16 October 1997 the Constitutional Court decided that the above-mentioned decision was enforceable in pending proceedings initiated under Section 145 of the 1978 Act, so that the Republic of Slovenia replaced municipalities as the entity responsible for payment of compensation (decision no. U‑I‑43/96). That decision was published in the Official Journal on 30 October 1997.
3. On 16 July 1998 the Constitutional Court ruled (a joined decision no. U‑I-60/98) that the disputed provisions of Sections 145A and 145C of the 1998 Act did not conflict with the Constitution because such interference with the constitutional rights granted in Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Slovenian Constitution was indispensable for the protection of the human rights of others.
Placing unjustly convicted persons on an equal footing with all rightful claimants regarding the redress of post-war wrongs was an appropriate means through which the legislator had achieved his aim. The principle of the Welfare State empowered the legislator, with due consideration paid to the right of all citizens to social security, to have regard to the financial resources of the State and, in cases which were constitutionally admissible, also to restrict certain rights accordingly.
The Constitutional Court also added that, when deciding, in November 1992 (decision no. U-I-10/92), to quash Section 92 of the DA, it had been unaware of the full extent of the property forfeited through criminal proceedings prior to 31 December 1958 and thus also of the financial obligations incumbent on the State.
The Constitutional Court further ruled that Section 3 of the 1998 Act was in conformity with the Constitution notwithstanding the fact that it retroactively interfered with accrued rights because the retroactive effect of the Act was justified by the public interest, and since such interference, provided it be subjected to rigorous constitutional scrutiny, was in conformity with paragraph 3 of Article 15 of the Constitution. It also ruled that Section 3 was in conformity with the Constitution, except as regards the refunding of expenses already incurred in the proceedings that was to be the subject of separate regulations.
It also emphasised the need, in the light of the Temporary Suspension Act and the 1998 Act, for swift completion of pending cases, all the more so as the restitution of property had twice been delayed by law and as the matter required an early solution.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings. In general, they complained about the unfairness of the proceedings.
2. The applicants also complained under Article 13 of the Convention that they had first commenced the proceedings in 1992 and that they were back at square one.
3. The applicants, who were exclusive heirs of their late father, considered that his property had been unjustly expropriated, in breach of Article 1 of Protocol No. 1. The criminal conviction was a reflection of the “dictatorship of the proletariat”.
In their letter of 30 October 2001, the applicants also stressed the fact that new legislation concerning the payment of compensation had been adopted, namely the 1999 Act on the Issuance of State Bonds for the Payment of Compensation for forfeited Property further to the quashing of the Sentence of Forfeiture, followed in its turn by a decree. They contended that the claimants were additionally discriminated against by this legislation, taking into consideration the fact that compensation was payable only in State bonds, worth even less than those attributed by the Slovenian Indemnity Fund in denationalisation proceedings.
4. The applicants further alleged a violation of Article 14 of the Convention in that they were on unequal footing with a number of claimants, whose proceedings had ended before the enactment of the new legislation and who had recovered substantial items of their property. They considered that they were also discriminated against in comparison with claimants acting on the basis of the DA and who had already recovered a large part of their property, whereas the legislator fixed new rules for the applicants whose proceedings had already been pending for seven years.
4. Finally, the applicants contended that Article 3 of Protocol No. 7 was infringed because, although Mr. T.’s conviction was overturned on 17 October 1991, they have not yet received compensation for the forfeited property that to a large extent could not be restituted in kind.
THE LAW
On 2 November 2006 the Court received the following declaration from the respondent Government:
“I, Lucijan Bembič, Agent of the Government of Slovenia, declare that the Government of Slovenia offer to pay ex gratia 18,000 euros to Rajko Turk and Josip Turk jointly with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights.
...
The payment will constitute the final resolution of the case.”
On 9 November 2006 the representative of the applicants sent a declaration to the Court, which reads as follows:
“We, Rajko Turk and Josip Turk, note that the Government of Slovenia are prepared to pay us jointly ex gratia the sum of 18,000 euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights.
...
We accept the proposal and waive any further claims against Slovenia in respect of the facts giving rise to this application. We declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Vincent BergerJohn Hedigan Registrar President
Full & Egal Universal Law Academy