Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35268/97

by Marcela SVIDRANOVÁ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 December 1996

by Marcela SVIDRANOVÁ against the Slovak Republic and registered on

11 March 1997 under file No. 35268/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Czech national born in 1949 and residing in

Zvolen, the Slovak Republic. The facts of the case, as submitted by

the applicant, may be summarised as follows.

A. Particular circumstance of the case

On 8 September 1994 the applicant inherited a car from a relative

who had lived in Vienna. The car, a Volkswagen Polo, had been produced

in 1986 and was registered in Austria.

On 1 August 1995 the customs office in Banská Bystrica authorised

the applicant to use the car in Slovakia without paying any importation

fee provided that she did not sell the car before 1 August 1996.

On 18 October 1995 the applicant requested the police department

in Zvolen to certify that the car conformed, from the technical point

of view, to the relevant regulations. Such a certificate was

indispensable for registration of the car in Slovakia.

To this effect the applicant was invited to have the car checked

in a specialised technical centre in Banská Bystrica. On

14 November 1995 a record of the check was established by the aforesaid

centre indicating, inter alia, that the applicant had not shown that

the car's exhausts conformed to Regulation No. 83-01 B of the UN

Economic Commission for Europe.

On 29 October 1995 the applicant asked the Minister of Transport,

Post and Telecommunications to exempt her from the obligation to comply

with Regulation No. 83-01 B.

On 20 November 1995 the police department in Zvolen stayed the

proceedings concerning the applicant's request of 18 October 1995 on

the ground that she had not submitted a certificate from a technical

centre authorised to carry out the required check. The applicant was

invited to submit the certificate before 31 August 1996.

On 5 December 1995 the Ministry of Transport, Post and

Telecommunications informed the applicant that for a car to be allowed

to be used in Slovakia it had to conform to Regulation No. 41/1984

(see "Relevant domestic law" below). The Ministry further recalled

that under Section 82 of Regulation No. 41/1984 the Ministry was not

entitled to grant an exemption from Section 39 setting out the

standards for exhausts. On 29 January 1996 the Ministry of Transport,

Post and Telecommunications upheld this position.

Subsequently the applicant unsuccessfully sought redress before

the President of the Slovak Republic, the Prime Minister and the

President of the National Council of the Slovak Republic.

The applicant also wrote to the President of the Constitutional

Court. On 9 February 1996 she was informed that the latter cannot

exempt her from the obligation to comply with Regulation No. 41/1984.

On 24 June and 10 July 1996 the applicant again requested the

Minister of Transport, Post and Telecommunications to exempt her from

the obligation to comply with Section 39 of Regulation No. 41/1984.

She alleged a violation of her right to enjoy her property freely.

On 2 August 1996 the Minister of Transport, Post and

Telecommunications informed the applicant that she could obtain the

requested certificate only if she showed that her car conformed to the

relevant provisions of Regulation No. 41/1984.

On 16 October 1996 the applicant addressed a complaint to the

President of the Constitutional Court in which she alleged a violation

of her property rights and of her right to equal treatment. She

complained, in particular, that as a result of the dismissal of her

request for an exemption from the requirements set out in Section 39

of Regulation No. 41/1984 she was prevented from using her car, and

that a considerable number of other cars were allowed to circulate in

Slovakia notwithstanding that they did not comply with the aforesaid

Regulation.

On 5 November 1996 a judge of the Constitutional Court informed

the applicant that the Constitutional Court lacked jurisdiction to deal

with her submissions.

B. Relevant domestic law

The conditions for use of vehicles on the roads in Slovakia are

set out in Regulation No. 41/1984 of 30 May 1984, as amended.

Section 5a para. 2 provides that a certificate entitling a person

to use a vehicle can only be issued if the vehicle is in appropriate

condition and if the requirements set out in chapters II to V of the

Regulation are met.

Section 5a para. 6 was included in Regulation No. 41/1984 by an

amendment which entered into force on 13 October 1994 and provides as

follows:

(translation)

"For the purposes of this Regulation the following shall be

considered as justified cases of individually imported vehicle:

a) a vehicle of a person who was granted Slovak citizenship

with permanent residence within the Slovak Republic,

b) an ambulance and a vehicle for physically disabled persons

specially adapted for driving or for transport,

c) a vehicle acquired by a staff member of a diplomatic

representation of the Slovak Republic and imported after he or

she has ceased to work abroad,

d) a vehicle belonging to a staff member of a foreign

diplomatic representation during his or her stay in this capacity

in the Slovak Republic."

Section 39 para. 1, as in force from 1 July 1995, provides that

the exhausts of vehicles shall, at the moment of the approval of their

conformity to Regulation No. 41/1984, meet the requirements set out in

special regulations including Regulation No. 83 of the UN Economic

Commission for Europe.

Section 82, as in force until 12 October 1994, excluded any

exemption from, inter alia, Section 39 of the Regulation. As from 13

October 1994, Section 82 has been amended in that exceptions from

Section 39 are permissible in "justified cases of individually imported

vehicles" within the meaning of Section 5a para. 6.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that

she cannot use her car in Slovakia. She further complains under

Article 14 of the Convention that she is discriminated against in this

respect as there are a considerable number of other cars allowed to

circulate in Slovakia notwithstanding that they do not meet the

standards set out in Regulation No. 41/1984.

THE LAW

1. The applicant complains that she cannot use her car in Slovakia.

She alleges a violation of Article 1 of Protocol No. 1 (P1-1) which

provides as follows:

"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."

The Commission recalls that Article 1 of Protocol No. 1 (P1-1)

comprises three distinct rules. The first rule, set out in the first

sentence of the first paragraph, is of a general nature and enunciates

the principle of peaceful enjoyment of possessions. The second rule,

contained in the second sentence of the same paragraph, covers

deprivation of possessions and makes it subject to certain conditions.

The third rule, stated in the second paragraph, recognises that

Contracting States are entitled, amongst other things, to control the

use of property in accordance with the general interest (see Eur. Court

HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192,

p. 14, para. 41).

In the present case the applicant has been prevented from using

her car in the Slovak Republic as its exhausts do not conform to

Section 39 of Regulation No. 41/1984 which incorporates in Slovak law

the standards set by Regulation No. 83 of the UN Economic Commission

for Europe. In the Commission's view, the obligation imposed on the

applicant to ensure that her car complies with the aforesaid

regulations amounts to an interference with her rights under Article 1

of Protocol No. 1 (P1-1). This interference is a measure of control

of the use of property within the meaning of the second paragraph of

Article 1 of Protocol No. 1 (P1-1).

The Commission must therefore consider whether the obligation

imposed on the applicant is proportionate and necessary to control the

use of the applicant's property in accordance with the general interest

(see No. 11723/85, Dec. 7.5.87, D.R. 52, pp. 250, 256, with further

references).

The Commission notes that the contested provisions of Regulation

No. 41/1984 pursue the legitimate aim of protecting the environment in

that it sets standards, elaborated and adopted by the UN Economic

Commission for Europe, concerning exhausts of vehicles used in the

Slovak Republic. The obligation imposed on the applicant by the

aforesaid provisions is, therefore, in the general interest within the

meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).

The Commission further considers, bearing in mind the importance

of protecting the environment from excessive pollution caused by motor

vehicles and the wide margin of appreciation afforded to States in this

respect, that the control of the use of the applicant's property is

proportionate to the legitimate aim pursued.

Accordingly, there is no appearance of a violation of Article 1

of Protocol No. 1 (P1-1) in the particular circumstances of this case.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains that she is discriminated against

in the enjoyment of her property as there are a considerable number of

other cars allowed to circulate in Slovakia notwithstanding that they

do not meet the standards set out in Regulation No. 41/1984. She

alleges a violation of Article 14 (Art. 14) of the Convention which

provides as follows:

"The enjoyment of the rights and freedoms set forth in this

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."

The Commission recalls that Article 14 (Art. 14) affords

protection against discrimination, that is treating differently,

without an objective and reasonable justification, persons in

"relevantly" similar situations (see Eur. Court HR, Spadea and

Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B,

p. 28, para. 45). The Contracting States enjoy a certain margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment in law; the

scope of this margin will vary according to the circumstances, the

subject-matter and its background (see Inze v. Austria judgment of 28

October 1987, Series A no. 126, p. 18, para. 41).

To the extent that the applicant may be understood as complaining

that the possibility of granting an exemption from the relevant

provisions of Regulation No. 41/1984 does not extend to her case, the

Commission considers that her situation is not sufficiently analogous

with those set out in Section 5a para. 6 of the aforesaid Regulation

to give rise to an issue under Article 14 (Art. 14) of the Convention.

Moreover, and even assuming that a problem might arise in this

connection, the Commission considers, having regard to the margin of

appreciation reserved to the Contracting States in this respect and to

the specific nature of those cases in which exemptions from the

relevant provisions of Regulation No. 41/1984 are allowed, that the

distinction thus drawn can be regarded as objectively and reasonably

justified and not therefore discriminatory within the meaning of

Article 14 (Art. 14) of the Convention.

To the extent that the applicant may complain that vehicles which

were certified as conforming to the relevant regulations prior to the

incorporation of Regulation No. 83 of the UN Economic Commission for

Europe in Slovak law are allowed to circulate in the Slovak Republic,

the Commission considers that her situation is not "relevantly" similar

to the aforesaid cases since the difference of treatment in this

respect arose under different legislation, passed and applied at

different times.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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SVIDRANOVA v. THE SLOVAK REPUBLIC

SVIDRANOVA v. THE SLOVAK REPUBLIC

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