Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37892/97

by Peter IVANOVIC

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 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

J. MUCHA

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 21 July 1997 by

Peter IVANOVIC against the Slovak Republic and registered on

24 September 1997 under file No. 37892/97;

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 national of the United States of America. He

is of Slovak origin and resides in Watertown, USA. The facts of the

case, as submitted by the applicant may be summarised as follows.

A. Particular circumstances of the case

On 22 November 1982 the Poprad District Court (Okresny súd)

convicted the applicant of illegal departure from the then Czechoslovak

Socialist Republic and sentenced him to two years' imprisonment.

Subsidiarily, the District Court ordered confiscation of the

applicant's property.

On 31 October 1990 the Poprad District Court quashed, pursuant

to Section 2 of Law No. 119/1990 on Judicial Rehabilitation (Zákon o

súdnej rehabilitácii - see "The relevant domestic law" below) the

applicant's conviction of 22 November 1982 and discontinued the

criminal proceedings against the applicant. At the same time the

District Court quashed, ex tunc, the decision on confiscation of the

applicant's property.

Subsequently the applicant unsuccessfully requested

administrative authorities to restore to him the real property which

had been confiscated pursuant to the Poprad District Court's judgment

of 22 November 1982 and to enter him as its owner in the land register.

On 29 January 1997 the applicant lodged a petition with the

Constitutional Court (Ústavny súd). He complained, with reference to

the relevant provisions of the Law on Extrajudicial Rehabilitation

(Zákon o mimosúdnych rehabilitáciách), that he could not have his

property restored notwithstanding that the confiscation decision of

1982 had been quashed.

On 26 February 1997 the Constitutional Court rejected the

applicant's petition on the ground that it lacked jurisdiction to

examine facts prior to its establishment on 15 February 1993.

B. The relevant domestic law

The purpose of Law No. 119/1990 on Judicial Rehabilitation of

23 April 1990 (in force from 1 July 1990 and amended on

30 January 1991) is to authorise the quashing of convictions for

offences where such convictions are incompatible with the principles

of a democratic society and to ensure the social and economic

rehabilitation of the persons so convicted.

Section 2 of Law No. 119/1990 sets out, inter alia, the cases in

which convictions pronounced between 25 February 1948 and

1 January 1990 shall be quashed with effect from the date on which they

were pronounced, together with any consequential decisions.

Section 23 para. 2 of Law No. 119/1990 provides as follows:

"A special law shall define the conditions for submitting claims

relating to quashed confiscation decisions ... as well as the

manner of redress and the scope of such claims."

The issues mentioned in Section 23 para. 2 of Law No. 119/1990

are governed by the following provisions of Law No. 87/1991 on

extrajudicial Rehabilitation of 21 February 1991 (in force from

1 April 1991):

Section 3

"1. Any natural person who is a citizen of the Czech and Slovak

Federal Republic permanently resident within its territory is

entitled to claim restitution of any of his or her property which

passed into state ownership in the circumstances referred to in

Section 6."

Section 5

"1. A person who is under the obligation to restore property

shall do so upon the receipt of a written request submitted by

the person entitled to restitution...

2. Any request for restitution shall be made within the period

of six months from the date on which this Law enters into force,

failing which the relevant claim shall lapse."

...

Section 19

"1. Any person rehabilitated under the provisions of Law

No. 119/1990 shall be entitled to restitution provided that he

or she fulfils the conditions laid down in Section 3 para. 1..."

COMPLAINT

The applicant complains that the requirements set out in

Section 19 para. 1 in conjunction with Section 3 para. 1 of Law

No. 87/1991 on Extrajudicial Rehabilitation prevented him, without any

reasonable justification, from recovering his property after the

confiscation decision of 1982 had been quashed. He alleges a violation

of Article 1 of Protocol No. 1.

THE LAW

The applicant complains that the conditions for eligibility to

claim restitution of confiscated property set out in Section 19 para. 1

in conjunction with Section 3 para. 1 of Law No. 87/1991 on

Extrajudicial Rehabilitation interfere with his right to the peaceful

enjoyment of his possession. He 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 it can examine applications only to

the extent that they relate to events occurring after the Convention

entered into force with respect to the relevant Contracting Party. The

Commission has found earlier that it has jurisdiction to examine

applications against the Slovak Republic concerning matters which

aresubsequent to 18 March 1992, i.e. the date when the Convention was

ratified by the former Czech and Slovak Federal Republic (see

No. 23131/93, Dec. 4.3.96, D.R. 85-B, pp. 78, 79).

The Commission notes that the applicant was deprived of his

property in 1982, i.e. before the aforementioned date. Therefore, the

Commission lacks temporal jurisdiction to examine the circumstances of

the confiscation of the applicant's property or the possible effects

produced by it in 1990, when the applicant benefited from the judicial

rehabilitation in respect of the confiscation decision. In this

regard, the Commission recalls that deprivation of property or another

right in rem is in principle an instantaneous act and does not produce

a continuing situation of "deprivation of a right" (see No. 7742/76,

Dec. 7.7.78, D.R. 14, p. 146; No. 23131/93 cited above, p. 79).

To the extent that the applicant alleges that Section 19 para. 1

in conjunction with Section 3 para. 1 of Law No. 87/1991 prevented him

from recovering his property, the Commission notes that on

31 October 1990 the Poprad District Court quashed, ex tunc, the

confiscation decision of 1982 concerning the applicant's property.

However, despite his judicial rehabilitation in this respect, the

applicant's former right of ownership over the confiscated possessions

was still not capable of being effectively exercised since Section 23

para. 2 of Law No. 119/1990 expressly reserved the detailed provisions

regarding redress for later legislation.

Such provisions were laid down in Law No. 87/1991 and they

limited those who could claim restitution or damages for confiscated

property to citizens of the then Czech and Slovak Federal Republic

permanently residing on the territory of that State. The Commission

notes that the applicant did not fulfil these conditions. For this

reason, he was excluded, from the very moment of the entry into force

of Law No. 87/1991, from obtaining either restitution of his property

or compensation in lieu thereof.

The Commission notes that Law No. 87/1991 entered into force on

1 April 1991 and the six-months' period within which those eligible

could claim restitution of their property expired on 1 October 1991.

Thus, the relevant facts of the applicant's case are prior to

18 March 1992 whereas, as stated above, the Commission can examine

applications against the Slovak Republic only if they concern facts

which are subsequent to this date.

The Commission has noted that on 26 February 1997 the

Constitutional Court rejected the applicant's petition concerning this

issue. However, since under Slovak law the Constitutional Court lacked

jurisdiction to deal with the applicant's petition, the latter cannot

be regarded as an effective remedy capable of bringing the case within

the Commission's temporal jurisdiction.

It follows that the application is incompatible ratione temporis

with the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

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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IVANOVIC v. THE SLOVAK REPUBLIC

IVANOVIC v. THE SLOVAK REPUBLIC

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