Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30904/96

by Ján PECHANEC

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 30 October 1995

by Ján PECHANEC against the Slovak Republic and registered on

1 April 1996 under file No. 30904/96;

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 Slovak national born in 1914. He is retired

and resides in Staten Island, USA. Before the Commission the applicant

is represented by H. Bognerová, a lawyer practising in Trencín.

The facts of the case, as submitted by the applicant may be

summarised as follows.

A. Particular circumstances of the case

On 27 July 1954 the Trencín People's Court (Ludovy súd) found

that the applicant had concealed and unlawfully dealt with precious

metals, watches and jewellery. The applicant was convicted of three

offences and sentenced to two years' imprisonment. Subsidiarily, the

court ordered confiscation of the applicant's property and imposed a

fine on him. The applicant's movable and real property was confiscated

by the Czechoslovak State.

On 23 November 1990 the Trencín District Court (Okresny súd)

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 two of the aforesaid

offences and discontinued the proceedings against the applicant in this

respect. At the same time the District Court quashed, ex tunc, all

other decisions by which additional penalties had been imposed on the

applicant.

As to the third offence of which the applicant had been convicted

in 1954, the District Court imposed a year's prison sentence on the

applicant. The court noted that the applicant had served that sentence

already and did not consider it appropriate to impose any accessory

penalty in this respect.

The General Prosecutor considered that the conviction of the

applicant, in 1954, of the third offence had been unlawful and lodged

a complaint in the interest of the law (staznost pre porusenie zákona)

on the applicant's behalf.

On 10 June 1992 the Supreme Court (Najvyssí súd) found that the

conviction of the applicant of the third offence had been unlawful and

quashed the corresponding part of the People's Court's judgment of 1954

and all subsequent decisions relating to this issue. The Supreme Court

further found that the offence in question fell under the presidential

amnesty of 1 January 1990 and discontinued the proceedings concerning

this count.

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 governs compensation for damage to which persons

rehabilitated under Law No. 119/1990 are entitled. Para. 1 of

Section 23 provides that the persons concerned shall be compensated,

inter alia, for loss of earnings due to their detention and

imprisonment, for the costs incurred by them in connection with the

criminal proceedings against them, their detention and imprisonment,

for the lawyer's fees in the original criminal proceedings against them

as well as for the pecuniary penalties paid by such persons.

Para. 2 of Section 23 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 (Zákon o mimosúdnych rehabilitáciách) 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 because of the requirement of

permanent residence laid down in Section 19 para. 1 in conjunction with

Section 3 para. 1 of Law No. 87/1991 on Extrajudicial Rehabilitation

he is prevented from recovering his property which had been confiscated

by virtue of the judgment of 27 July 1954 or obtaining compensation in

lieu thereof. He alleges that the aforesaid requirement interferes

with his rights under Article 1 of Protocol No. 1 and Article 3 of

Protocol No. 7.

THE LAW

The applicant complains that he cannot obtain restitution of his

property or compensation in lieu thereof. He alleges that there is an

incompatibility between, on the one hand, Article 1 of Protocol No. 1

and Article 3 of Protocol No. 7 (P1-1, P7-3) and, on the other hand,

Section 19 para. 1 in conjunction with Section 3 para. 1 of Law No.

87/1991 on Extrajudicial Rehabilitation under which permanent residence

in the Slovak Republic (and until 31 December 1992 in the former Czech

and Slovak Federal Republic) is a condition for eligibility to claim

restitution of confiscated property.

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

Article 3 of Protocol No. 7 (P7-3) provides a as follows:

"When a person has by a final decision been convicted of a

criminal offence and when subsequently his conviction has been

reversed, or he has been pardoned, on the ground that a new or

newly discovered fact shows conclusively that there has been a

miscarriage of justice, the person who has suffered punishment

as a result of such conviction shall be compensated according to

the law or the practice of the State concerned, unless it is

proved that the non-disclosure of the unknown fact in time is

wholly or partly attributable to him."

The Commission recalls that it can examine applications only to

the extent that these relate to events occurring after the Convention

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

Commission found earlier that it has jurisdiction to examine

applications against the Slovak Republic concerning matters which are

subsequent 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 1954, i.e. long 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 or receiving compensation for its

confiscation, the Commission notes that on 23 November 1990 the Trencín

District Court quashed, ex tunc, the confiscation decision of 1954

concerning his 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 the aforesaid permanent

residence condition. 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 30 September 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 these concern facts

which are subsequent to this date.

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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

PECHANEC v. THE SLOVAK REPUBLIC

PECHANEC v. THE SLOVAK REPUBLIC

LEXI