Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31904/96

by Adolf ATLAS

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 September 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 22 February 1996

by Adolf ATLAS against the Slovak Republic and registered on

13 June 1996 under file No. 31904/96;

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 1898. He is retired

and resides in Kosice.

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

summarised as follows.

A. The particular circumstances of the case

The applicant's brother owned a villa in the spa of Bardejov. In

1949 he left Czechoslovakia. Before his departure he orally expressed

his wish that all his real property in Czechoslovakia should belong to

the applicant. The applicant's brother died in Israel in 1982.

The applicant's brother was formally registered as owner of the

aforesaid villa until 6 January 1950. As from that day, the

Czechoslovak State was entered in the land registry as its owner. The

applicant occupied the villa between 1949 and 1952.

In 1991 the applicant claimed restitution of his brother's villa.

On 14 October 1993 the Ministry of Health proposed to the applicant to

satisfy his claim by granting him shares of the company Slovak Spa in

Bardejov which was then in the process of being transformed into a

limited company.

The applicant disagreed with the above proposal. On

22 October 1993 he lodged a claim for restitution of the villa with the

Bardejov District Court (Okresny súd).

On 29 December 1994 the Bardejov District Court rejected the

applicant's claim. It held that pursuant to Section 3 para. 2 (c) of

Act No. 87/1991 (see "The relevant domestic law" below) the wife of the

applicant's brother was entitled to claim the restitution of the villa.

The court noted that she lived abroad and had not lodged such a claim.

On 31 January 1995 the applicant appealed. He claimed that the

first instance court had not taken into consideration that before his

departure from Czechoslovakia his brother had put his property at the

applicant's disposal. The applicant alleged that his brother's wife

had not claimed the restitution of the villa because she had respected

her husband's wish that the villa should belong to the applicant.

On 24 November 1995 the Kosice Regional Court (Krajsky súd)

dismissed the applicant's appeal. It recalled, with reference to the

Supreme Court's (Najvyssí súd) case-law, that Section 3 para. 2 of Act

No. 87/1991 listed the persons entitled to claim restitution in order

of precedence and that the existence of a person having precedence

excluded the entitlement of all other persons listed in Section 3

para. 2 subsequently.

The Regional Court concluded that as the wife of the applicant's

brother (i.e. a person falling under Section 3 para. 2 (c) of Act

No. 87/1991) was still alive, the applicant (i.e. a person falling

under Section 3 para. 2 (e) of Act No. 87/1991) was not entitled to

claim the restitution. The Regional Court considered it irrelevant

whether or not the wife of the applicant's brother had lodged a claim

for restitution of the villa in question.

B. Relevant domestic law

The judicial proceedings concerning the applicant's claim were

governed by Act No. 87/1991 of 21 February 1991 on Extrajudicial

Rehabilitation (Zákon o mimosúdnych rehabilitáciách). The purpose of

this Act was to redress certain infringements of property and other

rights which occurred between 1948 and 1989.

Section 3 para. 2 of Act No. 87/1991 provides that in cases when

the former owner of the property to be restored under that Act is no

longer alive, other persons are entitled to restitution of such

property in the following order:

a) testamentary heir who acquired the whole estate;

b) testamentary heir who acquired a part of the estate;

c) children and spouse of the former owner;

d) parents of the former owner;

e) brothers and sisters of the former owner.

COMPLAINTS

The applicant complains that the Slovak courts decided on his

claim for restitution arbitrarily as they misinterpreted Act

No. 87/1991 and did not take into consideration that he had been in

possession of the villa at issue between 1949 and 1952.

The applicant further complains about the refusal to restore the

villa to him and alleges a violation of Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains that the Slovak courts decided on his

claim for restitution arbitrarily.

The Commission will examine this complaint under Article 6

para. 1 (Art. 6-1) of the Convention which, insofar as relevant,

provides as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law..."

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (see No. 19890/92, Dec. 3.5.93, D.R. 74 p. 234;

No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88). Furthermore, the

Commission cannot review, in principle, the interpretation and

application of national law (see No. 10153/82, Dec. 13.10.86, D.R. 49

p. 67).

In the present case, both the Bardejov District Court and the

Kosice Regional Court examined the applicant's claim and found, for

reasons expressly stated in their judgments, that the applicant was not

entitled to have the property at issue restored.

In particular, the Regional Court recalled that Section 3 para. 2

of Act No. 87/1991 listed the persons entitled to claim restitution in

order of precedence and that the existence of a person having

precedence excluded the entitlement of all other persons subsequently

listed in the same paragraph. The Regional Court concluded that the

applicant was not entitled to have his brother's property restored as

Section 3 para. 2 of Act No. 87/1991 gave precedence in this respect

to the wife of his late brother.

In the Commission's view, this decision is not arbitrary.

Furthermore, the Commission has not been provided with any information

that would indicate that the proceedings concerning the applicant's

claim were not in conformity with the requirements laid down in

Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains about the refusal to restore his

brother's villa to him. 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 notes that the applicant, who has never been

formally registered as its owner, occupied his brother's villa between

1949 and 1952. The Commission considers that the dispossession of the

applicant which occurred in 1952, i.e. long before the entry into force

of the Convention with respect to the Slovak Republic, is to be

regarded as an instantaneous act which did not produce a continuing

situation of "deprivation of right" (see. No. 7742/76, Dec. 4.7.87,

D.R. 14 p. 146; No. 23131/93, Dec. 4.3.96, D.R. 85-A p. 65).

In the judicial proceedings subsequent to the entry into force

of the Convention with respect to the Slovak Republic the applicant

claimed restitution of the villa to which he considered himself

entitled pursuant to Section 3 para. 2 (e) of Act No. 87/1991.

However, the courts established that the wife of the applicant's

brother had precedence over the applicant in this respect and the

Commission has found above that this decision was not arbitrary.

Thus the relevant domestic law, as interpreted and applied by

Slovak courts, did not entitle the applicant to have his brother's

villa restored. His claim in this respect cannot, therefore, be

considered as a "possession" within the meaning of Article 1 of

Protocol No. 1 (P1-1) (see, mutatis mutandis, Eur. Court HR, Pressos

Compania Naviera S.A. and Others v. Belgium judgment of 20 November

1995, Series A no. 332, p. 21, para. 31; No. 23131/93, Dec. 4.3.96,

D.R. 85-A p. 65). The Commission further recalls that Article 1 of

Protocol No. 1 (P1-1) applies only to existing possessions and it does

not guarantee any right to acquire property (see No. 11628/85, Dec.

9.5.86, D.R. 47 p. 271, with further references).

It follows that this part of the application falls outside the

scope of Article 1 of Protocol No. 1 (P1-1) and must be rejected as

being incompatible ratione materiae with the provisions of 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

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ATLAS v. THE SLOVAK REPUBLIC

ATLAS v. THE SLOVAK REPUBLIC

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