Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23889/94

by Antonín NOHEJL

against the Czech Republic

The European Commission of Human Rights sitting in private on

13 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 March 1993 by

Mr. Antonín NOHEJL against the Czech Republic and registered on

14 April 1994 under file No. 23889/94;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 5 October 1995 and the observations in reply submitted

by the applicant on 22 October, 3 and 4 November 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Czech citizen born in 1933 in Prague and

residing at Surbiton, the United Kingdom, is a company director.

A. The particular circumstances of the case

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

summarised as follows.

In 1960, the applicant's family had to give up to the State two

blocks of flats in its ownership.

In 1968, the applicant left Czechoslovakia and started to work

in the United Kingdom where he is permanently residing. On 13 January

1972, in his absence, he was convicted for illegal emigration. A two-

month sentence was imposed and all his property was confiscated. Due

to this conviction, an amount of Kc 32,680.00 representing remuneration

for the applicant's patents was paid out to the State.

In 1990, this conviction was annulled ex lege and ex tunc in

accordance with Law No. 119/1990 on Judicial Rehabilitation.

In June 1990, the applicant's father died. The applicant and his

sister were the heirs.

On 9 and 15 November 1990, the applicant made a preliminary

request to the Housing Association of Prague 5 (Bytovy podnik v Praze

5), which was then the owner of the two blocks of flats, asking that

until new legal regulations were issued, nothing should be done with

the property that could restrict the exercise of his rights as an

owner.

In May 1991, the applicant's sister made a request under

Article 3 of Law No. 87/1991 on Extra-Judicial Rehabilitation to that

Housing Association, for an agreement concerning restitution of the

whole of the first building and one third of the second one.

On 17 October 1991, the Housing Association concluded an

agreement with the applicant's sister concerning restitution of both

buildings. The agreement was registered with the State Notary's Office

of Prague 5 (Státní notárství pro Prahu 5) on 8 January 1992. The

applicant was not informed.

By letter of 23 November 1991, the applicant made a request to

the Housing Association of Prague 5 for the return of his part of the

property provided that the building was to be returned to his sister.

The Housing Association replied that his claim would be considered.

By letter of 25 February 1992, the applicant asked the State

Notary's Office for information about the current position of his

claim. He received no reply to the letter.

On 27 November 1993, the applicant made a constitutional appeal.

He submitted that Article 3 of Law No. 87/1991, which limited the

rights of applicants to those who have their permanent residence in the

Czech Republic was not compatible with the Constitution, Article 1 of

Protocol No. 1 and Article 14 of the Convention.

On 17 December 1993, a judge of the Constitutional Court (Ústavní

soud) informed the applicant about the formalities of a constitutional

appeal and asked the applicant to comply with those formalities by

28 February 1994.

On 8 February 1994, the applicant sent a form of authority to his

lawyer. The form was received by the lawyer only on 26 February 1994.

By letter of 25 March 1994, the applicant's lawyer informed the

applicant that a constitutional appeal could not be completed and

lodged within the given period because he had not received a copy of

the complaint filed by the applicant on 27 November 1993.

In the meantime, on 1 March 1994, the Constitutional Court

declared the applicant's constitutional appeal inadmissible on the

ground of its formal shortcomings.

On 12 July 1994, upon a constitutional appeal lodged by members

of Parliament, the Constitutional Court annulled the requirement of

permanent residence in the Czech Republic for restitution of property

under Law No. 87/1991. The decision enabled persons whose permanent

residence was not on the territory of the Czech Republic to apply for

restitution. The decision set up a new six months' period for

restitution claims from 1 November 1994 to 30 April 1995, but did not

affect the period of one year for making claims against individuals to

whom property had already been transferred.

On 27 October 1994, without the applicant's knowledge, the

applicant's sister sold the first building to a company for

Kc 2,800,000.

On 16 December 1994, the applicant addressed to his sister two

requests for surrender of one half of the first building and one sixth

of the second one. In the alternative, he asked for Kc 1,400,000

corresponding to one half of the amount agreed upon in the sales

agreement of 27 October 1994.

On 14 February 1995, the applicant's lawyer informed the

applicant that even though he was now technically an entitled person

within the meaning of the Constitutional Court's decision, his request

for restitution would appear to be without prospects. He explained

that in his case the essential element was Article 5 of Law No. 87/1991

according to which, if property had been returned, persons whose claims

were not satisfied could make a claim against persons to whom the

property had been returned within a period of one year from the date

of the coming into force of this law, i.e. by 1 April 1992. He noted

that the Constitutional Court had not provided for an extension of this

one-year period, which had therefore expired and the applicant had no

possibility to have the property returned to him.

B. Relevant domestic law

Law No. 119/1990 on Judicial Rehabilitation [Translation]

Article 2

"1. Valid sentences imposed from 25 February 1948 till

1 January 1990 in respect of acts committed after 5 May 1945,

... b) under Law No. 231/1948, in respect of crimes and

offences ... of unauthorised departure from the territory

of the Republic and failure to obey the invitation to

return ..., as well as any other decisions in the same

criminal matter resulting from follow-up proceedings are

annulled."

Article 23

"...

2. The conditions under which claims arising from annulled

sentences involving forfeiture of property ... may be submitted,

including the form of compensation and scope of such claims,

shall be regulated by a special law."

Law No. 87/1991 on Extra-Judicial Rehabilitation [Translation]

Article 1

"1. The law is aimed at mitigating the consequences of some

property and other injuries caused by ... judicial and

administrative acts, performed between 25 February 1948 and

1 January 1990 in contradiction of the principles of a democratic

society ...

2. The law also regulates the conditions for making claims

arising from cancelled sentences involving forfeiture of property

..., as well as the manner of compensation and the extent of

these claims."

Article 3

"1. An entitled person is a physical person whose property has

been transferred to the State in the cases stated in Article 6

of this law, provided such a person is a citizen of the Czech and

Slovak Federal Republic and is permanently residing on its

territory."

Article 4

"1. Mandated persons are the State or legal entities who are in

possession of the property on the day of entry into force of this

law ..."

Article 5

"1. A mandated person shall surrender property upon a written

request from an entitled person who has proved his claim to the

property and specified the way it was transferred to the State

... If there are more than one entitled person ... and only some

of them lodge a claim, the whole property shall be surrendered

to them.

2. The entitled person shall within six months from the date

of the coming into force of this law call on the mandated person

to surrender the property; otherwise the right expires.

3. The mandated person shall conclude an agreement with the

entitled person about the surrender of property and the property

shall be surrendered within thirty days after the expiry of the

period stated in paragraph 2. ... such agreement shall be

subject to registration by the State Notary ...

4. If the mandated person refuses to surrender the property

..., the entitled person may introduce a judicial request in the

period of one year from the date of the coming into force of this

law.

5. If property has been returned, persons whose claims were

not satisfied may claim against persons to whom the property was

returned within a period of one year from the date of the coming

into force of this law."

Article 6

"1. The obligation to surrender property shall apply to those

cases where the property has been transferred to the State during

the stated period

...

(d) by a gift agreement made by a donor under duress, ..."

Constitution of the Czech Republic [Translation]

Article 10

"Ratified and promulgated international treaties on human rights

and fundamental freedoms, by which the Czech Republic is bound,

shall be directly applicable and take priority over the law."

Article 87

"1. The Constitutional Court shall decide on:

(a) abrogation of laws or their particular provisions if they

are inconsistent with a constitutional law or an international

agreement ... ;

...

(d) constitutional complaints made against ... decisions or

other interferences by a 'public organ' with the fundamental

rights and freedoms guaranteed by a constitutional law ..."

Law No. 182/1993 on the Constitutional Court of the Czech Republic

[Translation]

Article 72

"1. A constitutional appeal may be made by:

(a) any physical person ... claiming to be the victim of a

violation by ... a decision or an act of interference by a

'public organ' with the rights or liberties set forth in a

constitutional law or an international treaty ..."

Article 74

"Together with a constitutional appeal a proposal may be made for

abrogation of a law ... the application of which has raised

issues which are the subject of the constitutional appeal

provided they are, according to the applicant, inconsistent with

a constitutional law or an international agreement ..."

COMPLAINTS

1. The applicant complains about being denied the use and enjoyment

of his property. He claims that Law No. 87/1991 denied him the right

to apply for restitution of his private property. He states that this

denial of the use of his private property continues to be to his

personal detriment and constitutes discrimination against him, even

after the Constitutional Court decision of 12 July 1994. He invokes

Article 1 of Protocol No. 1 and Article 14 of the Convention.

2. He states that since he could not personally pursue the case in

Czech courts because proceedings brought by him would have had no

chance of success in view of the provision of Article 3 of Law

No. 87/1991, no effective remedy before a national authority was

available to him. He invokes, in substance, Articles 6 para. 1 and 13

of the Convention.

3. He maintains that Law No. 87/1991 denies him the right to his

property on the ground that he has exercised his right to leave his

country as guaranteed by Article 2 of Protocol No. 4.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 March 1993 and registered

on 14 April 1994.

On 5 July 1995 the Commission decided to give notice of the

application to the Czech Government and to invite them to present their

observations in writing on the admissibility and merits of the

complaint about the denial of the use and peaceful enjoyment of the

applicant's property within the meaning of Article 1 of Protocol No. 1

in conjunction with Article 14 of the Convention. It declared the

remainder of the application inadmissible.

The respondent Government's observations were submitted on

5 October 1995.

The applicant submitted observations in reply on 22 October 1995

and further observations on 3 and 4 November 1995.

THE LAW

1. The applicant complains about being denied the use and enjoyment

of his property in view of Law No. 87/1991 on Extra-Judicial

Rehabilitation. He claims that he is discriminated against by this

denial of the use of his private property which continues to be to his

personal detriment after the Constitutional Court's decision of 12 July

1994. He invokes Article 1 of Protocol No. 1 and Article 14

(P1-1, 14) of the Convention.

He states that he could not personally pursue the case in Czech

courts because proceedings brought by him would have had no chance of

success.

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

"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 14 (Art. 14) of the Convention provides:

"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 Government submit that there is no judicial decision on the

merits of the case. It is true that on 27 November 1993 the applicant

made a constitutional appeal to the Constitutional Court. However, the

Constitutional Court did not examine the merits of the applicant's

appeal because he failed to comply with the formalities set by Law

No. 182/1993 on the Constitutional Court. The Government thus claim

that the applicant has not exhausted the domestic remedies at his

disposal and submit that the application should be declared

inadmissible on this ground.

The Government further note that by virtue of the waiver of the

requirement of permanent residence provided for in the Constitutional

Court's decision of 14 July 1994, the applicant was classified as an

entitled person within the meaning of the provisions of Article 3 para.

1 of Law No. 87/1991 on Extra-Judicial Rehabilitation and was free to

submit his claim to the mandated person, i.e. the Prague 5 Housing

Association, pursuant to the provisions of Article 5 para. 2 of this

law, within six months of the effective date of the Constitutional

Court's decision, that is by 1 May 1995. In the event of failure to

satisfy the claim on the part of the mandated person, the applicant

should have submitted his claim to the court within one year, i.e. by

1 November 1995, and assert his right to peaceful enjoyment of

possessions on the basis of the provisions of Article 5 para. 4 of the

above law.

As regards the applicant's allegation that he could not pursue

the case in the Czech Republic, the Government submit that Czech law

provides adequate safeguards of the right to invoke before its courts

fundamental rights and freedoms guaranteed by domestic law as well as

by international treaties on human rights and fundamental freedoms

which are binding on the Czech Republic.

The Government conclude that the applicant did not make any

attempt to assert his right to the peaceful enjoyment of possessions

by means of the procedure of extrajudicial rehabilitation determined

by Law No. 87/1991. Thus, no interference with the applicant's rights

can be found and the application should be declared manifestly ill-

founded.

The applicant does not accept the Government's reasoning

concerning the competence of the Commission and considers that the

Commission is competent ratione temporis to examine his case.

The applicant also claims that the court proceedings referred to

by the Government could not have been brought. He submits that the

mandated person, i.e. Prague 5 Housing Association, would have replied

to his demand by pointing out that restitution of the property was

impossible because it had already been restored in accordance with

Article 3 of Law No. 87/1991, on account of which it was no longer in

its possession. Had the applicant appealed pursuant to Article 5

para. 4 of this law, as the Government suggest in their observations,

the court would have refused his claim, pointing out that the mandated

person had already restored the property.

He would have been referred to Article 5 para. 5, specifically

designed to deal with such cases. However, the period of one year for

demanding redress from the person to whom the property had been

restored, has expired and he cannot now recover his property.

The Commission first recalls that it is not competent to examine

complaints concerning facts which relate to a period prior to the date

of the entry into force of the Convention with respect to each

Contracting Party. The Commission also notes that deprivation of

ownership or another right in rem is in principle an instantaneous act

and does not produce a continuing situation of "deprivation of right"

(cf. No. 7742/76, Dec. 4.7.78, D.R. 14 pp. 146, 168).

In the present case, the property in question is the property

which the applicant's family gave up to the State in 1960. The

applicant had no property interest in the buildings when his sister

applied for a transfer (in May 1991), as he was precluded by the

residence condition from requesting transfer to him.

The Commission notes that the transfer of the property to the

applicant's sister was registered on 8 January 1992, which was before

18 March 1992, the date of the entry into force of the Convention in

respect to the Czech Republic [Czech and Slovak Federal Republic], and

nothing since then has changed the applicant's position. In

particular, the decision of the Constitutional Court of 12 July 1994

could not create a property right for the applicant, as by then the

property had been vested in his sister. Moreover, the constitutional

proceedings which the applicant did bring cannot give rise to a

property right because the applicant had not brought ordinary

restitution proceedings, and in any event he failed to comply with the

procedural requirements of domestic law in connection with these

constitutional proceedings.

Accordingly, the applicant's complaint falls outside the

competence ratione temporis of the Commission.

As regards the applicant's allegation that the denial of use of

his private property continues to be to his personal detriment, the

Commission recalls that the Convention does not guarantee the right to

restitution of property (cf. mutatis mutandis, No. 23131/93, Dec.

4.3.1996). In this regard, the application falls outside the

competence ratione materiae of the Commission.

Finally, having regard to its findings in regard to the

applicant's complaints under Article 1 of Protocol No. 1 (P1-1), the

Commission finds that no further issue arises, either under Article 6

para. 1 (Art. 6-1) or under Article 13 (Art. 13) of the Convention.

It follows that this part of the application is therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant maintains, in substance, that Law No. 87/1991 on

Extra-Judicial Rehabilitation denies him the right to his property on

the ground that he has exercised his right to leave his country as

guaranteed by Article 2 of Protocol No. 4 (P4-2).

The Commission already noted that the property concerned is the

property which the applicant's family had to give up to the State in

1960. In these circumstances, the confiscation of property following

the applicant's conviction for unlawful emigration in 1972 did not

concern the property at issue.

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 INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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NOHEJL v. THE CZECH REPUBLIC

NOHEJL v. THE CZECH REPUBLIC

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