Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25461/94

by Anna SEIDLOVÁ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 23 March 1994 by

Mrs. Anna SEIDLOVÁ against the Slovak Republic and registered on

21 October 1994 under file No. 25461/94;

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 citizen born in 1914. She is retired

and resides in Roznava.

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

summarised as follows.

In 1961 the applicant's husband and several other persons were

found guilty of larceny in that they had illegally dealt in meat which

belonged to a State-owned company. The courts found the husband

responsible for damage amounting to 152,962 crowns and considered him

as one of the principal organisers of the larceny. He was sentenced

to twelve years' imprisonment and subsidiarily to confiscation of his

property. In addition, he and his co-defendants had to compensate the

damage. In 1963 the applicant's husband died in prison.

Pursuant to the Judicial Rehabilitation Act 1991 the Prosecutor

General lodged a complaint with the Supreme Court (Najvyssí súd) in

which he alleged that the 1961 decision to confiscate the property of

the applicant's husband's three co-defendants was unlawful. On

25 March 1992 the Supreme Court quashed the decision challenged by the

Prosecutor General. The co-defendants, one of whom had also been

regarded as a principal organiser of the larceny, had been held

responsible for damage amounting to 83,200, 43,711 and 39,470 crowns,

respectively. In 1961 they had been sentenced respectively to ten and

six and a half years' imprisonment.

In the Supreme Court's view, the decision to confiscate the

property of the three co-defendants was disproportionate to the gravity

of the crime of which they had been found guilty and contradictory to

the aim of the punishment, namely the individual and general

deterrence.

The Supreme Court found that the confiscation bore no relation

to the offence committed, and that in any event the courts had also

ordered them to pay damages. The decision to confiscate the property

was not appropriate as the prison sentences imposed on the three

offenders were sufficiently severe as such. Finally, the Supreme Court

considered that in 1961 the courts had overestimated the aggravating

circumstances of the case without taking into due consideration the

fact that the accused had voluntarily admitted their criminal activity

and thereby facilitated the investigation.

On 8 December 1992 the Prosecutor General lodged a similar

complaint against the 1961 sentence by which the property of the

applicant's husband had been confiscated. He considered that the

penalty imposed on the husband was disproportionate and that it had

been motivated by political reasons. The Prosecutor General maintained

that neither the character and gravity of the offence committed by the

offender nor his personal situation had required the confiscation of

his property.

The Prosecutor General considered that the justification, in

1961, of the confiscation of the husband's property by the necessity

to deprive him of the material basis for committing further offences

had been unlawful as he had been a State employee and his

material situation had been in no relation to the offence of which he

had been found guilty. In addition to the confiscation of his

property, the husband had also been sentenced to pay damages to his

employer.

On 10 March 1993 the Supreme Court dismissed the Prosecutor

General's complaint. It noted that although the 1961 judgment

concerning the applicant's husband had been politically motivated, the

sentence was neither disproportionate nor contrary to the aim pursued.

The husband had been regarded as one of the principal organisers of the

larceny, and the damage for which he had been held responsible far

exceeded that caused by the three other co-defendants.

The Supreme Court found that in 1961 the courts had taken into

due account all particular circumstances of the case as regards the

applicant's husband, namely that the criminal activity served as a

source of income, that the damage caused by him exceeded eight years'

income in a public company, and that it was therefore not probable that

he would be able to pay the damages as ordered by the courts. For

these reasons, the Supreme Court had concluded that the decision to

confiscate his property was not unlawful.

The applicant considered that the Supreme Court had treated her

husband's case differently from those of his three co-defendants. She

introduced a petition before the Constitutional Court (Ústavny súd)

alleging a violation of the constitutional right to equality in dignity

and rights. On 22 September 1993 the Constitutional Court rejected the

petition as it found that the particular circumstances of the

applicant's husband's case were not identical with those of his co-

defendants.

COMPLAINTS

The applicant complains that the Supreme Court evaluated the

facts on which the decision to confiscate her husband's property had

been founded differently from those of the other co-defendants' cases.

She alleges that she was thereby deprived of a fair hearing by an

impartial tribunal within the meaning of Article 6 para. 1 of the

Convention.

She further alleges a violation of Article 1 of Protocol No. 1

in that the Supreme Court did not order the restitution of her

husband's property, notwithstanding that it had been confiscated in

violation of the Constitution of the Slovak Republic and the generally

recognised principles of international law.

Finally, the applicant complains that her husband's case was

treated differently from those of the other co-defendants despite the

identity of their particular circumstances. She alleges a violation

of the principle of equality of all persons before the tribunals

guaranteed by Article 14 para. 1 of the International Covenant on Civil

and Political Rights.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention which provides, so far as relevant, as

follows:

"In the determination of ... any criminal charge against him,

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

impartial tribunal established by law."

The Commission does not consider it necessary to examine whether

Article 6 (Art. 6) of the Convention applies to the proceedings at

issue since this part of the application is in any event inadmissible

for the following reasons.

To the extent that the applicant complains of the Supreme Court's

decision in her husband's case, the Commission recalls that it is not

called upon to decide whether or not the domestic courts have correctly

assessed the evidence before them (cf. No. 6172/73, Dec. 7.7.75, D.R.

3 p. 77, with further references) or 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 (cf. No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31, with further

references).

In the present case the Supreme Court examined the particular

circumstances of the case, evaluated the evidence which it had before

it and for reasons expressly stated in its decision of 10 March 1993

found no violation of the law as regards the confiscation of the

applicant's husband's property. The Commission considers that this

decision is neither grossly unfair nor arbitrary.

To the extent that the applicant alleges lack of impartiality of

the Supreme Court, the Commission notes that the impartiality of a

court cannot be put in doubt by the fact alone that it decided

differently in similar cases, and the applicant does not invoke any

other arguments in this respect.

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 alleges a violation of Article 1 of

Protocol No. 1 (P1-1) in that the Supreme Court did not quash the

decision by virtue of which her husband's property had been

confiscated.

In the present case the property was confiscated in 1961, and

according to the Commission's case-law deprivation of ownership or

another right in rem is in principle an instantaneous act which does

not produce a continuing situation of "deprivation of right" (cf. No.

7742/76, Dec. 4.7.78, D.R. 14 p. 146).

On 10 March 1993 the Supreme Court decided that the 1961 decision

to confiscate her husband's property was not unlawful and thereby

deprived the applicant of the possibility to acquire this property

anew. However, Article 1 of Protocol No. 1 (P1-1) "applies only to

existing possessions" and it does not guarantee, as such, any right to

acquire property (cf. No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271, with

further references).

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

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

3. Finally, the applicant complains, with reference to Article 14

para. 1 (Art. 14-1) of the International Covenant on Civil and

Political Rights, that the Supreme Court took a different decision in

her husband's case although its particular circumstances were identical

with those of his co-defendants' cases.

The Commission recalls that pursuant to Article 25 (Art. 25) of

the Convention it may only receive complaints of a violation of the

rights set forth in the Convention. However, the Commission considers

that in substance the applicant complains of discrimination and

considers it appropriate to examine this complaint under Article 14 of

the Convention in connection with Article 6 (Art. 14+6) of the

Convention.

In its decision of 10 March 1993 the Supreme Court noted, inter

alia, that the damage for which the applicant's husband had been held

responsible far exceeded that which the three other co-defendants had

caused. The Constitutional Court found that the particular

circumstances of the husband's case had not been identical with those

of his co-defendants, and the Commission does not find this decision

arbitrary.

In these circumstances the Commission considers that the

distinction objected to by the applicant is founded, inter alia, on

dissimilar factual circumstances and is consistent with the

requirements of Article 14 (Art. 14) of the Convention.

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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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SEIDLOVÁ v. THE SLOVAK REPUBLIC

SEIDLOVÁ v. THE SLOVAK REPUBLIC

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