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

5 July 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

Mr. M. de SALVIA, Deputy 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

Antonín NOHEJL against the Czech Republic and registered on

14 April 1994 under file No. 23889/94;

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, a Czech citizen born in 1933 in Prague and

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

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

summarised as follows.

A. The particular circumstances of the case

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 emigration. A

two-month sentence was imposed and all his property was confiscated.

Due to this conviction, an amount of Kc 32,680.00 was paid out to the

state as a remuneration for the applicant's patents.

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

accordance with Law No. 119/1990 on Judicial Rehabilitation (Zákon o

soudní rehabilitaci).

In June 1990, the applicant's father died and the applicant and

his sister inherited the whole of the first building and one third of

the second one.

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

request to the Housing Association of Prague 5 (Bytovy podnik Praha 5),

which was then the owner of the property, asking that until the time

new legal regulations are issued (Law on Extra-judicial

Rehabilitation), 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 (Zákon

o mimosoudních rehabilitacích) to the Housing Association of Prague 5,

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 by the decision of the State

Notary's Office of Prague 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 has received no reply to the letter.

On 27 November 1993, the applicant made a constitutional appeal

to the Constitutional Court. He submitted that Article 3 of Law

No. 87/1991 - which limited the rights of applicants to those who have

their permanent residence on the territory of the Czech Republic was

not compatible with the Czech Constitution, Article 1 of Protocol No. 1

and Article 14 of the Convention.

By letter of 17 December 1993, a judge of the Constitutional

Court informed the applicant about formalities of a constitutional

complaint without stating shortcomings in the applicant's appeal. The

judge asked the applicant to fulfil the formalities by

28 February 1994.

On 8 February 1994, the applicant sent to his counsel in Prague

his power of attorney which due to delay in delivery was received by

the counsel only on 26 February 1994.

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

applicant that a constitutional appeal could not have been 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 inadmissible the applicant's constitutional appeal for its

formal shortcomings.

By decision dated 12 July 1994, 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 from

1 April 1992 for making claims against individuals to whom property had

already been transferred.

On 27 October 1994, the applicant's sister sold the first

building without the applicant's knowledge to a company N. 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 sale

agreement of 27 October 1994.

By letter of 14 February 1995, the applicant's counsel informed

the applicant that even though he is now technically an entitled person

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

for restitution of the property would appear to be unsuccessful. 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, as an entitled person, to have the

property returned to him.

On 17 April 1995, the applicant made a request under the

Constitutional Court's decision of 12 July 1994 to the Prague 5

District Court for the restitution of the confiscated remuneration for

his patents.

B. Relevant domestic law

Law No. 87/1991 on Extra-judicial Rehabilitation

Article 3

[Translation]

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

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

Law, provided such a person is a citizen of the Czech and Slovak

Federal Republic and is permanently residing on its territory."

[Original]

"1. Oprávnenou osobou je fyzická osoba, jejíz vec presla do

vlastnictví státu v prípadech uvedenych v § 6 zákona, pokud je

státním obcanem Ceské a Slovenské Federativní Republiky a má

trvaly pobyt na jejím území."

Article 5

[Translation]

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

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

property and specified the way of its transfer to the State ...

If there are more entitled persons ... and only some of them

lodge their claim, the whole property shall be surrendered to

them.

2. An entitled person shall call on the mandated person to

surrender the property within six months from the date of the

coming into force of this law; otherwise the claim expires.

3. A mandated person shall conclude an agreement with an

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 an agreement, in cases where

real property is concerned, shall be subject to registration by

the State Notary ...

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

not satisfied can make a 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."

[Original]

"1. Povinná osoba vydá vec na písemnou vyzvu oprávnené osobe,

jez prokáze svuj nárok na vydání veci a uvede zpusob jejího

prevzetí státem ... Je-li oprávnenych osob více a nárok na vydání

veci uplatní ... jen nekteré z nich, vydá se jim vec celá.

2. K vydání vyzve oprávnená osoba povinnou osobu do sesti

mesícu ode dne úcinnosti tohoto zákona, jinak její nárok zanikne.

3. Povinná osoba uzavre s oprávnenou osobou dohodu o vydání

veci a vec jí vydá nejpozdeji do triceti dnu po uplynutí

lhuty uvedené v odstavci 2. Tato dohoda podléhá, pokud jde

o nemovitost, registraci státním notárstvím ...

5. Byla-li vec vydána, mohou osoby, jejichz nároky uplatnené

... nebyly uspokojeny, tyto nároky uplatnit u soudu vuci osobám,

kterym byla vec vydána, do jednoho roku ode dne úcinnosti tohoto

zákona."

Article 6

[Translation]

"1. The obligation to surrender property shall be applied 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, ..."

[Original]

"1. Povinnost vydat vec se vztahuje na ty prípady, kdy v

rozhodném období vec presla na stát

...

d) smlouvou o darování nemovitosti uzavrenou dárcem v tísni,

..."

Constitution of the Czech Republic

Article 87

[Translation]

"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 ..."

[Original]

"1. Ústavní soud rozhoduje

a) o zrusení zákonu nebo jejich jednotlivych ustanovení, jsou-

li v rozporu s ústavním zákonem nebo mezinárodní smlouvou ... ;

...

d) o ústavní stíznosti proti ... rozhodnutí a jinému zásahu

orgánu verejné moci do ústavne zarucenych základních práv a

svobod, ..."

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

Article 72

[Translation]

"1. A constitutional complaint 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 ..."

[Original]

"1. Ústavní stíznost jsou oprávneni podat

a) fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo

jinym zásahem orgánu verejné moci bylo poruseno její základní

právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní

smlouvou ..."

Article 74

[Translation]

"Together with a constitutional complaint a proposal may be made

for abrogation of a law or other legal regulations or particular

provisions the application of which has raised issues which are

the subject of the constitutional complaint provided they are,

according to the applicant, inconsistent with a constitutional

law or an international agreement ...".

[Original]

"Spolu s ústavní stízností muze byt podán návrh na zrusení zákona

nebo jiného právního predpisu anebo jednotlivych ustanovení,

jejichz uplatnením nastala skutecnost, která je predmetem ústavní

stíznosti, jestlize podle trvrzení stezovatele jsou v rozporu s

ústavním zákonem nebo mezinárodní smlouvou ...".

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 constitute a discrimination against him, also

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 being successful in view of the provision of Article 3 of Law

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

available to him.

3. He maintains, in substance, 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 guaranteed by Article 2 of Protocol No. 4.

4. Finally, the applicant also alleges violation of Article 1 of

Protocol No. 1 to the Convention also in respect of restitution

proceedings concerning return of the moneys awarded for patent work.

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 (P1-1) and

Article 14 (Art. 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.

He 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 guaranteed

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

The Commission considers that it cannot, on the basis of the

applicant's submissions, determine the admissibility of these

complaints and that it is therefore necessary, in accordance with Rule

48 para. 2 (b) of the Rules of Procedure, to communicate this part of

the application to the respondent Government.

2. The applicant also alleges violation of Article 1 of Protocol No.

1 (P1-1) to the Convention in respect of restitution proceedings

concerning return of the moneys awarded for patent work. However,

these proceedings are still pending before the Czech court, and so this

part of the application is premature.

It follows that this part of the application must be rejected

under Article 27 (Art. 27) of the Convention.

For these reasons, the Commission, by a majority

DECIDES TO ADJOURN its examination of the complaints concerning

the use and enjoyment of the applicant's property;

and, unanimously

DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

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NOHEJL v. the CZECH REPUBLIC

NOHEJL v. the CZECH REPUBLIC

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