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GASPARETZ v. the SLOVAK REPUBLIC

Doc ref: 24506/94 • ECHR ID: 001-2227

Document date: June 28, 1995

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Cited paragraphs: 0
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Outbound citations: 3

GASPARETZ v. the SLOVAK REPUBLIC

Doc ref: 24506/94 • ECHR ID: 001-2227

Document date: June 28, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 24506/94

by Alexander GASPARETZ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 25 January 1993

by Alexander GASPARETZ against the Slovak Republic and registered on

29 June 1994 under file No. 24506/94;

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 national born in 1953. He is a doctor

and resides in Levice.

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

summarised as follows.

In 1946 a spa in Sklené Teplice was confiscated from the

applicant's grandfather who was then of Hungarian nationality. The

confiscation took place pursuant to President Benes' 1945 Decree

No. 108 on Confiscation of the Enemies' Property and on Funds of

National Reconstruction. By virtue of the decree the property of

persons considered as "collaborators and enemies of the people" was

subject to confiscation without compensation. Although in 1949 the

applicant's grandfather received a certificate officially granting him

Slovak nationality, the confiscated property was not restored.

After 1989 the applicant sought restitution of his grandfather's

property. Under Act No. 229/1991 he claimed restitution of the

agricultural land belonging to the spa (which allegedly represents only

a minor part of the confiscated property). It appears from the

documents submitted that the proceedings are still pending.

With a view to having the spa restored (i.e. the principal part

of the confiscated property to which Act No. 229/1991 allegedly does

not apply) the applicant petitioned the Constitutional Court and the

Prosecutor General. He complained that President Benes' decrees are

incompatible with the Constitution of the Slovak Republic. He received

no reply from the Prosecutor General. As to the Constitutional Court,

he was informed that under Slovak law individuals lack the capacity to

introduce proceedings on constitutional conflicts.

On 7 February 1994 the applicant introduced a new petition with

the Constitutional Court. He claimed restitution of the confiscated

property.

On 12 April 1994 the Constitutional Court rejected the petition.

It noted, in particular, that it lacked jurisdiction in matters

concerning restitution of estates and movables confiscated in the past

and that these issues were, by virtue of special laws enacted in 1990

and 1991, within the competence of other State organs. The

Constitutional Court held further that since the applicant had failed

to claim restitution of his grandfather's property pursuant to the

aforesaid laws, he could not complain about violation of his rights

before the Constitutional Court. The constitutional petition had

therefore no legal basis under Slovak law.

COMPLAINTS

The applicant alleges that by virtue of President Benes' decree

No. 108 his family's right to enjoyment of their possessions was and

still is violated. He claims the restitution of the confiscated

property (to the extent that it was not recoverable under Act

No. 229/1991). He alleges a violation of Article 8 of the Convention

and of Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains of the confiscation, in 1946, of his

grandfather's property and claims the restitution of its major part

which is not recoverable under Slovak law. He alleges a violation, in

this respect, of his rights guaranteed by Article 1 of Protocol No. 1

(P1-1) which provides, so far as relevant, 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."

a) To the extent that the applicant complains of the confiscation

of his grandfather's property, the Commission recalls that the

Convention only governs, for each Contracting Party, facts subsequent

to its entry into force with respect to that Party.

However, in the present case the confiscation of property took

place in 1946, i.e. at a period prior to both 18 March 1992 which is

the date of ratification of the Convention by the former Czech and

Slovak Federal Republic, and to 1 January 1993 which is the date of the

entry into force of the Convention with respect to the Slovak Republic.

The Commission further recalls its constant case-law according

to which 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 p. 146; No. 21344/93, Szechenyi v. Hungary, Dec. 30 June 1993,

unpublished).

The proceedings before the Constitutional Court cannot be

considered as an effective remedy capable of bringing the case within

the Commission's competence ratione temporis as under Slovak law the

Constitutional Court lacked jurisdiction to deal with the applicant's

case.

The letter which the applicant addressed to the Prosecutor

General does not affect the position as under the Commission's case-law

an extraordinary remedy, the use of which depends on the discretionary

power of a public authority, cannot be considered as effective (cf.

No. 8395/78, Dec. 16.12.81, D.R. 27 p. 50; No. 21344/93).

It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention within the

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

b) To the extent that the applicant claims restitution of the

confiscated property, the Commission recalls that 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.

2. Finally, the applicant alleges a violation of Article 8 (Art. 8)

of the Convention. The Commissions notes, however, that the applicant

failed to substantiate this complaint.

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)

LEXI

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