SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44912/98 by Juraj KOPECKÝ against Slovakia

The European Court of Human Rights (Second Section) , sitting on 1 February 2001 as a Chamber composed of

Mr A.B. Baka , President , Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mr A. Kovler , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 August 1998 and registered on 10 December 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1921 and living in Brezová pod Bradlom . He is represented before the Court by Mrs R. Smy čková , a lawyer practising in Bratislava. The respondent Government are represented by Mr P. Vr šanský , their Agent.

A. The circumstances of the case

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

On 12 February 1959 the applicant’s father was convicted of an offence on the ground that he had kept, contrary to the regulations then in force, 131 gold coins and 2,151 silver coins. He was sentenced to one year’s imprisonment. He was also fined and the coins were confiscated.

On 1 April 1992 the Supreme Court of the Slovak Republic (Najvyšší súd ) quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act (see “Relevant domestic law” below), the judgment of 12 February 1959 including all consequential decisions and discharged the applicant’s late father.

On 30 September 1992 the applicant claimed the restitution of his father’s coins under the Extra-Judicial Rehabilitations Act.

On 19 September 1995 the Senica District Court ( Okresný súd ) granted the action and ordered the Ministry of the Interior to restore the coins to the applicant. The court established that the coins had been confiscated on 21 November 1958 and that they had been transmitted to the Regional Administration of the Ministry of the Interior in Bratislava on 12 December 1958. On 19 December 1958 the coins were examined by an expert and inventoried in the premises of the Regional Administration in Bratislava.

In its judgment the District Court noted that the defendant Ministry had not shown that the coins had been transferred to another place or authority. In the court’s view, the applicant could not reasonably be required to indicate where the coins were as he was not allowed to enter the premises of the Ministry of the Interior.

On 1 December 1995 the Ministry of the Interior appealed. Its representative argued that all relevant documents had been destroyed and that the onus of proof as regards the deposit of the coins lay on the applicant.

On 29 January 1997 the Bratislava Regional Court ( Krajský súd ) dismissed the applicant’s action. It found, with reference to Sections 4 (1), 5 (1) and 20 (1) of the Extra-Judicial Rehabilitations Act, that the applicant failed to show where the coins had been deposited when this Act had entered into force on 1 April 1991. The Regional Court admitted that the applicant had limited possibilities of locating his father’s property. It therefore took further evidence of its own initiative. However, the coins could not be traced.

On 27 January 1998 the Supreme Court ( Najvyšší súd ) dismissed the applicant’s appeal on points of law. It shared the Regional Court’s view according to which the applicant had failed to produce evidence that the defendant Ministry possessed the coins as required by Section 5 (1) of the Extrajudicial Rehabilitations Act. In the Supreme Court’s view, Section 5 (1) exclusively provided for restitution in natura of movable property which had been taken away by a public authority. The Supreme Court’s judgment was served on 25 February 1998.

B. Relevant domestic law

Judicial Rehabilitation Act of 1990

The purpose of Act No. 119/1990 on Judicial Rehabilitation (Zákon o súdnej rehabilitácii ) is, in accordance with Section 1, to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms, to ensure social rehabilitation of the persons concerned and to provide them with adequate material compensation.

Under Section 23 (2), the conditions under which the provisions of the Act shall apply to claims resulting from quashed confiscation decisions as well as the manner of redress and the scope of such claims are to be determined in a separate law.

Extra-Judicial Rehabilitations Act of 1991

Act No. 87/1991 on Extra-Judicial Rehabilitations ( Zákon o mimosúdnych rehabilitáciách ) entered into force on 1 April 1991.

Under Section 1 (2), one of the aims of the Act is to lay down the conditions under which it applies to claims resulting from quashed confiscation decisions, the manner of redress and the scope of such claims.

Section 4 (1) provides that the State or any legal person having confiscated property in its possession at the date of the entry into force of the Act are obliged to restore such property to its former owner.

Pursuant to Section 5 (1), a person obliged to make restitution shall do so upon a written request by the person concerned provided that the latter proves that he or she is entitled to restitution and shows in which way the property was confiscated by the State. In cases of movable property, the person concerned is further required to show where the property is.

Section 20 (1) provides that the persons obliged to restore property comprise any legal person referred to in Section 4 (1), any natural person referred to in Section 4 (2) who acquired such property from the State and the competent central government authority.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning his claim were unfair in that the appellate court and the Supreme Court shifted an excessive burden of proof on him and decided arbitrarily.

2. The applicant complains that, as a result of the dismissal of his claim, he was prevented from peacefully enjoying his father’s property which he was entitled to have restored. He alleges a violation of Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains that the proceedings concerning his claim were unfair in that the appellate court and the Supreme Court shifted an excessive burden of proof on him and decided arbitrarily. He alleges a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case the Bratislava Regional Court dismissed the applicant’s claim on the ground that he had failed to show, as required by Section 5 (1) of the Extra-Judicial Rehabilitations Act, where the coins had been deposited when this Act had entered into force on 1 April 1991. The Regional Court admitted that the applicant had only limited possibilities of locating his father’s property and attempted, of its own initiative, to establish where the coins were. Subsequently the Supreme Court upheld this position. It found that Section 5 (1) of the Extra-Judicial Rehabilitations Act exclusively provided for restitution of movable property which could be identified.

In the Court’s view, both the appellate court and the Supreme Court gave sufficient and relevant reasons for their judgments which do not appear to be arbitrary. Furthermore, the Court finds no appearance of unfairness in the manner in which the domestic courts dealt with the applicant’s case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains that, as a result of the dismissal of his claim, he was prevented from peacefully enjoying his father’s property which he was entitled to have restored. He alleges a violation of Article 1 of Protocol No. 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 Government refer to the decision of the European Commission of Human Rights in the case of Bre žný v. Slovakia (no. 23131/93, decision of 4 March 1996, DR 85-B, pp. 65-83). They maintain that the applicant failed to comply with the formal requirements for restitution of property laid down in the Extra-Judicial Rehabilitations Act and that his claim cannot therefore be regarded as an “asset” which would attract the protection of Article 1 of Protocol No. 1. The Government conclude that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

The applicant contends that he had a “legitimate expectation” to obtain effective enjoyment of the property which had been taken away from his father. He points out, in particular, that he complied with the requirements of Section 5 (1) of the Extra-Judicial Rehabilitations Act in that he presented documentary evidence indicating that the coins had been deposited in the premises of the Regional Administration of the Ministry of the Interior. The applicant maintains that he could not reasonably be expected to indicate the exact place where the property was at the relevant time as he has had no practical possibility of tracing the coins within the Ministry of the Interior.

The applicant submits that his claim should be considered as a possession within the meaning of Article 1 of Protocol No. 1. Its dismissal amounted to an interference with his rights under this provision which was neither in the public interest nor did it satisfy the requirement of proportionality. The applicant concludes that there has been a violation of Article 1 of Protocol No. 1.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaint that his right to the peaceful enjoyment of his possessions was violated as a result of the dismissal of the claim for restitution of his father’s property ;

Declares inadmissible the remainder of the application.

Erik Fribergh Andr ás Baka              Registrar              President