FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49450/99 by Leonid SHESTJORKIN against Estonia

The European Court of Human Rights ( First Section ), sitting on 9 May 2000 and 15 June 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste , judges , [Note1]

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 5 April 1999 and registered on 7 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Estonian citizen, born in 1935 and living in Tartu .  He is represented before the Court by Ms Maia Ploom , a lawyer practising in Tartu .

A. The circumstances of the case

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

In December 1991 the applicant went to the Tartu City Goverment ( Tartu Linnavalitsus ) in order to file an application for restitution of property which had previously belonged to his father.  The property - a plot of land together with an industrial building - was nationalised in 1940.  He alleges that his application was not accepted on the ground that he had not submitted a proof of ownership.

On 17 January 1992 the deadline stipulated in section 16 of the Property Reform Act for filing applications for restitution of property expired.

The applicant thereafter repeatedly requested the City Government to accept his application nevertheless and reinstate the deadline.  In its letters of 9 December 1994, 5 June 1995, 29 March 1996 and 25 October 1996 the City Government stated that he had not submitted an application by the set deadline and had therefore lost his right to claim the restitution of property.

In March 1998 the applicant obtained, after several requests, a certificate from an archive proving that the nationalised property had belonged to his father.  It appears that in the preceding period the archive was unable to locate the necessary document.

On 17 April 1998 the applicant asked the City Government to accept his application.

On 6 May 1998 the City Government stated that it lacked competence to reinstate the deadline of 17 January 1992.  Pursuant to the “Law concerning the procedure for reinstatement of time-limits for submission of applications for return or compensation of unlawfully expropriated property” the body competent to reinstate the deadline in respect of applications submitted until 31 March 1993 was the Central Commission on the Return and Compensation of Unlawfully Expropriated Property.

The applicant filed a complaint with the Tartu Administrative Court ( Tartu Halduskohus ) concerning the refusal of the City Government to accept his application in December 1991 arguing that its officials had failed to provide him with adequate information and assistance.

By judgment of 10 November 1998 the Administrative Court declared the actions of the City Government officials unlawful and suggested that the competent body accept the applicant’s restitution application.  It found that the City Government officials had failed to comply with the requirements of sections 8 and 11 of the “Procedure for filing and examination of applications concerning unlawfully expropriated property and for submission and evaluation of evidence.”

In its appeal against the judgment the City Government argued that the applicant had, in fact, not lodged an application for restitution of property at the relevant time and that, in visiting the City Government buildings in December 1991, he had addressed himself to a department which had no competence to decide on the matter.  It also contended that, under the procedure in force, proof of ownership was not required for the initial submission of restitution applications.  Such proof could be furnished later.

On 18 January 1999 the Tartu Court of Appeal ( Tartu Ringkonnakohus ) revoked the judgment of the first instance court on the ground that the rejection of the applicant’s complaint by the City Government officials had not been established.

On 3 March 1999 the Supreme Court ( Riigikohus ) refused to grant the applicant leave to appeal.

B. Relevant domestic law

The Property Reform Act ( Omandireformi aluste seadus ) was adopted on 13 June 1991 and entered into force on 20 June 1991.

Pursuant to its section 16 applications for restitution of unlawfully expropriated property can be filed until 17 January 1992.  Such applications are to be accompanied by documents that the applicants have concerning the ownership, form and value of property.

The applications are reviewed by city or county commissions established by county governors or city governments.  The decisions of the local commissions can be appealed to the Central Commission on the Return and Compensation for Unlawfully Expropriated Property.

It further provides that the Government of Estonia is to fix the procedure for filing and review of applications as well as for filing and assessment of evidence.

The Procedure for Filing and Examination of Applications Concerning Unlawfully Expropriated Property and for Submission and Evaluation of Evidence ( Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise avalduste esitamise ja läbivaatamise ning tõendite esitamise ja hindamise kord ), was approved by the decree of the Government of Estonia of 28 August 1991.

According to its provisions, the authorities handling restitution applications are to inform the applicants of the procedure for restitution of property and establish possibilities for collecting further evidence.  They are to provide the applicants with legal and other assistance necessary for the exercise of their rights (sections 8 and 11).

The Law Concerning the Procedure for Reinstatement of Time-limits for Submission of Applications for Return or Compensation of Unlawfully Expropriated Property ( Seadus avalduste esitamise tähtaegade ennistamise korrast õigusvastaselt võõrandatud vara tagastamisel ja kompenseerimisel ) was adopted on 11 June 1992 and amended on 17 February 1993.

It provides that time-limits for submission of applications for restitution of property can be reinstated by the Central Commission on the Return and Compensation of Unlawfully Expropriated Property which would accept such applications until 31 March 1993. Its decision refusing an application can be appealed against to a court (sections 1(1), 2(3) and 5).

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention of the refusal of the authorities to restitute to him the nationalised property which had previously belonged to his father.

THE LAW

1 . The applicant complains about non-restitution of his father’s property.  He invokes Article 1 of Protocol No. 1 to the Convention, which 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.”

In so far as the applicant’s complaint relates to restitution of nationalised property and not to the guarantees stipulated in Article 6 of the Convention the Court recalls Estonia’s reservation with respect to the cited provisions, contained in the instrument of ratification, deposited on 16 April 1996.  The reservation reads as follows:

“In accordance with Article 64 of the Convention, the Republic of Estonia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised, confiscated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; the restructuring of collectivised agriculture and privatisation of state owned property. The reservation concerns the principles of the Property Reform Act (published in Riigi Teataja [State Gazette] 1991, 21, 257; RT I 1994, 38, 617; 40, 653; 51, 859; 94, 1609), the Land Reform Act (RT 1991, 34, 426; RT I 1995, 10, 113), the Agricultural Reform Act (RT 1992, 10, 143; 36, 474; RT I  1994, 52, 880), the Privatisation Act (RT I 1993, 45, 639; 1994, 50, 846; 79, 1329; 83, 1448; 1995, 22, 327; 54, 881; 57, 979), the Dwelling Rooms Privatisation Act (RT I  1993, 23, 411; 1995, 44, 671; 57, 979; 1996, 2, 28), the Act on Evaluation and Compensation of Unlawfully Expropriated Property (RT I 1993, 30, 509; 1994, 8, 106; 51, 859; 54, 905; 1995, 29, 357), the Act on Evaluation of Collectivised Property (RT I 1993, 7, 104) and their wording being in force at the moment the Ratification Act entered into force.”

The Court must examine whether the reservation under consideration satisfies the requirements of Article 57 of the Convention which enables a High Contracting Party to make a reservation in respect of “any particular provision of the Convention”.

To be valid a reservation must satisfy the following conditions: (1) It must be made at the moment the Convention is signed or ratified; (2) It must relate to specific laws in force at the moment of ratification; (3) It must not be a reservation of a general character; (4) It must contain a brief statement of the law concerned.

No difficulty arises as regards the first and second conditions: the reservation was contained in the instrument of ratification and was framed to exclude from the scope of Article 1 of Protocol No. 1 a series of specific property laws then in force which are mentioned by name in the text of the reservation and which inter alia “regulate the restoration or compensation of property nationalised, confiscated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation”.  In addition the reservation only relates to the wording of the laws referred to “at the moment the Ratification Act entered into force”.

By “reservation of a general character” in Article 57 is meant a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26, § 55).

The present reservation cannot be described in these terms referring as it does to a specific area of law and named statutes to which a particular Article of the Convention (Article 1 of Protocol No. 1) is disapplied .  While it could not be excluded that problems could arise in future cases as to the exact scope of the reservation, it is couched in sufficiently precise terms to satisfy this condition.

Lastly no problem arises as regards the requirement that the reservation contain a brief statement of the law.  These have been attached to the text of the reservation.

The reservation thus complies with the requirements of Article 57 of the Convention.  It also covers the applicant’s complaint regarding the restitution of his father’s property which concerns directly the legislation covered by it.

The Court observes, however, that the reservation only covers laws in force at the material time and does not extend to later amendments to the restitution laws which might subsequently be subjected to Convention scrutiny. Moreover it only concerns substantive as opposed to procedural questions in the field of the property issues encompassed by its terms.

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)