FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48817/99 by Ján BZDÚŠEK and Others against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 16 November 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 10 November 1998 ,

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

Having regard to its decision of 8 July 2003 to adjourn the examination of the case pending the outcome of the proceedings before the Grand Chamber in the case of Kopecký v. Slovakia (application No. 44912/98),

Having deliberated, decides as follows:

THE FACTS

The applicants are Slovakian nationals. Mr Tomáš Bzdúšek was born in 1926 and lives in Brezová pod Bradlom. Mr Ján Bzdúšek was born in 1952 and liv es in Nitra . Mr Svetozár Bzdúšek was born in 1957 and liv es in Myjava.

The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003 .

A. The circumstances of the case

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

By decisions delivered by the Senica District Court on 20 January 1959 and by the Bratislava Regional Court on 13 February 1959 the father of Mr Tom áš Bzdúšek and the grandfather of the two other applicants was convicted of two offences and sentenced to five years ' imprisonment as well as to confiscation of movable property which included, inter alia, 310 gold coins and 162 silver coins of numismatic value, 466 US dollars in bank notes, 10,000 Czechoslovak korunas and three savings books.

On 3 October 1991 the Supreme Court of the Slovak Republic quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act of 1990 (see “Relevant domestic law” below), the above decisions of 20 January 1959 and 13 February 1959 including all consequential decisions on the ground that the conviction had been unlawful. The Supreme Court held, in particular, that the courts had failed to establish all the relevant facts, had failed to apply the relevant law correctly and that the conviction had a political connotation. The Supreme Court further discontinued the criminal proceedings with reference to the presidential pardon of 1 January 1990 .

Upon the request by the lawyer appointed to represent the applicants ' predecessor the District Court in Prievidza resumed the proceedings. On 30 March 1992 it delivered a judgment by which it  acquitted the accused on the ground that the courts by which he had been convicted had committed errors of fact and law.

On 30 April 1993 the applicants filed an action against the Ministry of the Interior, the National Bank of Slovakia and the District Office in Myjava. They claimed the restitution of the gold and silver coins, of the three savings books as well as of the bank notes which had been confiscated from their relative. They referred to the Extra-Judicial Rehabilitations Act of 1991 and relied on a record of 13 November 1958 in which the movable property in question had been the subject of an inventory by three policemen in the presence of a witness. The applicants further submitted that the property had been subsequently deposited in the premises of the regional office of the Ministry of the Interior in Bratislava , and that that Ministry had informed them, on 14 September 1992 , that it did not possess the relevant documents.

On 19 January 1994 the Bratislava I District Court, with which the applicants had filed the action, found that it lacked jurisdiction to deal with the case. On 17 May 1994 the Bratislava City Court quashed this decision as being erroneous.

On 6 February 1995 the Bratislava I District Court discontinued the proceedings. On 31 May 1995 the Bratislava City Court quashed this decision and instructed the District Court to proceed with the case.

On 7 October 1997 the Bratislava I District Court dismissed the action after having taken extensive evidence on its own initiative. It established that according to records of 15 and 16 December 1958 , the coins, bank notes and savings books had been deposited with the regional office of the Ministry of the Interior in Bratislava . According to information submitted by the Hallmark Office ( Puncov ý úrad ) in Prague , th at institution had dealt with valuables which had been confiscated between 1955 and 1979. In particular, it made an inventory of the property and determined its value. Coins made from precious metals were subsequently transferred to the State Bank of Czechoslovakia . The representatives of the Hallmark Office informed the court that a parcel weighing 4,508 grams and dispatched by the District National Committee in Seni ca had been delivered on 1 June 1959 . The contents had been processed on 29 August 1959 . However, as the relevant documents had been destroyed, it was neither possible to identify the objects contained in the parcel nor could it be establish ed where they had been transferred.

Similarly, the representatives of the Czech National Bank (legal successor of the former State Bank of Czechoslovakia ) informed the District Court, on 13 September 1996 and on 13 March 1997 , that the ir b ank possessed no documents relating to the property in question.

On 2 June 1997 Slovenská sporiteľňa a.s. Bratislava, the legal successor of the bank in which the applicants ' relative had deposited his savings, informed the court that it had not registered the savings books in question and that the relevant documents had been destroyed after twenty-three years.

The District Court had also regard to information submitted by the Ministry of the Interior according to which the property had been transferred to the former District National Committee in Senica after the conviction of the applicants ' predecessor had become final. The national committee had been charged with carrying out the sentence concerning the confiscation of property.

The District Court also made an inquiry at the District Office in Senica, the local government authority established after the former national committees had ceased to exist. It was informed that the District Office did not possess the property in question.

Finally, the District Court was informed that in the Slovakian archives there were no documents relating to the activities of the financial departments of the former national commit tees in the period between 1957 and 1959.

The District Court concluded, with reference to Sections 4(1), 5(1) and 20(1) of the Extra-Judicial Rehabilitations Act, that there existed no evidence that the defendants possessed the property in question at the time when the applicants had filed their action. The District Court further recalled that Section 5(1) exclusively provided for restitution in natura of movable property and expressed the view that, in any event, it would have been impossible to identify individually the bank notes and coins confiscated from the applicants ' relative.

The applicants appealed and alleged that the District Court had decided erroneously in that it had relied on the defendants ' written statements according to which they did not possess the property in question. The applicants pointed out, in particular, that the documentary evidence clearly indicated that the property had been deposited with the regional office of the  Ministry of the Interior in December 1958 and that that Ministry had failed to show that it had been transferred from its premises to a different place. They also challenged the District Court ' s finding that the coins could not be identified.

On 13 May 1998 the Bratislava Regional Court upheld the first instance judgment. The Regional Court noted that under Section 4(1) of the Extra ‑ Judicial Rehabilitations Act the applicants were obliged to show where the property was at the moment when that Act had become operative on 1 April 1991 . It therefore considered insufficient the applicant s ' argument that, according to the documentary evidence, the property had been deposited with the regional office of the Ministry of the Interior in December 1958.

The Regional Court further noted that it was impossible to establish where the property had been on 1 April 1991 despite the fact that the first instance court had taken extensive evidence on its own initiative. It concluded that the lack of documentary and other evidence made it impossible to satisfy the applicants ' claim which, otherwise, the court considered justified. Reference was thereby made to Section 20(2) of the Extra-Judicial Rehabilitations Act.

On 27 January 1998 the Constitutional Court found, upon a petition submitted by the applicants pursuant to Article 130(3) of the Constitution, that the Bratislava I District Court had violated their constitutional right to a hearing without undue delays. The Constitutional Court held, in particular, that the case was not complex and that the applicants did not contribute to the length of the proceedings by their behaviour. It noted that the case had not been proceeded with effectively between 30 April 1993 and 31 May 1995 , and that undue delays had arisen as a result of the fact that the judge dealing with the case had been changed three times.

B. Relevant domestic law and practice

1. The Constitution and the Constitutional Court ' s practice

Article 48(2) of the Constitution provides, inter alia , that every person has the right to have his or her case tried without unjustified delay.

Pursuant to Article 130(3) of the Constitu tion, as in force until 30 June 2001 , the Constitutional Court could commence proceedings upon a petition (“ podnet ”) presented by any individual or a corporation claiming that their rights had been violated.

According to its case-law under the above Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ' s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court ' s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.

2. The Judicial Rehabilitation Act 1990

Act No. 119/1990 on Judicial Rehabilitation (Zákon o súdnej rehabilitácii ) entered into force on 1 July 1990 . The relevant provisions read as follows:

Section 1

“The aim of the Act is 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 enshrined in the Constitution and set out in international instruments, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted...”

Section 23

1. The entitlement to compensation includes in particular:

a) 2,500 Czechoslovak korunas for each month of detention on remand or service of a prison sentence in compensation for lost income ... ,

b) compensation for damage to health relating to detention or service of a prison senten c e ... ,

c) compensation for the costs of the criminal proceedings ... ,

d) compensation for defence expenses incurred in the original criminal proceedings ... ,

e) reimbursement of the pecuniary penalty paid or of the sums deduc t ed from the pay for work carried out in the context of the service of the sentence imposed.

2. The conditions under which the provisions of this Act shall apply to claims resulting from the quash ing of confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law.”

Section 26

“The right to claim compensation is transferr ed to the heirs of the person who suffered damage ... with the exception of those titles which , according to the Civil Code, cease d to exist upon the death of that person.”

3 . The Extra-Judicial Rehabilitations Act 1991

Act No. 87/1991 on Extra-Judicial Rehabilitations ( Zákon o mimosúdnych rehabilitáciách ) became operative on 1 April 1991 . Its preamble states that it was adopted with the aim of mitigating the consequences of certain infringements of property rights as well as of other rights which occurred between 25 February 1948 and 1 January 1990 . The relevant provisions of the Extra-Judicial Rehabilitations Act read as follows:

Section 1

“1. This Act relates to the mitigation of the consequences of certain infringements ... which arose between 25 February 1948 and 1 January 1990 ... and which are incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights and the ensuing international covenants on civil, political, economic, social and cultural rights.

2. This Act also lays down the conditions for submitting claims resulting from the quashing of sentences by which property was confiscated ... as well as the manner of redress and the scope of such claims.”

Section 4

“1. Persons obliged [to restore the property] shall comprise the State or legal persons having confiscated property in their possession at the date when this Act becomes operative...

2. Any natural person who [unlawfully] acquired property from the State shall also be obliged to restore such property...”

Section 5

“1. A person obliged [to make restitution] shall restore the property upon a written request provided that the person [claiming the property] proves that he or she is entitled to have the property restored and shows the manner in which it was taken by the State. When claiming restitution of movable property [the person concerned] is further required to show where the property is...”

Section 13

“1. Financial compensation may be granted to the person concerned only in respect of real property which cannot be restored...

2. When the State acquired, on the basis of a judicial decision which was quashed under the Judicial Rehabilitation Act (no. 119/1990)..., the entire property of a citizen and when such property did not comprise real property, the person concerned is entitled to compensation in the amount of 60,000 Czechoslovak korunas...”

Part Three – In the field of criminal law

Section 19

“1. Entitled persons are persons who were rehabilitated under Act No. 119/1990 who meet the conditions set out in section 3(1) or, where such persons are dead ... , persons set out in section 3(2) [of the Extra-Judicial Rehabilitations Act 1991].”

Section 20

“1. The persons obliged [to restore confiscated property] shall 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 where the State itself obtained it as a result of a judicial decision, and the competent central government authority.

2. The persons obliged to restore confiscated property shall do so in accordance with sections 5, ... of the Act; when it is impossible to restore the property the persons concerned are entitled to claim compensation pursuant to section 13 of [this] Act.”

4 . Relevant practice

In judgment No. 1 Cdo 27/94 of 25 May 1994 the Supreme Court upheld the lower courts ' conclusion that movable property which could not be individually identified could not be restored under the Extra-Judicial Rehabilitations Act 1991. In the proceedings the plaintiffs claimed restitution of a gold brick, several gold coins and banknotes which had been transferred to the State in 1950. The relevant part of the Supreme Court ' s judgment reads as follows:

“... on the basis of a logical and systematic interpretation of section 5(1) of the Extra-Judicial Rehabilitations Act, as amended, and after comparing that provision with other provisions [of that Act], the court of cassation concluded that only movable property which can be individually identified by specific features which mean that it cannot be confused with other objects is liable to restitution... The appellants ' view that objects identified by their kind but not individually may also be restored is incorrect as it is contrary to the nature and purpose of the Extra-Judicial Rehabilitations Act, the aim of which is to mitigate certain (i.e. not all) property and other wrongs...”

C OMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention that the proceedings concerning their claim had been unfair in that the relevant law had imposed an excessive burden of proof on them as a result of which they had been put at a disadvantage vis-à-vis the defendants. They also alleged that the length of the proceedings was excessive.

2. The applicants further alleged a violation of Article 1 of Protocol No. 1 and of Article 3 of Protocol No. 7 in that their claim for restitution of their predecessor ' s property had been dismissed.

3. The applicants complained under Article 13 of the Convention that they had no effective remedy at their disposal as regards the alleged violation of their rights under Article 6 § 1 of the Convention.

4. With reference to the above facts the applicant s also alleged a violation of Article 17 of the Convention.

THE LAW

1. The applicants complained that their property rights had been violated as a result of the dismissal of their action. They invoked 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 contended that the applicants ' action had been dismissed as they had failed to comply with the requirements laid down in the Extra-Judicial Rehabilitations Act. Their claim did not , therefore, constitute an “asset” attracting the guarantees of Article 1 of Protocol No. 1.

The applicants argued that their position was different from restitution claimants in different cases decided upon by the Court who clearly had not met the formal requirements for restitution of property, such as nationality of the respondent State or who did not have permanent residence within its territory. The applicants argued that they had a legitimate expectation to see their claim realised as they had indicated where and how the property had been taken away from their relative and since the Slovakian authorities had failed to reliably show what had happened with the property thereafter. The excessive burden resulting from the obligation to show where the property had been at the moment when the Extra-Judicial Rehabilitations Act of 1991 had become operative was incompatible with their rights under Article 1 of Protocol No. 1.

The Court notes that this complaint raises the same issues as it addressed in the case of Kopecký v. Slovakia (no. 44912/98, Grand Chamber judgment of 28 September 2004, to be published in ECHR 2004- ... ). In that case the Court concluded that in the context of his restitution claim the applicant, who had failed to show where the property to be restored had been at the moment when the Extra-Judicial Rehabilitations Act of 1991 had become operative , had no “possessions” within the meaning of the first sentence of Article 1 of Protocol No. 1. The guarantees of that provision did not, therefore, apply to his case (see § 60 of the Kopecký v. Slovakia judgment of 28 September 2004 ) . The C ourt finds no distinctive features which would justify reaching a different conclusion on the complaint under Article 1 of Protocol No. 1 made by the applicants in the present case.

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

2. The applicants complained about the dismissal of their restitution claim and about the length of the proceedings relat ing thereto. They relied on Article 6 § 1 of the Convention the relevant part of which provides:

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

a) The Government referred to their above argument that the applicants failed to meet the statutory requirements for their restitution claim to be granted and concluded that the proceedings relating to that claim fell outside the scope of Article 6 § 1 of the Convention.

The applicants disagreed.

The Court recalls that for Article 6 § 1, in its “civil” limb, to be applicable there must be a dispute ( contestation ) over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question (see Frydlender v. France [GC], no. 30979/96, § 27, ECHR 2000-VII).

In the present case the applicants claimed restitution of property under the Extra-Judicial Rehabilitations Act of 1991. The domestic courts admitted that the applicants were entitled to claim restitution of the property under that Act . Af ter having examined comprehensive evidence, they concluded that the applicants had failed to show where the property was as required by Section 5(1) in conjunction with Section 4(1) of the Extra ‑ Judicial Rehabilitations Act of 1991.

In these circumstances, the Court is satisfied that there was a genuine and serious dispute over the existence of the applicants ' civil right. The mere fact that the applicants ' action was eventually dismissed cannot affect this conclusion. The proceedings at issue therefore fall within the scope of Article 6 § 1 of the Convention.

b) The applicants alleged that the proceedings concerning their claim had been unfair in that the relevant law had imposed an excessive burden of proof on them as a result of which the principle of equality of arms had been disregarded.

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 I District Court, with a view to establishing the relevant facts of the case and to verifying whether the requirements of the Extra-Judicial Rehabilitations Act had been met, took extensive evidence on its own initiative. On the basis of the evidence available, the District Court concluded, with reference to Sections 4(1), 5(1) and 20(1) of the Extra-Judicial Rehabilitations Act, that there existed no evidence that the defendants had possessed the property in question at the time when the applicants had filed their action. The District Court further recalled that Section 5(1) exclusively provided for restitution in natura of movable property and expressed the view that, in any event, it would have been impossible to identify individually the bank notes and coins confiscated from the applicants ' relative. Following the applicants ' appeal the Bratislava Regional Court held that under Section 4(1) of the Extra ‑ Judicial Rehabilitations Act the applicants were obliged to show where the property had been at the moment when that Act had become operative on 1 April 1991 . It therefore considered insufficient the applicants ' argument that, according to the documentary evidence, the property had been deposited with the regional office of the Ministry of the Interior in December 1958. It concluded that the lack of documentary and other evidence made it impossible to satisfy the applicants ' claim.

In the Court ' s view, both the District Court and the Regional Court gave sufficient and relevant reasons for their judgments which do not appear to be arbitrary. Furthermore, the Court finds no appearance of unfairness contrary to Article 6 § 1 of the Convention in the manner in which the domestic courts dealt with the applicants ' 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.

c ) As regards the applicants ' complaint that the length of the proceedings was excessive, 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 requires 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.

3. The applicants further complained that their right to compensation for their predecessor ' s unjustified conviction had not been respected. They alleged a violation of Article 3 of Protocol No. 7 which provides as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non ‑ disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Court does not consider it necessary to examine whether the applicants can claim to be victims, within the meaning of Article 34 of the Convention, of a violation of Article 3 of Protocol No. 7 and whether the requirements of that provisions were met in the case under consideration (see, for example, Georgiu v. Greece (dec.), no. 45138/98, 13 January 2000 and Sekanina v. Austria , judgment of 25 August 1993, Series A no. 266-A, § 25) as this part of the application is in any event inadmissible for the following reasons.

Section 23(1) of t he Judicial Rehabilitations Act of 1990 conferred a right on the persons concerned or their heirs to obtain compensation for their or their predecessor ' s deprivation of liberty , for damage to health sustained and also for the costs and expenses incurred in the context of criminal proceedings leading to a conviction which was subsequently reversed under that Act . The applicants did not indicate whether or not they had filed such a claim for compensation .

As to their complaint that they were unable to recover movable property confiscated from their predecessor or to obtain compensation therefor after his conviction had been quashed , the Court recalls that Article 3 of Protocol No. 7 refers back to domestic law and practice as regards the manner and scope of compensation to be granted . It has found above that the dismissal of the applicants ' claim for restitution of the movables of their relative was n ot arbitrary . In these circumsntaces, it takes the view that no issue under Article 3 of Protocol No. 7 arises in this respect.

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

4. The applicants complained that they had no effective remedy at their disposal as regards their complaints under Article 6 § 1 of the Convention. Th ey invoked Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

a) According to the Court ' s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the appl icant s ' complaint under Article 6 § 1 of the Convention concerning the alleged unfairness of the proceedings was manifestly ill-founded. For similar reasons, the applicants did not have an “arguable claim” and Article 13 is therefore inapplicable in respect of this complaint.

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

b) To the extent that the applicants complained about the absence of an effective remedy in respect of their complaint about the length of the proceedings, the Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires 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.

5. The Court has also examined the applicants ' complaint under Article 17 of the Convention but finds, to the extent that such complaint has been substantiated and falls within its competence, that it discloses no appearance of a violation of the Convention or its protocols.

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

For these reasons, the Court

Declares unanimously admissible, without prejudging the merits, the applicants ' complaints under Articles 6 § 1 and 13 of the Convention concerning the length of the proceedings and the alleged absence of an effective remedy in that respect;

Declares by a majority the remainder o f the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President