FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39050/97 by A.J. against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 20 November 2001 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 July 1997 and registered on 19 December 1997,

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 both a Slovakian and German national. He was born in 1924 and presently lives in Wendelstein, Germany. He has another address in Piešťany, Slovakia The re spondent Government are represented by Mr P. Vršanský , their Agent.

A. The circumstances of the case

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

The applicant left Czechoslovakia for Germany in 1968. After his judicial rehabilitation in 1990 he started living partly in Czechoslovakia and partly in Germany. According to the applicant, he spent the major part of 1992 in Czechoslovakia. On 25 September 1992 he registered his permanent residence at his friend’s address in Krompachy. He remained registered at this address until 22 June 1994.

On 28 September 1992 the applicant lodged a claim for restitution of his relatives’ property under the Land Ownership Act (see “Relevant domestic law and practice” below).

On 15 May 1996 the Spišská Nová Ves Land Office ( Pozemkový úrad ) dismissed the applicant’s claim on the ground that at the relevant time he had not permanently resided within the territory of the former Czech and Slovak Federal Republic as required by Section 4 (1) of the Land Ownership Act.

The Land Office established that a registered letter sent by the defendant on 8 April 1993 could not be delivered as at that time nobody had lived at the applicant’s address in Krompachy. The Land Office had before it also a certificate in which the competent German authority confirmed that the applicant had registered his main abode ( Hauptwohnung ) in Wendelstein since 1973. The accompanying letter by the Slovakian vice-consul to Munich explained that, unlike in Slovakia, no distinction was made between permanent and temporary residence in Germany. The letter further stated that under German law the main abode was the place of residence preponderantly used by the person concerned in Germany, and that there was no obligation under German law to terminate its registration when a person spent the major part of a year abroad.

In its decision the Land Office referred also to a police report according to which the applicant had not effectively established his permanent residence in Krompachy. The Land Office concluded, with reference to Section 3 (2) and (5) and Section 4 (1) of the Citizens’ Residence Registration Act and to the relevant case-law and administrative practice, that the applicant did not meet the permanent residence requirement.

On 19 June 1996 the applicant requested the Košice Regional Court ( Krajský súd ) to review the Land Office’s decision. He alleged that since the beginning of 1992 he had resided at various places in Slovakia and submitted witness statements to this effect. The applicant further explained that several times a year he went to Germany where he was undergoing cancer therapy.

On 29 November 1996 the Košice Regional Court upheld the administrative decision challenged by the applicant. It noted that by the expiry of the deadline for lodging his claim on 31 December 1992 the applicant had not permanently resided within the former Czech and Slovak Federal Republic as required by Section 4 (1) of the Land Ownership Act. The Regional Court found, with reference to the relevant case-law and to the practice of the Ministry of the Interior, that the applicant had failed to terminate his registration in Germany prior to the registration of his permanent residence in Krompachy.

The Regional Court further noted that the applicant had submitted no evidence permitting to conclude that his abode in Krompachy met the requirements of a permanent residence within the meaning of Section 3 (2) of the Citizens’ Residence Registration Act. Moreover, a police report before the court indicated that the applicant’s registration in Krompachy had been of a formal nature. The Regional Court’s judgment stated that there was no appeal available against it.

B. Relevant domestic law and practice

Section 4 (1) of the Land Ownership Act of 1991 (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku ) makes the right to claim restitution of property subject to the citizenship of the Czech and Slovak Federal Republic and to permanent residence within its territory.

Section 13 (1) of the Land Ownership Act set a time-limit which expired on 31 December 1992 for lodging a claim for restitution of property.

Section 3 (2) of the Citizens’ Residence Registration Act of 1982 ( Zákon o hlásení a evidovaní pobytu občanov ) provides that the place of one’s permanent residence is the place where a person permanently lives, i.e. as a rule, where his or her family or parents live, or the place where his home or occupation is located.

Under Section 3 (5) of the Citizens’ Residence Registration Act, when a person permanently resides abroad, his or her residence in Czechoslovakia shall be considered as being temporary.

Pursuant to Section 4 (1) of the Citizens’ Residence Registration Act, a person may not permanently reside at more than one place at the same time.

In accordance with the established practice, the permanent residence requirement has not been complied with when a person fails to show that the registration of his or her permanent residence abroad was terminated before he or she registered as permanently residing on the territory of the former Czechoslovakia or, as the case may be, on the territory of one of the latter’s successor States.

Under the practice of the Ministry of the Interior, a person may register as permanently residing in the Slovak Republic only after the termination of his or her permanent residence abroad. Otherwise the residence of such a person in the Slovak Republic is considered as being temporary until the termination of the registration abroad.

In its decision no. 1 Cdo 114/92 of 22 December 1992 the Supreme Court ( Najvyšší súd ) held, in the context of proceedings concerning restitution of property under the Extra-Judicial Rehabilitations Act, that when examining whether a person claiming restitution of property meets the requirement of permanent residence and whether he or she genuinely intends to permanently reside in Czechoslovakia, the courts should not confine themselves to the legislation governing the registration of citizens. In such cases regard should be had to all relevant circumstances of the case such as the ability of the person concerned to settle in Czechoslovakia, his or her personal situation, his or her ties both in Czechoslovakia and abroad as well as to the aim of the laws on restitution of property.

COMPLAINTS

The applicant complains that the permanent residence requirement laid down in Section 4 (1) of the Land Ownership Act and the refusal to grant his claim for restitution of property for his alleged failure to comply with this requirement was discriminatory and infringed his right to respect for his home and family life as well as his right to peaceful enjoyment of his possessions. He invokes Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 14 of the Convention.

THE LAW

The applicant complains that the permanent residence requirement laid down in Section 4 (1) of the Land Ownership Act and the refusal to grant his claim for restitution of property for his alleged failure to comply with this requirement infringed his rights under Article 8 of the Convention, Article 1 of Protocol No. 1 and under Article 14 of the Convention which provide as follows:

Article 8 of the Convention

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“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.”

Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. The Government contend that the applicant has not exhausted domestic remedies as he failed to lodge an action for protection of his property rights They refer to the Court’s partial decision on admissibility of the case of Stan č iak v. Slovakia (no. 40345/98, dec. 24 August 1999). They contend that the applicant could have lodged a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution.

The Government further maintain that the applicant tried to circumvent the relevant legislation in that he had formally registered his permanent residence in Slovakia without having genuinely intended to live there, and that he therefore abuses the right of application within the meaning of Article 35 § 3 of the Convention.

The applicant submits that he exhausted all available remedies. As to the assertion that he abused the right of application, the applicant contends that he had his permanent residence registered in Slovakia at the moment when he filed the claim for restitution of property as required by the law. The applicant explains that at that time he lived together with his friend in the latter’s house in Krompachy and that later they moved to the latter’s flat in Ko šice as the house was not suitable for living in winter. The applicant unregistered his permanent residence in Krompachy on 22 June 1994. As from 1993, he actually lived in Piešťany in a house under reconstr uction and paid social security contributions under the Slovakian scheme as required in cases when a person had permanent residence in Slovakia. He explains that such payments were not required under the law in 1992. The applicant further contends that the Slovakian authorities did not require that he terminate the registration of his main abode in Germany upon the registration of his permanent residence in Slovakia.

As to the Government’s objection that the applicant failed to exhaust domestic remedies the Court notes that the object of the present application is the dismissal of the applicant’s claim for restitution of property under the Land Ownership Act. In this respect the present case is different from the case of Stančiak v. Slovakia referred to by the Government in which the applicant complained that he was unable to use his property. The final decision in the proceedings concerning the applicant’s case was delivered by the Košice Regional Court on 29 November 1996 and it expressly stated that there was no appeal available against it. In these circumstances t he Court cannot accept the Government’s argument that the applicant should have lodged an action for protection of his property rights with a general court.

The Court further recalls that it has earlier found that a petition under Article 130 (3) of the Constitution, as in force at the relevant period, was not capable of providing direct protection of a petitioners’ rights and that it did not offer reasonable prospects of success (see, e .g., B ánošová v. the Slovak Republic (dec.), no. 38798/97 ; Marônek v. the Slovak Republic (dec), no. 32686/96 ; Feldek v. the Slovak Republic (dec.), 29032/95). The Court finds no reason for reaching a different conclusion in the present case. It follows that the application cannot be dismissed for failure to exhaust domestic remedies.

As to the Government’s objection that the applicant abused the right of application, the Court notes that this objection is related to the relevant facts of the case which are disputed between the parties. The fact that the Government consider the applicant’s arguments in this respect unsubstantiated or incorrect does not justify the rejection of the application as being abusive. This objection must therefore be dismissed.

2. As regards the complaint under Article 8 of the Convention, the Court recalls that the essential object of this provision is to protect the individual against arbitrary action by the public authorities (see , mutatis mutandis , Kroon v. Netherlands judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31). In the Court’s view, the fact that legislation regulates issues pertaining to one’s home or family life is capable of raising an issue under Article 8 § 1 only when it constitutes an interference with the rights guaranteed by this provision.

In the present case the Spišská Nová Ves Land Office and the Košice Regional Court dismissed the applicant’s claim for restitution of property as they found that, at the relevant period, he had not permanently resided within the then Czech and Slovak Federal Republic as required by Section 4 (1) of the Land Ownership Act. They refused to consider the applicant’s residence at his friend’s address in Krompachy as permanent for the purposes of the aforesaid Act since they found it not to be in conformity with the relevant provisions of Slovakian law, as interpreted and applied by the competent authorities.

In the Court’s view, neither the permanent residence requirement laid down in Section 4 (1) of the Land Ownership Act as such nor the dismissal of the applicant’s claim for the failure to comply with this requirement amounts to an interference with his right to respect for his home or family life. In particular, the Court notes that the applicant remained free, throughout the relevant period, to choose his home and to peacefully enjoy the residence there together with the other members of his family.

Even assuming that the applicant decided to terminate the registration of his main residence in Germany in order to comply with the relevant legislation concerning the notion of a permanent residence within the then Czechoslovakia, any effects such a decision might have produced would have been the repercussions of his own choice to permanently reside in the former Czechoslovakia in terms of the relevant law and to claim the restitution of his relatives’ property (see, mutatis mutandis , Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, judgment of 23 July 1968, Series A no. 6, pp. 42-43, § 7).

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

3. The Court considers, in the light of the parties’ submissions, that the complaints under Article 1 of Protocol No. 1 and under Article 14 of the Convention raise serious issues of fact and law, including the question whether the applicant’s claim amounted to a possession within the meaning of Article 1 of Protocol No. 1, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of the application 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 unanimously

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

Declares inadmissible the remainder of the application.

M. O’Boyle Sir Nicolas Bratza Registrar President