Information Note on the Court’s case-law 69

November 2004

Němcová and Others v. the Czech Republic (dec.) - 72058/01

Decision 9.11.2004 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Failure to meet legal requirements for restitution of gold coins under the law on extrajudicial rehabilitation: inadmissible

The applicant was convicted during the communist period for keepi ng gold coins, in contravention of the regulations then in force, and the coins were confiscated. As the regime changed, the judicial decision was cancelled for violation of the law. The applicants then applied to the National Bank for restitution of the c oins in question, which had been listed and evaluated by an expert prior to confiscation. Basing their arguments on an extra-judiciary rehabilitation law which, subject to certain conditions, was intended to redress wrongs committed under the former regime , the applicants brought an action for restitution in 1992, seeking restoration of the confiscated gold coins. Their applications were dismissed by all the courts. While the applicants were entitled to obtain restitution, the law imposed the precondition t hat the coins in question were to be described by the claimants in such a way as to be individually identifiable. In the present case, the courts ruled that it was not possible to state with certainty that the coins held by the bank to which the applicants had applied were indeed those which had been confiscated from their family in 1961.

Inadmissible under Article 1 of Protocol No. 1: Basing their arguments on the rehabilitation act, the applicants had sought to show that they had a property right with re gard to the confiscated gold coins without having title to those assets which they wished to recover, so that the disputed proceedings did not concern an “existing asset” but a debt. It was for the national courts to apply and interpret the domestic law in order to determine whether the conditions for restoration, laid out in the law relied upon, were met in the present case, which they had done without any appearance of arbitrariness. In short, when the action was brought before the national court, the deb t was only conditional and could not be regarded as sufficiently established to constitute a “possession” requiring protection under Article 1 of Protocol No. 1.

[N.B. application in a Czech case of the earlier finding in Kopecký v. Slovakia , [GC], no. 720 58/01, 28 September 2004, particularly §§ 52-54, 56-58 and 60 (and Case-Law Report No. 67)]

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