Information Note on the Court’s case-law 67

August-September 2004

Kopecký v. Slovakia [GC] - 44912/98

Judgment 28.9.2004 [GC]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Question whether claim sufficiently established to constitute an asset: no violation

Facts : In 1959 the applicant’s father was convicted of keeping gold and silver coins contrary to the regulations in force. He was sentenced to one year’s imprisonment and the coins were confiscated. The conviction and all consequential decisions were quashed in 1992 in the context of judicial rehabilitation and the applicant subsequently sought restitution of the coins. The Di strict Court established that the coins had been handed over to the Regional Administration of the Ministry of the Interior in 1958 and ordered the Ministry of the Interior to restore them to the applicant. However, on the Ministry’s appeal, the Regional C ourt dismissed the applicant’s claim, on the ground that the applicant had failed to satisfy the statutory requirement of showing where the property was deposited when the Extra-Judicial Rehabilitations Act 1991 entered into force. The Supreme Court dismis sed the applicant’s appeal on points of law on the same ground.

Law : Article 1 of Protocol No. 1 – This provision does not impose any general obligation on States to restore property transferred to them prior to their ratification of the Convention, nor do es it impose any restrictions on their freedom to determine the scope of restitution and the conditions under which it takes place. In the present case, the fact that restitution of property under the Extra-Judicial Rehabilitations Act 1991 was subject to conditions did not, therefore, infringe the applicant’s rights. That did not mean that the implementation of the relevant provisions in a particular case could not give rise to an issue under Article 1 of Protocol No. 1 but before considering that it was n ecessary to determine whether the applicant’s claim amounted to a “possession”.

The proprietary interest invoked by the applicant was in the nature of a claim and could not be characterised as an “existing possession”. It remained to be determined whether the claim constituted an “asset”, that is whether it was sufficiently established, and in that context it might be of relevance whether a “legitimate expectation” arose for the applicant. In previous cases examined by the Court, the notion of “legitimate e xpectation” related either to a reasonably justified reliance on a legal act which had a sound legal basis or to the way in which a claim qualifying as an “asset” would be treated under domestic law. The Court had furthermore distinguished in other cases b etween a mere hope of restitution of property and a “legitimate expectation”, which had to be more concrete and be based on a legal provision or legal act. In these cases, what was in fact at issue was not so much a “legitimate expectation” as the existenc e of a claim amounting to an “asset”. Consequently, the existence of a “genuine dispute” or an “arguable claim” was not a criterion for determining whether there was a “legitimate expectation”. On the contrary, where a proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law. In the present case, no concrete proprietary interest of the applicant had suffered as a result of his reliance on a specific legal act and therefore he did not have a “legitimate expectation”. The remaining question was whether there was nevertheless a sufficient legal basis to warrant the claim being regarded as an “asset”. In that respect, the only point in dispute was whether the applicant could be said to have satisfied the requirement of showing where the property was. The domestic courts had found insufficient proof that the Ministry  of the Interior still possessed the coins in question and there was no appearance of arbitrariness in the way in which th ey determined the claim. There was therefore no basis on which the Court could reach a different conclusion. The applicant’s claim was a conditional one from the outset and the courts ultimately found that he had not complied with the statutory requirement s. The Court was thus not satisfied that it could be said that the claim was sufficiently established to qualify as an “asset”. Although the first instance judgment was in his favour, it was subsequently overturned and thus did not invest the applicant wit h an enforceable right. The applicant did not, therefore, have “possessions” within the meaning of Article 1 of Protocol No. 1, which consequently did not apply.

Conclusion : no violation (thirteen votes to four).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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