DISSENTING OPINION OF JUDGES BRATZA, PELLONPÄÄ AND PALM

To our regret, we are unable to agree with the conclusion of the majority of the Chamber that there has been a violation of Article 1 of Protocol N o 1 in the present case.

As noted in the judgment, according to the established case-law of the Court, although the term “possessions” in Article 1 has been widely defined to include a claim to property which an applicant has at least a “legitimate expectation” will be realised, the mere hope that a former property right which has been extinguished or which it has long been impossible to exercise may be revived or recognised as having survived, cannot be regarded as a “possession”; nor can a conditional claim to property which lapses or which never materialises as a result of a failure on the part of the applicant to fulfil an essential condition. Moreover, Article 1 does not guarantee the right to acquire property and cannot in principle be interpreted as imposing any restrictions on the freedom of Contracting States to impose conditions for the restoration of property confiscated before the date of ratification of the Convention or for the payment of compensation in respect of such property.

In the present case, the coins belonging to the applicant’s father were confiscated in November 1958, well before the coming into effect of the Convention in respect of Slovakia . The applicant’s claim, if any, to the recovery of the coins derived exclusively from the provisions of the Extra-Judicial Rehabilitations Act 1991 and was dependent on the terms of that Act. As is apparent from its terms (see section 13), the Act provides for restitution of specific items of movable property which have been confiscated and makes no alternative provision for the payment of financial compensation if the property in question has been lost or destroyed or is otherwise untraceable. As is also clear from the provisions of sections 4 and 5 of the Act, any claim to recover confiscated property is made conditional on the fulfilment of two requirements, inter alia : first, property confiscated by the State or legal persons has to be “in their possession at the date of the entry into force of the Act”; secondly, a claimant is required to show “where the property is”.

In ordering the Ministry of the Interior to restore the coins to the applicant, the Senica District Court found that the requirement in section 5 of the Act that the applicant show the location of the property imposed a burden of proof on him which it was practically impossible to fulfil. The District Court went on to point out that the Ministry had not shown that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority or that the coins were not in the premises of the Regional Administration when the Act entered into force.

The majority of the Chamber have based themselves on this reasoning of the District Court to hold that the applicant could claim, at least on arguable grounds, that he met the relevant requirements for restitution of his father’s property and that this claim amounted to a legitimate expectation sufficient to constitute a “possession”. To reach a different conclusion on the ground that the applicant had failed to show the precise location of the coins would, in their view, be too formalistic and would render the protection of the rights under the Convention and its protocols ineffective and illusory.

Had the case proceeded no further than the Senica District Court, we might have been able to share the view of the majority. However, on appeal, the Bratislava Regional Court accepted that the applicant had only limited possibilities of locating his father’s property and therefore took further evidence of its own initiative to discover whether the coins could still be traced. In particular, it examined the criminal file of the applicant’s father. It further established that the archive of the Senica District Office, of the Ministry of the Interior, of the National Bank of Slovakia and of the State Regional Archive in Bratislava contained no document relating to the coins in question. The Regional Court also heard a witness who had worked at the Myjava District Department of the Ministry of the Interior in 1958 and who testified that he had no knowledge of the case.

The judgment of the Regional Court that in these circumstances the applicant was unable to fulfil the conditions prescribed in the 1991 Act was upheld by the Supreme Court. The Supreme Court held that the fact that the coins had been examined at the Public Security Regional Administration in Bratislava in December 1958 did not suffice to show their continued existence in the possession of the State, the Court noting that, since that date, a considerable period had elapsed during which the coins could have been alienated, destroyed or lost. As the Supreme Court went on to point out, a restitution claim was only sustainable under the terms of the Act when it concerned the same property which had been confiscated by the State and not where it related to different objects of the same kind.

In these circumstances, since there is no evidence that the confiscated coins continued in existence and were in the possession of the State authorities at the time of the coming into force of the 1991 Act and since the conditions laid down by that Act were therefore not fulfilled, we consider that the applicant had no “possession” for the purposes of Article 1 of Protocol N o 1 and that therefore there has been no violation of that Article.