AS TO THE ADMISSIBILITY OF
Application No. 24506/94
by Alexander GASPARETZ
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 January 1993
by Alexander GASPARETZ against the Slovak Republic and registered on
29 June 1994 under file No. 24506/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovak national born in 1953. He is a doctor
and resides in Levice.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1946 a spa in Sklené Teplice was confiscated from the
applicant's grandfather who was then of Hungarian nationality. The
confiscation took place pursuant to President Benes' 1945 Decree
No. 108 on Confiscation of the Enemies' Property and on Funds of
National Reconstruction. By virtue of the decree the property of
persons considered as "collaborators and enemies of the people" was
subject to confiscation without compensation. Although in 1949 the
applicant's grandfather received a certificate officially granting him
Slovak nationality, the confiscated property was not restored.
After 1989 the applicant sought restitution of his grandfather's
property. Under Act No. 229/1991 he claimed restitution of the
agricultural land belonging to the spa (which allegedly represents only
a minor part of the confiscated property). It appears from the
documents submitted that the proceedings are still pending.
With a view to having the spa restored (i.e. the principal part
of the confiscated property to which Act No. 229/1991 allegedly does
not apply) the applicant petitioned the Constitutional Court and the
Prosecutor General. He complained that President Benes' decrees are
incompatible with the Constitution of the Slovak Republic. He received
no reply from the Prosecutor General. As to the Constitutional Court,
he was informed that under Slovak law individuals lack the capacity to
introduce proceedings on constitutional conflicts.
On 7 February 1994 the applicant introduced a new petition with
the Constitutional Court. He claimed restitution of the confiscated
property.
On 12 April 1994 the Constitutional Court rejected the petition.
It noted, in particular, that it lacked jurisdiction in matters
concerning restitution of estates and movables confiscated in the past
and that these issues were, by virtue of special laws enacted in 1990
and 1991, within the competence of other State organs. The
Constitutional Court held further that since the applicant had failed
to claim restitution of his grandfather's property pursuant to the
aforesaid laws, he could not complain about violation of his rights
before the Constitutional Court. The constitutional petition had
therefore no legal basis under Slovak law.
COMPLAINTS
The applicant alleges that by virtue of President Benes' decree
No. 108 his family's right to enjoyment of their possessions was and
still is violated. He claims the restitution of the confiscated
property (to the extent that it was not recoverable under Act
No. 229/1991). He alleges a violation of Article 8 of the Convention
and of Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains of the confiscation, in 1946, of his
grandfather's property and claims the restitution of its major part
which is not recoverable under Slovak law. He alleges a violation, in
this respect, of his rights guaranteed by Article 1 of Protocol No. 1
(P1-1) which provides, so far as relevant, 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."
a) To the extent that the applicant complains of the confiscation
of his grandfather's property, the Commission recalls that the
Convention only governs, for each Contracting Party, facts subsequent
to its entry into force with respect to that Party.
However, in the present case the confiscation of property took
place in 1946, i.e. at a period prior to both 18 March 1992 which is
the date of ratification of the Convention by the former Czech and
Slovak Federal Republic, and to 1 January 1993 which is the date of the
entry into force of the Convention with respect to the Slovak Republic.
The Commission further recalls its constant case-law according
to which deprivation of ownership or another right in rem is in
principle an instantaneous act and does not produce a continuing
situation of "deprivation of right" (cf. No. 7742/76, Dec. 4.7.78, D.R.
14 p. 146; No. 21344/93, Szechenyi v. Hungary, Dec. 30 June 1993,
unpublished).
The proceedings before the Constitutional Court cannot be
considered as an effective remedy capable of bringing the case within
the Commission's competence ratione temporis as under Slovak law the
Constitutional Court lacked jurisdiction to deal with the applicant's
case.
The letter which the applicant addressed to the Prosecutor
General does not affect the position as under the Commission's case-law
an extraordinary remedy, the use of which depends on the discretionary
power of a public authority, cannot be considered as effective (cf.
No. 8395/78, Dec. 16.12.81, D.R. 27 p. 50; No. 21344/93).
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) To the extent that the applicant claims restitution of the
confiscated property, the Commission recalls that Article 1 of Protocol
No. 1 (P1-1) "applies only to existing possessions" and it does not
guarantee, as such, any right to acquire property (cf. No. 11628/85,
Dec. 9.5.86, D.R. 47 p. 271, with further references).
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. Finally, the applicant alleges a violation of Article 8 (Art. 8)
of the Convention. The Commissions notes, however, that the applicant
failed to substantiate this complaint.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy