AS TO THE ADMISSIBILITY OF
Application No. 23063/93
by Jan JONAS
against the Czech Republic
The European Commission of Human Rights sitting in private on
13 May 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 June 1993 by
Mr. Jan JONAS against the Czech Republic and registered on
9 December 1993 under file No. 23063/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 5 October 1995 and the observations in reply and further
observations submitted by the applicant on 30 November 1995 and
22 December 1995 respectively;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an American citizen born in 1924 in Prague and
residing at Lexington, U.S.A., is retired.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1960, the applicant and his brother had to give up to the
State a family house in their co-ownership.
In September 1968 the applicant left Czechoslovakia with his wife
and small children and in March 1969 went as a refugee to the U.S.A.
In 1974, he obtained American citizenship in accordance with the Treaty
on Naturalization signed between the U.S.A. and the Czechoslovak
Republic on 16 July 1928. The same year, in his absence, the applicant
was convicted of illegal emigration. A three-year sentence was imposed
and all his property was confiscated.
In 1990, this conviction was annulled ex lege and ex tunc in
accordance with Law No. 119/1990 on Judicial Rehabilitation.
In September 1991, the applicant's brother made a request under
Article 3 of Law No. 87/1991 on Extra-judicial Rehabilitation to the
Housing Association of Prague 10 (Bytovy podnik v Praze 10), which was
then the holder of the property, for an agreement concerning
restitution of the house. He stated that the applicant could not lodge
a claim on his own behalf since he was permanently residing abroad and
had American citizenship.
On 7 November 1991, the Housing Association concluded an
agreement with the applicant's brother concerning restitution of the
house.
By decision of 13 May 1992, the State Notary's Office of
Prague 10 (Státní notárství pro Prahu 10) registered the agreement only
as to the one half belonging to the applicant's brother and refused
registration of the applicant's part as the applicant was still alive
and nobody could claim restitution on his behalf.
The applicant's brother appealed against the decision stating
that under Article 5 of Law No. 87/1991 the whole property should be
given to a person entitled to a claim, even though there were more
persons entitled to it, but who had not requested it under the above
law. In his opinion, the Housing Association had made a proper
agreement with him about surrender of the house as a whole. Besides,
the applicant could not claim restitution of his part of the property
himself as he was not a permanent resident and citizen of the Czech
Republic. If the brother's claim was accepted, he would give half of
it to the applicant.
On 18 January 1993, the Court of Appeal of Prague (Mestsky soud
v Praze) reviewed the decision of the State Notary which was attached
to the applicant's brother's appeal and confirmed that the State
Notary's decision had made sufficient findings about the real position
of the subject matter and had come to an appropriate judicial opinion.
The Court stated:
"The right to restitution of real estate which in the
period between 25 February 1948 and 1 January 1990 was
transferred to the State by a gift deed under duress, as in
the present case, is guaranteed by the provisions of Law
No. 87/1991.
Article 3 of the above law sets out the list of persons
entitled to restitution of property transferred to the
State as described above. The provision of the law is
cogent and the list of persons detailed. Under Article 3
para. 1 of the law a person entitled to such restitution is
a physical person whose property has been transferred to
the State in cases mentioned in Article 6 of the law,
provided the person is a citizen of the Czech Republic and
has permanent residence on the territory of the Czech
Republic. [The applicant's brother] as the former owner of
one half of the house meets these conditions, but the owner
of the other half [the applicant], permanently residing
abroad, cannot claim restitution of his part. Therefore,
only [the applicant's brother] is claiming restitution of
the property as a whole and invokes the provisions of
Article 5 para. 1 of the above law. The last sentence of
the provision sets forth the possibility of restitution of
an item as a whole if the claim is made only by one of the
persons entitled. The problem here is the interpretation
of the provision. The Court of Appeal's position is that
the term 'item' means what was taken away from a physical
person in the way described by the law, which includes also
a part in co-ownership. Therefore, the last sentence of
Article 5 para. 1 of the law cannot be applied in cases
where more than one entitled person are concerned under
Article 3 para. 1 of the law, as each person is entitled
only to his property, i.e. to his part in co-ownership ...
Accordingly [the applicant's brother] cannot successfully
claim restitution of the half of the property originally
owned by [the applicant] who is permanently residing
outside the Czech Republic. From this point of view he is
not a person entitled according to Article 3 para. 2 of the
law which can be applied only in cases where the owner has
died ..."
By decision dated 12 July 1994, the Constitutional Court (Ústavní
soud) annulled the requirement of permanent residence in the Czech
Republic for restitution of property under Law No. 87/1991. However,
the requirement of citizenship was not affected by that decision.
On 12 September 1994, the applicant applied to the Minister of
the Interior for being granted the Czech citizenship which he had lost
in 1974 in accordance with the Naturalization Treaty between the U.S.A.
and the Czechoslovak Republic. He invoked Article 11 para. 1 c) of Law
No. 40/1993 on Obtaining and Losing the Citizenship of the Czech
Republic, which allows a person applying for Czech citizenship, who is
permanently residing in the Czech Republic and has had Czech
citizenship in the past, to be excused from the condition of an
uninterrupted five-year stay in the Czech Republic.
By letter of 18 October 1994, the applicant was informed by the
Minister of the Interior that, in order to be excused from the
condition of an uninterrupted five-year stay, he had to prove a
permanent residence on the territory of the Czech Republic by holding
a foreigners' permanent residence permit. The law in force did not
allow an applicant for Czech citizenship to be relieved from the
condition of permanent residence, but the period of an uninterrupted
five-year stay could be shortened in cases where an applicant had a
permission for permanent stay and met one of the other express
conditions, e.g. that the person concerned had had Czech citizenship
in the past. The applicant was also informed by the Minister that in
accordance with the Naturalization Treaty, a citizen of the U.S.A. who
obtains Czech citizenship loses at the same time the citizenship of the
U.S.A. He was further informed about the fact that the law in force
on obtaining citizenship of the Czech Republic did not provide for
"restoration" of citizenship.
B. Relevant domestic law
Law No. 87/1991 on Extra-judicial Rehabilitation [Translation]
Article 3
"1. A person entitled is a physical person whose property has
been transferred to the State in the cases stated in Article 6,
provided such a person is a citizen of the Czech and Slovak
Federal Republic and is permanently residing on its territory."
Article 4
"1. Mandated persons are the State or legal entities who are in
possession of the property on the day of entry into force of this
law ..."
Article 5
"1. A mandated person shall surrender a property upon written
request from an entitled person who has proved his right to the
subject matter and specified the way of its transfer to the State
... If there are more than one person entitled ... and only some
of them lodge their claim, the whole property shall be
surrendered to them.
2. The entitled person shall, within six months from the date
of the coming into force of this law, call on the mandated person
to surrender the property ; otherwise the right expires.
3. The mandated person shall conclude an agreement with the
entitled person about the surrender of property and the property
shall be surrendered within thirty days after the expiry of the
period stated in paragraph 2. ... such agreement shall be
subject to registration by the State Notary ...
4. If the mandated person refuses to surrender the property
..., the entitled person may introduce a judicial request in the
period of one year from the date of the coming into force of this
law. ..."
Article 6
"1. The obligation to surrender a property shall apply to those
cases where the property has been transferred to the State during
the stated period
...
d) by a gift agreement made by a donor under duress, ..."
Law No. 40/1993 on Obtaining and Losing the Citizenship of the Czech
Republic [Translation]
Article 7
"1. Citizenship of the Czech Republic shall be granted on
request of a physical person who meets the following conditions:
a) that he has been permanently resident on the territory of
the Czech Republic for at least five years prior to the date of
lodging the application, ..."
Article 11
"1. The Ministry of the Interior can excuse a person applying
for Czech citizenship from the condition stated in Article 7
para. 1 a) provided he is permanently residing on the territory
of the Czech Republic and
...
c) has had the citizenship of the Czech Republic or of the
Czech and Slovak Federal Republic in the past, ..."
COMPLAINTS
1. The applicant complains that he is denied use and enjoyment of
his property. He claims that Law No. 87/1991 denied him the right to
apply for renewed use of his private property only because he is an
American citizen. He claims that this denial of use of his private
property continues to be to his personal detriment.
He states that the court's decision of 1974 by which he was
sentenced to a three-year imprisonment and by which all his property
was confiscated has been fully annulled by Law No. 119/1990.
Therefore, he claims that he has never lost his ownership rights. He
invokes Article 1 of Protocol No. 1.
2. The applicant complains that Law No. 87/1991 denied him the right
to the restitution of his property without any charges being brought
against him in a court and without any opportunity for a hearing. He
maintains that his property was de facto confiscated by Article 3 of
that law. He invokes Article 6 para. 1 of the Convention.
4. He states that since he could not personally pursue the case
before the Czech courts - because proceedings brought by him would have
had no chance of success in view of Article 3 of Law No. 87/1991 - no
effective remedy before a national authority was available to him.
4. He alleges that he and his brother have been discriminated
against by Law No. 87/1991 because of the applicant's citizenship
status. He invokes Article 14 of the Convention.
5. He further complains that his conviction for unlawful emigration
continues to violate his right to leave the country as guaranteed by
Article 2 of Protocol No. 4 since he is not able to claim return of his
property. He notes that he has received no compensation for having
been wrongfully sentenced in 1974.
6. The applicant states that although he was judicially
rehabilitated for his emigration by Law No. 119/1990, he was punished
again by Law No. 87/1991. He invokes Article 4 of Protocol No. 7.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 June 1993 and registered on
9 December 1993.
On 5 July 1995 the Commission decided to give notice of the
application to the Czech Government and to invite them to present their
observations in writing on the admissibility and merits of the
application.
The respondent Government's observations were submitted on
5 October 1995.
The applicant's observations in reply and further observations
were submitted on 30 November and 22 December 1995 respectively.
THE LAW
1. The applicant complains about being denied the use and enjoyment
of his property in view of Law No. 87/1991 on Extra-Judicial
Rehabilitation. He alleges discrimination against himself, and
consequently his brother, by Law No. 87/1991 because of his citizenship
status. He claims that his property was de facto confiscated by
Article 3 (Art. 3) of this law. He invokes, in particular, Article 1
of Protocol No. 1 and Article 14 (P1-1, 14) of the Convention.
He states that he could not personally pursue the case before the
Czech courts because proceedings brought by him would have had no
chance of success in view of Article 3 (Art. 3) of Law No. 87/1991.
Article 1 of Protocol No. 1 (P1-1) provides:
"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 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
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."
The Government first submit that the application is incompatible
ratione temporis with the provisions of the Convention. They point out
in particular that there is no judicial decision on the merits
concerning the applicant's half of the house. The restitution
proceedings could not be taken into consideration because the applicant
was not a party to these proceedings.
The Government further object that the applicant has not
exhausted the domestic remedies at his disposal and submit that the
application should be declared inadmissible on this ground. The
applicant was free to submit his claim for restitution within the six
months period, pursuant to Article 5 para. 2 of Law No. 87/1991. In
the event of failure to satisfy the claim on the part of the mandated
person, the applicant should have submitted his claim to the courts,
including the Constitutional Court, and asserted his right to the
peaceful enjoyment of possessions guaranteed by Article 11 para. 1 of
the Charter of Fundamental Rights and Freedoms and/or Article 1 of
Protocol No. 1 (P1-1), which is directly applicable in Czech law.
As regard the merits of the applicant's complaint, the Government
submit that the requirement of Czech citizenship is fully compatible
with Article 14 (Art. 14) of the Convention and Article 1 of Protocol
No. 1 (P1-1). They point out in particular that Article 11 para. 2 of
the Charter of Fundamental Rights and Freedoms provides that certain
property may be owned exclusively by citizens or by legal persons
having their seat in the Czech Republic. Thus, the limitation of the
exercise of property rights on the basis of citizenship is legitimate.
The applicant does not accept the conclusions of the Government
concerning the competence of the Commission and considers that the
Commission is competent ratione temporis to examine his case.
The applicant also claims that all domestic remedies available
to him under Czech [Czechoslovak] law have been exhausted. He contends
that he could not have brought restitution proceedings because he was
not an entitled person under Law No. 87/1991 as he did not have Czech
citizenship. He recalls that his brother applied to the court on his
behalf and this application was rejected for the above reason. The
applicant also points out that he could not turn to the Constitutional
Court. In January 1993 when the Prague Court of Appeal denied the
claim, the Constitutional Court had not been constituted. This
jurisdiction was created later by Law No. 182/1993 which entered into
force on 1 July 1993.
As for the merits of the case, the applicant claims that the
requirement of Czech citizenship for applying for the return of
property violates his rights guaranteed by Article 1 of Protocol No. 1
in conjunction with Article 14 (P1-1+14) of the Convention.
The Commission first notes that the property in question is the
property which the applicant and his brother had given up to the State
in 1960. The applicant's conviction for unlawful emigration in 1974,
which was annulled ex tunc and ex lege in 1990 in application of Law
No. 119/1990 on Judicial Rehabilitation, did not concern the property
at issue.
The Commission recalls that it is not competent to examine
complaints concerning facts which relate to a period prior to the date
of the entry into force of the Convention and its Protocols with
respect to each Contracting Party. The Commission is therefore not
competent ratione temporis to examine the expropriation in 1960, which
was long before the Convention entered into force in respect of the
Czech Republic.
The Commission also recalls that Article 1 of Protocol No. 1
(P1-1) aims at securing the peaceful enjoyment of existing possessions.
It does not guarantee, in general, a right to acquire property (cf.
No. 11628/85, Dec. 9.5.86, D.R. 47 p. 270). Besides, a 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 pp. 146, 168).
The applicant complains about denial of the use and enjoyment of
his property in view of Law No. 87/1991 on Extra-Judicial
Rehabilitation.
The Commission notes that this law entered into force on
1 April 1991. It set up a six months' period for restitution claims,
which expired on 30 September 1991. However, the applicant never made
his own restitution claim. The Commission further notes that since the
expiration of this legal period the applicant's position has not
changed.
In this regard, the restitution proceedings brought by the
applicant's brother in September 1991 cannot be taken into
consideration because at the time when the applicant's brother made the
request for restitution, the applicant had no property interest in his
part of the house. Accordingly, the applicant's complaint falls
outside the competence ratione temporis of the Commission.
As regards the applicant's allegation that the denial of use of
his private property continues to be to his personal detriment, the
Commission recalls that the Convention does not guarantee the right to
restitution of property (cf. mutatis mutandis, No. 23131/93, Dec.
4.3.1996). In this regard, the application falls outside the
competence ratione materiae of the Commission.
Finally, having regard to its findings in regard to the
applicant's complaints under Article 1 of Protocol No. 1 (P1-1), the
Commission finds that no further issue arises under Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of application is incompatible with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that his conviction for unlawful
emigration continues to violate his right to leave the country as
guaranteed by Article 2 of Protocol No. 4 (P4-2) as he is not able to
claim return of his property to him. He notes that he has received no
compensation for having been wrongfully sentenced in 1974.
The Commission has already noted that it is not competent to
examine complaints concerning facts which relate to a period prior to
the date of the entry into force of the Convention and its Protocols
with respect to each Contracting Party. In the light of this
principle, the Commission is not competent ratione temporis to examine
the applicant's conviction in 1974, which was long before the
Convention entered into force in respect of the Czech Republic. The
continuing effects of this conviction cannot be seen as constituting
a new interference with the right guaranteed by Article 2 of Protocol
No. 4 (P4-2).
This part of the application is therefore also incompatible with
the provisions of the Convention within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
3. The applicant further states that although he was judicially
rehabilitated for his emigration by Law No. 119/1990, he was punished
again by Law No. 87/1991. He invokes Article 4 of Protocol No. 7
(P7-4).
The Commission considers that the fact that Law No. 87/1991 does
not allow the applicant to claim restitution of his property cannot be
considered as a new punishment for an offence for which he has already
been convicted, within the meaning of Article 4 of Protocol No. 7
(P7-4).
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 Commission President to the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy