AS TO THE ADMISSIBILITY OF
Application No. 23889/94
by Antonín NOHEJL
against the Czech Republic
The European Commission of Human Rights sitting in private on
5 July 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
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
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
Mr. M. de SALVIA, Deputy 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 10 March 1993 by
Antonín NOHEJL against the Czech Republic and registered on
14 April 1994 under file No. 23889/94;
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, a Czech citizen born in 1933 in Prague and
residing at Surbiton, the United Kingdom, is a company director.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. The particular circumstances of the case
In 1960, the applicant's family had to give up to the State two
blocks of flats in its ownership.
In 1968, the applicant left Czechoslovakia and started to work
in the United Kingdom where he is permanently residing. On
13 January 1972, in his absence, he was convicted for emigration. A
two-month sentence was imposed and all his property was confiscated.
Due to this conviction, an amount of Kc 32,680.00 was paid out to the
state as a remuneration for the applicant's patents.
In 1990, this conviction was annulled ex lege and ex tunc in
accordance with Law No. 119/1990 on Judicial Rehabilitation (Zákon o
soudní rehabilitaci).
In June 1990, the applicant's father died and the applicant and
his sister inherited the whole of the first building and one third of
the second one.
On 9 and 15 November 1990, the applicant made a preliminary
request to the Housing Association of Prague 5 (Bytovy podnik Praha 5),
which was then the owner of the property, asking that until the time
new legal regulations are issued (Law on Extra-judicial
Rehabilitation), nothing should be done with the property that could
restrict the exercise of his rights as an owner.
In May 1991, the applicant's sister made a request under
Article 3 of Law No. 87/1991 on Extra-judicial Rehabilitation (Zákon
o mimosoudních rehabilitacích) to the Housing Association of Prague 5,
for an agreement concerning restitution of the whole of the first
building and one third of the second one.
On 17 October 1991, the Housing Association concluded an
agreement with the applicant's sister concerning restitution of both
buildings. The agreement was registered by the decision of the State
Notary's Office of Prague 5 on 8 January 1992. The applicant was not
informed.
By letter of 23 November 1991, the applicant made a request to
the Housing Association of Prague 5 for the return of his part of the
property provided that the building was to be returned to his sister.
The Housing Association replied that his claim would be considered.
By letter of 25 February 1992, the applicant asked the State
Notary's Office for information about the current position of his
claim. He has received no reply to the letter.
On 27 November 1993, the applicant made a constitutional appeal
to the Constitutional Court. He submitted that Article 3 of Law
No. 87/1991 - which limited the rights of applicants to those who have
their permanent residence on the territory of the Czech Republic was
not compatible with the Czech Constitution, Article 1 of Protocol No. 1
and Article 14 of the Convention.
By letter of 17 December 1993, a judge of the Constitutional
Court informed the applicant about formalities of a constitutional
complaint without stating shortcomings in the applicant's appeal. The
judge asked the applicant to fulfil the formalities by
28 February 1994.
On 8 February 1994, the applicant sent to his counsel in Prague
his power of attorney which due to delay in delivery was received by
the counsel only on 26 February 1994.
By letter of 25 March 1994, the applicant's counsel informed the
applicant that a constitutional appeal could not have been completed
and lodged within the given period because he had not received a copy
of the complaint filed by the applicant on 27 November 1993.
In the meantime, on 1 March 1994, the Constitutional Court
declared inadmissible the applicant's constitutional appeal for its
formal shortcomings.
By decision dated 12 July 1994, the Constitutional Court annulled
the requirement of permanent residence in the Czech Republic for
restitution of property under Law No. 87/1991. The decision enabled
persons whose permanent residence was not on the territory of the Czech
Republic to apply for restitution. The decision set up a new six
months' period for restitution claims from 1 November 1994 to
30 April 1995, but did not affect the period of one year from
1 April 1992 for making claims against individuals to whom property had
already been transferred.
On 27 October 1994, the applicant's sister sold the first
building without the applicant's knowledge to a company N. for
Kc 2,800,000.
On 16 December 1994, the applicant addressed to his sister two
requests for surrender of one half of the first building and one sixth
of the second one. In the alternative, he asked for Kc 1,400,000
corresponding to one half of the amount agreed upon in the sale
agreement of 27 October 1994.
By letter of 14 February 1995, the applicant's counsel informed
the applicant that even though he is now technically an entitled person
within the meaning of the Constitutional Court's decision, his request
for restitution of the property would appear to be unsuccessful. He
explained that in his case the essential element was Article 5 of Law
No. 87/1991 according to which, if property had been returned, persons
whose claims were not satisfied could make a claim against persons to
whom the property had been returned within a period of one year from
the date of the coming into force of this law, i.e. by 1 April 1992.
He noted that the Constitutional Court had not provided for an
extension of this one-year period, which had therefore expired and the
applicant had no possibility, as an entitled person, to have the
property returned to him.
On 17 April 1995, the applicant made a request under the
Constitutional Court's decision of 12 July 1994 to the Prague 5
District Court for the restitution of the confiscated remuneration for
his patents.
B. Relevant domestic law
Law No. 87/1991 on Extra-judicial Rehabilitation
Article 3
[Translation]
"1. An entitled person is a physical person whose property has
been transferred to the State in cases stated in Article 6 of the
Law, provided such a person is a citizen of the Czech and Slovak
Federal Republic and is permanently residing on its territory."
[Original]
"1. Oprávnenou osobou je fyzická osoba, jejíz vec presla do
vlastnictví státu v prípadech uvedenych v § 6 zákona, pokud je
státním obcanem Ceské a Slovenské Federativní Republiky a má
trvaly pobyt na jejím území."
Article 5
[Translation]
"1. A mandated person shall surrender a property upon written
request from an entitled person who has proved his claim to the
property and specified the way of its transfer to the State ...
If there are more entitled persons ... and only some of them
lodge their claim, the whole property shall be surrendered to
them.
2. An entitled person shall call on the mandated person to
surrender the property within six months from the date of the
coming into force of this law; otherwise the claim expires.
3. A mandated person shall conclude an agreement with an
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 an agreement, in cases where
real property is concerned, shall be subject to registration by
the State Notary ...
5. If property has been returned, persons whose claims were
not satisfied can make a claim against persons to whom the
property was returned within a period of one year from the date
of the coming into force of this Law."
[Original]
"1. Povinná osoba vydá vec na písemnou vyzvu oprávnené osobe,
jez prokáze svuj nárok na vydání veci a uvede zpusob jejího
prevzetí státem ... Je-li oprávnenych osob více a nárok na vydání
veci uplatní ... jen nekteré z nich, vydá se jim vec celá.
2. K vydání vyzve oprávnená osoba povinnou osobu do sesti
mesícu ode dne úcinnosti tohoto zákona, jinak její nárok zanikne.
3. Povinná osoba uzavre s oprávnenou osobou dohodu o vydání
veci a vec jí vydá nejpozdeji do triceti dnu po uplynutí
lhuty uvedené v odstavci 2. Tato dohoda podléhá, pokud jde
o nemovitost, registraci státním notárstvím ...
5. Byla-li vec vydána, mohou osoby, jejichz nároky uplatnené
... nebyly uspokojeny, tyto nároky uplatnit u soudu vuci osobám,
kterym byla vec vydána, do jednoho roku ode dne úcinnosti tohoto
zákona."
Article 6
[Translation]
"1. The obligation to surrender property shall be applied 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, ..."
[Original]
"1. Povinnost vydat vec se vztahuje na ty prípady, kdy v
rozhodném období vec presla na stát
...
d) smlouvou o darování nemovitosti uzavrenou dárcem v tísni,
..."
Constitution of the Czech Republic
Article 87
[Translation]
"1. The Constitutional Court shall decide on:
(a) abrogation of laws or their particular provisions if they
are inconsistent with a constitutional law or an international
agreement ... ;
...
(d) constitutional complaints made against ... decisions or
other interferences by a 'public organ' with the fundamental
rights and freedoms guaranteed by a constitutional law ..."
[Original]
"1. Ústavní soud rozhoduje
a) o zrusení zákonu nebo jejich jednotlivych ustanovení, jsou-
li v rozporu s ústavním zákonem nebo mezinárodní smlouvou ... ;
...
d) o ústavní stíznosti proti ... rozhodnutí a jinému zásahu
orgánu verejné moci do ústavne zarucenych základních práv a
svobod, ..."
Law No. 182/1993 on the Constitutional Court of the Czech Republic
Article 72
[Translation]
"1. A constitutional complaint may be made by:
(a) any physical person ... claiming to be the victim of
a violation by ... a decision or an act of interference by
a 'public organ' with the rights or liberties set forth in
a constitutional law or an international treaty ..."
[Original]
"1. Ústavní stíznost jsou oprávneni podat
a) fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo
jinym zásahem orgánu verejné moci bylo poruseno její základní
právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní
smlouvou ..."
Article 74
[Translation]
"Together with a constitutional complaint a proposal may be made
for abrogation of a law or other legal regulations or particular
provisions the application of which has raised issues which are
the subject of the constitutional complaint provided they are,
according to the applicant, inconsistent with a constitutional
law or an international agreement ...".
[Original]
"Spolu s ústavní stízností muze byt podán návrh na zrusení zákona
nebo jiného právního predpisu anebo jednotlivych ustanovení,
jejichz uplatnením nastala skutecnost, která je predmetem ústavní
stíznosti, jestlize podle trvrzení stezovatele jsou v rozporu s
ústavním zákonem nebo mezinárodní smlouvou ...".
COMPLAINTS
1. The applicant complains about being denied the use and enjoyment
of his property. He claims that Law No. 87/1991 denied him the right
to apply for restitution of his private property. He states that this
denial of the use of his private property continues to be to his
personal detriment and constitute a discrimination against him, also
after the Constitutional Court decision of 12 July 1994. He invokes
Article 1 of Protocol No 1 and Article 14 of the Convention.
2. He states that since he could not personally pursue the case in
Czech courts because proceedings brought by him would have had no
chance of being successful in view of the provision of Article 3 of Law
No. 87/1991, no effective remedy before a national authority was
available to him.
3. He maintains, in substance, that Law No. 87/1991 denies him the
right to his property on the ground that he has exercised his right to
leave his country guaranteed by Article 2 of Protocol No. 4.
4. Finally, the applicant also alleges violation of Article 1 of
Protocol No. 1 to the Convention also in respect of restitution
proceedings concerning return of the moneys awarded for patent work.
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 claims that he is discriminated against by this
denial of the use of his private property which continues to be to his
personal detriment after the Constitutional Court's decision of
12 July 1994. He invokes Article 1 of Protocol No. 1 (P1-1) and
Article 14 (Art. 14) of the Convention.
He states that he could not personally pursue the case in Czech
courts because proceedings brought by him would have had no chance of
success.
He maintains, in substance, that Law No. 87/1991 on Extra-
Judicial Rehabilitation denies him the right to his property on the
ground that he has exercised his right to leave his country guaranteed
by Article 2 of Protocol No. 4 (P4-2).
The Commission considers that it cannot, on the basis of the
applicant's submissions, determine the admissibility of these
complaints and that it is therefore necessary, in accordance with Rule
48 para. 2 (b) of the Rules of Procedure, to communicate this part of
the application to the respondent Government.
2. The applicant also alleges violation of Article 1 of Protocol No.
1 (P1-1) to the Convention in respect of restitution proceedings
concerning return of the moneys awarded for patent work. However,
these proceedings are still pending before the Czech court, and so this
part of the application is premature.
It follows that this part of the application must be rejected
under Article 27 (Art. 27) of the Convention.
For these reasons, the Commission, by a majority
DECIDES TO ADJOURN its examination of the complaints concerning
the use and enjoyment of the applicant's property;
and, unanimously
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy