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
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 10 March 1993 by
Mr. Antonín NOHEJL against the Czech Republic and registered on
14 April 1994 under file No. 23889/94;
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 submitted
by the applicant on 22 October, 3 and 4 November 1995;
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.
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'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 illegal emigration. A two-
month sentence was imposed and all his property was confiscated. Due
to this conviction, an amount of Kc 32,680.00 representing remuneration
for the applicant's patents was paid out to the State.
In 1990, this conviction was annulled ex lege and ex tunc in
accordance with Law No. 119/1990 on Judicial Rehabilitation.
In June 1990, the applicant's father died. The applicant and his
sister were the heirs.
On 9 and 15 November 1990, the applicant made a preliminary
request to the Housing Association of Prague 5 (Bytovy podnik v Praze
5), which was then the owner of the two blocks of flats, asking that
until new legal regulations were issued, 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 to that
Housing Association, 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 with the State Notary's Office
of Prague 5 (Státní notárství pro Prahu 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 received no reply to the letter.
On 27 November 1993, the applicant made a constitutional appeal.
He submitted that Article 3 of Law No. 87/1991, which limited the
rights of applicants to those who have their permanent residence in the
Czech Republic was not compatible with the Constitution, Article 1 of
Protocol No. 1 and Article 14 of the Convention.
On 17 December 1993, a judge of the Constitutional Court (Ústavní
soud) informed the applicant about the formalities of a constitutional
appeal and asked the applicant to comply with those formalities by
28 February 1994.
On 8 February 1994, the applicant sent a form of authority to his
lawyer. The form was received by the lawyer only on 26 February 1994.
By letter of 25 March 1994, the applicant's lawyer informed the
applicant that a constitutional appeal could not be 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 the applicant's constitutional appeal inadmissible on the
ground of its formal shortcomings.
On 12 July 1994, upon a constitutional appeal lodged by members
of Parliament, 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 for making claims against individuals to
whom property had already been transferred.
On 27 October 1994, without the applicant's knowledge, the
applicant's sister sold the first building to a company 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 sales
agreement of 27 October 1994.
On 14 February 1995, the applicant's lawyer informed the
applicant that even though he was now technically an entitled person
within the meaning of the Constitutional Court's decision, his request
for restitution would appear to be without prospects. 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 to have the property returned to him.
B. Relevant domestic law
Law No. 119/1990 on Judicial Rehabilitation [Translation]
Article 2
"1. Valid sentences imposed from 25 February 1948 till
1 January 1990 in respect of acts committed after 5 May 1945,
... b) under Law No. 231/1948, in respect of crimes and
offences ... of unauthorised departure from the territory
of the Republic and failure to obey the invitation to
return ..., as well as any other decisions in the same
criminal matter resulting from follow-up proceedings are
annulled."
Article 23
"...
2. The conditions under which claims arising from annulled
sentences involving forfeiture of property ... may be submitted,
including the form of compensation and scope of such claims,
shall be regulated by a special law."
Law No. 87/1991 on Extra-Judicial Rehabilitation [Translation]
Article 1
"1. The law is aimed at mitigating the consequences of some
property and other injuries caused by ... judicial and
administrative acts, performed between 25 February 1948 and
1 January 1990 in contradiction of the principles of a democratic
society ...
2. The law also regulates the conditions for making claims
arising from cancelled sentences involving forfeiture of property
..., as well as the manner of compensation and the extent of
these claims."
Article 3
"1. An entitled person is a physical person whose property has
been transferred to the State in the cases stated in Article 6
of this law, 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 property upon a written
request from an entitled person who has proved his claim to the
property and specified the way it was transferred to the State
... If there are more than one entitled person ... and only some
of them lodge a 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.
5. If property has been returned, persons whose claims were
not satisfied may 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."
Article 6
"1. The obligation to surrender 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, ..."
Constitution of the Czech Republic [Translation]
Article 10
"Ratified and promulgated international treaties on human rights
and fundamental freedoms, by which the Czech Republic is bound,
shall be directly applicable and take priority over the law."
Article 87
"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 ..."
Law No. 182/1993 on the Constitutional Court of the Czech Republic
[Translation]
Article 72
"1. A constitutional appeal 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 ..."
Article 74
"Together with a constitutional appeal a proposal may be made for
abrogation of a law ... the application of which has raised
issues which are the subject of the constitutional appeal
provided they are, according to the applicant, inconsistent with
a constitutional law or an international agreement ..."
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 constitutes discrimination against him, even
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 success in view of the provision of Article 3 of Law
No. 87/1991, no effective remedy before a national authority was
available to him. He invokes, in substance, Articles 6 para. 1 and 13
of the Convention.
3. He maintains 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 as guaranteed by Article 2 of Protocol No. 4.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 March 1993 and registered
on 14 April 1994.
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
complaint about the denial of the use and peaceful enjoyment of the
applicant's property within the meaning of Article 1 of Protocol No. 1
in conjunction with Article 14 of the Convention. It declared the
remainder of the application inadmissible.
The respondent Government's observations were submitted on
5 October 1995.
The applicant submitted observations in reply on 22 October 1995
and further observations on 3 and 4 November 1995.
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 and Article 14
(P1-1, 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.
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 submit that there is no judicial decision on the
merits of the case. It is true that on 27 November 1993 the applicant
made a constitutional appeal to the Constitutional Court. However, the
Constitutional Court did not examine the merits of the applicant's
appeal because he failed to comply with the formalities set by Law
No. 182/1993 on the Constitutional Court. The Government thus claim
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 Government further note that by virtue of the waiver of the
requirement of permanent residence provided for in the Constitutional
Court's decision of 14 July 1994, the applicant was classified as an
entitled person within the meaning of the provisions of Article 3 para.
1 of Law No. 87/1991 on Extra-Judicial Rehabilitation and was free to
submit his claim to the mandated person, i.e. the Prague 5 Housing
Association, pursuant to the provisions of Article 5 para. 2 of this
law, within six months of the effective date of the Constitutional
Court's decision, that is by 1 May 1995. 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 court within one year, i.e. by
1 November 1995, and assert his right to peaceful enjoyment of
possessions on the basis of the provisions of Article 5 para. 4 of the
above law.
As regards the applicant's allegation that he could not pursue
the case in the Czech Republic, the Government submit that Czech law
provides adequate safeguards of the right to invoke before its courts
fundamental rights and freedoms guaranteed by domestic law as well as
by international treaties on human rights and fundamental freedoms
which are binding on the Czech Republic.
The Government conclude that the applicant did not make any
attempt to assert his right to the peaceful enjoyment of possessions
by means of the procedure of extrajudicial rehabilitation determined
by Law No. 87/1991. Thus, no interference with the applicant's rights
can be found and the application should be declared manifestly ill-
founded.
The applicant does not accept the Government's reasoning
concerning the competence of the Commission and considers that the
Commission is competent ratione temporis to examine his case.
The applicant also claims that the court proceedings referred to
by the Government could not have been brought. He submits that the
mandated person, i.e. Prague 5 Housing Association, would have replied
to his demand by pointing out that restitution of the property was
impossible because it had already been restored in accordance with
Article 3 of Law No. 87/1991, on account of which it was no longer in
its possession. Had the applicant appealed pursuant to Article 5
para. 4 of this law, as the Government suggest in their observations,
the court would have refused his claim, pointing out that the mandated
person had already restored the property.
He would have been referred to Article 5 para. 5, specifically
designed to deal with such cases. However, the period of one year for
demanding redress from the person to whom the property had been
restored, has expired and he cannot now recover his property.
The Commission first 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 with respect to each
Contracting Party. The Commission also notes that 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).
In the present case, the property in question is the property
which the applicant's family gave up to the State in 1960. The
applicant had no property interest in the buildings when his sister
applied for a transfer (in May 1991), as he was precluded by the
residence condition from requesting transfer to him.
The Commission notes that the transfer of the property to the
applicant's sister was registered on 8 January 1992, which was before
18 March 1992, the date of the entry into force of the Convention in
respect to the Czech Republic [Czech and Slovak Federal Republic], and
nothing since then has changed the applicant's position. In
particular, the decision of the Constitutional Court of 12 July 1994
could not create a property right for the applicant, as by then the
property had been vested in his sister. Moreover, the constitutional
proceedings which the applicant did bring cannot give rise to a
property right because the applicant had not brought ordinary
restitution proceedings, and in any event he failed to comply with the
procedural requirements of domestic law in connection with these
constitutional proceedings.
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, either under Article 6
para. 1 (Art. 6-1) or under Article 13 (Art. 13) of the Convention.
It follows that this part of the application is therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant 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 as
guaranteed by Article 2 of Protocol No. 4 (P4-2).
The Commission already noted that the property concerned is the
property which the applicant's family had to give up to the State in
1960. In these circumstances, the confiscation of property following
the applicant's conviction for unlawful emigration in 1972 did not
concern the property at issue.
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 INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy