AS TO THE ADMISSIBILITY OF
Application No. 30904/96
by Ján PECHANEC
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 30 October 1995
by Ján PECHANEC against the Slovak Republic and registered on
1 April 1996 under file No. 30904/96;
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 1914. He is retired
and resides in Staten Island, USA. Before the Commission the applicant
is represented by H. Bognerová, a lawyer practising in Trencín.
The facts of the case, as submitted by the applicant may be
summarised as follows.
A. Particular circumstances of the case
On 27 July 1954 the Trencín People's Court (Ludovy súd) found
that the applicant had concealed and unlawfully dealt with precious
metals, watches and jewellery. The applicant was convicted of three
offences and sentenced to two years' imprisonment. Subsidiarily, the
court ordered confiscation of the applicant's property and imposed a
fine on him. The applicant's movable and real property was confiscated
by the Czechoslovak State.
On 23 November 1990 the Trencín District Court (Okresny súd)
quashed, pursuant to Section 2 of Law No. 119/1990 on Judicial
Rehabilitation (Zákon o súdnej rehabilitácii - see "The relevant
domestic law" below) the applicant's conviction of two of the aforesaid
offences and discontinued the proceedings against the applicant in this
respect. At the same time the District Court quashed, ex tunc, all
other decisions by which additional penalties had been imposed on the
applicant.
As to the third offence of which the applicant had been convicted
in 1954, the District Court imposed a year's prison sentence on the
applicant. The court noted that the applicant had served that sentence
already and did not consider it appropriate to impose any accessory
penalty in this respect.
The General Prosecutor considered that the conviction of the
applicant, in 1954, of the third offence had been unlawful and lodged
a complaint in the interest of the law (staznost pre porusenie zákona)
on the applicant's behalf.
On 10 June 1992 the Supreme Court (Najvyssí súd) found that the
conviction of the applicant of the third offence had been unlawful and
quashed the corresponding part of the People's Court's judgment of 1954
and all subsequent decisions relating to this issue. The Supreme Court
further found that the offence in question fell under the presidential
amnesty of 1 January 1990 and discontinued the proceedings concerning
this count.
B. The relevant domestic law
The purpose of Law No. 119/1990 on Judicial Rehabilitation of
23 April 1990 (in force from 1 July 1990 and amended on
30 January 1991) is to authorise the quashing of convictions for
offences where such convictions are incompatible with the principles
of a democratic society and to ensure the social and economic
rehabilitation of the persons so convicted.
Section 2 of Law No. 119/1990 sets out, inter alia, the cases in
which convictions pronounced between 25 February 1948 and 1 January
1990 shall be quashed with effect from the date on which they were
pronounced, together with any consequential decisions.
Section 23 governs compensation for damage to which persons
rehabilitated under Law No. 119/1990 are entitled. Para. 1 of
Section 23 provides that the persons concerned shall be compensated,
inter alia, for loss of earnings due to their detention and
imprisonment, for the costs incurred by them in connection with the
criminal proceedings against them, their detention and imprisonment,
for the lawyer's fees in the original criminal proceedings against them
as well as for the pecuniary penalties paid by such persons.
Para. 2 of Section 23 of Law No. 119/1990 provides as follows:
"A special law shall define the conditions for submitting claims
relating to quashed confiscation decisions ... as well as the
manner of redress and the scope of such claims."
The issues mentioned in Section 23 para. 2 of Law No. 119/1990
are governed by the following provisions of Law No. 87/1991 on
Extrajudicial Rehabilitation (Zákon o mimosúdnych rehabilitáciách) of
21 February 1991 (in force from 1 April 1991):
Section 3
"1. Any natural person who is a citizen of the Czech and Slovak
Federal Republic permanently resident within its territory is
entitled to claim restitution of any of his or her property which
passed into state ownership in the circumstances referred to in
Section 6."
Section 5
"1. A person who is under the obligation to restore property
shall do so upon the receipt of a written request submitted by
the person entitled to restitution...
2. Any request for restitution shall be made within the period
of six months from the date on which this Law enters into force,
failing which the relevant claim shall lapse."
...
Section 19
"1. Any person rehabilitated under the provisions of Law
No. 119/1990 shall be entitled to restitution provided that he
or she fulfils the conditions laid down in Section 3 para. 1..."
COMPLAINT
The applicant complains that because of the requirement of
permanent residence laid down in Section 19 para. 1 in conjunction with
Section 3 para. 1 of Law No. 87/1991 on Extrajudicial Rehabilitation
he is prevented from recovering his property which had been confiscated
by virtue of the judgment of 27 July 1954 or obtaining compensation in
lieu thereof. He alleges that the aforesaid requirement interferes
with his rights under Article 1 of Protocol No. 1 and Article 3 of
Protocol No. 7.
THE LAW
The applicant complains that he cannot obtain restitution of his
property or compensation in lieu thereof. He alleges that there is an
incompatibility between, on the one hand, Article 1 of Protocol No. 1
and Article 3 of Protocol No. 7 (P1-1, P7-3) and, on the other hand,
Section 19 para. 1 in conjunction with Section 3 para. 1 of Law No.
87/1991 on Extrajudicial Rehabilitation under which permanent residence
in the Slovak Republic (and until 31 December 1992 in the former Czech
and Slovak Federal Republic) is a condition for eligibility to claim
restitution of confiscated property.
Article 1 of Protocol No. 1 (P1-1) provides 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.
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 3 of Protocol No. 7 (P7-3) provides a as follows:
"When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been
reversed, or he has been pardoned, on the ground that a new or
newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according to
the law or the practice of the State concerned, unless it is
proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him."
The Commission recalls that it can examine applications only to
the extent that these relate to events occurring after the Convention
entered into force with respect to the relevant Contracting Party. The
Commission found earlier that it has jurisdiction to examine
applications against the Slovak Republic concerning matters which are
subsequent to 18 March 1992, i.e. the date when the Convention was
ratified by the former Czech and Slovak Federal Republic (see
No. 23131/93, Dec. 4.3.96, D.R. 85-B, pp. 78, 79).
The Commission notes that the applicant was deprived of his
property in 1954, i.e. long before the aforementioned date. Therefore,
the Commission lacks temporal jurisdiction to examine the circumstances
of the confiscation of the applicant's property or the possible
effects produced by it in 1990, when the applicant benefited from the
judicial rehabilitation in respect of the confiscation decision. In
this regard the Commission recalls that deprivation of property or
another right in rem is in principle an instantaneous act and does not
produce a continuing situation of "deprivation of a right" (see
No. 7742/76, Dec. 7.7.78, D.R. 14, p. 146; No. 23131/93 cited above,
p. 79).
To the extent that the applicant alleges that Section 19 para. 1
in conjunction with Section 3 para. 1 of Law No. 87/1991 prevented him
from recovering his property or receiving compensation for its
confiscation, the Commission notes that on 23 November 1990 the Trencín
District Court quashed, ex tunc, the confiscation decision of 1954
concerning his property. However, despite his judicial rehabilitation
in this respect, the applicant's former right of ownership over the
confiscated possessions was still not capable of being effectively
exercised since Section 23 para. 2 of Law No. 119/1990 expressly
reserved the detailed provisions regarding redress for later
legislation.
Such provisions were laid down in Law No. 87/1991 and they
limited those who could claim restitution or damages for confiscated
property to citizens of the then Czech and Slovak Federal Republic
permanently residing on the territory of that State. The Commission
notes that the applicant did not fulfil the aforesaid permanent
residence condition. For this reason, he was excluded, from the very
moment of the entry into force of Law No. 87/1991, from obtaining
either restitution of his property or compensation in lieu thereof.
The Commission notes that Law No. 87/1991 entered into force on
1 April 1991 and the six-months period within which those eligible
could claim restitution of their property expired on 30 September 1991.
Thus, the relevant facts of the applicant's case are prior to
18 March 1992 whereas, as stated above, the Commission can examine
applications against the Slovak Republic only if these concern facts
which are subsequent to this date.
It follows that the application is incompatible ratione temporis
with the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy