ROSIVAL AND OTHERS v. SLOVAKIA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17684/02
by Viktor ROSIVAL and Others
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 13 February 2007 as a Chamber composed of:

SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T. L. Early, Section Registrar,

Having regard to the above application lodged on 3 April 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are members of the same family. Their particulars appear in the appendix. They were represented before the Court by Mr P. Kerecman, a lawyer practising in Košice. The respondent Government were represented by Mrs A. Poláčková, their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants’ family owned real estate of approximately 1,500 hectares in cadastral areas Sklabinský Podzámok and Turčianska Štiavnička. It was confiscated by the State after the Second World War and later used by the North Slovakian Forestry Enterprise (Severoslovenské lesy, š.p.).

In 1991 a special law, the Land Ownership Act (Law no. 229/1991 Coll. ‑ “the Act”), was enacted, which provided for certain real property to be restored to its original owners or their legal successors. With regard to land that had been confiscated by the State pursuant to the land reform laws of 1947 and 1948, the total acreage which could be returned to a claimant or group of claimants was limited, under section 6 (3) of the Act, to 150 hectares for agricultural land and 250 hectares for other land.

On 28 February 1992 an amendment to the Act (Law no. 93/1992 Coll. – “the 1992 amendment”) entered into force. Among other things, it repealed section 6 (3) of the Act as, according to its explanatory memorandum (dôvodová správa), “the acreage limit restricted human rights”.

On 8 December 1992 Mrs M.R., the applicants’ wife and mother, requested under section 9 (1) of the Act that the Forestry Enterprise restore all her family’s real property to her. At the same time, she registered the claim with the Martin Land Office (Okresný úrad, odbor pozemkový, poľnohospodárstva a lesného hospodárstva).

In a letter of 9 July 1993 the Forestry Enterprise informed the Land Office under section 9 (4) of the Act that it considered the applicants’ claim unfounded. Under that provision it thus became incumbent on the Land Office to decide on the claim in administrative proceedings.

On 26 August 1993 a new amendment to the Act (Law no. 186/1993 Coll. – “the 1993 amendment”) entered into force. Among other things, it reintroduced section 6 (3) of the Act, setting a general limit of 250 hectares on the amount of land to be restored to one person. Pursuant to a new section 33 (2), pending claims for restitution of land over the said limit could be satisfied only up to that limit.

On 15 February 1995 Mrs M.R. died. The applicants succeeded to her rights and continued her restitution claim as her heirs (“the applicants’ claim”).

In a letter of 28 August 1995 the Forestry Enterprise informed the Land Office of further reasons why it considered the applicants’ claim unfounded. The letter of 28 August 1995 referred to the previous letter of 9 July 1993 (see above) and was intended to supplement it.

In a decision of 30 April 1997 the Land Office granted the applicants’ claim in part. In so far as the remainder of the claim did not exceed 250 hectares, it would be determined at a later date. It was specifically noted that no more than 250 hectares of land could be restored.

On 27 February 1998, on an appeal by the Forestry Enterprise, the Žilina Regional Court (Krajský súd) quashed the decision of 30 April 1997 on the grounds of formal defects. It held that it had been unlawful for the Land Office to determine the applicants’ claim in part only and to leave the determination of the remainder for a later date. The Regional Court confirmed that the acreage limit under section 6 (3) of the Act applied to the applicants’ case, and remitted the matter to the Land Office for re‑examination.

On 22 February 1999 the Land Office found that the applicants met all the requirements for restitution of property under the Act and ordered the Forestry Enterprise to restore the land to them up to the 250-hectare limit. The Regional Court upheld this decision on 7 July 1999 following an appeal by the defendant, and the decision became final and binding on 28 July 1999. The fact that the applicants’ family had owned and claimed restitution of more than 250 hectares of land was mentioned in the decisions of both the Land Office and the Regional Court.

In a letter of 19 August 1999 the applicants requested the Land Office to determine, by means of a formal decision, the remainder of their restitution claim in excess of the statutory limit.

On 20 September 1999 the Land Office ruled that the applicants qualified for restitution of their property under the Act. However, in view of the decision of 22 February 1999 and the limit set by section 6 (3) of the Act, no further land could be restored to them.

On 27 September 1999 the applicants challenged the decision of 20 September 1999 before the Regional Court. They argued that the limitation of their restitution claim under section 6 (3) of the Act violated their constitutional rights, and they requested the Regional Court to initiate proceedings before the Constitutional Court (Ústavný súd) with a view to repealing that legal provision on grounds of unconstitutionality.

On 25 January 2000, on a motion from the applicants, the Prosecutor General challenged sections 6 (3) and 33 (2) of the Act, as amended in 1993, before the Constitutional Court. He argued first of all that the provisions in question had an impermissible retroactive effect. They placed claimants whose claims had not been determined by a final decision at the time of the entry into force of the 1993 amendment at an unfair disadvantage compared with claimants whose claims had already been determined by that time without any limitation. Finally, the Prosecutor General argued that the limitation constituted an unacceptable interference with claimants’ property in that it frustrated full satisfaction of their lawful claims.

On 24 April 2001 the Constitutional Court, sitting in plenary, dismissed the Prosecutor General’s challenge. It observed that the legal system made no general provision for the restitution of property. The Act was a special piece of legislation which had been passed in order to remedy some but not all past property-related injustices. In its preparation, speed had been preferred to perfection. It had been only natural that the mechanism of the Act should have been adjusted after the initial experiences with its application.

It was further observed that there was a long-standing tradition of limiting the private ownership of land, dating back to 1919. The original text of the Act was in line with that tradition. The limits as redefined by the 1993 amendment applied separately to each individual entitled to restitution, with the result that the total acreage which could be returned in cases involving several entitled persons was greater. The amendment also provided for property to be restored in situations not covered by the original Act.

The 1993 amendment had not affected the essence of pending restitution claims, but simply redefined their scope in accordance with the original spirit of the Act. Although the restitution claimants had no reason to expect such redefinition, in the circumstances and especially in view of the object and purpose of the Act, which was aimed at remedying some injustices only, it could not be objectively ruled out.

No adjudicated rights had been affected. Claims which had not been upheld by a final decision did not amount to “property” and, accordingly, there had not been any interference with the applicants’ property.

Three of the Constitutional Court judges, however, did not share the majority view and gave a dissenting opinion. According to them, claims for restitution which met the statutory requirements represented proprietary interests which attracted constitutional protection. The 1993 amendment constituted retroactive interference with those interests and with pending proceedings in respect of them. That was incompatible with the rule of law.

Admittedly, the State was free to define conditions for the restitution of property. However, conditions once set should not be arbitrarily modified at the expense of individual claimants. Thus, the reintroduction by the 1993 amendment of the limit removed by the 1992 amendment undermined the restitution claimants’ trust in the legal system. Moreover, it established an unjust situation between, on the one hand, claimants whose claims concerning over 250 hectares had been allowed in full before the 1993 amendment entered into force and, on the other hand, claimants whose claims over the limit were still pending at that time.

In a letter of 25 October 2001 the applicants informed the Regional Court of the Constitutional Court’s decision of 24 April 2001. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they maintained that their restitution claim should be satisfied in full.

On 14 December 2001 the Regional Court upheld the decision of 20 September 1999 as lawful. It became final and binding on 25 March 2002.

The applicants then applied unsuccessfully to the Land Office and the Slovak Real Estate Fund (Slovenský pozemkový fond) for compensation in lieu of the land that had not been returned to them because it exceeded the said limit.

In a letter of 25 April 2002, in response to an enquiry from the applicants, the Ministry of Agriculture of the Czech Republic informed them that, until the entry into force of the 1993 amendment on 26 August 1993, there had been approximately ten instances in the Czech Republic in which land of over 250 hectares had been restored to restitution claimants. Until 1 January 1993 both the Czech Republic and the Slovak Republic had been part of the Czech and Slovak Federal Republic and, during that period, the Act had applied equally on their respective territories.

In April 2002 the applicants challenged the decision of 14 December 2001 and the proceedings leading to it by means of a complaint before the Constitutional Court under Article 127 of the Constitution. In particular, they complained that the 1993 amendment breached the principle of equality of arms in the proceedings concerning their restitution claim by giving the defendant an unfair advantage. They had not had a hearing before an independent tribunal in those proceedings since the Land Office, as part of the administrative system, was by definition not independent, and the Regional Court did not have full power to review the facts and the law. From the outset, their restitution claim had met all the relevant statutory requirements. There had never been any doubt about that fact, which had been confirmed at final instance by the relevant authorities. The claim therefore amounted to a “possession” for the purposes of the Convention. The 1993 amendment interfered with that possession without acceptable justification or any compensation. Moreover, the interference discriminated against the applicants as compared with other restitution claimants whose claims over the set limit had been satisfied prior to the amendment’s entry into force. The applicants relied, inter alia, on Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.

On 9 October 2002 the Constitutional Court declared the complaint inadmissible as manifestly ill-founded. It observed that the contested decision concerned the applicants’ claim of 19 August 1999 for restitution of an amount of land that exceeded the statutory limit. Such claim had no basis in law and was in fact contrary to it. It could not therefore give rise to any legitimate expectation on the applicants’ part of its being realised. Accordingly, the applicants did not have a “possession” within the meaning of Article 1 of Protocol No. 1 and there had been no interference with their possessions. The proceedings could not therefore be considered as having involved a determination of the applicants’ civil rights and obligations and did not enjoy the guarantees of Article 6 § 1 of the Convention. As Article 14 of the Convention had no independent existence, it did not apply to the decisions and events complained of either.

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention that, in the determination of their restitution claim, they had not had a fair hearing, in that the 1993 amendment constituted an unwarranted legislative interference with the proceedings and placed them at a disadvantage in comparison with the defendant.

2. Relying on Article 6 § 1 of the Convention, the applicants also complained that their restitution claim had not been determined by an independent tribunal, as the Land Office was an administrative agency and the Regional Court did not have full jurisdiction to review its decisions, since its powers were limited to reviewing the “legality” of such decisions and it could not review fully the factual assessment of the case.

3. The applicants further complained of a violation of their rights under Article 1 of Protocol No. 1 on account of the manner in which their restitution claim had been determined under the 1993 amendment. It had been perfectly clear from the outset that the claim met all the requirements for restitution under the Act. That had been confirmed by all the authorities involved. The applicants had therefore had a “legitimate expectation” that the claim would be realised. However, the 1993 amendment had substantially restricted the scope of their claim. The amendment had no legitimate aim and its effect on the applicants had been disproportionate. It had determined the outcome of the proceedings and all the remedies subsequently used by the applicants had been to no avail.

4. The applicants also complained, under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, that they had been discriminated against as compared with claimants whose claims for restitution of land of over 250 hectares had been decided prior to the entry into force of the 1993 amendment.

5. Finally, the applicants complained that the Constitutional Court’s decision of 9 October 2002 and the proceedings leading up to it had been arbitrary and wrong and that, as such, they constituted a separate violation of their rights under Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 14 of the Convention.

THE LAW

1. The applicants complained that they had not had a “fair hearing” in the determination of their restitution claim and of their constitutional complaint. They also complained that their restitution claim had not been determined by an “independent tribunal”. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent ... tribunal established by law.”

(a) In so far as the applicants’ complaint as to the unfairness of the proceedings and the lack of an independent tribunal concerns their claim for restitution of real property up to the limit of 250 hectares, it must be noted that this claim was accepted by the Land Office on 22 February 1999. This decision was subsequently upheld on appeal by the Regional Court on 7 July 1999 and thus became final.

Therefore, as regards this part of their restitution claim, the applicants cannot be considered to be “victims” within the meaning of Article 34 of the Convention of a violation of their right to a fair hearing before an independent tribunal (see, mutatis mutandis, Csepyová v. Slovakia (dec.), no. 67199/01, 14 May 2002).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) As for the complaint that the applicants’ claim for restitution of real property over the 250-hectare limit was not determined by an “independent tribunal” because the Land Office was an administrative agency and the Regional Court did not have full jurisdiction to review its decision, it must be noted that when reviewing the Land Office’s decisions on the applicants’ motion, the Regional Court had the power, under Article 250q of the Code of Civil Procedure, to take such evidence as was necessary for its review (see Veselá and Loyka v. Slovakia (dec.), no. 54811/00, 23 November 2004). Moreover, the Regional Court’s decision of 14 December 2001 was subsequently reviewed by the Constitutional Court following the applicants’ complaint under Article 127 of the Constitution; the scope of jurisdiction and independence of the Constitutional Court have not been contested.

In these circumstances the Court finds that in the present case there is no indication of a violation of the applicants’ right to a hearing by an “independent tribunal”.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c) The applicants then made a separate complaint alleging that the proceedings before the Constitutional Court had fallen short of the guarantees of “fairness” under Article 6 § 1 of the Convention.

Observing that in their constitutional complaint of April 2002 the applicants asserted their rights under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1 in connection with the proceedings on their restitution claim and their outcome, the Court finds that the proceedings concerning the applicants’ constitutional complaint are to be examined in the context of their other Convention complaints.

To the extent that this part of the application has been substantiated, the Court has found no indication of any procedural unfairness within the meaning of Article 6 § 1 of the Convention (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I) in the proceedings concerning the applicants’ constitutional complaint.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(d) In so far as the applicants had claimed restitution of property in excess of the 250-hectare limit, the Government were of the view that the proceedings in respect of that claim had commenced no earlier than 1999, after the determination of the part of their claim lying within the acreage limit. They submitted that, at that time, the claim had been contrary to the amended Act and that, as such, it had not had even an arguable basis in domestic law. The Government concluded that the claim for restitution of property over the statutory limit did not attract the procedural protection of Article 6 of the Convention.

In the alternative, the Government submitted that the 1993 amendment had entered into force long before the case had been submitted for a judicial determination to the Regional Court. It therefore could not have had any effect on the equality of arms of the parties in those judicial proceedings, and the complaint as to their unfairness was therefore manifestly ill‑founded.

The applicants disagreed and submitted that, from the very beginning, their restitution claim and the proceedings in respect of it had concerned the whole of their family’s property, that is to say, even the property which had later been excluded from restitution by the 1993 amendment. The proceedings had to be taken as a whole; the claim had been lodged prior to the 1993 amendment and that amendment had determined the outcome of the proceedings. This had been accepted at the domestic level and had been reflected in all the decisions of the domestic authorities.

Moreover, the legislative interference with the proceedings by virtue of the 1993 amendment had been such that no remedy was available in respect of it.

Finally, the applicants argued that by the time the 1993 amendment had been enacted, the deadline for submitting restitution claims under the Act had already expired. It could thus be presumed that the State had known about the scope and extent of such claims and, by definition, the decision to limit pending restitution claims had had a specific target.

The Court observes that the applicants’ restitution claim was lodged on 8 December 1992. It was then examined by the entity holding the property, the Land Office, then by the Regional Court and ultimately by the Constitutional Court. Although proceedings were conducted before various authorities and they were formally divided into different parts, they concerned a single restitution claim to one set of real property. This is clearly reflected, for example, in the above decisions of 30 April 1997, 27 February 1998 and 22 February and 20 September 1999. The Government’s submission that the claim for restitution of the land in excess of the contested limit was lodged in 1999 therefore has to be rejected.

Consequently, the claim must be considered as having been lodged in 1992, that is to say, prior to the 1993 amendment and, in other words, at a time when no acreage limitation applied to it. It therefore cannot be said that the claim had no arguable basis in law and that it did not attract ratione materiae the protection of the Article relied on. The Government’s primary plea of inadmissibility must therefore be dismissed.

The Court has previously found in similar cases that, from the point of view of Article 6 § 1 of the Convention, “determination” of applicants’ “civil rights and obligations” in restitution proceedings includes the proceedings before Land Offices (see, for example, Csepyová v. Slovakia, no. 67199/01, § 41, 24 February 2004, and Patta v. the Czech Republic, no. 12605/02, § 61, 18 April 2006). The Court sees no reason to reach a different conclusion in the present case.

It follows that for the purposes of Article 6 § 1 of the Convention the proceedings in the present case commenced in 1992 and that the 1993 amendment interfered with them (see, for example, Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301‑B, and Draon v. France [GC], no. 1513/03, 6 October 2005). The Government’s alternative plea of inadmissibility must therefore also be dismissed.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants further complained that the proceedings on their restitution claim and their outcome, which had been predetermined by the effect of the 1993 amendment, as well as the proceedings in respect of their constitutional complaint and their outcome constituted a violation of their rights under Article 1 of Protocol No. 1, which provides that:

“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.”

(a) The Court observes that the applicants’ claim for restitution of land up to the 250-hectare limit was allowed and concludes that the applicants cannot claim to be “victims” in the Convention sense of a violation of their rights under Article 1 of Protocol No. 1 in respect of that complaint.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) As for the claim for restitution of land in excess of the prescribed 250 hectares, the Government asserted, as they had done in respect of the related complaint under Article 6 § 1 of the Convention, that the claim had been made no earlier than 1999. At that time, they argued, such claims had no basis in the applicable law. Relying on the conclusions of the Constitutional Court in its decision of 9 October 2002, the Government submitted that applicants could not therefore have had any “legitimate expectation” that their claim would be realised. Neither could any such expectation be derived from the applicants’ potential hope that the relevant laws would be changed following the Prosecutor General’s challenge before the Constitutional Court.

The Government emphasised that there was no general obligation on the Contracting States to restore property which had been transferred to them before they ratified the Convention, nor were there any restrictions on their freedom to determine the scope of and conditions for property restitution. The Act was aimed at rectification of some but not all property-related injustices of the previous regime. The 1993 amendment had not affected the essence of the applicants’ claim. It had merely refined the scope and conditions of restitution under the Act on the basis of the initial experiences with its application and in line with the existing legal traditions; the respondent State had been entitled to take that course of action.

The Government concluded that the applicants’ claim for restitution of land in excess of the acreage limit did not amount to a “possession” within the meaning of Article 1 of Protocol No. 1 and that, accordingly, it did not attract ratione materiae the protection of that Article.

The applicants submitted first of all that the acreage limitation in the original Act had concerned different types of restitution claims and would in any event not have applied to their case.

They emphasised that they had filed their restitution claim in respect of all their family’s former property in 1992. Even then the claim had included the land in excess of the limit which had been introduced later. Their claim had always been treated as relating to the whole of their family’s former property and no doubts had ever been expressed at any level that the claim met all the formal requirements. It thus gave rise to a specific and well‑founded legitimate expectation that it would be realised. That expectation had been frustrated by the 1993 amendment.

The applicants accepted that the State had a wide margin of appreciation in determining the scope and conditions of restitution. However, once the scope and conditions were set, they should not be arbitrarily changed to the advantage of the State and the disadvantage of restitution claimants. A subsequent change to the rules could not be justified by the State’s initial power to set the rules.

The applicants further pointed out that the explanatory memorandum on the 1993 amendment gave no clear reasons for the reintroduction of the acreage limitation. In so far as the Government sought to justify it by relying on legal traditions, the applicants contended that their specific case had not been subject to those traditions and to the laws quoted by the Government. Similarly, the Government’s assertion that the 1993 amendment had been prompted by the initial experience gained in applying the Act was flawed, as no concrete and specific reference had ever been made to that experience.

Relying on the opinion of the dissenting judges with regard to the Constitutional Court’s decision of 24 April 2001, the applicants argued that the frustration, as a result of the 1993 amendment, of their legitimate expectation of having the whole of their family’s property restored had neither served any public interest nor had it been proportionate.

The Court observes firstly that the applicants’ constitutional complaint was in fact a continuation of the proceedings in respect of their restitution claim. It therefore has to be considered together with those proceedings and in their context.

It has been found above that the whole of the applicants’ restitution claim, that is to say, including the claim to the land in excess of the contested limit, was lodged in 1992. As concluded by the domestic authorities, the sole reason for not allowing the part of the claim exceeding 250 hectares was the 1993 amendment. It must now be ascertained whether the applicants’ claim to restitution of the land over the said limit constituted a “possession” within the meaning of Article 1 of Protocol No. 1.

An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition.

Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners.

In particular, the Contracting States enjoy a wide margin of appreciation with regard to the exclusion of certain categories of former owners from such entitlement. Where categories of owners are excluded in this way, their claims for restitution cannot provide the basis for a “legitimate expectation” attracting the protection of Article 1 of Protocol No. 1.

On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre‑ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1 (for a summary of the relevant principles, see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).

In the present case the applicants’ legal predecessor made a restitution claim under the Act. The applicants later assumed that claim. It was not suggested that the title to the property they sought to recover could be vested in them without the intervention of the authorities. The proprietary interest relied on by the applicants was therefore in the nature of a claim and cannot accordingly be characterised as an “existing possession” within the meaning of the Court’s case-law.

It therefore remains to be determined whether that claim constituted an “asset”, that is, whether it was sufficiently established to attract the guarantees of Article 1 of Protocol No. 1. In that context, it may also be of relevance whether a “legitimate expectation” of obtaining effective enjoyment of the land in question arose for the applicants in the context of the proceedings complained of.

With regard to restitution cases, the Court has previously found that the applicants did not have a “legitimate expectation” where it could not be said that they had a currently enforceable claim that was sufficiently established because they had not met one of the essential statutory conditions (see, for example, Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, ECHR 2002‑VII) or where there was a dispute as to the correct interpretation and application of domestic law by the national courts (see, for example, Jantner v. Slovakia, no. 39050/97, 4 March 2003). The present case does not fall into either of these categories.

The applicants’ restitution claim in the present case was based on the provisions of the Act as in force at the time the claim was made. It was concrete and had a sufficient basis in national law (see Kopecký, cited above, § 52) as it met all the statutory requirements and that fact has never been disputed. On the contrary, both the Land Office and the Regional Court acknowledged on several occasions that all the applicable conditions had been fulfilled, and the claim was finally allowed. The sole reason for allowing it only up to the limit set by the 1993 amendment and not in full was the amendment itself. The claim can thus be considered to be sufficiently established.

In these circumstances, the Court finds that the applicants must be regarded as having had at least a “legitimate expectation” that their restitution claim would be realised. The claim thus constitutes a “possession” and attracts the protection of Article 1 of Protocol No. 1.

The Government’s objection of incompatibility ratione materiae must consequently be dismissed.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. Lastly, in connection with the proceedings and their outcome in respect of their restitution claim, including their continuation before the Constitutional Court, the applicants complained under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that they had been discriminated against in the enjoyment of their property rights in comparison to similar restitution claimants whose claims had been decided prior to the entry into force of the 1993 amendment.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

(a) The Government considered that, since Article 1 of Protocol No. 1 was inapplicable ratione materiae to the applicants’ property complaint, Article 14 did not apply ratione materiae to the alleged discrimination in that respect. The Government further submitted that the discrimination complaint was in any event manifestly ill-founded in that the applicant had failed to establish that he had been treated differently from any other person in an analogous situation at the time of the final restitution decisions.

The applicants disagreed and reiterated their complaint.

The Court has dismissed the Government’s argument that Article 1 of Protocol No. 1 did not apply ratione materiae to the applicants’ property complaint. It follows that the Government’s argument that Article 14 of the Convention did not apply ratione materiae to that complaint must also be dismissed.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints under Article 6 § 1 of the Convention concerning the alleged unfairness of the proceedings in respect of the claim for restitution of land in excess of 250 hectares; under Article 1 of Protocol No. 1 concerning those proceedings and their outcome, which was allegedly predetermined by the 1993 amendment (including the proceedings on the applicants’ constitutional complaint and their outcome); and under Article 14 of the Convention concerning the alleged discrimination in respect of the complaint under Article 1 of Protocol No. 1; and

Declares inadmissible the remainder of the application.

T.L. EarlyNicolas Bratza
RegistrarPresident

APPENDIX

LIST OF THE APPLICANTS

1.Mr Viktor Rosival is a Slovakian national who was born in 1930 and lives in Trnava (Slovakia).

2.Ms Viktória Lužáková, née Rosivalová, is a Slovakian national who was born in 1957 and lives in Trnava.

3.Ms Klára Truger is an Austrian national who was born in 1957 and lives in Graz (Austria).

4.Ms Agneša Trugerová is a Slovakian and Austrian national who was born in 1964 and lives in Graz.

5.Mr Ladislav Rosival is a Slovakian national who was born in 1968 and lives in Bratislava (Slovakia).

 

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