AS TO THE ADMISSIBILITY OF
Application No. 35268/97
by Marcela SVIDRANOVÁ
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
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 27 December 1996
by Marcela SVIDRANOVÁ against the Slovak Republic and registered on
11 March 1997 under file No. 35268/97;
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 Czech national born in 1949 and residing in
Zvolen, the Slovak Republic. The facts of the case, as submitted by
the applicant, may be summarised as follows.
A. Particular circumstance of the case
On 8 September 1994 the applicant inherited a car from a relative
who had lived in Vienna. The car, a Volkswagen Polo, had been produced
in 1986 and was registered in Austria.
On 1 August 1995 the customs office in Banská Bystrica authorised
the applicant to use the car in Slovakia without paying any importation
fee provided that she did not sell the car before 1 August 1996.
On 18 October 1995 the applicant requested the police department
in Zvolen to certify that the car conformed, from the technical point
of view, to the relevant regulations. Such a certificate was
indispensable for registration of the car in Slovakia.
To this effect the applicant was invited to have the car checked
in a specialised technical centre in Banská Bystrica. On
14 November 1995 a record of the check was established by the aforesaid
centre indicating, inter alia, that the applicant had not shown that
the car's exhausts conformed to Regulation No. 83-01 B of the UN
Economic Commission for Europe.
On 29 October 1995 the applicant asked the Minister of Transport,
Post and Telecommunications to exempt her from the obligation to comply
with Regulation No. 83-01 B.
On 20 November 1995 the police department in Zvolen stayed the
proceedings concerning the applicant's request of 18 October 1995 on
the ground that she had not submitted a certificate from a technical
centre authorised to carry out the required check. The applicant was
invited to submit the certificate before 31 August 1996.
On 5 December 1995 the Ministry of Transport, Post and
Telecommunications informed the applicant that for a car to be allowed
to be used in Slovakia it had to conform to Regulation No. 41/1984
(see "Relevant domestic law" below). The Ministry further recalled
that under Section 82 of Regulation No. 41/1984 the Ministry was not
entitled to grant an exemption from Section 39 setting out the
standards for exhausts. On 29 January 1996 the Ministry of Transport,
Post and Telecommunications upheld this position.
Subsequently the applicant unsuccessfully sought redress before
the President of the Slovak Republic, the Prime Minister and the
President of the National Council of the Slovak Republic.
The applicant also wrote to the President of the Constitutional
Court. On 9 February 1996 she was informed that the latter cannot
exempt her from the obligation to comply with Regulation No. 41/1984.
On 24 June and 10 July 1996 the applicant again requested the
Minister of Transport, Post and Telecommunications to exempt her from
the obligation to comply with Section 39 of Regulation No. 41/1984.
She alleged a violation of her right to enjoy her property freely.
On 2 August 1996 the Minister of Transport, Post and
Telecommunications informed the applicant that she could obtain the
requested certificate only if she showed that her car conformed to the
relevant provisions of Regulation No. 41/1984.
On 16 October 1996 the applicant addressed a complaint to the
President of the Constitutional Court in which she alleged a violation
of her property rights and of her right to equal treatment. She
complained, in particular, that as a result of the dismissal of her
request for an exemption from the requirements set out in Section 39
of Regulation No. 41/1984 she was prevented from using her car, and
that a considerable number of other cars were allowed to circulate in
Slovakia notwithstanding that they did not comply with the aforesaid
Regulation.
On 5 November 1996 a judge of the Constitutional Court informed
the applicant that the Constitutional Court lacked jurisdiction to deal
with her submissions.
B. Relevant domestic law
The conditions for use of vehicles on the roads in Slovakia are
set out in Regulation No. 41/1984 of 30 May 1984, as amended.
Section 5a para. 2 provides that a certificate entitling a person
to use a vehicle can only be issued if the vehicle is in appropriate
condition and if the requirements set out in chapters II to V of the
Regulation are met.
Section 5a para. 6 was included in Regulation No. 41/1984 by an
amendment which entered into force on 13 October 1994 and provides as
follows:
(translation)
"For the purposes of this Regulation the following shall be
considered as justified cases of individually imported vehicle:
a) a vehicle of a person who was granted Slovak citizenship
with permanent residence within the Slovak Republic,
b) an ambulance and a vehicle for physically disabled persons
specially adapted for driving or for transport,
c) a vehicle acquired by a staff member of a diplomatic
representation of the Slovak Republic and imported after he or
she has ceased to work abroad,
d) a vehicle belonging to a staff member of a foreign
diplomatic representation during his or her stay in this capacity
in the Slovak Republic."
Section 39 para. 1, as in force from 1 July 1995, provides that
the exhausts of vehicles shall, at the moment of the approval of their
conformity to Regulation No. 41/1984, meet the requirements set out in
special regulations including Regulation No. 83 of the UN Economic
Commission for Europe.
Section 82, as in force until 12 October 1994, excluded any
exemption from, inter alia, Section 39 of the Regulation. As from 13
October 1994, Section 82 has been amended in that exceptions from
Section 39 are permissible in "justified cases of individually imported
vehicles" within the meaning of Section 5a para. 6.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that
she cannot use her car in Slovakia. She further complains under
Article 14 of the Convention that she is discriminated against in this
respect as there are a considerable number of other cars allowed to
circulate in Slovakia notwithstanding that they do not meet the
standards set out in Regulation No. 41/1984.
THE LAW
1. The applicant complains that she cannot use her car in Slovakia.
She alleges a violation of Article 1 of Protocol No. 1 (P1-1) which
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."
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three distinct rules. The first rule, set out in the first
sentence of the first paragraph, is of a general nature and enunciates
the principle of peaceful enjoyment of possessions. The second rule,
contained in the second sentence of the same paragraph, covers
deprivation of possessions and makes it subject to certain conditions.
The third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest (see Eur. Court
HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192,
p. 14, para. 41).
In the present case the applicant has been prevented from using
her car in the Slovak Republic as its exhausts do not conform to
Section 39 of Regulation No. 41/1984 which incorporates in Slovak law
the standards set by Regulation No. 83 of the UN Economic Commission
for Europe. In the Commission's view, the obligation imposed on the
applicant to ensure that her car complies with the aforesaid
regulations amounts to an interference with her rights under Article 1
of Protocol No. 1 (P1-1). This interference is a measure of control
of the use of property within the meaning of the second paragraph of
Article 1 of Protocol No. 1 (P1-1).
The Commission must therefore consider whether the obligation
imposed on the applicant is proportionate and necessary to control the
use of the applicant's property in accordance with the general interest
(see No. 11723/85, Dec. 7.5.87, D.R. 52, pp. 250, 256, with further
references).
The Commission notes that the contested provisions of Regulation
No. 41/1984 pursue the legitimate aim of protecting the environment in
that it sets standards, elaborated and adopted by the UN Economic
Commission for Europe, concerning exhausts of vehicles used in the
Slovak Republic. The obligation imposed on the applicant by the
aforesaid provisions is, therefore, in the general interest within the
meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).
The Commission further considers, bearing in mind the importance
of protecting the environment from excessive pollution caused by motor
vehicles and the wide margin of appreciation afforded to States in this
respect, that the control of the use of the applicant's property is
proportionate to the legitimate aim pursued.
Accordingly, there is no appearance of a violation of Article 1
of Protocol No. 1 (P1-1) in the particular circumstances of this case.
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.
2. The applicant further complains that she is discriminated against
in the enjoyment of her property as there are a considerable number of
other cars allowed to circulate in Slovakia notwithstanding that they
do not meet the standards set out in Regulation No. 41/1984. She
alleges a violation of Article 14 (Art. 14) of the Convention which
provides as follows:
"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 Commission recalls that Article 14 (Art. 14) affords
protection against discrimination, that is treating differently,
without an objective and reasonable justification, persons in
"relevantly" similar situations (see Eur. Court HR, Spadea and
Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B,
p. 28, para. 45). The Contracting States enjoy a certain margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment in law; the
scope of this margin will vary according to the circumstances, the
subject-matter and its background (see Inze v. Austria judgment of 28
October 1987, Series A no. 126, p. 18, para. 41).
To the extent that the applicant may be understood as complaining
that the possibility of granting an exemption from the relevant
provisions of Regulation No. 41/1984 does not extend to her case, the
Commission considers that her situation is not sufficiently analogous
with those set out in Section 5a para. 6 of the aforesaid Regulation
to give rise to an issue under Article 14 (Art. 14) of the Convention.
Moreover, and even assuming that a problem might arise in this
connection, the Commission considers, having regard to the margin of
appreciation reserved to the Contracting States in this respect and to
the specific nature of those cases in which exemptions from the
relevant provisions of Regulation No. 41/1984 are allowed, that the
distinction thus drawn can be regarded as objectively and reasonably
justified and not therefore discriminatory within the meaning of
Article 14 (Art. 14) of the Convention.
To the extent that the applicant may complain that vehicles which
were certified as conforming to the relevant regulations prior to the
incorporation of Regulation No. 83 of the UN Economic Commission for
Europe in Slovak law are allowed to circulate in the Slovak Republic,
the Commission considers that her situation is not "relevantly" similar
to the aforesaid cases since the difference of treatment in this
respect arose under different legislation, passed and applied at
different times.
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.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy