AS TO THE ADMISSIBILITY OF
Application No. 37892/97
by Peter IVANOVIC
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 March 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
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 21 July 1997 by
Peter IVANOVIC against the Slovak Republic and registered on
24 September 1997 under file No. 37892/97;
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 national of the United States of America. He
is of Slovak origin and resides in Watertown, USA. The facts of the
case, as submitted by the applicant may be summarised as follows.
A. Particular circumstances of the case
On 22 November 1982 the Poprad District Court (Okresny súd)
convicted the applicant of illegal departure from the then Czechoslovak
Socialist Republic and sentenced him to two years' imprisonment.
Subsidiarily, the District Court ordered confiscation of the
applicant's property.
On 31 October 1990 the Poprad District Court 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 22 November 1982 and discontinued the
criminal proceedings against the applicant. At the same time the
District Court quashed, ex tunc, the decision on confiscation of the
applicant's property.
Subsequently the applicant unsuccessfully requested
administrative authorities to restore to him the real property which
had been confiscated pursuant to the Poprad District Court's judgment
of 22 November 1982 and to enter him as its owner in the land register.
On 29 January 1997 the applicant lodged a petition with the
Constitutional Court (Ústavny súd). He complained, with reference to
the relevant provisions of the Law on Extrajudicial Rehabilitation
(Zákon o mimosúdnych rehabilitáciách), that he could not have his
property restored notwithstanding that the confiscation decision of
1982 had been quashed.
On 26 February 1997 the Constitutional Court rejected the
applicant's petition on the ground that it lacked jurisdiction to
examine facts prior to its establishment on 15 February 1993.
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 para. 2 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 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 the requirements set out in
Section 19 para. 1 in conjunction with Section 3 para. 1 of Law
No. 87/1991 on Extrajudicial Rehabilitation prevented him, without any
reasonable justification, from recovering his property after the
confiscation decision of 1982 had been quashed. He alleges a violation
of Article 1 of Protocol No. 1.
THE LAW
The applicant complains that the conditions for eligibility to
claim restitution of confiscated property set out in Section 19 para. 1
in conjunction with Section 3 para. 1 of Law No. 87/1991 on
Extrajudicial Rehabilitation interfere with his right to the peaceful
enjoyment of his possession. He 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 it can examine applications only to
the extent that they relate to events occurring after the Convention
entered into force with respect to the relevant Contracting Party. The
Commission has found earlier that it has jurisdiction to examine
applications against the Slovak Republic concerning matters which
aresubsequent 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 1982, i.e. 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, the Commission notes that on
31 October 1990 the Poprad District Court quashed, ex tunc, the
confiscation decision of 1982 concerning the applicant's 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 these conditions. 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 1 October 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 they concern facts
which are subsequent to this date.
The Commission has noted that on 26 February 1997 the
Constitutional Court rejected the applicant's petition concerning this
issue. However, since under Slovak law the Constitutional Court lacked
jurisdiction to deal with the applicant's petition, the latter cannot
be regarded as an effective remedy capable of bringing the case within
the Commission's temporal jurisdiction.
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 J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy