CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 31904/96                       by Adolf ATLAS                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 11 September 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 22 February 1996 by Adolf ATLAS against the Slovak Republic and registered on 13 June 1996 under file No. 31904/96;        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 1898. He is retired and resides in Kosice.        The facts of the case, as submitted by the applicant, may be summarised as follows.     A.    The particular circumstances of the case        The applicant's brother owned a villa in the spa of Bardejov. In 1949 he left Czechoslovakia.   Before his departure he orally expressed his wish that all his real property in Czechoslovakia should belong to the applicant.   The applicant's brother died in Israel in 1982.         The applicant's brother was formally registered as owner of the aforesaid villa until 6 January 1950.   As from that day, the Czechoslovak State was entered in the land registry as its owner.   The applicant occupied the villa between 1949 and 1952.        In 1991 the applicant claimed restitution of his brother's villa. On 14 October 1993 the Ministry of Health proposed to the applicant to satisfy his claim by granting him shares of the company Slovak Spa in Bardejov which was then in the process of being transformed into a limited company.        The applicant disagreed with the above proposal.   On 22 October 1993 he lodged a claim for restitution of the villa with the Bardejov District Court (Okresny súd).        On 29 December 1994 the Bardejov District Court rejected the applicant's claim.   It held that pursuant to Section 3 para. 2 (c) of Act No. 87/1991 (see "The relevant domestic law" below) the wife of the applicant's brother was entitled to claim the restitution of the villa. The court noted that she lived abroad and had not lodged such a claim.        On 31 January 1995 the applicant appealed.   He claimed that the first instance court had not taken into consideration that before his departure from Czechoslovakia his brother had put his property at the applicant's disposal.   The applicant alleged that his brother's wife had not claimed the restitution of the villa because she had respected her husband's wish that the villa should belong to the applicant.        On 24 November 1995 the Kosice Regional Court (Krajsky súd) dismissed the applicant's appeal.   It recalled, with reference to the Supreme Court's (Najvyssí súd) case-law, that Section 3 para. 2 of Act No. 87/1991 listed the persons entitled to claim restitution in order of precedence and that the existence of a person having precedence excluded the entitlement of all other persons listed in Section 3 para. 2 subsequently.        The Regional Court concluded that as the wife of the applicant's brother (i.e. a person falling under Section 3 para. 2 (c) of Act No. 87/1991) was still alive, the applicant (i.e. a person falling under Section 3 para. 2 (e) of Act No. 87/1991) was not entitled to claim the restitution.   The Regional Court considered it irrelevant whether or not the wife of the applicant's brother had lodged a claim for restitution of the villa in question.       B.    Relevant domestic law        The judicial proceedings concerning the applicant's claim were governed by Act No. 87/1991 of 21 February 1991 on Extrajudicial Rehabilitation (Zákon o mimosúdnych rehabilitáciách).   The purpose of this Act was to redress certain infringements of property and other rights which occurred between 1948 and 1989.        Section 3 para. 2 of Act No. 87/1991 provides that in cases when the former owner of the property to be restored under that Act is no longer alive, other persons are entitled to restitution of such property in the following order:   a)    testamentary heir who acquired the whole estate; b)    testamentary heir who acquired a part of the estate; c)    children and spouse of the former owner; d)    parents of the former owner; e)    brothers and sisters of the former owner.   COMPLAINTS        The applicant complains that the Slovak courts decided on his claim for restitution arbitrarily as they misinterpreted Act No. 87/1991 and did not take into consideration that he had been in possession of the villa at issue between 1949 and 1952.        The applicant further complains about the refusal to restore the villa to him and alleges a violation of Article 1 of Protocol No. 1.   THE LAW   1.    The applicant complains that the Slovak courts decided on his claim for restitution arbitrarily.        The Commission will examine this complaint under Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law..."        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see No. 19890/92, Dec. 3.5.93, D.R. 74 p. 234; No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88).   Furthermore, the Commission cannot review, in principle, the interpretation and application of national law (see No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67).        In the present case, both the Bardejov District Court and the Kosice Regional Court examined the applicant's claim and found, for reasons expressly stated in their judgments, that the applicant was not entitled to have the property at issue restored.      In particular, the Regional Court recalled that Section 3 para. 2 of Act No. 87/1991 listed the persons entitled to claim restitution in order of precedence and that the existence of a person having precedence   excluded the entitlement of all other persons subsequently listed in the same paragraph.   The Regional Court concluded that the applicant was not entitled to have his brother's property restored as Section 3 para. 2 of Act No. 87/1991 gave precedence in this respect to the wife of his late brother.        In the Commission's view, this decision is not arbitrary. Furthermore, the Commission has not been provided with any information that would indicate that the proceedings concerning the applicant's claim were not in conformity with the requirements laid down in Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains about the refusal to restore his brother's villa to him.   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 notes that the applicant, who has never been formally registered as its owner, occupied his brother's villa between 1949 and 1952.   The Commission considers that the dispossession of the applicant which occurred in 1952, i.e. long before the entry into force of the Convention with respect to the Slovak Republic, is to be regarded as an instantaneous act which did not produce a continuing situation of "deprivation of right" (see. No. 7742/76, Dec. 4.7.87, D.R. 14 p. 146; No. 23131/93, Dec. 4.3.96, D.R. 85-A p. 65).        In the judicial proceedings subsequent to the entry into force of the Convention with respect to the Slovak Republic the applicant claimed restitution of the villa to which he considered himself entitled pursuant to Section 3 para. 2 (e) of Act No. 87/1991. However, the courts established that the wife of the applicant's brother had precedence over the applicant in this respect and the Commission has found above that this decision was not arbitrary.        Thus the relevant domestic law, as interpreted and applied by Slovak courts, did not entitle the applicant to have his brother's villa restored.   His claim in this respect cannot, therefore, be considered as a "possession" within the meaning of Article 1 of Protocol No. 1 (P1-1) (see, mutatis mutandis, Eur. Court HR, Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21, para. 31; No. 23131/93, Dec. 4.3.96, D.R. 85-A p. 65).   The Commission further recalls that Article 1 of Protocol No. 1 (P1-1) applies only to existing possessions and it does not guarantee any right to acquire property (see No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271, with further references).        It follows that this part of the application falls outside the scope of Article 1 of Protocol No. 1 (P1-1) and must be rejected as being incompatible ratione materiae with the provisions of 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