CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 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