CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1995

.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. 23889/94                        by Antonín NOHEJL                        against the Czech Republic        The European Commission of Human Rights sitting in private on 5 July 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC              Mr.    M. de SALVIA, Deputy Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 March 1993 by Antonín NOHEJL against the Czech Republic and registered on 14 April 1994 under file No. 23889/94;        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, a Czech citizen born in 1933 in Prague and residing at Surbiton, the United Kingdom, is a company director.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    The particular circumstances of the case        In 1960, the applicant's family had to give up to the State two blocks of flats in its ownership.        In 1968, the applicant left Czechoslovakia and started to work in the United Kingdom where he is permanently residing.   On 13 January 1972, in his absence, he was convicted for emigration.   A two-month sentence was imposed and all his property was confiscated. Due to this conviction, an amount of Kc 32,680.00 was paid out to the state as a remuneration for the applicant's patents.        In 1990, this conviction was annulled ex lege and ex tunc in accordance with Law No. 119/1990 on Judicial Rehabilitation (Zákon o soudní rehabilitaci).        In June 1990, the applicant's father died and the applicant and his sister inherited the whole of the first building and one third of the second one.        On 9 and 15 November 1990, the applicant made a preliminary request to the Housing Association of Prague 5 (Bytovy podnik Praha 5), which was then the owner of the property, asking that until the time new legal regulations are issued (Law on Extra-judicial Rehabilitation), nothing should be done with the property that could restrict the exercise of his rights as an owner.        In May 1991, the applicant's sister made a request under Article 3 of Law No. 87/1991 on Extra-judicial Rehabilitation (Zákon o mimosoudních rehabilitacích) to the Housing Association of Prague 5, for an agreement concerning restitution of the whole of the first building and one third of the second one.        On 17 October 1991, the Housing Association concluded an agreement with the applicant's sister concerning restitution of both buildings.   The agreement was registered by the decision of the State Notary's Office of Prague 5 on 8 January 1992. The applicant was not informed.        By letter of 23 November 1991, the applicant made a request to the Housing Association of Prague 5 for the return of his part of the property provided that the building was to be returned to his sister. The Housing Association replied that his claim would be considered.        By letter of 25 February 1992, the applicant asked the State Notary's Office for information about the current position of his claim.   He has received no reply to the letter.        On 27 November 1993, the applicant made a constitutional appeal to the Constitutional Court.   He submitted that Article 3 of Law No. 87/1991 - which limited the rights of applicants to those who have their permanent residence on the territory of the Czech Republic was not compatible with the Czech Constitution, Article 1 of Protocol No. 1 and Article 14 of the Convention.        By letter of 17 December 1993, a judge of the Constitutional Court informed the applicant about formalities of a constitutional complaint without stating shortcomings in the applicant's appeal. The judge asked the applicant to fulfil the formalities by 28 February 1994.        On 8 February 1994, the applicant sent to his counsel in Prague his power of attorney which due to delay in delivery was received by the counsel only on 26 February 1994.        By letter of 25 March 1994, the applicant's counsel informed the applicant that a constitutional appeal could not have been completed and lodged within the given period because he had not received a copy of the complaint filed by the applicant on 27 November 1993.        In the meantime, on 1 March 1994, the Constitutional Court declared inadmissible the applicant's constitutional appeal for its formal shortcomings.        By decision dated 12 July 1994, the Constitutional Court annulled the requirement of permanent residence in the Czech Republic for restitution of property under Law No. 87/1991.   The decision enabled persons whose permanent residence was not on the territory of the Czech Republic to apply for restitution.   The decision set up a new six months' period for restitution claims from 1 November 1994 to 30 April 1995, but did not affect the period of one year from 1 April 1992 for making claims against individuals to whom property had already been transferred.        On 27 October 1994, the applicant's sister sold the first building without the applicant's knowledge to a company N. for Kc 2,800,000.        On 16 December 1994, the applicant addressed to his sister two requests for surrender of one half of the first building and one sixth of the second one.   In the alternative, he asked for Kc 1,400,000 corresponding to one half of the amount agreed upon in the sale agreement of 27 October 1994.        By letter of 14 February 1995, the applicant's counsel informed the applicant that even though he is now technically an entitled person within the meaning of the Constitutional Court's decision, his request for restitution of the property would appear to be unsuccessful.   He explained that in his case the essential element was Article 5 of Law No. 87/1991 according to which, if property had been returned, persons whose claims were not satisfied could make a claim against persons to whom the property had been returned within a period of one year from the date of the coming into force of this law, i.e. by 1 April 1992. He noted that the Constitutional Court had not provided for an extension of this one-year period, which had therefore expired and the applicant had no possibility, as an entitled person, to have the property returned to him.        On 17 April 1995, the applicant made a request under the Constitutional Court's decision of 12 July 1994 to the Prague 5 District Court for the restitution of the confiscated remuneration for his patents.   B.    Relevant domestic law   Law No. 87/1991 on Extra-judicial Rehabilitation                                  Article 3   [Translation]        "1.    An entitled person is a physical person whose property has      been transferred to the State in cases stated in Article 6 of the      Law, provided such a person is a citizen of the Czech and Slovak      Federal Republic and is permanently residing on its territory."   [Original]        "1.    Oprávnenou osobou je fyzická osoba, jejíz vec presla do      vlastnictví státu v prípadech uvedenych v § 6 zákona, pokud je      státním obcanem Ceské a Slovenské Federativní Republiky a má      trvaly pobyt na jejím území."                                  Article 5 [Translation]        "1.    A mandated person shall surrender a property upon written      request from an entitled person who has proved his claim to the      property and specified the way of its transfer to the State ...      If there are more entitled persons ... and only some of them      lodge their claim, the whole property shall be surrendered to      them.        2.     An entitled person shall call on the mandated person to      surrender the property within six months from the date of the      coming into force of this law; otherwise the claim expires.        3.     A mandated person shall conclude an agreement with an      entitled person about the surrender of property and the property      shall be surrendered within thirty days after the expiry of the      period stated in paragraph 2.   Such an agreement, in cases where      real property is concerned, shall be subject to registration by      the State Notary ...        5.     If property has been returned, persons whose claims were      not satisfied can make a claim against persons to whom the      property was returned within a period of one year from the date      of the coming into force of this Law."   [Original]        "1.    Povinná osoba vydá vec na písemnou vyzvu oprávnené osobe,      jez prokáze svuj nárok na vydání veci a uvede zpusob jejího      prevzetí státem ... Je-li oprávnenych osob více a nárok na vydání      veci uplatní ... jen nekteré z nich, vydá se jim vec celá.        2.     K vydání vyzve oprávnená osoba povinnou osobu do sesti      mesícu ode dne úcinnosti tohoto zákona, jinak její nárok zanikne.        3.     Povinná osoba uzavre s oprávnenou osobou dohodu o vydání            veci a vec jí vydá nejpozdeji do triceti dnu po uplynutí            lhuty uvedené v odstavci 2. Tato dohoda podléhá, pokud jde            o nemovitost, registraci státním notárstvím ...        5.     Byla-li vec vydána, mohou osoby, jejichz nároky uplatnené      ... nebyly uspokojeny, tyto nároky uplatnit u soudu vuci osobám,      kterym byla vec vydána, do jednoho roku ode dne úcinnosti tohoto      zákona."                                  Article 6   [Translation]        "1.    The obligation to surrender property shall be applied to      those cases where the property has been transferred to the State      during the stated period      ...        (d)    by a gift agreement made by a donor under duress, ..."   [Original]        "1.    Povinnost vydat vec se vztahuje na ty prípady, kdy v      rozhodném období vec presla na stát      ...        d)     smlouvou o darování nemovitosti uzavrenou dárcem v tísni,      ..."   Constitution of the Czech Republic                                 Article 87   [Translation]        "1.    The Constitutional Court shall decide on:        (a)    abrogation of laws or their particular provisions if they      are inconsistent with a constitutional law or an international      agreement ... ;      ...        (d)    constitutional complaints made against ... decisions or      other interferences by a 'public organ' with the fundamental      rights and freedoms guaranteed by a constitutional law ..."   [Original]        "1.    Ústavní soud rozhoduje        a)     o zrusení zákonu nebo jejich jednotlivych ustanovení, jsou-      li v rozporu s ústavním zákonem nebo mezinárodní smlouvou ... ;      ...        d)     o ústavní stíznosti proti ... rozhodnutí a jinému zásahu      orgánu verejné moci do ústavne zarucenych základních práv a      svobod, ..."   Law No. 182/1993 on the Constitutional Court of the Czech Republic                                 Article 72   [Translation]        "1.    A constitutional complaint may be made by:        (a)    any physical person ... claiming to be the victim of      a violation by ... a decision or an act of interference by      a 'public organ' with the rights or liberties set forth in      a constitutional law or an international treaty ..."   [Original]        "1.    Ústavní stíznost jsou oprávneni podat        a)     fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo      jinym zásahem orgánu verejné moci bylo poruseno její základní      právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní      smlouvou ..."                                 Article 74   [Translation]        "Together with a constitutional complaint a proposal may be made      for abrogation of a law or other legal regulations or particular      provisions the application of which has raised issues which are      the subject of the constitutional complaint provided they are,      according to the applicant, inconsistent with a constitutional      law or an international agreement ...".   [Original]        "Spolu s ústavní stízností muze byt podán návrh na zrusení zákona      nebo jiného právního predpisu anebo jednotlivych ustanovení,      jejichz uplatnením nastala skutecnost, která je predmetem ústavní      stíznosti, jestlize podle trvrzení stezovatele jsou v rozporu s      ústavním zákonem nebo mezinárodní smlouvou ...".   COMPLAINTS   1.    The applicant complains about being denied the use and enjoyment of his property.   He claims that Law No. 87/1991 denied him the right to apply for restitution of his private property.   He states that this denial of the use of his private property continues to be to his personal detriment and constitute a discrimination against him, also after the Constitutional Court decision of 12 July 1994.   He invokes Article 1 of Protocol No 1 and Article 14 of the Convention.   2.    He states that since he could not personally pursue the case in Czech courts because proceedings brought by him would have had no chance of being successful in view of the provision of Article 3 of Law No. 87/1991, no effective remedy before a national authority was available to him.   3.    He maintains, in substance, that Law No. 87/1991 denies him the right to his property on the ground that he has exercised his right to leave his country guaranteed by Article 2 of Protocol No. 4.   4.    Finally, the applicant also alleges violation of Article 1 of Protocol No. 1 to the Convention also in respect of restitution proceedings concerning return of the moneys awarded for patent work.   THE LAW   1.    The applicant complains about being denied the use and enjoyment of his property in view of Law No. 87/1991 on Extra-Judicial Rehabilitation.   He claims that he is discriminated against by this denial of the use of his private property which continues to be to his personal detriment after the Constitutional Court's decision of 12 July 1994.   He invokes Article 1 of Protocol No. 1 (P1-1) and Article 14 (Art. 14) of the Convention.        He states that he could not personally pursue the case in Czech courts because proceedings brought by him would have had no chance of success.        He maintains, in substance, that Law No. 87/1991 on Extra- Judicial Rehabilitation denies him the right to his property on the ground that he has exercised his right to leave his country guaranteed by Article 2 of Protocol No. 4 (P4-2).        The Commission considers that it cannot, on the basis of the applicant's submissions, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to communicate this part of the application to the respondent Government.   2.    The applicant also alleges violation of Article 1 of Protocol No. 1 (P1-1) to the Convention in respect of restitution proceedings concerning return of the moneys awarded for patent work.   However, these proceedings are still pending before the Czech court, and so this part of the application is premature.        It follows that this part of the application must be rejected under Article 27 (Art. 27) of the Convention.        For these reasons, the Commission, by a majority        DECIDES TO ADJOURN its examination of the complaints concerning      the use and enjoyment of the applicant's property;        and, unanimously        DECLARES INADMISSIBLE the remainder of the application.   Deputy Secretary to the Commission          President of the Commission            (M. de SALVIA)                         (C.A. NØRGAARD)