CASE OF KOPECKÝ v. SLOVAKIA
No violation of P1-1
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
12. On 12 February 1959 the applicant’s father was convicted of keeping, contrary to the regulations then in force, 131 gold coins and 2,151 silver coins of numismatic value. He was sentenced to one year’s imprisonment. He was also fined, and the coins were confiscated. 13. On 1 April 1992, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act 1990, the Supreme Court of the Slovak Republic (Najvyšší súd) quashed the judgment of 12 February 1959 and all consequential decisions, and discharged the applicant’s late father. 14. On 30 September 1992 the applicant claimed the restitution of his father’s coins under the Extra-Judicial Rehabilitations Act 1991 (“the 1991 Act”). 15. On 19 September 1995 the Senica District Court (Okresný súd) granted the action and ordered the Ministry of the Interior to restore the coins to the applicant. The court established, with reference to the relevant records, that the coins had been taken away from the applicant’s father on 21 November 1958 and transmitted to the Regional Administration of the Ministry of the Interior in Bratislava on 12 December 1958. On 19 December 1958 the coins had been examined by an expert and inventoried on the premises of the Regional Administration in Bratislava. 16. The relevant part of the District Court’s judgment reads as follows: “It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is. However, in the present case the plaintiff undoubtedly has no possibility of inspecting the premises or safes of the former Public Security Regional Administration in Bratislava as he is not allowed to enter those premises. By insisting that the applicant should show that the coins are at the last known place, the Court would impose a burden of proof on him which it is practically impossible to fulfil. On the contrary ... the Ministry of the Interior neither showed that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority nor did it propose to take evidence to that effect ... The Court has established that the last time [their exact location was known] the coins ... had been held on the premises of the Public Security Regional Administration in Bratislava to which the Ministry of the Interior is a successor, and it has not been shown that the coins were not on those premises when the Extra-Judicial Rehabilitations Act became operative, that is, on 1 April 1991.” 17. On 1 December 1995 the Ministry of the Interior appealed. Its representative argued that all relevant documents had been destroyed and that the onus of proof as to where the coins had been deposited lay on the applicant. 18. On 29 January 1997 the Bratislava Regional Court (Krajský súd) ruled in favour of the Ministry of the Interior. It found, with reference to sections 4(1), 5(1) and 20(1) of the 1991 Act, that the applicant had failed to show where the coins had been deposited when that Act had become operative on 1 April 1991. 19. In the judgment, the Regional Court admitted that the applicant had limited possibilities of locating his father’s property. It had therefore taken further evidence on its own initiative. In particular, the Regional Court noted that, in accordance with the relevant practice, the confiscated property should have been handed over to the public prosecutor and, after the relevant judgment had became final, to the financial department of the competent local government authority. The Regional Court therefore examined the criminal file concerning the case of the applicant’s father. It further established that the archives of the Senica District Office, the Ministry of the Interior, the National Bank of Slovakia and the State Regional Archives in Bratislava contained no document relating to the coins in question. The Regional Court also heard a witness who had worked at the Myjava District Office of the Ministry of the Interior in 1958; the latter had no knowledge of the case, however. It did not consider it necessary to hear two other persons, one of whom had been present when the coins were inventoried and taken over by the Regional Administration, as those persons had been dismissed from service in 1958 and in 1960 respectively. Their statements would not, therefore, make it possible to establish the relevant facts of the case. 20. On 27 January 1998 the Supreme Court dismissed the applicant’s appeal on points of law. It shared the Regional Court’s view that the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins, as required by section 5(1) of the 1991 Act. 21. In the judgment, the Supreme Court further stated: “The allegation that the movable property in question had been taken over by an employee of the Public Security Regional Administration in Bratislava on 12 December 1958 and that ... it had been examined there by an expert on 19 December 1958 cannot suffice. Since then, a considerable period has lapsed, during which the gold and silver coins in question could have been alienated, destroyed or lost. The legislator, however, explicitly included in section 5(1) of the Extra-Judicial Rehabilitations Act the obligation to show where the movable property in question was at the time of the entry into force of that Act. ... It follows from a logical and systematic interpretation of section 5(1) of the Extra-Judicial Rehabilitations Act that a restitution claim can only concern the same property which was taken over by the State and not a different object of the same kind. Only movable property which can be individually identified by specific features which mean that it cannot be confused with other objects is therefore liable to restitution ...” 22. Law no. 119/1990 on judicial rehabilitation (Zákon o súdnej rehabilitácii) came into force on 1 July 1990. The relevant provisions read as follows: “The aim of the Act is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and set out in international instruments, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted ...” “... (2) The conditions under which the provisions of this Act shall apply to claims resulting from the quashing of confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law.” 23. Law no. 87/1991 on extra-judicial rehabilitations (Zákon o mimosúdnych rehabilitáciách – “the 1991 Act”) came into force on 1 April 1991. Its preamble states that it was enacted with the aim of mitigating the consequences of certain infringements of property and other rights which occurred between 25 February 1948 and 1 January 1990. The relevant provisions of the 1991 Act read as follows: “(1) This Act aims at the mitigation of the consequences of certain infringements ... which occurred between 25 February 1948 and 1 January 1990 ... and which are incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights and the ensuing international covenants on civil, political, economic, social and cultural rights. (2) This Act also lays down the conditions for submitting claims resulting from the quashing of convictions by which property was confiscated ... as well as the manner of redress and the scope of such claims.” “(1) Entitled persons [namely, persons entitled to file a claim under this Act] are all natural persons whose property passed into State ownership in the circumstances referred to in section 6 provided that they are nationals of the Czech and Slovak Federal Republic and have their permanent residence within its territory. (2) In cases where the person whose property passed into State ownership in the circumstances referred to in section 6 has died ... the following natural persons are entitled [to claim restitution] provided that they are nationals of the Czech and Slovak Federal Republic and have their permanent residence within its territory ... (a) the testamentary heir ... who has acquired the whole estate; ...” “(1) Persons obliged [to restore the property] shall comprise the State or legal persons having confiscated property in their possession on the date of entry into force of this Act ... (2) Any natural person who [unlawfully] acquired property from the State shall also be obliged to restore such property ...” “(1) A person obliged [to make restitution] shall restore the property upon a written request provided that the person [claiming the property] proves that he or she is entitled to have the property restored and shows the manner in which it was taken by the State. When claiming restitution of movable property [the person concerned] is further required to show where the property is ...” “(1) Financial compensation may be granted to the person concerned only in respect of real property which cannot be restored ... (2) Where the State acquired, on the basis of a judicial decision which was quashed under the Judicial Rehabilitation Act (Law no. 119/1990) ..., the entire property of a citizen and where such property did not comprise real property, the person concerned is entitled to compensation in the amount of 60,000 Czechoslovak korunas ...” “(1) Entitled persons are persons who were rehabilitated under Law no. 119/1990 who meet the conditions set out in section 3(1) or, where such persons are dead ... , persons set out in section 3(2) [of the Extra-Judicial Rehabilitations Act 1991].” “(1) The persons obliged [to restore confiscated property] shall comprise any legal person referred to in section 4(1), any natural person referred to in section 4(2) who acquired such property from the State where the State itself obtained it as a result of a judicial decision, and the competent central government authority. (2) The persons obliged to restore confiscated property shall do so in accordance with sections 5, ... of the Act; where it is impossible to restore the property the persons concerned are entitled to claim compensation in accordance with section 13 of [this] Act.” 24. In judgment no. 1 Cdo 27/94 of 25 May 1994, the Supreme Court upheld the lower courts’ conclusion that movable property which could not be individually identified could not be restored under the 1991 Act. In the proceedings in question, the plaintiffs claimed restitution of a gold brick, several gold coins and banknotes which had been transferred to the State in 1950. The relevant part of the Supreme Court’s judgment reads as follows: “... on the basis of a logical and systematic interpretation of section 5(1) of the Extra-Judicial Rehabilitations Act, as amended, and after comparing that provision with other provisions [of that Act], the Court of Cassation concluded that only movable property which can be individually identified by specific features which mean that it cannot be confused with other objects is liable to restitution ... The appellants’ view that objects identified by their kind but not individually may also be restored is incorrect as it is contrary to the nature and purpose of the Extra-Judicial Rehabilitations Act, the aim of which is to mitigate the consequences of certain (that is, not all) infringements of property and other rights ...”