UK: Restitution of property in Eastern Europe under the European Convention on Human Rights

A series of recent cases in the European Court of Human Rights ("the Court") has illustrated the way in which the Court applies the right to peaceful enjoyment of possessions, which is protected under Article 1 of Protocol No.1 to the European Convention of Human Rights, in the context of restitution of property in the "new democracies" of Eastern Europe.

The cases concern property seized from applicants in the former Czechoslovakia between 25 February 1948 and 1 January 1990. Two cases (Kopeckỳ v Slovakia, no. 44912/98, judgement of 7 January 2003 and Jantner v Slovakia, no. 39050/97, judgment of 4 March 2003) serve to highlight the issues arising for consideration.

In the Kopeckỳ case, the applicant claimed restitution of valuables that had been confiscated from his father in 1959. Following the collapse of the communist system and break up of the Czechoslovakian State, a new law was passed in Slovakia providing for the restitution of property held by the State. This provided for a right of restitution only where certain conditions were met, one of which was that an applicant must show where the property concerned was located. The applicant was unable to satisfy this condition since he had no opportunity of inspecting State premises to locate the valuables and there was no record held by the State as to their location. His claim for restitution of his father’s property thus failed before the Slovakian authorities and domestic courts.

The Court reaffirmed the well-established rule that "possessions" within the meaning of Article 1 of Protocol No.1 include legal claims to property in cases where the applicant can show that a "legitimate expectation" of obtaining effective enjoyment of a property right. By contrast, the mere hope of recognition of an old property right that has long been impossible to exercise effectively cannot be considered a "possession" within the meaning of that Article, nor can a conditional claim that lapses as a result of non-fulfilment of the condition.

On the facts, a 4-3 majority of the Court held that the applicant’s claim for restitution did constitute a "possession" within the meaning of Article 1 of Protocol No. 1 and that failure to satisfy the claim violated his rights under that Article. Although the applicant had not met the conditions for restitution under Slovakian law, this had been due to reasons that were imputable to the public authorities since they had lost track of the property following its confiscation.

In a strong dissent, three members of the Court disagreed on the basis that the applicant’s claim was not a "possession" since the conditions for restitution under domestic law had not been met. Furthermore, the domestic courts had undertaken their own unsuccessful investigation into the whereabouts of the property concerned. There was thus no evidence that the property remained in existence and was in the possession of the State.

In the subsequent Jantner case, the Court returned to a more conservative interpretation of what constitutes a "possession" in the context of a claim for restitution of confiscated property. In that case, the applicant’s claim for restitution had been disallowed by the Slovakian authorities and domestic courts on the basis that he had failed to show that he met the "permanent residence" requirement for restitution under Slovakian law. Although the applicant had registered his permanent residence at a friend’s address, he had simultaneously maintained registration of his "main abode" at an address in Germany. Slovakian law did not allow permanent residence at more than one address at the same time, and evidence indicated that the applicant’s stay in Slovakia had lacked the attributes of permanent residence.

The Strasbourg Court held that it could not substitute its view for that of the domestic courts as to the applicant’s compliance with the conditions for restitution under Slovakian law. The applicant thus had neither a right nor a claim amounting to a "legitimate expectation" to restitution of his property. There was therefore no "possession" at issue and Article 1 of Protocol No.1 was not engaged.

Although the Jantner case shows the Court’s continuing tendency to dis-apply Article 1 of Protocol No.1 in cases where the domestic pre-conditions for a "claim" are not met, the Kopeckỳ decision at least gives an indication that the Court may entertain arguments for restitution where the applicant’s failure to meet the pre-conditions is imputable to the State.

Article by Stephen Fietta

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