VESTERBY v. ESTONIA



AS TO THE ADMISSIBILITY OF

Application No. 34476/97

by Edvin VESTERBY

against Estonia

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, 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 16 October 1996

by Edvin VESTERBY against Estonia and registered on 14 January 1997

under file No. 34476/97;

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 dual citizen of Estonia and Sweden born in

1927 He resides in Vällingby, Sweden.

The facts of the case, as submitted by the applicant, can be

summarised as follows.

By decision of the Lääne County Commission for the Return and

Compensation of Unlawfully Expropriated Property ("Õigusvastaselt

Võõrandatud Vara Tagastamise ja Kompenseerimise Lääne

Maakonnakomisjon") of 31 March 1995 the applicant and his two brothers

were recognised as the lawful subjects of restitution in respect of

their family's property which was nationalised in 1940. The property

consisted of a plot of land of 47,99 ha and several buildings,

including a house.

Pursuant to the decision of the county commission, the Noarootsi

District Administration ("Noarootsi Vallavalitsus") ordered by decree

No. 171 of 17 April 1995 the return of the property to the applicant

and his brothers.

On 10 May 1995 the resident of the house which was to be returned

submitted a complaint to the single administrative judge of the Lääne

County Court ("Lääne Maakohus") requesting that the decree No. 171

should be declared illegal and claiming that she was the rightful owner

of the house and the surrounding buildings. By judgment of

24 October 1995 the court declared the decree of the district

administration illegal and sent the case back to the administration for

a new decision. The court based its judgment on the Republic of Estonia

Principles of Property Reform Act which provides that unlawfully

expropriated property is not subject to return if the property has lost

its former distinct condition by undergoing significant changes in the

form, value and size (Paragraph 12, sections 3(2) and 8). According to

the expert evaluation carried out at the request of the district

administration, the buildings in question had lost such distinct

condition.

On 26 February 1996 the Tallinn Court of Appeal ("Tallinna

Ringkonnakohus") confirmed the judgment of the first instance court.

Leave to appeal to the Supreme Court was refused on 24 April 1996.

The applicant alleges that, following the court judgments, the

current resident was allocated by the local administration 1,9 ha of

land in connection with the recognition of her ownership of the

contested buildings, according to Paragraph 9 the Land Reform Act.

COMPLAINTS

The applicant complains about a violation of his rights under

Article 1 of Protocol No. 1 to the Convention. In particular, he

complains about the refusal of the authorities to recognise his right

of inheritance with respect to the property of his family which was

illegally expropriated in 1940.

THE LAW

The applicant complains about non-restitution of part of his

family's property. He invokes Article 1 of Protocol No. 1 (P1-1) to the

Convention which provides:

"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 Estonia's reservation with respect to the

cited provisions contained in the instrument of ratification, deposited

on 16 April 1996. The reservation reads in the relevant part as

follows:

"In accordance with Article 64 (Art. 64) of the Convention, the

Republic of Estonia declares that the provisions of Article 1 of

the First Protocol (P1-1) shall not apply to the laws on property

reform which regulate the restoration or compensation of property

nationalised, confiscated, requisitioned, collectivised or

otherwise unlawfully expropriated during the period of Soviet

annexation... The reservation concerns the principles of the

Property Reform Act, the Land Reform Act...and their wording

being in force at the moment the Ratification Act entered into

force."

The Commission observes that the reservation includes references

to specific acts, it is sufficiently precise and is accompanied by a

brief summary of the relevant laws. The reservation thus satisfies the

conditions for its validity under Article 64 (Art. 64) of the

Convention.

The Commission considers that the Estonian reservation covers the

applicant's complaint regarding the restitution of his family's

property. It follows that the complaint must be rejected under

Article 27 para. 2 (Art. 27-2) as being incompatible ratione materiae

with the provisions of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber