GRAND CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33071/96 by Jan MALHOUS against the Czech Republic

The European Court of Human Rights, sitting on 13 December 2000 as a Grand Chamber composed of

Mr L. Wildhaber , President , Mrs E. Palm , Mr C.L. Rozakis , Mr B. Conforti , Mr J.A. Pastor Ridruejo , Mr P. Kūris , Mrs F. Tulkens , Mr C. Bîrsan , Mr P. Lorenzen , Mr K. Jungwiert , Sir Nicolas Bratza , Mr J. C asadevall , Mr M. P ellonpää , Mrs H.S. Greve , Mr A.B. Baka , Mr R. Maruste , Mrs V. Strážnická , judges and Mr M. de Salvia , Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 May 1996 and registered on 20 September 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of 11 May 1999 by which the Chamber of the Third Section, to which the case had originally been assigned, relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),

Having regard to the observations and additional observations submitted by the Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 13 September 2000,

Having deliberated on 13 September and 13 December 2000, decides as follows:

THE FACTS

The applicant was a Czech national born in 1920 who died on 1 May 1998. On 22 February 2000 the applicant’s nephew, Mr Jan Bouček, informed the Court that he wished to pursue the application originally introduced by his uncle, who he claimed had left a will designating him as his heir. The relevant inheritance proceedings are still pending before the Czech authorities.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The particular circumstances of the case

In June 1949, plots of agricultural land owned by the applicant’s father were expropriated by the former Doksy District National Council ( okresní národní výbor ) under the Czechoslovak New Land Reform Act No. 46/1948 (“the 1948 Act”). The applicant’s father never obtained any compensation.

In 1957 some of the plots in question were transferred to the ownership of natural persons in an assignment procedure under the 1948 Act.

In 1977 the applicant’s father died and the applicant’s rights over his estate were confirmed.

After the fall of the communist regime in Czechoslovakia, Act No. 229/1991 on Adjustment of Ownership Rights in respect of Land and Other Agricultural Property ( zákon o půdě , “the Land Ownership Act”) entered into force on 24 June 1991. The Act provided that the 1948 Act was no longer applicable and that under certain conditions property confiscated pursuant to that Act without compensation could be returned to its former owners or their heirs if it was still in the possession of the State or of a legal person. However, if such property had been transferred into the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation (for further details of this legislation, see below under “Relevant domestic law”).

After 31 December 1992 - date of the division of the Czech and Slovak Federal Republic into the Czech Republic and the Slovak Republic - the Land Ownership Act remained in force as part of the law of the Czech Republic. It was amended several times and certain provisions were subsequently quashed by the Czech Constitutional Court as being unconstitutional.

On the basis of the Land Ownership Act, the applicant entered into restitution agreements with two legal persons (the Administration of National Forests and an agricultural cooperative) on 10 December 1993 and 4 May 1994 respectively. By two decisions of 12 October 1994 the Mladá Boleslav Land Office ( pozemkový úřad , “the Land Office”) refused to approve the restitution agreements. Referring to section 32(2) of the Land Ownership Act, it found that some of the plots had been assigned to different owners pursuant to the 1948 Act, and that these owners, being natural persons, had proved their property rights by showing their deeds of assignment.

On 11 November 1994 the applicant lodged appeals with the Prague Municipal Court ( městský soud , “the Municipal Court”) against the two decisions. He claimed the restitution of the entire property, contesting that the acquisition of parts thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment.

On 31 May 1995 the Municipal Court joined both appeals and upheld the administrative decisions of 12 October 1994. It held that the Land Office had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner. This had been established on the basis of all relevant documents including the deeds of assignment which were included in the administrative files. The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section 23(1) of the Code of Administrative Procedure. The Municipal Court considered that no hearing was necessary in the applicant’s case, as the facts had been correctly established by the administrative authority and only points of law were in issue before it. In this respect it referred to section 250(f) of the Code of Civil Procedure.

The case was referred back to the Land Office which gave a new decision on 25 July 1995. In accordance with the opinion of the Municipal Court, by which it was bound by virtue of section 250(r) of the Code of Civil Procedure, the Land Office confirmed the applicant’s property rights in respect of those plots (with a surface of 23,282 sq. m) which had not been re-assigned to natural persons under the 1948 Act. At the same time it informed the applicant that he could seek compensation under sections 11 or 16 of the Land Ownership Act for the plots which could not be returned (125,341 sq. m).

On 14 September and 15 October 1995 the applicant lodged a constitutional appeal ( ústavní stížnost ) claiming inter alia that his property rights had been violated, that he had not been able to put forward further evidence and that the Municipal Court had not informed him about its decision to join both cases. He also claimed that all acts made under the 1948 Act were null and void. He invoked Articles 11, 36 and 38 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ).

On 29 November 1995 the Constitutional Court ( Ústavní soud ) rejected the applicant’s appeal as manifestly ill-founded. It considered that the applicant’s constitutional rights to a proper court procedure had not been violated by the manner in which the Municipal Court had dealt with his appeal. Having regard to the special nature of the judicial review of administrative decisions, the court’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority. The applicant had not invoked evidence disregarded by the Land Office and, by merely articulating his discontent with the latter’s decision, had not raised any valid objection to the facts as established by it. According to the Constitutional Court the Municipal Court furthermore had not infringed constitutional law by deciding the case without a hearing as this was lawful under section 250(f) of the Code of Civil Procedure when the case involved only the assessment of points of law. As regards the applicant’s allegation concerning the nullity of all property transfers made under the 1948 Act, the Constitutional Court made it clear that this allegation was unsubstantiated. When the 1948 Act was repealed by the Land Ownership Act in 1991 it became inapplicable ex nunc . This did not mean, however, that all earlier transactions under the 1948 Act were now to be regarded as null and void. The Constitutional Court added that the Land Ownership Act purported to redress only certain, but not all consequences of the infringement of property rights caused by the operation of that Act and therefore the decisions in the applicant’s case had not been unlawful.

On 1 May 1998 the applicant died. Nevertheless, on 3 July 1998 his lawyer introduced before the Land Office a request for compensation by the assignment of other plots pursuant to section 11(2) of the Land Ownership Act. According to the Government this request is still pending before the Land Office.

The judicial proceedings regarding the applicant’s inheritance were terminated on 29 October 1998 by a finding of the Prague 2 District Court that the applicant had not left any estate. Apparently, the court was not aware of the Land Office’s decision of 25 July 1995.

On 22 February 2000 the applicant’s nephew, Mr Bouček, requested the district court to re-open the inheritance proceedings. He produced his uncle’s last will of 22 March 1998 in which he was designated as an universal heir of the applicant’s estate, while the applicant’s two adult children were disinherited. The re-opening of the judicial proceedings concerning the inheritance was eventually granted on 21 August 2000. These proceedings are still pending.

At the same time when he requested the re-opening of the inheritance proceedings, that is also on 22 February 2000, the applicant’s lawyer informed the Court about Mr Bouček’s wish to pursue his uncle’s application before the Court. He also submitted a power of attorney for the proceedings before the Court signed by Mr Bouček.

B. Relevant domestic law

The Land Ownership Act

The Land Ownership Act regulates, inter alia , the restitution of certain agricultural and other property (defined in section 1) which has been ceded or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim including, in sub-paragraph (b), confiscation without compensation pursuant to the 1948 Act.

The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. They are the original owners of the property (section 4(1)) or, where the original owner is deceased or reported missing without trace, the latter’s heirs or near relatives in a specified order (section 4(2)). All claimants must be natural persons and nationals of the Czech and Slovak Federal Republic permanently resident in its territory. The requirement of permanent residence was repealed by a judgment of the Czech Constitutional Court (No. 29/1996) with effect from 9 February 1996.

According to section 5, those obliged to make restitution are, in principle, the State or any legal person possessing the real property at the date when the Act entered into force. Natural persons can be obliged to return real property to a rightful claimant only in the circumstances set out in section 8, that is if they or their relatives acquired it from the State or another legal person either contrary to any law in force at the relevant time or for a price inferior to any applicable price regulations or on the basis of unlawful advantage. In these cases the restitution shall be ordered by a judicial decision upon the application of the rightful claimant which must be filed before 31 December 1992 or within six months from the date when a decision of the land office refusing the restitution of the real property in question has become final. Otherwise, a plot assigned to a natural person who has proved his property rights by showing his deed of assignment is not available for restitution (section 32(3), which was, however, repealed by a judgment of the Czech Constitutional Court (No. 166/1995) with effect from 15 August 1995).

Furthermore, no restitution shall take place in the cases listed in section 11(1) of the Act which include, inter alia , cases where a right of personal use of the property has been created for a natural person except in the circumstances mentioned in section 8. In such cases, the land office shall transfer other equivalent State property, preferably located in the same area and determined according to the principles of the agricultural land reallocation legislation, to the rightful claimant if the latter consents (section 11(2)).

If no restitution is provided for and the person entitled to restitution cannot be compensated by the assignment of other real property, he has a right to financial compensation according to specified conditions (section 16).

As regards the procedure to be followed, section 9(1) of the Act provides that a rightful claimant must lodge his claim with the appropriate land office and at the same time request restitution from the person or entity possessing the real estate at issue. The latter is required to conclude, within 60 days, an agreement on the transfer of the property with the claimant ( restituční dohoda , “restitution agreement”). According to section 9(2), any restitution agreement must be confirmed by the appropriate land office. If the land office does not approve the restitution agreement, the entitled person can appeal to the court. If the court, too, refuses to approve the agreement, it refers the case back to the Land Office for a decision on the merits of the case (section 9(3)). This decision is again subject to judicial review (section 9(6)).

Code of Administrative Procedure

The proceedings before land offices are governed by Act No. 71/1967 (Code of Administrative Procedure).

Sections 3 and 4 regulate the basic principles of the proceedings before administrative authorities. The proceedings must be conducted in accordance with the law, and parties must always be given the opportunity to defend effectively their rights and interests, to challenge the facts of the case and to make proposals as to the proceedings. Furthermore, the parties enjoy equal rights and have the same obligations. The decisions of administrative authorities must be based on facts that have been established in a reliable manner.

Pursuant to section 21, the administrative authority shall order an oral hearing if this is required by the nature of the case, in particular where such a hearing will contribute to the clarification of the matter at issue. The parties to the proceedings must be summoned to attend the oral hearing and invited to express their comments and proposals in the course of the hearing. Oral hearings are not public unless a special legal rule provides otherwise or the administrative authority decides that the hearing shall be public.

According to section 23(1), the parties to the administrative proceedings and their representatives have the right to have access to documents and to make extracts therefrom, except for the records of voting.

According to section 32(1), administrative authorities are under the obligation to establish all facts accurately and comprehensively. For that purpose they have to obtain all necessary supporting documents and data.

Code of Civil Procedure

The lawfulness of decisions of the administrative authorities can be reviewed by the courts in accordance with Part V of the Code of Civil Procedure.

Section 250(f) (repealed by a judgment of the Constitutional Court (No. 269/96) with effect from 1 May 1997) entitles the courts to deliver a judgment without an oral hearing in simple cases, in particular when there is no doubt as to whether the administrative authority established the facts correctly, and only points of law are at issue.

Pursuant to section 250(i)(1), the courts, when reviewing administrative authorities’ decisions, take into consideration the facts as they existed at the moment when the administrative decision was taken.

In accordance with section 250(m)(3), the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed.

Pursuant to section 250(q), the court reviewing an administrative authority’s decision can either uphold or quash it and send the case back to the administrative authority. If the decision is not taken pursuant to section 250(f) or if the administrative authority does not issue a new decision satisfying the applicant’s claim, the court may take such evidence as is necessary for reviewing the decision at issue.

Pursuant to section 250(r), if the court quashes the decision of the administrative authority, the latter is bound by the legal opinion expressed by the court, when taking a new decision.

In accordance with Article 250(s), a court decision reviewing an administrative decision is not subject to a remedy except in the cases listed in sub-paragraph 2 (which are not pertinent in the present case).

Civil Code

Section 469a(1)(a) and (b) provides that the testator may disinherit a descendant if the latter, at variance with proper morality, failed to extend to him the necessary assistance in sickness, old age or in other similarly significant situations, or if the descendant fails to show lasting genuine interest in his person, of the kind that a descendant should display.

According to section 473(1), children and spouse inherit in the first order of intestate succession, each of them in equal parts.

According to section 479, minor descendants must receive at least as much as constitutes their intestate share in the estate, and adult descendants must receive at least as much as constitutes one half of their intestate share. If the will contradicts this provision, that part of the will shall be invalid, unless the aforementioned descendants have been disinherited.

COMPLAINTS

1. The applicant complains that his property rights as guaranteed by Article 1 of Protocol No. 1 to the Convention have been violated in the restitution proceedings. He submits that the national authorities did not decide on the unlawfulness or nullity of the application of the 1948 Act in his case. He claims that as the Czechoslovak communist regime between 25 February 1948 and 17 November 1989 was proclaimed illegal by the Act on the Illegality of the Communist Regime No. 198/1993, the 1948 Act adopted during this period of time should also be considered as illegal.

2. The applicant also alleges a violation of Article 6 § 1 of the Convention in the proceedings before the Mladá Boleslav Land Office, the Prague Municipal Court and the Constitutional Court in that (i) there has been no public hearing in his case, (ii) he could not put forward further evidence, and (iii) he could not challenge and refute the defendants’ arguments.

THE LAW

A. As to the locus standi of Mr Jan Bouček

The Court must first address the issue of Mr Bouček’s entitlement to pursue the application originally introduced by the applicant who died in May 1998.

Mr Bouček has declared since February 2000 that he wishes to pursue his uncle’s application before the Court. He invokes the applicant’s last will of 22 March 1998, in which he was designated as the applicant’s universal heir while the applicant’s two adult children were disinherited. He further points out that on the basis of this last will, which only recently came to his attention, he requested and obtained the reopening of the inheritance proceedings before the relevant national court.

The respondent Government submit that, for the time being, Mr Bouček cannot be considered as a person entitled to pursue the proceedings before the Court on the applicant’s behalf. The Government do not contest the existence of the applicant’s last will in which his nephew Mr Bouček was designated as a universal heir of the applicant’s estate. They observe, however, that the new inheritance proceedings, opened at Mr Bouček’s request before the Prague 2 District Court on 21 August 2000, are still pending. In these proceedings, the applicant’s two adult children could dispute the validity of their father’s last will. If that will were eventually declared null and void the applicant’s children would be the legitimate heirs of their father’s estate.

The Court recalls that in various cases where an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close members of his family who expressed the wish to pursue the proceedings before the Court (see, for example, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 19-20, §§ 37 ‑ 38; the X. v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 15, § 32; the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 29, § 2; the G. v. Italy judgment of 27 February 1992, Series A no. 228-F, p. 65, § 2; the Pandolfelli and Palumbo v. Italy judgment of 27 February 1992, Series A no. 231-B, p. 16, § 2; the X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 89, § 26; the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, p. 8, § 2; and, a contrario , the Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, p. 15, §§ 31-32).

In the present case it is not one of the late applicant’s next of kin who wishes to pursue the application before the Court. In fact, the applicant has two adult children and Mr Bouček is only his nephew. It is not contested that in his last will the applicant declared that he wished to disinherit his children and that he designated Mr Bouček as his universal heir. The Court notes that on the basis of this will the inheritance proceedings have been reopened and that they are still pending before the relevant national court. It accepts the Government’s argument that under the national law Mr Bouček’s rights to his uncle’s estate cannot be approved until the end of the new inheritance proceedings in which the applicant’s children – being mandatory heirs under section 479 of the Civil Code – could contest their father’s last will as a whole or in the part concerning their disinheritance. The Court also notes, however, that so far the applicant’s children do not appear to have contested the validity of the will. In its view the fact that the new inheritance proceedings have not yet terminated does not affect Mr Bouček’s current position as a person designated as the universal heir of the applicant’s estate under his last will.

The Court cannot, in the present circumstances, attach decisive importance to the fact that the person wishing to pursue the application is not the applicant’s next of kin and that he has not been confirmed as the applicant’s heir according to the provisions of the national law. Nor is it decisive that Mr Bouček manifested his wish to pursue the application only a considerable time after the applicant’s death. In fact, he seems to have learnt about the applicant’s will in his favour only shortly before he had recourse to the Court. What is essential is that Mr Bouček can claim a legitimate interest in having the proceedings in the applicant’s case being pursued before the Court. The Court considers it as sufficient in this respect that the original applicant has designated him as his heir and that there are prospects of his eventually being recognised as such, in which case at least part of the applicant’s estate including the restitution claims in issue in the present case would accrue to him.

Moreover, it is not only material interests which the successor of a deceased applicant may pursue by his wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death. This holds true all the more if, as in the present case, the leading issue raised by the case transcends the person and the interests of the applicant and his heirs in that it may affect other persons. If in such circumstances a potential heir wishes to maintain the application it cannot be said that the matter has been resolved or that for other reasons it is no longer justified to continue the examination of the application (see the above-mentioned Deweer judgment, § 38).

The Court therefore considers that the conditions for striking the case out from the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at Mr Bouček’s request.

The Court would point out, however, that its recognition of Mr Bouček’s entitlement to pursue the application in no way affects the scope of the case as originally submitted by Mr Malhous. It is not called upon to examine whether, after the applicant’s death, there has been any interference with Mr Bouček’s own rights under the Convention. Its examination must be limited to the question whether or not the complaints as originally submitted by Mr Malhous, who remains the applicant, disclose a violation of the Convention.

B. As to the alleged violation of Article 1 of Protocol No. 1

The applicant complains that his property rights as guaranteed by Article 1 of Protocol No. 1 to the Convention have been violated in the restitution proceedings.

Article 1 of Protocol No. 1 reads 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 use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Submissions by the parties

a) The Government

The Government submit in the first place that the applicant’s claim is incompatible ratione materia e and ratione temporis with the provisions of the Convention and of Protocol No. 1. As a subsidiary argument they claim that the applicant has not made use of all available remedies.

The Government refer to the Convention organs’ case-law according to which the Convention law does not guarantee the right to have property restored. Article 1 of Protocol No. 1 protects the peaceful enjoyment of existing property but does not guarantee the right to acquire property.

The Government stress that the Land Ownership Act, on the basis of which the applicant claimed the restitution of the property belonging to his father, did not affect the question of the validity of transfers of property in the past. The aim of the Act is to “redress the consequences of certain infringements of property rights”. It is based on the concept of an exhaustive list of the cases in which eligible persons have a right to restitution of property or to compensation, and provides, inter alia , that the 1948 Act no longer applies. Thus, the 1948 Act ceased to have effect before the date of the entry into force of the Convention with regard to the Czech Republic. The Government consider that the Court is neither competent to decide on the compatibility with the Convention of legislation which has been repealed nor to examine the circumstances in which the expropriation of the applicant’s father’s property was carried out in 1949.

In the present case, the national authorities proceeded in accordance with the Land Ownership Act. The Land Office did not approve the restitution agreements because the natural persons to whom the lands had been assigned were not under a duty to enter into restitution agreements and had proved the property rights to their plots by their deeds of assignment. The Municipal Court confirmed the correctness of the procedure followed by the Land Office, as only land owned by the State or by legal persons could be the object of a restitution agreement under the Land Ownership Act. The court remitted the case to the Land Office which then decided which plots still in the possession of legal persons were to be returned to the applicant. At the same time, the applicant was informed that as regards the remaining plots which could not be returned he had the option of either accepting other plots or financial compensation. According to the Government, the request for compensation by the assignment of other plots, submitted by the applicant’s lawyer on 3 July 1998, i.e. two months after Mr Malhous’ death, is still pending before the Mladá Boleslav Land Office. The applicant has never requested any financial compensation. The Government further note that Mr Bouček has never brought proceedings for restitution or for compensation before the national authorities.

The fact that section 32(3) of the Land Ownership Act, according to which land assigned to natural persons under the 1948 Act was not available for restitution, was repealed by the Constitutional Court’s judgment No. 166/1995 of 14 June 1995 could not in the Government’s view affect the decision in the applicant’s case. The repeal did not mean that natural persons should be included among those obliged to surrender land in their possession. They were implicitly excluded from this obligation already by virtue of section 5 of the Act.

The Government add that, although the Land Ownership Act is based on the principle of protection of natural persons, it enables rightful claimants to lodge, in some cases and within certain time-limits, a civil action requesting the restitution of property by natural persons. Accordingly, the applicant, who maintained that in his case the natural persons had acquired the plots contrary to the law then currently in force, could, after the new decision of the Land Office of 25 July 1995, have brought a civil action pursuant to section 8(1) of the Land Ownership Act and disputed the validity of the transfer of his father’s property to the natural persons concerned. Insofar as the applicant contested the lawfulness of the original transfer of his father’s property to the State and thereafter to the natural persons on the grounds of the alleged nullity of the 1948 Act, the Government submit that he could have brought a civil action for the restitution of illegally possessed property but had failed to do so.

The Government finally state that the applicant could have appealed against the Land Office’s decision of 25 July 1995 alleging, according to section 250(j) of the Code of Civil Procedure, that the facts had not been established properly before the Land Office and that there were further points to be clarified.

b) The applicant

The applicant disputes the Government’s arguments. He submits that the expropriation of his father’s plots under the 1948 Act constitutes a ground for restitution under section 6(1)(b) of the Land Ownership Act. He emphasises that the purpose of this Act is to redress infringements of property rights and submits that “redressing infringements” presupposes the existence of an unlawful act whereby the infringement was committed. He stresses that the right of a legitimate owner to recover his property from anyone possessing it unlawfully constitutes an essential element of the right to property and is the premise of the right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention.

The applicant further submits that the 1948 Act was inherently unlawful. Accordingly, the property rights to the plots in question were not validly acquired by the transferees; the property was simply taken from his father as its legitimate owner. In this regard, an assignee acquiring the property under the 1948 Act cannot be considered a rightful owner.

The applicant also submits that, if the ruling of the Constitutional Court is not regarded as final, the final decision for the purposes of Article 35 § 1 of the Convention was undoubtedly the judgment of the Municipal Court of 31 May 1995. He notes that, having regard to section 250(s) of the Code of Civil Procedure, a constitutional appeal was the only remedy, whether ordinary or extraordinary, available to him. The applicant notes that the decision of the Land Office of 25 July 1995 cannot be considered the final decision in the case, nor could any subsequent judgment of the Municipal Court be considered to constitute that decision, because the decision of the Land Office of 25 July 1995, determining his claim to the plots, was merely a formal assessment of his claim, which could not overturn the judgment of the Municipal Court. Moreover, the decision of the Land Office could not be further challenged in the Municipal Court as the matter would have been treated as res iudicata . The fact that at the time of the introduction of the constitutional appeal all domestic remedies had been exhausted was also confirmed by the Constitutional Court, which did not dismiss his appeal under section 75(1) of the Constitutional Court Act, which requires prior exhaustion of domestic remedies.

The applicant then submits that an owner of property who has been expropriated in a manner listed as one of the grounds for restitution in the Land Ownership Act has the right to claim the restitution of his property in accordance with the restitution proceedings governed by the national law. That claim is, therefore, a realisation of his property rights.

The Court’s assessment

(a) The Court first notes that the applicant’s only complaint submitted under Article 1 of Protocol No. 1 concerns the fact that, as a result of the proceedings under the Land Ownership Act, restitution was not granted to him in respect of the entire property which before its confiscation under the 1948 Act had belonged to his father.

The applicant cannot claim to have been a victim of a violation of his property rights insofar as a part of the confiscated property (with a total surface of 23,282 sq. m.) was returned to him by the Land Office’s decision of 25 July 1995. In this context, it is irrelevant whether subsequently the property in question has actually been transferred into the applicant’s possession, since he has not submitted any complaint in this respect.

The applicant’s above complaint accordingly concerns only that part of the property which, following its confiscation under the 1948 Act, had been assigned to natural persons and which in the proceedings under the Land Ownership Act was found not to be available for restitution.

The Court notes that in respect of this part of the property the applicant was informed by the Land Office in its decision of 25 July 1995 that he could claim compensation either in the form of other equivalent land or in the form of financial compensation. The Court further notes that after the applicant’s death a request under section 11 of the Land Ownership Act for the allocation of other equivalent land was in fact submitted on behalf of the applicant by his lawyer and that according to the Government the relevant proceedings are still pending. A request for financial compensation under section 16 of the Act has never been made.

(b) The Government submit that the applicant has not exhausted the domestic remedies in accordance with the requirements of Article 35 § 1 of the Convention in that he failed to appeal against the Land Office’s decision of 25 July 1995 and did not make use of certain other remedies which would have been available to him under the Land Ownership Act or the Civil Code.

The Court has no reason to doubt that these remedies actually existed in the Czech legal system and that, except for the above-mentioned request under section 11 of the Land Ownership Act submitted by his lawyer after his death, the applicant did not make use of them. It observes, however, that none of these remedies could have provided the applicant any redress in respect of his particular claim that because of the officially recognised illegality of the communist regime in Czechoslovakia the 1948 Act should be regarded as a nullity and that therefore no legal effect whatsoever should be given to any property transactions made pursuant to this Act, including the initial taking of the property and its subsequent assignment to other natural persons.

The Court notes that the applicant in fact submitted these arguments in his appeal to the Constitutional Court which rejected them by its decision of 29 November 1995. While it is true that the applicant could have raised similar arguments in some of the other remedies referred to by the Government, he was not required to do so since under the established case-law of the Convention organs it is sufficient if an applicant has exhausted one of several alternative remedies likely to produce essentially the same effect (see, mutatis mutandis , A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48, § 32; I.S. v. Slovakia , no. 25006/94, § 31, 4 April 2000, unpublished). Indeed, it could not be expected in the present case that the ordinary courts would have decided the matter differently from the Constitutional Court in its above decision, taking into account that the ordinary court’s decisions would themselves have had to be challenged before the Constitutional Court for the purpose of the exhaustion of domestic remedies.

The Court therefore considers that with regard to his above complaint under Article 1 of Protocol No. 1 the applicant has exhausted the domestic remedies in conformity with the requirements of Article 35 § 1 of the Convention.

c) The Court must therefore examine the applicant’s claim that the refusal of restitution of the relevant part of his father’s property amounted to an interference with his property rights as guaranteed by Article 1 of Protocol No. 1. Having regard to the Government’s submissions, it must in particular determine whether this claim is compatible with the provisions of the Convention, within the meaning of Article 35 § 3 thereof.

In this respect, the Court first recalls that it can examine applications only to the extent that they relate to events which occurred after the Convention entered into force with respect to the relevant Contracting Party. In the present case, the property of the applicant’s father was expropriated in June 1949 and assigned to other natural persons in 1957, that is long before 18 March 1992, the date of the entry into force of the Convention with regard to the Czech Republic (see Kuchař and Štis v. the Czech Republic (dec.), no. 37527/97, 23 May 2000, unpublished). Therefore, the Court is not competent ratione temporis to examine the circumstances of the expropriation or the continuing effects produced by it up to the present date. In this regard, the Court refers to and confirms the Commission’s established case-law according to which deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see, for example, Mayer and Others v. Germany, applications no. 18890/91, 19048/91, 19342/92 and 19549/92, Commission decision of 4 March 1996, Decisions and Reports (DR) 85, pp. 5-20; and Brežny & Brežny v. Slovakia, application no. 23131/93, Commission decision of 4 March 1996, DR 85, pp. 65-83). The applicant’s complaint is therefore incompatible with the provisions of the Convention insofar as he may be understood as challenging as such the measures taken pursuant to the 1948 Act in respect of his father’s property prior to the entry into force of the Convention in respect of the Czech Republic.

However, the proceedings which the applicant instituted under the Land Ownership Act for the recovery of his father’s land before the administrative and judicial authorities took place after the entry into force of the Convention in respect of the Czech Republic. These proceedings ended in November 1995 with a judgment of the Constitutional Court. In these circumstances, the Court is bound to take these proceedings into account and cannot, therefore, reject this part of the application for lack of temporal jurisdiction.

d) The applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the proceedings of which he complains related to his “possessions” within the meaning of this provision.

In this regard, the Court recalls that, according to the established case-law of the Convention organs, “possessions” can be “existing possessions” (see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or assets, including claims, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see the Pine Valley Developments Ltd. and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51; and the Pressos Companía Naviera S.A. v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21, § 31). By way of contrast, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1 (see X., Y. and Z. v. Germany, applications no. 7655-7657/76, Commission decision of 4 October 1977, DR 12, p. 111; and the above-mentioned Mayer and Others Commission decision, p. 18), nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Mario de Napoles Pacheco v. Belgium, application no. 7775/77, Commission decision of 5 October 1978, DR 15, p. 143; and the above-mentioned Brežny & Brežny Commission decision, p. 80).

In the present case, the applicant brought proceedings before the competent national authorities for restitution of his father’s land under the Land Ownership Act. In bringing this action, he was seeking to obtain title to the plots of land which had once belonged to his father but which, at the time when the proceedings started, no longer were the property of the applicant’s father or of the applicant himself as his father’s heir. Therefore, the proceedings did not relate to an “existing possession” of the applicant.

It remains to be examined whether Mr Malhous could have any “legitimate expectation” of realising his claim to restitution of his father’s land under the Land Ownership Act. The Court notes that the administrative and judicial authorities decided to return to the applicant only those plots which were in the possession of legal persons. The other plots - the only ones that are in issue here - were not returned because they had in the meantime been assigned to natural persons. The national authorities referred to section 32(3) of the Land Ownership Act which provides that property assigned to a natural person in accordance with the 1948 Act may not be returned to the former owner from whom it was confiscated pursuant to the land reform legislation, or his successors in title, where the new owner or his successor in title proves beyond doubt that he has acquired ownership of the property. The Court finds no indication that the conclusion of the national authorities was arbitrary or contrary to the provisions of the national law applied by them. In fact the authorities only gave effect to the provisions of the Land Ownership Act according to which the right to restitution was subject to the condition that the property in question was still in the possession of the State or of a legal person at the time of the entry into force of that Act - a condition which was not met in the applicant’s case. The Court concludes that Mr Malhous could not have had any “legitimate expectation” of realising his claim to restitution of his father’s property.

It is true that in respect of property which cannot be the object of restitution the Land Ownership Act provides for compensation by the allocation of other equivalent plots of land or by the award of financial compensation. The applicant’s entitlement to such compensation, which is derived from the provisions of the Land Ownership Act and not from his father’s former ownership rights as such, may well be considered as a “possession” within the meaning of Article 1 of Protocol No. 1. However, the applicant in fact does not complain of any interference with that entitlement. His only complaint under Article 1 of Protocol No. 1 concerns the fact that he could not obtain the restitution of the entire land that had belonged to his father. It is clear that under the applicable legislation he neither had a right nor a claim amounting to a legitimate expectation in the sense of the Court’s case-law to obtain such restitution and therefore no “possession” within the meaning of Article 1 of Protocol No. 1.

It follows that the applicant’s above complaint under Article 1 of Protocol No. 1 must be rejected in accordance with Article 35 § 3 of the Convention as being incompatible, ratione materiae , with the provisions of the Convention.

C. As to the alleged violation of Article 6 § 1 of the Convention

The applicant alleges a violation of his rights guaranteed by Article 6 § 1 of the Convention which reads, in so far as relevant, as follows:

“In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent ... tribunal established by law.”

Submissions by the parties

The Government claim that the applicant’s right to a fair and public hearing was not breached in the present case. They submit that the Land Office acted in accordance with section 21 of the Code of Administrative Procedure and held a hearing on 12 October 1994. The parties to the administrative proceedings were informed about the reasons for which the negotiated agreements could not be approved. While the parties first expressed their willingness to withdraw from the agreements, they later decided to leave before the conclusion of the proceedings.

The Government further submit that the Municipal Court considered exclusively points of law. In such proceedings a court examines the administrative decision only to the extent that it has been challenged by the claimant. As in the present case the applicant raised no objections to the findings of fact previously reached in the case, the Municipal Court examined only the circumstances on which the Land Office had based its decisions and which were apparent from the files. The Government contest that the applicant was denied the possibility of supplementing the evidence or rectifying or complementing the Land Office’s findings of fact. He had access to the file but did not familiarise himself with the evidence submitted.

For the sake of completeness, the Government observe that section 250(f) of the Code of Civil Procedure was repealed by the judgment of the Constitutional Court No. 269/96 with effect from 1 May 1997.

The applicant submits that the Land Office and the Municipal Court failed to order an oral hearing throughout the restitution proceedings. He disputes the Government’s assertion that an oral hearing took place before the Land Office and that, in order to ensure that the proceedings were conducted correctly, he could have consulted the files or written reports. He further submits that the judge at the Constitutional Court dealing with his constitutional appeal breached his right to a fair hearing in that he dismissed the appeal by a decision on its merits even though he must have been aware that the Municipal Court and the Land Office had violated Article 6 § 1 of the Convention and Article 38 § 1 of the Charter of Fundamental Rights and Freedoms. By so doing, the judge allegedly usurped the functions of a chamber of the Constitutional Court. The applicant recalls that this procedure was repealed by Amendment No. 17/1998 to the Constitutional Court Act.

The Court’s assessment

The Court notes that the applicant’s complaints contain two different aspects: first, that he did not enjoy fair proceedings and, secondly, that he did not have a public hearing before an independent and impartial tribunal. It further notes that the applicant raised both aspects in his constitutional appeal and that he thereby exhausted the domestic remedies as required by Article 35 § 1 of the Convention.

a) As regards the first aspect, the applicant claims that he could not put forward further evidence and that he was unable to challenge and refute the defendants’ arguments. In this context he submits that he was not granted access to the file including in particular the deeds of assignment of the persons to whom his father’s property had been transferred in 1957. The Court notes, however, that according to the clear provisions of the Code of Administrative Procedure, to which he was referred in the Municipal Court’s decision of 31 May 1995, he could have consulted the file at any time during the proceedings. The Municipal Court noted that, while the applicant contested the outcome of the administrative proceedings, he had not raised any valid objections to the facts as established in the Land Office’s decisions of 12 October 1994. The Constitutional Court subsequently confirmed that in these circumstances the Municipal Court could limit its examination to the relevant questions of law on the basis of those facts without infringing the applicant’s right to a proper court procedure. As the Municipal Court then remitted the case to the Land Office for the purpose of completing the administrative proceedings, the possibility of consulting the administrative file continued to be open to the applicant even after the court’s decision. Moreover, as the Government pointed out, he could have challenged the Land Office’s fact-finding underlying its decision of 25 July 1995 by a further appeal to the court.

In these circumstances, the Court finds no indication that the applicant’s right to a fair hearing was disregarded in the proceedings before the Land Office or the Municipal Court. Furthermore, the Court does not find any appearance of unfairness in the manner in which the Constitutional Court dealt with the applicant’s case. It follows that this part of the applicant’s complaint under Article 6 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must accordingly be rejected under Article 35 § 4.

b) As regards, on the other hand, the applicant’s complaint that he was not granted a public hearing before an independent and impartial tribunal, the Court notes that it is contested between the parties whether or not a hearing took place before the Land Office on 12 October 1994. It is clear, however, that the Municipal Court, relying on section 250(f) of the Code of Civil Procedure, decided the case without an oral hearing.

The Court considers, therefore, that this part of the applicant’s complaint raises an issue under Article 6 § 1 of the Convention which needs to be determined as to its merits. This part of the application accordingly cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible without prejudging the merits, the applicant’s complaint that he did not have a public hearing by an independent and impartial tribunal;

Declares inadmissible the remainder of the application.

The English and French versions of the decision are equally authentic.

Michele de Salvia Luzius Wildhaber Registrar President