Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33667/96

by Richard BOUSKA

against the Czech Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, 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 3 September 1996

by Richard BOUSKA against the Czech Republic and registered on

5 November 1996 under file No. 33667/96;

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 Czech citizen born in 1938. He lives in

Prague. Before the Commission, he is represented by Mr M. Koubek.

The facts, as submitted by the applicant, may be summarised as

follows.

In 1942 the applicant inherited from his father one twentieth of

a house in Prague.

Pursuant to Section 2 (5) of Presidential Decree No. 108/1945 on

the Confiscation of Enemies' Property and on the National Restoration

Funds ("the Decree"), which entered into force on 30 October 1945,

property belonging to a part owner could be confiscated on payment of

compensation if the majority joint owners of the property were German

nationals whose shares were subject to confiscation under the Decree.

By a decision of 16 March 1951 the former Prague 2 District

National Committee (obvodní národní vybor) confiscated the applicant's

property pursuant to Section 2(5) of the Decree. No compensation was

paid to the applicant.

In September 1991, pursuant to Extra-Judicial Rehabilitation Act

No. 87/1991 ("the Act"), the applicant wrote to the company in

possession of his property, Pragokámen, s.p., seeking an agreement as

to the restitution of his share of property. The company made it clear

that it did not intend to comply with this request. The applicant

applied to the Prague 1 District Court (obvodní soud).

On 18 June 1993, the Prague 1 District Court found against the

applicant. The Court considered that the property at issue had passed

into the possession of the State by the confiscation decision of the

former Prague 2 District National Committee dated 16 March 1951,

i.e. after 25 February 1948, the decisive date for restitutions under

the Act. However, the Court held that the confiscation under the Decree

could not be mistaken for expropriation or nationalisation, which under

certain circumstances constituted the legal entitlement to restitution

pursuant to the Act. The Court stated that the fact that no indemnity

had been paid to the applicant was not such a hardship that it could

be classified as a procedure violating generally recognised human

rights and freedoms within the meaning of Section 2(1)(c) of the Act.

It added that if the legislator had intended to remedy injustice in

cases such as the applicant's, where compensation for confiscation

should have been paid but was not, it would have done so by a special

law.

On 8 October 1993 the Prague Municipal Court (mestsky soud), on

appeal made by the applicant, confirmed this judgment. However, it

found that the applicant's property had passed into the possession of

the State by operation of law, i.e. by the entry into force of the

Decree on 30 October 1945 which was before the decisive date of

25 February 1948 specified in the Act. The Court noted that the

confiscation decision of 16 March 1951 had only declaratory character.

Accordingly, the Act did not apply to the applicant's case at all. The

Court considered it unnecessary to examine the remainder of the

applicant's appeal.

On 28 January and 1 December 1994 the applicant lodged a

constitutional appeal together with a request for abolition of Section

2(5) of the Decree which he considered to be contrary to Article 17

para. 2 of the Universal Declaration of Human Rights. The applicant

claimed that the finding of the Prague Municipal Court was incompatible

with domestic courts' case-law. He further claimed that the fact that

the former Prague 2 District National Committee had never paid him any

compensation, constituted a breach of generally recognised human rights

and freedoms within the meaning of Section 2(1)(c) of the Act.

On 7 July 1994 the Constitutional Court (Ústavní soud) dismissed

the applicant's request for Section 2(5) of the Decree to be abolished,

stating that the same matter had already been brought before the

Constitutional Court by Mr Rudolf Dreithaler requesting the abolition

of Presidential Decrees Nos. 108/1945, 12/1945 and 33/1945.

By a judgment of 8 March 1995 the Constitutional Court dismissed

Mr Rudolf Dreithaler's request and referred the applicant to its

reasoning in that case.

On 26 March 1996 the Constitutional Court dismissed the remainder

of the applicant's constitutional appeal. The Court held in particular:

"[T]he transfer of the applicant's property to the State

was effected by confiscation pursuant to Presidential

Decree No. 108/1945 ("the Decree"). According to the

established case-law ... such property can be restored only

under conditions provided for by Sections 6(2) and 2(1)(c)

of Extra-Judicial Rehabilitation Act No. 87/1991 ("the

Act") where administrative decisions were taken ... after

25 February 1948 ... This condition is fulfilled in the

present case as the former Prague 2 District National

Committee issued the confiscation decision on

16 March 1951. ...

The Constitutional Court has considered the applicant's

main objection that, contrary to Section 2(5) of the

Decree, no compensation had been paid to him. ... The

Constitutional Court finds that, according to the Property

Office (majetkovy úrad) no financial compensation was paid

either to the applicant or [his mother]. ...

... [T]he Constitutional Court has considered whether, in

the light of the protection of human rights and freedoms of

the applicant ..., the non-payment of the compensation is

relevant in the present case. This involves answering the

question whether ... the property should have been restored

under Section 6(2) [and] Section 2(1)(c) of the Act.

Section 2(1)(c) binds restitution of property to the

unlawful [confiscation] procedure which was the consequence

of political persecution or of a procedure violating

generally recognised human rights and freedoms. ...

However, it is not the present case. Section 2(5) of the

Decree ... has been applied to any joint owner, who owned

a minority share of the property to be confiscated

irrespective of his or her affiliation to a social or

property group or class. ... This situation is not

comparable with other cases of abusive confiscation under

the Decree ...

It remains to be considered whether the non-payment of

compensation for the confiscated property can be equated to

a procedure violating generally recognised human rights and

freedoms within the meaning of Section 2(3) of the Act.

According to this Section such behaviour is considered to

be a procedure ... which is incompatible with the

principles listed in Section 1(1) of the Act. [According

to] this provision, ... the Act is aimed at mitigating the

consequences of some property and other injustices caused

by civic, employment and judicial acts, performed between

25 February 1948 and 1 January 1990 which are incompatible

with the principles of a democratic society, respecting the

rights of citizens as enshrined in the Charter of the

United Nations Organisation, the Universal Declaration of

Human Rights ... Thus, the Act does not intend to remedy

the consequences of all injustices, but only to mitigate

some of them. It is, therefore, not possible to redress

other injustices than those included in the Act and in such

way as stated therein; dispossessions of property effected

for other reasons than specified in the Act have remained

generally valid.

Cases of restitution of property which have been

expropriated without compensation are regulated as follows:

Section 6(1)(j) of the Act: cases of confiscation ...;

Section 2(2) second line: cases of nationalisation ...

where entitled persons can claim under ... Act No. 92/1991.

Accordingly, if the legislator had intended to indemnify

cases of expropriation by confiscation where compensation

should have been paid but was not, it would have provided

for it expressly in Section 6(1) of the Act, or it would

have enlarged the possibilities of mitigation of the

consequences of ... injustices also to [those] cases ...

However, the legislator did not do so. Thus, the District

Court rightly decided that the applicant's request for

restitution of [his] property was unsubstantiated. ...

Finally, the Constitutional Court notes that the Decree,

including Section 2(5), ... remains valid. ... The

application of Section 2(5) of the Decree itself, if it was

not [abusive] ..., cannot be considered as in breach of

Section 2(1)(c) of the Act ...

[The applicant also alleged a violation of his right to

court protection under Article 36 of the Charter of

Fundamental Rights and Freedoms ("the Charter")]. According

to this provision, in the determination of his rights,

everyone is entitled to a fair hearing by an independent

and impartial tribunal ... This right, however, cannot be

interpreted as the right to success in court. In the

present case court protection was not denied as the courts

dealt with [the applicant's] action ...

The applicant further alleged a violation of Article 11

para. 1 of the Charter which guarantees the property rights

... In this regard the Constitutional Court recalls its

established case-law according to which this provision

protects existing property rights and not only an alleged

claim for [them] ..."

COMPLAINTS

The applicant claims, under Article 6 para. 1 of the Convention

and Article 1 of Protocol No. 1, that his action for restitution was

rejected because of the irregular procedure before the ordinary

domestic courts and the Constitutional Court and the wrong

interpretation of Extra-Judicial Rehabilitation Act No. 87/1991 and

that, accordingly, his rights to a fair trial and to peaceful enjoyment

of his possessions have been breached. He submits that the

Constitutional Court, which is a judicial institution outside the

system of ordinary domestic courts, extended the reasoning of the

ordinary courts and, in fact, decided as a court of first instance

giving a new legal opinion. He contends that with regard to the

judgment of the Constitutional Court his property was expropriated de

facto without any compensation. He maintains that the confiscation of

the property as well as the non-payment of the compensation was a

consequence of the political persecution of his family, and, therefore,

the property should have been returned to him, or, alternatively,

compensation should have been awarded.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)

of the Convention which, in so far as relevant, reads as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing ... by [a] ...

tribunal established by law ..."

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention extends only to disputes ("contestations"), over (civil)

"rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law; it does not in itself

guarantee any particular content for (civil) "rights and obligations"

in the substantive law of the Contracting States (cf. Eur. Court HR,

Lithgow and others v. the United Kingdom judgment of 8 July 1986,

Series A no. 102, p. 70, para. 192). There is a question in the

present case as to whether Article 6 para. 1 (Art. 6-1) of the

Convention is at all applicable to the proceedings brought by the

applicant, as all the courts found that the Extra-Judicial

Rehabilitation Act relied on by the applicant did not apply to him.

However, the Commission is not required to decide that question in the

present case as, even assuming that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable, the complaint is inadmissible for other

reasons.

With regard to the judicial decisions of which the applicant

complains, and, in particular to that of the Constitutional Court, the

Commission points out that, in accordance with Article 19 (Art. 19) of

the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In

particular, the Commission is not competent to deal with an application

alleging that errors of law or fact have been committed by domestic

courts, except where it considers that such errors might have involved

a possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (cf., for example, No. 21283/93, Dec. 5.4.94, D.R. 77,

pp. 81, 88).

In the present case, the national courts examined the applicant's

case on the basis of Extra-Judicial Rehabilitation Act No. 87/1991.

They found that the property concerned had not been expropriated by the

State within the meaning of this Act, but by Section 2(5) of

Presidential Decree No. 108/1945. The first instance court held that

the confiscation of property under the Decree could not be mistaken for

expropriation or nationalisation, which in certain circumstances can

give rise to an entitlement to restitution under the Act. The Court

stated that the fact that the applicant had not received any

compensation could not be regarded as a violation of generally

recognised human rights and freedoms within the meaning of

Section 2(1)(c) of the Act. The Court added that if the legislator had

intended to remedy injustice in cases where compensation for

confiscation should have been paid, but was not, it would have done so

by a special law. This reasoning was confirmed and expanded by the

Constitutional Court in its detailed judgment. There is no indication

of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 1 of Protocol

No. 1 (P1-1) which 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 the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission notes that the expropriation took place in

March 1951 which was long before the Convention entered into force in

respect of the Czech Republic. The Commission is therefore not

competent ratione temporis to examine the expropriation as such.

It is plain from the text of Article 1 of Protocol No. 1 (P1-1)

that it aims at securing the peaceful enjoyment of existing possessions

and that it does not guarantee, in general, a right to acquire property

(cf., for example, No. 11628/85, Dec. 9.5.86, D.R. 47, p. 270).

In the present case, the proceedings before the national courts

did not concern an expropriation of property after the date of the

entry into force of the Convention and Protocol No. 1 with respect to

the Czech Republic, but it relates to the applicant's claims for

restitution under Extra-Judicial Rehabilitation Act No. 87/1991.

However, those claims were rejected as the Act did not apply in

the case. The Commission considers therefore that the present

complaint only concerns the right to acquire property, which is not

covered by Article 1 of Protocol No. 1 (P1-1). There is nothing to

suggest that the applicant's right to peaceful enjoyment of his

possessions has in any way been violated by the refusal of his claims

for restitution.

Accordingly, the applicant's complaint falls outside the scope

of Article 1 of Protocol No. 1 (P1-1) and this part of the application

is therefore incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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BOUSKA v. THE CZECH REPUBLIC

BOUSKA v. THE CZECH REPUBLIC

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