Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31091/96

by K. R.

against the Czech Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 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

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 12 January 1996

by K. R. against the Czech Republic and registered on 22 April 1996

under file No. 31091/96;

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 1926. He is a pensioner

and lives in Ostrava (Czech Republic).

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

follows.

A house belonging to the applicant's aunt was confiscated under

Presidential Decree No. 108/45 on the Confiscation of Enemies' Property

and on the National Restoration Funds: the Decree entered into force

on 30 October 1945 and the confiscation was confirmed by the former

Frystát National Committee (Okresní národní vybor) on 4 February 1949

and by the former Ostrava Regional Committee (Krajsky národní vybor)

on 24 December 1949. The State authorities considered that the

applicant's aunt was a German national.

The applicant's aunt died, and the applicant inherited her

property.

On 2 June 1991 the applicant submitted compensation claims to the

Ministry of Finance under the Extrajudicial Rehabilitation Act. The

claims were rejected on 19 August 1991 on the grounds that the property

had been expropriated by Presidential Decree No. 108/1945 on 30 October

1945, that was before the date of 25 February 1948 specified in the

Extrajudicial Rehabilitation Act.

By judgment of 1 July 1993 the Prague 1 District Court (Obvodní

soud) accepted the applicant's compensation claims.

On 21 March 1994, the Prague Court of Appeal (Mestsky soud), on

appeal made by the Ministry of Finance, quashed this judgment stating

that the property at issue clearly fell under Presidential Decree

No. 108/1945, which meant that it 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. The Court noted that the confirmations by the State authorities

have had only declaratory character. The applicant could not

participate for reasons of health in the hearing and sent his written

comments to the Court of Appeal.

On 16 November 1994 the Court of Cassation (Vrchní soud), on the

applicant's petition for cassation (dovolání), confirmed this decision.

The applicant states that he was not invited to participate in the

hearing.

On 6 February 1995 the applicant lodged a constitutional appeal

(ústavní stíznost) with the Constitutional Court (Ústavní soud). He

alleged a violation of Article 11 of the Charter of Fundamental Rights

and Freedoms (property right) and challenged the legal opinion of the

national courts, in particular, the finding that the confiscation was

effected at the date of the entry into force of Presidential Decree

No. 108/1945. The applicant also maintained that the confiscation was

illegal as his aunt had never, in fact, lost Czechoslovak nationality

and claimed that the courts did not examine the legality of the

decision of the State authorities by which the confiscation was

confirmed. He claimed that her nationality was certified by the former

Frystát District National Committee on 15 September 1947, a decision

of which he presented a copy, and by the Karviná District Office on

13 April 1993.

On 30 November 1995 the Constitutional Court, after a public

hearing, dismissed the applicant's appeal as unsubstantiated. The

Court considered, in particular:

[Translation]

"... from the documents presented before the Court it

appears that during the period of the German occupation,

... [the applicant's aunt] obtained German citizenship on

26 October 1939 ...; on that day at the latest, [she]

therefore lost her Czechoslovak citizenship acquired under

Law No. 236/1920.

... the applicant has not proved that [his aunt] had

obtained a certificate of national loyalty issued by the

Ministry of the Interior, which was a condition for

obtaining a certificate on Czechoslovak nationality. ... In

these circumstances, a copy of the certificate ... of

Czechoslovak nationality issued [to the applicant's aunt]

by the former Frystát District National Committee on

15 September 1947, cannot be taken into consideration; in

general, such a certificate, which is not an administrative

act establishing state nationality, can be a public

certificate which proves facts contained therein, but only

if it satisfies conditions prescribed by law, which was not

the case."

COMPLAINTS

1. The applicant claims that his case was not heard fairly by an

independent and impartial tribunal. He maintains that the courts did

not consider all the documents presented by him and did not correctly

determine the lawfulness of the application of Presidential Decree

No. 108/1945. He invokes Article 6 para. 1 of the Convention. The

applicant also claims, in substance, that he was not invited to

participate in the hearings before the Court of Cassation.

2. He also claims that, by reason of the continuing deprivation of

his property which was unlawfully taken from his family pursuant to

Presidential Decree No. 108/1945, his rights under Article 1 of

Protocol No. 1 have been violated.

3. The applicant claims that he has been discriminated against in

the enjoyment of his rights under the Convention contrary to Article 14

of the Convention read in conjunction with Article 1 of Protocol No. 1

and with Article 6 para. 1 of the Convention. He contends that his

aunt's nationality was considered unlawfully and discriminatorily and

complains that her Czechoslovak nationality was denied by the courts.

4. Finally, the applicant invokes Article 17 of the Convention

without any specification.

THE LAW

1. The applicant claims, under Article 6 para. 1 (Art. 6-1) of the

Convention, that his case was not heard fairly by an independent and

impartial tribunal. He maintains that the courts did not consider all

the documents presented by him and did not correctly determine the

lawfulness of the application of Presidential Decree No. 108/1945. The

applicant also claims, in substance, that he was not invited to

participate in the hearings before the Court of Appeal and the Court

of Cassation.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

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

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law ..."

(a) 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,

the 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 which the applicant

brought, as the courts finally found that the Extrajudicial

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

was applicable, the complaint is inadmissible for the following

reasons.

With regard to the judicial decisions of which the applicant

complaints, 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, it 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 (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77 pp.

81, 88). In the light of this case-law, the Commission cannot decide

whether the applicant's restitution claim was well-founded.

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

case on the basis of the Extrajudicial Rehabilitation Act No. 87/1991.

They found that the property in question had not been expropriated by

the State within the meaning of the Extrajudicial Rehabilitation Act,

but ex lege by Presidential Decree No. 108/1945 of 30 October 1945,

which was before the period referred to in the Extrajudicial

Rehabilitation Act (from 25 February 1948 to 1 January 1990).

Furthermore, the Constitutional Court, after examination of all

the documents presented by the applicant and the Ministry of Finance,

considered that Presidential Decree No. 108/1945 was correctly applied

to the applicant's aunt as she had been a German national. The Court

considered that on 26 October 1939 the applicant's aunt obtained German

citizenship and lost her Czechoslovak citizenship obtained in

accordance with Law No. 236/1920; the applicant had not established

that his aunt had obtained the relevant papers.

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.

(b) As to the applicant's complaint that he was not invited to

participate in the hearings before the Court of Cassation, the

Commission notes that the applicant failed to raise such complaint,

either in form or in substance, in his constitutional appeal.

It follows that the applicant has not exhausted domestic remedies

and that this part of the application must be rejected under Article

27 para. 3 (Art. 27-3) of the Convention.

2. The applicant claims that, by reason of the continuing

deprivation of his property, which was unlawfully taken from his family

pursuant to the Presidential Decree No. 108/1945, his rights under

Article 1 of Protocol No. 1 (P1-1) have been violated.

Article 1 of Protocol No. 1 (P1-1) 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 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 1945

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. 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 the applicant's property which took

place 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

his compensation claims under the Extrajudicial Rehabilitation Act.

However, those claims were rejected as the Extrajudicial

Rehabilitation Act did not apply to them. Therefore, the Commission

considers 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 the 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).

3. The applicant claims that he has been discriminated against in

the enjoyment of his rights under the Convention contrary to Article

14 of the Convention read in conjunction with Article 1 of Protocol

No. 1 and with Article 6 para. 1 (Art. 14+P1-1, 14+6-1) of the

Convention. He contends that his aunt's nationality was considered

unlawfully and discriminatorily and complains that her Czechoslovak

nationality was denied by the courts.

However, the Commission recalls that Article 14 (Art. 14) of the

Convention only prohibits discrimination with respect to the enjoyment

of the rights and freedoms set forth in the Convention (cf. No.

11278/84, Dec. 1.7.85, D.R. 43 pp. 216, 220). In connection with

Article 1 of Protocol No. 1 read in conjunction with Article 14

(P1-1+14) of the Convention, the Commission recalls that it has

declared inadmissible the applicant's claim under Article 1 of Protocol

No. 1 (P1-1) as being incompatible ratione materiae with the

Convention.

As regards the applicant's complaint under Article 6 para. 1

in connection with Article 14 (Art. 6-1+14) of the Convention, the

Commission does not find any indication that the applicant was

discriminated against in the proceedings before the national courts

which considered the case on the basis of the relevant domestic law.

The fact that the applicant's claims were unsuccessful does not in

itself constitute discrimination. No allegations have been made of

discrimination as regards the procedure as such.

It follows that this part of the application must be rejected as

manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Finally, the Commission considers that no relevant issue arises

under Article 17 (Art. 17) of the Convention invoked by the applicant.

It follows that this part of the application is also manifestly

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

Convention.

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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K.R. v. THE CZECH REPUBLIC

K.R. v. THE CZECH REPUBLIC

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