Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28390/95

by Alzbeta PEZOLDOVÁ

against the Czech Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 25 August 1995 by

Alzbeta PEZOLDOVÁ against the Czech Republic and registered on

30 August 1995 under file No. 28390/95;

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 1947. She lives in

Prague. Before the Commission, she is represented by Mr F. Nevrela,

a lawyer practising in Prague 1.

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

follows.

In 1965 the applicant inherited from her father, Jindrich

Schwarzenberg, a cousin and allegedly adoptive son of Adolf

Schwarzenberg, various properties belonging to the Hluboká branch of

the Schwarzenberg family. The remainder of Jindrich Schwarzenberg's

estate was left to his adoptive son, Karel Schwarzenberg.

Pursuant to Law No. 143/1947, also known as the "Lex

Schwarzenberg", which entered into force on 13 August 1947, the

properties of the Schwarzenberg family (the Hluboká branch) were

expropriated without any compensation.

The administrative authorities and in certain cases, where

appropriate, the courts (including the Constitutional Court) have

jurisdiction to deal with claims for the restitution of property by

virtue of Law No. 229/1991 on land.

In 1993 the applicant, pursuant to Law No. 229/1991, submitted

claims to the Land Office (Pozemkovy úrad) at Ceské Budejovice, Cesky

Krumlov and Klatovy for restitution of the real estate.

By decisions of 14 February, 20 May and 19 July 1994 the

applicant's claims were rejected on the ground that the last owner of

the real estate was Adolf Schwarzenberg. The applicant had not

established any family relationship with Adolf Schwarzenberg which

would qualify her as a person entitled under Article 4 of Law

No. 229/1991. She was not even a testamentary heiress of the original

owner. The land authorities noted that the property had not been

expropriated in one of the ways referred to in Law No. 229/1991, but

by Law No. 143/1947. As that law entered into force on 13 August 1947,

the expropriation could not be considered under Law No. 229/1991, which

relates to expropriations subsequent to 28 February 1948.

The applicant lodged appeals against these decisions with the

Prague Municipal Court (Mestsky soud v Praze), alleging inter alia

violation of her rights guaranteed by the Czech Constitution and the

Charter of Fundamental Rights and Freedoms. She maintained that the

passing of the property had been effected only when the State's right

was registered in the Land Register (Pozemková kniha). This entry was

registered on 15 July 1948. The applicant further claimed that her

father, Jindrich Schwarzenberg, was an adoptive son of the original

owner Adolf Schwarzenberg. She asked the court to find documentation

about the adoption in archives.

The Prague Municipal Court rejected the applicant's appeals by

a judgment of 27 June 1994 and two judgments of 28 February 1995. The

court considered in particular that:

[Translation]

"There is no doubt that the whole property at issue fell

under ... [L]aw [No. 143/1947], which means that the real

property which is the subject of the present proceedings

... passed into the possession of the State by law, i.e.

through the force of law (on 13 August 1947) ... before the

decisive date, i.e. before 25 February 1948. The court does

not share the applicant's objection that the passing of the

ownership in this case occurred only when the entry in the

Land Register was made ... Registration in this Register

was necessary to effect the transfer of the ownership of

real estate. However, [the present case involves] not a

transfer of ownership but a passing of ownership by

operation of law ...

[As t]he passing of the property was effected on 13 August

1947 on the basis of Law No. 143/1947, the real estate

cannot be returned pursuant to either of the two

restitution laws. ... Law No. 229/1991 is excluded because

the passing of property did not occur during the decisive

period, but before 25 February 1948; Law No. 243/1992 is

excluded, although it relates to expropriation of property

before 25 February 1948, since this law only refers to

property of which the owner was deprived pursuant to

Presidential Decrees Nos. 12/1945 or 108/1945. It cannot

be extended to property that was expropriated pursuant to

Law No. 143/1947."

Finally, the court considered it unnecessary to determine further

questions concerning the adoption of the applicant's father by Adolf

Schwarzenberg and the applicant's domicile.

On 20 August 1994 the applicant lodged a constitutional appeal

with the Constitutional Court (Ústavní soud) against the Prague

Municipal Court's judgment of 27 June 1994.

The applicant complained in particular that the Prague Municipal

Court had violated her right to court protection. She also suggested

that Law No. 143/1947 should be quashed as unconstitutional. The

applicant submitted that in this case, Law No. 143/1947 created legal

title only to the conveyance of property, and the proceedings were two-

phase proceedings which ended with the registration. Furthermore, she

noted that Article 444 of the Civil Code provided expressly that title

to real estate only ends upon removal from the Register, and maintained

that because the application of the Country National Committee for

removal of the original owner from the Land Register was filed on 15

July 1948, the ownership could not be terminated prior to that date.

Finally, the applicant alleged that the Prague Municipal Court had not

dealt sufficiently in its judgment with the issue of the applicant's

status, and therefore had failed to consider the decision of the Land

Office that the applicant could not be deemed to be a beneficiary

within the meaning of Law No. 229/1991.

On 9 March 1995 the Constitutional Court dismissed the

applicant's appeal as unsubstantiated. The Court considered, in

particular, that:

[Translation]

"... the Constitutional Court is no part of the system of

general courts ..., it is not a further level of

jurisdiction and it thus has generally no power to

reexamine the activities of those courts; it has such a

right only in those cases where the constitutional

principles have been breached. The applicant expressly

alleges a violation of her right to court protection ...

which is, in substance, a right to a fair trial, including

the issue of a court decision. However, in the contents of

the file ... nothing was identified to suggest that

principles of a fair trial were violated ... With regard

to the result of the dispute, it should then be added that

no interference with the rights guaranteed by the

Constitution can be derived from the fact that the

applicant's claim was not satisfied and that the applicant

does not share the court's conclusions ...

... Law No. 143/1947 brought about a change in the identity

of the owner of the property to which the law applied,

independently of the will of the existing owner. That is

how the Prague Municipal Court came to the conclusion that

there was a conveyance of the ownership right, not a

transfer thereof, which would have necessitated an

identical manifestation of will of the person transferring

the property and the person to whom it was transferred. ...

The conclusion of the Prague Municipal Court that title to

real estate could, within the period of validity of the

General Civil Code, be acquired even without a registered

record, can therefore be supported. The record of the

entry of the title to the real estate was, in the case of

Law No. 143/1947, of a declaratory character only, ... The

conveyance of the title with regard to the property and, at

the same time, the loss thereof by the initial owner ...

thus occurred, in the opinion of the Constitutional Court,

ex lege upon the entry into force of Law No. 143/1947 on 13

August 1947. ... the application of Law No. 229/1991 ...

in the present case does not come into consideration. ...

[E]ven if it was proved that the applicant's father was

adopted by Dr. Adolf Schwarzenberg, the final result of the

dispute would be the same. The fact that the Court did not

address in more detail the issue of adoption does not

amount to a violation of the right to court protection.

The opinion of the Prague Municipal Court that Law

No. 243/1992 was excluded was also correct. Although this

law applies to the property the expropriation of which

occurred prior to 25 February 1948, the effect of the law

cannot be extended beyond property expropriated under

Presidential Decrees Nos. 12/1945, 108/1945. The decision

as to which injustices should be put right, the conditions

for doing so, and the determination of the persons eligible

to apply, are matters for the legislative body.

[T]he applicant's constitutional appeal is clearly

unsubstantiated ... [and] it [is] not possible to address

the applicant's proposal to quash Law No. 143/1947."

COMPLAINTS

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

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

pursuant to Law No. 143/1947, her rights under Article 1 of the

Protocol No. 1 have been violated. She submits that she did not

institute a constitutional appeal against the two judgments of

28 February 1995 as this would have been futile in the light of the

Constitutional Court's decision in relation to the first case.

2. She also claims that her rights of access to an independent and

impartial tribunal guaranteed by Article 6 para. 1 of the Convention

have been violated by the Constitutional Court in that the Court

refused to consider her complaints about the unconstitutionality of Law

No. 143/1947 and about her title to restitution of property pursuant

to Law No. 229/1991 and rejected her claim that the taking of the

property occurred in the period provided for by Law No. 229/1991.

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

the enjoyment of her 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. She submits that

only her family was discriminated against as Law No. 143/1947

expropriated without any compensation her family's real estate.

THE LAW

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

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

pursuant to Law No. 143/1947, her rights under Article 1 of the

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 1947

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 Commission observes that the proceedings

before the national judge 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 her claims for restitution.

It is true that the applicant, pursuant to Law No. 229/1991 on

land and Law No. 243/1992 on questions associated with Law

No. 229/1991, submitted her claims for restitution to the competent

authorities and then to the civil jurisdiction and to the

Constitutional Court. However, the applicant's claims were rejected

because neither of those two laws applied to her. 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 peaceful enjoyment of her possessions has in any way been violated

by the refused 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).

2. The applicant also complains that her rights of access to an

independent and impartial tribunal have been violated by the

Constitutional Court in that the Court refused to consider her

complaints about the unconstitutionality of Law No. 143/1947 and about

her title to restitution of property pursuant to Law No. 229/1991 and

that it rejected her claim that the taking of the property in question

occurred in the period provided for by Law No. 229/1991. She invokes

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 and public hearing ... by an

independent and impartial 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 H.R.,

Lithgow and others 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 all found

that neither of the laws relied on by the applicant applied to her.

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

is applicable, the complaint is inadmissible for other reasons.

With regard to the judicial decisions of which the applicant

complains, 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. The Commission refers, on this point, to its

constant case-law (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88).

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

case on the basis of Law No. 229/1991 on land and Law No. 243/1992.

He found that the property concerned was not expropriated to the State

within the meaning of Law No. 229/1991, but ex lege by Law No. 143/1947

on 13 August 1947 which was before the period referred to in Law No.

229/1991. The result would not have been different even if the

applicant had been able to prove that her father had been adopted by

the original owner. In these circumstances, the national judge

considered it unnecessary to examine the applicant's claim about the

alleged unconstitutionality of Law No. 143/1947.

As regards Law No. 243/1992 which constitutes the lex specialis

in comparison with Law No. 229/1991 and which applies to restitution

of property expropriated pursuant to Presidential Decrees Nos. 12/1945

and 108/1945, the domestic court found it not to be applicable on the

ground that it refers only to property of which the owner was deprived

according to the said Decrees and thus not to property that was

confiscated under Law No. 143/1947.

Thus whilst the Constitutional Court did not consider the

entirety of the proceedings, the domestic judge gave full reasons for

his rejection of the applicant's claim, and the Constitutional Court

thereafter considered the constitutional aspects of the case.

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.

3. Finally, the applicant claims that she has been discriminated

against in the enjoyment of her rights under the Convention contrary

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

Protocol No. 1 (Art. 14+P1-1) and with Article 6 para. 1

(Art. 14+6-1) of the Convention.

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

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

Commission does not find any indication that the applicant was

discriminated against in the proceedings before the national judges who

considered the case on the basis of the applicable domestic law. The

fact that the applicant's claim was 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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

Menu

PEZOLDOVÁ v. THE CZECH REPUBLIC

PEZOLDOVÁ v. THE CZECH REPUBLIC

LEXI