SECOND SECTION

DECISION

Application no. 77532/01 by Ernst Leonhard HARRACH against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 18 May 2004 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs A. Mularoni, judges , and Mrs S. Doll é , Section Registrar ,

Having regard to the above application introduced on 10 October 2001,

Having regard to the decision of 27 May 2003 to declare the application inadmissible,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ernst Leonhard Harrach, is a Czech and Austrian national. He was born in 1920 and lives in Bruck an der Leitha (Austria). He is represented before the Court by Mr P. Hrdina, a lawyer practising in Prague, and by Mr J. Eltz, a lawyer practising in Vienna.

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

The applicant's cousin owned real estate in former Czechoslovakia. In 1941 he made a will appointing his son as his universal heir and the applicant as his testamentary substitute. The applicant's cousin died in May 1945. As the latter's son did not acquire the estate, it became hereditas iacens . The property was confiscated on 21 June 1945 under Presidential Decree no. 12/1945.

In August 1961 the son of the applicant's cousin also died. The right to take over the hereditas iacens thus passed to the applicant.

In January 1993 the latter lodged a claim for the restitution of the property which had been confiscated from his cousin. On 16 March 1999 the Tábor District Land Office granted his claim, holding that he was the owner of part of the property because his cousin had died as an Austrian national and that the property had then been confiscated under Presidential Decree no. 12/1945. It stated that the confiscation proceedings had been held in respect of the hereditas iacens, which had been considered under the Civil Code 1811 as remaining in the possession of the deceased person until acquired by an heir. The confiscation could have taken place after a final administrative decision had been taken and the confiscation proceedings should have been held after the ex officio inheritance proceedings. The Land Office held that the confiscation proceedings could not have been conducted against the hereditas iacens and that there had never been any proceedings concerning the applicant's inheritance. It found, applying the Land Ownership Act, that the property had been transferred to the State unlawfully.

On 22 October 1999 the Hradec Králové Regional Court quashed this administrative decision and remitted the case to the Land Office, on the ground that the latter had insufficiently established the facts of the case.

In the meantime, on 6 September 1999, the Land Office had found that the applicant was the owner of the other part of the property on the grounds that the confiscation proceedings had been conducted against the deceased owner, and that under the Civil Code 1811 the hereditas iacens had been considered as remaining in the possession of the testator until acquired by an heir. Accordingly, the confiscation of the property of the applicant's cousin had been null and void, and the State had acquired the property illegally.

On 23 February 2000 the České Budějovice Regional Court quashed this decision and remitted the case to the Land Office for further consideration. It found, inter alia , that the applicant's case fell outside the scope of the Land Ownership Act which covered the period between 25 February 1948 and 1 January 1990. It rejected the Land Office's argument that the legislation in force in former Czechoslovakia had not provided for the confiscation of the hereditas iacens . With reference to the Civil Code 1811, it noted that the proprietary nature of inheritance rights allowed their confiscation pursuant to Presidential Decree no. 12/1945. Referring to the Constitutional Court's decision of 2 November 1999, it held that the hereditas iacens was to be understood as a legal person sui generis . Moreover, the applicant's cousin had been represented by a guardian in the confiscation proceedings. Even assuming that the confiscation could be deemed null and void, the State would have acquired the property without any legal title outside the relevant period prescribed by the Land Ownership Act, as the confiscation proceedings had terminated in 1947. It ordered the Land Office to examine whether the applicant's cousin satisfied the restitution conditions under the Restitution Act 1992.

The applicant lodged a constitutional appeal which was rejected as being premature by the Constitutional Court on 7 June 2000.

On 5 June 2000 the Land Office, after having joined the cases, decided that the applicant was not the owner of the estate. Being bound by the appellate courts' opinions, it held that the property had been confiscated lawfully and that the confiscation fell outside the relevant period under the Land Ownership Act. It also held that the original owner had not satisfied the conditions for the restitution of property fixed by the Restitution Act 1992 as he had become a German citizen in September 1939 and had not re-acquired Czechoslovak citizenship. The applicant had neither acquired the estate from his cousin, as provided for in section 2 of the Restitution Act 1992, nor had they kinship as specified in section 2 § 3 of that Act.

On 25 October 2000 the České Budějovice Regional Court upheld this administrative decision. In addition to the reasons set out therein, the court held that, pursuant to Articles 710 and 819 of the Civil Code 1811, an heir acquired property upon a court decision and that an estate remained in the possession of the testator until delivered to an heir by a decision of a court of law. It also held that, since the inheritance in the form of a hereditas iacens was of a proprietary character, it could have been subject to confiscation under the Presidential Decrees. The hereditas iacens was a legal person sui generis with legal capacity. It could therefore be confiscated after the original owner's death, provided that it had not yet been transferred to an heir in inheritance proceedings.

On 8 March 2001 the Constitutional Court rejected as being manifestly ill-founded the applicant's second constitutional appeal.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the national courts had erroneously found that the confiscation of the property had been lawful and that they had applied the Restitution Act 1992 to his case despite the fact that he had put forward his claim for restitution solely under the Land Ownership Act. He maintained that the confiscation of the property had been unlawful and invalid.

2. Invoking Article 1 of Protocol No. 1, he further complained that the national courts had rejected his restitution claim despite the fact that he possessed both the restitution title and succession rights in its respect. He submitted that such an interference with his property rights could not have been justified by the public interest.

3. The applicant complained that he had been discriminated against in the enjoyment of his rights under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1, contrary to Article 14 of the Convention. He submitted that the national courts had rejected his restitution claim on the grounds of his Austrian origin and nationality. Moreover, the national authorities had prevented him from using his property and that they had not recognised his succession rights as his cousin had been an Austrian.

THE LAW

1. By decision of 27 May 2003 the Court decided to declare the application inadmissible.

i. The Court first examined the applicant's complaint under Article 6 § 1 of the Convention that his right to a fair hearing had been violated by the domestic courts, and found no indication that the proceedings complained of had been unfair or otherwise contrary to Article 6 § 1 of the Convention. It observed in this regard that the domestic courts had found, with reference to the relevant facts, that the case had fallen to be examined under the Restitution Act 1992, a lex specialis to the Land Ownership Act, which had provided for the restitution of property confiscated under President Beneš Decrees nos. 108/1945 and 12/1945. The Court noted that the applicant's restitution claim had been considered by the national courts at a public hearing; that the applicant and his counsel had been present at the hearings; and that the applicant had been provided with ample opportunity to present his arguments and challenge the submissions of the other party. The national judges had extensively considered the case in all its aspects in the context of the relevant domestic rules, and had established the relevant facts of the case.

As regards the applicant's complaint that the confiscation proceedings had been held contrary to law and that the confiscation of the property was invalid, the Court observed that these matters had been concluded long before 18 March 1992, which was the date of entry into force of the Convention and its Protocols with respect to the Czech Republic. Accordingly, it dismissed this claim as being incompatible ratione temporis with the provisions of the Convention.

ii. In respect of the applicant's complaint about the violation of both his property and succession rights, the Court observed that the national courts involved in the present case had found that the applicant had neither possessed nor owned the property in question as he had not acquired the estate in inheritance proceedings. The property had been considered to be a hereditas iacens and had been confiscated lawfully under the relevant decree in 1945.

The Court further observed that the Restitution Act 1992 afforded the opportunity of claiming restitution of property only to persons who were citizens of the Czech and Slovak Federal Republic who had lost their property under Presidential Decrees nos. 12/1945 and 108/1945, had re-acquired Czechoslovak citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953, or under Act no. 33/1945, and whose property had passed into State ownership in the circumstances referred to in the Land Ownership Act. Where such a person had died, the restitution of property could be claimed by natural persons who were citizens of the Czech and Slovak Federal Republic and were a) his or her testamentary heirs acquiring the whole estate in inheritance proceedings, b) testamentary heirs acquiring part of the estate, c) children and spouses, d) parents, or e) brothers or sisters or their children.

The Court noted that the national courts had held that the original owner had not fulfilled the condition of Czechoslovak citizenship laid down in the relevant law and that the applicant had not been one of the persons enumerated in section 2 of the Restitution Act 1992. The latter had therefore not been entitled to have the property in question restored to him under the relevant law. It was not satisfied that the applicant's claim related to “existing possessions” within the meaning of Article 1 of Protocol No. 1, or that the applicant had at least a “legitimate expectation” of having his restoration claim upheld and enforced in the context of the proceedings of which complaint was made. He could therefore not argue that he had a “possession” within the meaning of this provision. The Court concluded that neither the judgments of the national courts, nor the application of the Restitution Act 1992 in his case, amounted to an interference with the peaceful enjoyment of his possessions, and that the facts of the case did not fall within the ambit of Article 1 of Protocol No. 1.

iii . Finally, the Court held that the applicant's allegation that he had been discriminated against because he was an Austrian national was not supported by the facts of the case - neither his origin nor his nationality had been called into question or affected the outcome of the restitution proceedings. It added that the dismissal of his claim for restitution did not in itself constitute discrimination contrary to Article 14 of the Convention which could not be combined with Article 1 of Protocol No. 1, taking into account that the applicant's complaint under this latter provision had been declared incompatible ratione materiae with the provisions of the Convention.

2. By letter of 1 December 2003 the applicant's lawyer, Mr J. Eltz, alleged that the Czech authorities' decisions in the present case, and in the case of Des Fours Walderode (no. 40057/98), were contrary to the national law then in force and to the existing national case-law. He further challenged the impartiality of the Court and referred to a conflict of interests of the Registry lawyer who had worked on the case. He underlined that the latter's husband worked as a legal adviser to the President of the Czech Republic and had defended the State in major restitution cases.

On 1 March 2004 the applicant supplemented his lawyer's arguments.

     Even though neither the Convention nor the Rules of Court foresee the re-opening of the Court's decisions, in the interests of justice the Court has examined the applicant's request, taking into account the particular circumstances of the present case.

The Court notes the unfortunate allegations concerning a particular temporary lawyer in the Registry who had some involvement in the processing of the application, but who is no longer employed in the Court. However, that person took no part in the decision that was rendered and had no influence on the outcome of the case.

The decision has now been reviewed by the Court, which notes that it was fully reasoned and taken unanimously. No new facts relating to the text of the decision have been presented by the applicant which in any way would affect or require an amendment to the reasoning or the conclusions reached.

For these reasons, the Court unanimously

Confirms its decision of 27 May 2003 in application no. 77532/01;

Refuses the applicant's request to re-open the case.

S. Dollé J.-P. Costa Registrar President