FIFTH SECTION

DECISION

Application no . 73093/11 Karel FUKSA against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 15 January 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , Paul Lemmens , Aleš Pejchal , judges and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 26 November 2011,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Karel Fuksa , is a Czech national, who was born in 1946 and lives in Brno . He was repres ented before the Court by Mr J. Havel.

A. Historical Background

2. Carpathian Ruthenia ( Podkarpatská Rus ) was part of the Austro ‑ Hungarian Empire before it joined the newly established Czechoslovakia after the First World War. During the Second World War the region was invaded and occupied by Hungary . On 29 June 1945 Czechoslovakia concluded with the USSR the Treaty on Carpathian Ruthenia (“the 1945 Treaty”) by which it ceded the territory to the Soviet Union . It is now part of Ukraine and commonly referred to as Zakarpattya ( Закарпаття ).

3. The 1945 Treaty also contained a Protocol (“the 1945 Protocol”), which stipulated that inhabitants of Carpathian Ruthenia of Czech and Slovak ethnicity could opt for Czechoslovak nationality and leave the territory with their belongings. Czechoslovakia undertook to compensate those persons for real property left there. In the same way, ethnic Czech and Slovaks who had to leave the territory because of the occupation during the Second World War should also have been compensated under the 1945 Protocol. By 1948, more than seven thousand people had applied for compensation.

4. However, the compensation process was stayed when the communist party took over the government in Czechoslovakia in February 1948.

5. In 1957 Czechoslovakia concluded an agreement with the USSR by which all the claims for property that its citizens had left in Carpathian Ruthenia were finally settled, with the USSR paying financial compensation for it.

6. In 1958 and 1959 respectively, Czechoslovakia passed legislation implementing the 1945 Treaty and its Protocol, under which the individual claims were settled (see paragraphs 18-20 below).

B. The circumstances of the present case

7. The applicant was the sole beneficiary i n the will of K., who died on 8 June 1996. K. was a daughter and the heir of M. who had owned a house in Brustury , currently called Lopukhiv in Zakarpatska Oblast , Ukraine ( Лопухів , Закарпатська область ). In 1961 M. was informed by the State that she would receive no compensation for the house as it had been destroyed during the Second World War. No decision was however issued.

8. In 2007 the applicant received an affidavit issued by the Lopukhiv local authority confirming that the house had not been destroyed in the war but had been used until 1997, when it had been demolished. The applicant thus renewed his claim for compensation.

9. On 7 March 2008 the Ministry of Finance rejected the applicant ’ s claim, holding that under Decree no. 159/1959, compensation was due only for family houses, whereas the house in question exceeded the size of a family house.

10. The decision was upheld on appeal by the Minister of Finance, who added that no claim could be based directly on the 1945 Protocol, as it was not detailed enough to be self-executing but required implementing legislation.

11. In a judgment of 7 April 2009, the Prague 1 District Court rejected the applicant ’ s claim for compensation. It stated that the claim fell outside Article 3 of Decree no. 159/1959 because the property could not be considered as a family house. Moreover, any claim for compensation had to be based only on implementing legislation, because the 1945 Treaty and its Protocol had not established the right to make a specific claim against the State.

12. On 1 December 2009 the Prague Municipal Court upheld that judgment, endorsing the District Court ’ s opinion. It held that no legitimate expectations of compensation could have arisen from the 1945 Treaty and its Protocol. The applicant had never owned a property within the meaning of Article 1 of Protocol No. 1 and Article 11 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) because he did not fulfil the relevant conditions of the implementing legislation. Nor did he have a claim under the recently passed Act no. 212/2009 (see Relevant domestic law and practice below) as he w as not a descendant of M. but a beneficiary under her will.

13. On 31 August 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant.

14. On 26 May 2011 the Constitutional Court dismissed a constitutional appeal lodged by the applicant. It held that both Decree no. 159/1959 and Act no. 212/2009 were, by their nature, restitution laws. It referred in this context to its established case-law, according to which the extent of, and conditions for, restitution were a free decision of the State and the courts had to stay within the framework of the legislation. It noted the Court ’ s case-law to the same effect: the Convention did not guarantee any right to restitution. It further endorsed the case-law of the Supreme Court, which held that claims for compensation could not be based on the 1945 Protocol as it was not directly applicable in domestic law but required implementing legislation.

C. Relevant domestic law and practice

1. The Czechoslovak-USSR Treaty on Carpathian Ruthenia and its Protocol, adopted on 29 June 1945

15. Under the 1945 Treaty , Czechoslovakia ceded Carpathian Ruthenia to the USSR and it became part of the Ukrainian Soviet Socialist Republic .

16. Article 2 of the 1945 Protocol reads:

“Persons of Czech and Slovak ethnicity who reside (have a permanent residence) in the territory of Carpathian Ruthenia have the right, until 1 January 1946, to opt for citizenship of the Republic of Czechoslovakia . ...

Persons who opt for this right shall transfer their residence within twelve months of the date of the approval of their option by the Government of their chosen nationality. They are allowed to take with them all their personal property. ... They will receive compensation for their real property.

Persons of Czech and Slovak ethnicity who had to leave Carpathian Ruthenia because of the enemy occupation will be also compensated for real property left behind. ...”

2. Agreement between Czechoslovakia and the USSR on the final resolution of property and financial issues arising from the unification of Carpathian Ruthenia with the Soviet Socialist Republic of Ukraine, adopted on 6 July 1957

17. By this Agreement, Czechoslovakia agreed on a full and final settlement of all the claims against the USSR for real property left in Carpathian Ruthenia by persons of Czech and Slovak ethnicity. According to the findings of the Czech Ombudsman, the Agreement contained a secret Protocol under which the Soviet Union paid Czechoslovakia 86,000,000 roubles (RUB).

3. Act no. 42/1958 on certain claims and obligations arising from the unification of Carpathian Ruthenia with the Ukraine Soviet Socialist Republic

18 . Section 1 of the Act provided that Czechoslovakia would award compensation for real property which Czechoslovak legal and natural persons had owned on 29 June 1945 in Carpathian Ruthenia. The Government were authorised to establish the principles of compensation, in particular the type of real property for which compensation would be paid and the amount. Section 4 authorised the Ministry of Finance to set out the details of how the compensation would be made.

19. Government Resolution no. 938 of 15 October 1958 provided that compensation would be granted only for real property of a small or personal nature.

20 . Ministry of Finance Decree no. 159/1959 of 4 August 1959 set out the procedures for paying the compensation. Article 1 stipulated that only persons who had had Czechoslovak citizenship on 29 June 1945 or had obtained it based on the option under the 1945 Protocol were entitled to compensation. Furthermore, compensation was to be granted only to persons who had had a residence in the territory of the Czechoslovak Republic on 25 July 1958. Article 3 provided that compensation would be paid only for small or personal property: a family house ( rodinný domek ); farm buildings and land of small farmers; la nd on which a family house or a farm building had been built, up to a maximum of 800 square metres; and buildings used to operate a small business.

21. This Act and the implementing Decree were repealed by Act no. 121/2012, which entered into force on 1 May 2012.

4. Report of the Czech Ombudsman

22. On 29 September 2004 the ombudsman issued a statement on the question of compensation for real property left behind in Carpathian Ruthenia after its cession to the USSR . He took the view that the provisions on compensation in the 1945 Treaty and its Protocol were self-executing and established a pecuniary claim for individuals. He considered that the restrictive implementing legislation of the 1950s was in breach of the undertaking made by the 1945 Protocol. In his view, the best solution to the problem would be to pass a new implementing law.

5. Act no. 212/2009 mitigating the claims of Czech citizens for real property left in Carpathian Ruthenia after its cession to the USSR

23. The 2009 Act contains different conditions for compensation from those in the 1950s legislation. It provides that a person entitled to compensation must be a Czech citizen and the owner of property left in Carpathian Ruthenia, or his or her child. Testimonial heirs are excluded. Compensation is set at ten times the price of the property in 1938. There are no conditions regarding the nature of the real property eligible for compensation, but compensation is capped at 2,000,000 Czech korunas (CZK) (80,000 euros (EUR)) per person.

COMPLAINTS

24. The applicant complained under Article 1 of Protocol No. 1 that he had not been compensated for the real property left in Carpathian Ruthenia.

25. Relying on Article 6 of the Convention, he complained that the domestic courts had wrongly applied the 1950s implementing legislation to his case, instead of directly applying the 1945 Treaty and its Protocol. He also complained that the decision of the Constitutional Court had been insufficiently reasoned.

26. Lastly, relying on Article 14 of the Convention, he complained that the 1950s implementing legislation had excluded his claim on discriminatory grounds.

THE LAW

A. Article 1 of Protocol No. 1

27. The applicant complained that he had not received any compensation for the house abandoned in Carpathian Ruthenia by M., even though he had allegedly inherited such a claim from M. through her daughter, K. He maintained that he had a legitimate expectation to receive compensation based directly on the 1945 Treaty and its Protocol. In his view, this constituted a continuing violation of his right to protection of property under Article 1 of Protocol No. 1, which reads:

“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.”

28. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation”. There is, however, a difference between a mere hope of acquiring a property and a “legitimate e xpectation”, which must be of a more concrete nature and based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova v. the Czech Republic ( dec .) [GC], no. 39794/98, § 73, ECHR 2002-VII).

29. Similarly, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). The Court considers that the same applies, where the dispute is about the applicability and effects of an international treaty in domestic law (see in the context of Article 6 of the Convention Markovic and Others v. Italy [GC], no. 1398/03, § 108, ECHR 2006 ‑ XIV, stating that it is primarily for the national courts to interpret and apply domestic law even where domestic law refers to international agreements).

30. Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States ’ freedom to determine the scope of property restitution or to choose the conditions under which they agree to restore the property rights of former owners (see Jantner v. Slovakia , no. 39050/97, § 34, 4 March 2003).

31. Turning to the present case, the Court observes that all the domestic courts found that the applicant had no claim for compensation under the domestic legislation. Therefore no property rights or legitimate expectation within the meaning of Protocol No. 1 could arise under that legislation.

32. The Court cannot agree with the applicant that his case is similar to Broniowski v. Poland . It notes that while t he claim for compensation of Mr Broniowski , having been confirmed by the domestic courts, had a basis in national law ( Broniowski v. Poland [GC], no. 31443/96, §§ 130-33, ECHR 2004 ‑ V), the compensation claim of the present applicant has never been recognised by the State. It observes in this respect that a ll the claims for property that Czechoslovak citizens had left in Carpathian Ruthenia were finally settled with the USSR by the Agreement concluded in 1957 (see paragraphs 6 and 18 above) and neither Decree no. 159/1959 nor Act no. 212/2009 applied to the applicant (se e paragraphs 9 , 1 2, 20 and 2 3 above).

33. The applicant ’ s argument, supported by the opinion of the ombudsman, is that a pecuniary claim arose directly from the 1945 Treaty and its Protocol, which under Article 10 of the Constitution were directly applicable in the domestic law. However, the Court observes, at the same time, that the ombudsman is not a judicial body and that all the domestic courts, including the Constitutional Court, rejected that argument, considering that the provisions on compensation in the 1945 Protocol were not self-executing but required implementing legislation. That conclusion of the domestic courts is not arbitrary or manifestly unreasonable. Consequently, having regard to its limited power to deal with alleged errors of fact or law committed by the national courts (see Jantner v. Slovakia , no. 39050/97, § 32, 4 March 2003 and Baťa v. the Czech Republic ( dec .), no. 43775/05, § 80, 24 June 2008), the applicant cannot be considered as having a legitimate expectation of compensation arising from the 1945 Treaty and its Protocol, either.

34. Accordingly, the applicant had no claim under domestic law that could qualify as an “asset” protected under Article 1 of Protocol No. 1. This part of the application is therefore incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other alleged violations

35. In the light of all the material in its possession, and in so far as the matters complained of under Articles 6 and 14 of the Convention are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. These complaints are therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President