FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32735/07 by CISTERCIÁCKÉ OPATSTVÍ VYŠŠÍ BROD against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 4 December 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and M s C . Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 July 200 6 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Cisterciácké o patství Vyšší Brod, is a religious order founded in 1259 . It is represented before the Court by Mr Holas, a lawyer practising in Pra gue .

A. The circumstances of the case

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

The applicant is the owner of nine gothic paintings, known as the “Collection of the Master of Vyšší Brod ”. In 1953 the collection was seized by the State and subsequently deposited in the National Gallery in Prague .

On 19 July 1990 law no. 298/1990 on the adjustment of certain property relations of holy orders and congregations and of the Archdiocese of Olomouc ( zákon o úpravě některých maje tkových vztahů řeholních řádů a kongregací a arcibiskupství olomouckého ) (hereafter “the Act”) entered into force. It contained an exhaustive list of property and of church entities entitled to acquire it upon the Act ’ s entry into force. Neither the collection nor the applicant was listed therein.

On 17 November 1993 the National Gallery recognised the applicant ’ s property rights to the paintings, but refused to surrender the collection.

On 8 August 1994 the applicant sought to recover the collection by means of a civil action for determination of the ownership of the paintings, brought against the National Gallery.

In its judgment of 25 March 1998 the Prague 1 District Court ( obvodní soud ) found that, in general, the State had acquired control over the church property in 1949 pursuant to law no. 218/1949. It noted that the Religious Fund ( N á boženská matice ) , a special State agency, was founded by decree no. 351/1950 to administer church property. The court granted the applicant ’ s action, basing its finding on documentary evidence, including a contract of deposit concluded by the Religious Fund and the National Gallery on 28 January 1953, according to which the former had deposited the collection of paintings with the latter; and an offer by the Religious Fund of 11 September 1957 to donate the collection to the National Gallery, under the terms of which the ownership of the paintings was to be transferred to the State on the day of the acceptance of the offer. The acceptance of the offer by the National Gallery is dated 11 September 1957.

The court held in particular:

“The original ownership rights to the collection are not challenged by [the National Gallery]. What is disputed is the validity of the contract of donation ...

It ensues from the evidence taken ... that the Religious Fund knew who the real owner of the items was and could not, therefore, be in good faith that it was the owner. The transfer of the ownership of the items [by the donation] could not, therefore, have any legal consequences and remained ineffective with regard to [the applicant]. Since no legislation or decision provided for the transfer of the ownership from the plaintiff to the State or to any other person, [the applicant] is the owner ... ”

The court further stated that the legislation on restitution, in particular the Act, was not applicable to the present case, as it applied only to situations where ownership of property had been transferred to the State, not to situations where such a transfer was not effected. In the latter case, the State seized and held property without acquiring ownership of it. The owner of such property was therefore eligible to claim that it be surrendered to him by using general civil-law actions intended to protect owners ’ rights in respect of any third person interfering with their property rights. The court concluded that the Act did not preclude the applicant ’ s standing to have recourse to this procedure to defend its property rights against the National Gallery.

On 28 July 1998 the Prague Municipal Court ( městský soud ) upheld this judgment, ruling in particular:

“[R]egard must be had to the Supreme Court ’ s judgment of 29 May 1997 no. 3 Cdon 404/1996 ... according to which the church property was ... seized by the State using a set of practices typically used to deprive holy orders and congregations of their property ... The [A]ct applies .... in particular to these practices ... It applies at least in so far as it governs the restitution of church property taken away from its owners by the State pursuant to these practices . ...If [the Act] in its enumerative list provided for a remedy for injustices only in respect of certain seized property [seized in a certain way], and not in respect of other property, even if the latter was seized in the same way as the former (by donation by the Religious Fund), then – as [the Act] is lex specialis – the logical conclusion is that a person otherwise entitled (to the property listed therein), does not have standing to claim property rights to the property which is not listed there. ... The Prague High Court took a similar approach in its decision of 30 November 1995 no. 7 Cdo 65/94. ”

The court continued by adopt ing a different approach, stating :

“[The Municipal] court dissented with this opinion, e.g. in its judgment of 3 February 1997 no. 20 Co 580/96-82, in which it found that [the Act] is a specific instrument atypical of legislation on restitution, and in so far as it does not interfere with civil law..., [for instance in the area of] invalidity of legal acts and of conditions for claiming it before courts, the general law [i.e. civil law] remains unaffected ...”

The court concluded that the case-law of the higher courts, to which it referred, would lead to the Act ’ s interpretation impairing the protection of the property rights of those owners who were not in possession of their property. In its view, this would be contrary to the constitutional law.

The National Gallery filed an appeal on points of law ( dovolání ) with the Supreme Court ( Nejvyšší soud ) which, on 29 June 2000, found that the lower courts had not applied the Act correctly and therefore quashed their judgments. Referring to its case-law, the court reiterated that the Act had to be interpreted as part of the legislation on restitution which was lex specialis in respect of the civil law and was thus to have precedence over the civil law. It stated:

“The court cannot accept the position adopted by the appellate court. There is no doubt that the Act forms by its nature a part of the legislation on restitution ....

It is not acceptable to reduce [the application of the Act] in cases where the property was seized in accordance with the law then in force...”

The Supreme Court supported this conclusion by stating that the restitution legislation was drawn up by the State to mitigate the injustice caused by communist rule in Czechoslovakia in the area of property rights. When adopting a suitable legislative technique for the restitution of church property provided for by the Act, the legislator opted to include an exhaustive list of property to be restored and added an enumerative index of church entities entitled thereto. In the court ’ s view, it was therefore irrelevant in terms of the restitution of this property whether the State had seized it in accordance with or contrary to the law applicable at the time of seizure.

In a judgment of 15 November 2000 the District Court, having been bound by the Supreme Court ’ s opinion, dismissed the applicant ’ s action without taking any further evidence.

On 24 September 2001 the Municipal Court upheld that judgment.

The applicant appealed on points of law before the Supreme Court, which rejected its appeal on 28 November 2002.

On 24 February 2003 the applicant filed a constitutional appeal ( ústavní stížnost ) contending that the lower courts had failed to protect its property rights and that the principle of equality of arms had not been respected in the proceedings before the Supreme Court, as the appeal on points law submitted by the National Gallery had been admitted for examination on the merits while its own appeal had not. It further contested the lack of assessment of the facts by the District Court and Municipal Court in the proceedings following the judgment of the Supreme Court.

On 21 March 2006 the Second Chamber of the Constitutional Court ( Druhý senát Ústavní ho soud u ) rejected the applicant ’ s constitutional appeal , finding i n particular:

“In respect of the [the applicant ’ s] arguments concerning ... [the Act ] , the Constitutional Court refer red to the opinion of its Plenary Session of 1 November 2005 no. Pl. ÚS – st. 22/05 published [in the Official Gazette] under no. 13/2006, in which it was found that the Act forms part of the legislation on restitution and constitutes an obstacle to the application of the general law. Thus, the Second Chamber, being bound by the cited opinion ..., considered the reasoning of the Supreme Court ... challenged by the applicant to be in conform ity with the constitutional law.”

B. Relevant domestic law and practice

Civil Code (law no. 40/1964)

Under Article 126 (1), a n owner is entitled to seek protection from a person interfering with his property rights; in particular, the owner is entitled to claim that his/her property be surrendered by a person possessing it contrary to law.

Code of Civil Procedure (law no. 99/1963)

Under Article 80(c) a n individual may bring an action seeking a judicial decision determini ng the existence or non-existence of a certain right if there is a compelling legal interest in such identification.

Under Article 236 (1) decisions in force adopted by an appellate court may be challenged by an appeal on points of law.

Law no. 298/1990 on the adjustment of certain property relations of holy orders and congregations and of the Archdiocese of Olomouc (“the Act”)

The Preamble states that the purpose of the Act is to provide for the redress of injustices which were caused to holy orders and congregations in the 1950s, especially by unlawful deprivation of their immovable property.             

Under section 1(1) immovable property specified in Appendix no. 1 is declared to be the property of the respective holy orders and congregations listed in the Appendixes on the day of the Act ’ s entry into force. Section 1(2) provides that on that day, immovable property specified in Appendix no. 2 is declared to be the property of the Archdiocese of Olomouc. Under section 1(4) movable property which was on 10 April 1950 located in immovable property specified in Appendixes no. 1, 2 and 3 is declared to be, upon the Act ’ s entry into force, the property of the respective orders, congregations or the Archdiocese of Olomouc, provided that such property exists and can be located.

Case- law of the Constitutional Court

Opinion no. Pl. ÚS 22/05 of 1 November 2005 (published in the Official Gazette under no. 13/2006)

In this opinion the Constitutional Court took the view that the Act must be considered as a part of the legislation on restitution. Therefore, it bars the application of the general law.

Case - law of the Supreme Court

According to the Supreme Court ’ s case - law ( for example, judgments no. 3 Cdon 647/96 of 30 May 1996, no. 3 Cdon 404/96 of 23 February 1999, no. 2 Cdon 669/97 of 25 February 199 9, no. 20 Cdo 1601/98 of 30 May 2000), an entity entitled , pursuant to the Act , to the property listed in the annexes thereto does not have a standing to claim property rights to its property seized by the State which is not listed in the annexes of that Act.

Case - law of the Municipal Court

In its judgment of 3 February 1997 no. 20 Co 580/96-82 the Municipal Court ruled that the Act is a specific instrument atypical of the restitution legislation, and in so far as it does not interfere with civil law, for instance in the area of the invalidity of legal acts and conditions for its vindication, the general - law (namely, civil- law ) regulation remains unaffected .

COMPLAINTS

1. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that the national courts had refused to examine the merits of its action and to uphold its claim after the quashing judgment of the Supreme Court, although the national courts establishing the facts of the case had found that it had been, and had never ceased to be, the owner of the paintings. Consequently, the applicant had been in an absurd situation, having been the acknowledged owner of the property in question, but unable to enforce its property rights vis-à-vis the National Gallery.

2. The applicant further complain ed under Article 6 § 1 of the Convention that , after its quashing judgment, by its binding guidelines the Supreme Court had prevented the lower national courts from assessing the facts and from applying the relevant law. The applicant had thus been denied a fair trial.

The applicant finally complained of an impairment of the principle of equality of arms, as its appeal on points of law had been declared inadmissible by the Supreme Court, while the appeal based on the same ground submitted by the defendant had been granted.

THE LAW

The applicant complained that the national courts had impaired its property rights guaranteed by Article 1 of Protocol No. 1, which provides 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 Court recalls that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among other authorities, Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II).

As to whether or not there was interference, the Court notes that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see von Maltzan and Others v. Germany , (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR 2005; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII; and Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, ECHR 2002-VII, § 69).

In the instant case, the applicant alleged that there had been an interference with its property rights due to the dismissal by the Supreme Court of its claim, which had been upheld by the court of first instance and the appellate court. The Court must therefore first consider the applicability of Article 1 of Protocol No. 1, in particular whether the applicant could be considered to have a claim amounting to an “asset” within the meaning of that provision.

The Court observes that the Prague 1 District Court and the Prague Municipal Court, which decided the case at the first two instances, found that the applicant was the owner of the paintings. Although the appellate court ’ s judgment could have become effective under Czech law, it was still open to examination by the Supreme Court upon an appeal on points of law available to the parties. In fact, the defendant availed itself of this legal avenue and both these judgments were subsequently overturned in the context of the same proceedings by the Supreme Court. Thus, the judgment of the appellate court did not invest the applicant with a definitive and enforceable right to have the paintings restored to it (see, mutatis mutandis , Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, § 59). Those judgments were therefore not sufficient to generate a proprietary interest amounting to an “asset” within the meaning of Article 1 of Protocol No. 1.

In these circumstances, it remains to be examined whether the applicant could be regarded as having at least a legitimate expectation to have his ownership rights to the paintings determined by courts when lodging his action with the Prague 1 District Court. In particular, the question arises whether a legitimate expectation of obtaining effective enjoyment of the paintings arose for the applicant in the context of the proceedings complained about.

The Court has already noted that the applicant ’ s claim, despite being granted at the first two instances, was eventually dismissed by the Supreme Court. It remarks that that court did so while applying the Act in the light of its own case-law on the matter. It further observes that this case-law, interpreting the Act as barring any ownership claims under civil law by church entities seeking to restore property seized in the past by the State, had been adopted prior to the filing of the applicant ’ s action and had been accessible to the applicant ever since. Therefore, the applicant could have known that its claim would be eventually dismissed due to non-compliance with that case-law.

Bearing in mind this substantial dispute over the interpretation and application of domestic laws, the applicant could have not been regarded as having a claim amounting to asset, or even a legitimate expectation of obtaining it (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004 ‑ IX ).

It follows that the applicant ’ s complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4 of the Convention.

2. The applicant further alleged a violation of the right to a fair trial and invoked Article 6 of the Convention, the pertinent part of which is worded as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is the national authorities, in particular courts and tribunals, that are charged with interpreting the internal law of a contracting party (see Houfová v. Czech Republic (dec.), no. 58177/00, 1 July 2003).

The Court notes that the applicant benefited from an examination of its case by ordinary courts at two instances with full jurisdiction to assess the relevant facts and law in the instant case, and by the Supreme Court and Constitutional Court . The Court finds no appearance of arbitrariness in the way in which the Supreme Court determined the applicant ’ s claim in the light of its established case-law.

Moreover, the Court finds no indication of any disadvantage impairing the applicant ’ s procedural rights vis-à-vis the defendant.

It follows that the complaints under Article 6 of the Convention are manifestly ill-founded under Article 35 § 3 of the Convention. They must therefore be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer L orenzen Registrar President