SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30021/03 by Bohumila MYŠÁKOVÁ against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 28 March 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr K. Jungwiert , Mr M. Ugrekhelidze , Ms D. Jočienė , Mr D. Popović, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 12 September 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Bohumila Myšáková, is a Czech national who was born in 1924 and lives in Prague . She is represented befor e the Court by Mr M. Červinka, a lawyer practising in Prague .

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

In November 1949 plots of land owned by the applicant ’ s mother were expropriated by the former Prague-West District National Council ( okresní národní výbor ) under Czechoslovak New Land Reform Act No. 46/1948. The applicant ’ s mother never obtained any compensation.

In 1957 some of the plots in question were transferred to the ownership of natural persons in an assignment procedure under the 1948 Act.

In 1990 the applicant ’ s mother died and the applicant ’ s and her two sisters ’ rights over h er estate were confirmed.

After the fall of the communist regime in Czechoslovakia , the Land Ownership Act entered into force on 24 June 1991 . The Act provided that the 1948 Act was no longer applicable and that under certain conditions property confiscated pursuant to that Act without compensation could be returned to its former owners or their heirs if it was still in the possession of the State or of a legal person. However, if such property had been transferred into the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation.

On 8 October 1991 the applicant and her two sisters, relying on the Land Ownership Act, invited the Prague-West Land Office ( pozemkový úřad ) to transfer three plots of land into their ownership.

On 7 October 1992 and 10 February 1995 respectively, the applicant urged the Land Office to decide.

On 15 May 1995 she signed an agreement with her two sisters, who disclaimed their restitution rights in her favour.

On the basis of the Land Ownership Act, the applicant entered into restitution agreements with the Prague-West District Office ( okresní úřad ) on 23 May 1995 .

On 6 June 1996 the Land Office approved the restitution agreement.

A certain Mr and Ms K., Mr B. and Mr and Ms M. appealed against the Land Office ’ s approval, alleging that the plots of land had been assigned to them pursuant to the 1948 Act or that they had bought them in good faith from former assignees.

On 5 May 1998 the Ministry of Agriculture ( Ministerstvo zemědělství ) quashed the Land Office ’ s decision, although the appellants did not have a right to appeal, not having been parties to the administrative proceedings as provided for in section 9(8) of the Land Ownership Act [1] . The case was returned to the Land Office which, on 29 January 1999 , decided not to approve the restitution agreement, referring to the uncertain relationships with regard to the property at issue.

In a judgment of 28 July 2000 , the Prague Municipal Court ( městský soud ) upheld the administrative decision.

The case was referred back to the Land Office which, on 25 June 2001 , decided anew and confirmed the applicant ’ s property rights in respect of one of the three plots (with an area of 912 sq. m) which was in State ownership. It rejected the rest of the applicant ’ s restitution claims, relying on judgments of the Prague-West District Court ( okresní soud ) of 21 December 1999 , 20 January and 10 May 2000 respectively which had determined the ownership rights to the remaining plots of land in favour of natural persons. These owners, being natural persons, were excluded from the obligation to restore their property to the former owner, as provided for in section 5 of the Land Ownership Act. [2]

On 6 June 2002 the Municipal Court, on the applicant ’ s appeal of 24 July 2001 , upheld the Land Office ’ s decision. It held in particular:

“From the documents included in the administrative file on which the Land Office based its decision (...) it appears that all the plots of land concerned were transferred by way of assignment into the possession of natural persons, i.e. Mr F.N., Ms and Mr K. and Ms and Mr B. (...)

In the present case, the Land Office examined the question whether the plots of land concerned were re-transferred from the assignors to State ownership. As to plot of land no. 210/2 (...) the Prague-West District Court decided (...) that Mr B. is the owner of one half of this plot. The District Court found that Mr B. together with his wife (...) started to use the plot in January 1980, after having concluded a purchase contract with Mr N. ’ s heirs by which they had bought a family house no. 79 and two lots; (...) they had believed that [plot no. 210/2] had been attached to the purchased property, at least until November 1992. The court concluded that Mr B. had acquired the right of (...) co-ownership to plot of land no. 210/2 by prescription. A similar decision was taken by the Prague-West District Court on 10 May 2000 in respect of Ms [B.] ’ s co-ownership. (...) The Land Office was bound by these judgments by virtue of section 40(1) of the Code of Administrative Procedure [3] (...). It was also bound by the Prague-West District Court ’ s decisions regarding Mr and Ms K. ’ s inheritance. The fact that plot of land no. 210/5 had been assigned to the spouses K. is proved by the documents in the administrative file; this question was dealt with by the Municipal Court (...). In the present proceedings, the court is not called upon to assess the regularity of the decision of another general court.

(...) it appears that in the administrative restitution proceedings, it was not proved that plot of lands nos. 210/2 and 210/5 were, after having been assigned to the natural persons in the assignment proceedings, re-transferred into the ownership of the State or other legal persons.”

On 9 September 2002 the applicant lodged a constitutional appeal ( ústavní stížnost ), supplementing it on 21 October 2002 . She alleged a violation of her property rights under Article 11 of the Charter for Fundamental Rights and Freedoms ( Listina základních práv a svobod ) and her right to judicial protection guaranteed by Article 36 of the Charter.

On 27 February 2003 the Constitutional Court ( Ústavní soud ) dismissed the appeal as manifestly ill-founded.

COMPLAINTS

1. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 the applicant complains that the Ministry of Agriculture acted contrary to section 9(8) of the Land Ownership Act when quashing the Land Office ’ s decision.

The applicant further challenges the Land Office ’ s decision of 25 June 2001 which wrongly relied on the judgments of the District Court adopted in 1999 and 2000. In the applicant ’ s opinion, these judgments did not determine the ownership to the plots of land at the date of the entry into force of the Land Ownership Act. She adds that the Land Office did not examine her objection that the deeds of assignment did not sufficiently indicate the plots of land concerned and could not, therefore, constitute a basis for transfers of ownerships.

2. Invoking Article 6 § 1 of the Convention, the applicant complains that the restitution proceedings lasted an unreasonably long time.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicant challenges the decisions taken by the national authorities involved in the present restitution proceedings. Moreover, she allege s that her property rights guaranteed by Article 1 of Protocol No. 1 were violated.

Article 6 § 1 of the Convention, as far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (...)

Article 1 of Protocol No. 1 to the Convention provides:

“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

i. As regards the issue of compliance with Article 6 § 1 of the Convention , the Court reiterates that 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 might have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is primarily for the national courts to interpret and appl y national law.

Turning to the present case, the Court considers that although the decision of the Ministry of Agriculture was at odds with section 9 of the Land Ownership Act, the ensui ng proceedings before the Land Office, the Municipal Court and the Constitutional Court fully satisfied the requirements of Article 6 § 1 of the Convention, allowing the applicant to effectively use all her procedural rights. The national courts carefully examined her restitution claims and delivered reasoned judgments addressing the arguments submitted by her . The Court does not find any indication of a violation of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Concerning the alleged violation of Article 1 of Protocol No. 1, the Court notes that there is no right to restitution under the Convention and its case-law. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”, and neither can the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively, or a cond itional claim which lapses as a result of the non-fulfilment of the condition (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII, Polacek and Polackova v. Czech Republic (dec.) [GC], no. 38645/97, § 62, 10 July 2002 ).

Since the plots of land in question were expropriated in 1949 , it is clear that the applicant could not be said to have “existing possessions” within the meaning of Article 1 of Protocol No. 1.

It thus remains to be examined whether the applicant could have any “legitimate expectation” of realising her claim to restitution on the basis of the provisions of the Land Ownership Act . The Court notes that, under section 5 of the Land Ownership Act, those obliged to make restitution are, in principle, the State or any legal person possessing the real property at the date when the Act entered into force .

The Court observes that the proceedings complained of concerned the question of whether or not this condition had been fulfilled. The Czech administrative and judicial authorities found that this was partly not the case.

The applicant ’ s complaint therefore essentially amounts to an objection to the outcome of the proceedings before the Czech administrative and judicial authorities and to the errors of interpretation and application of domestic law allegedly committed by them.

The Court notes in this respect that the fact that the State, through its judicial system, provided a forum for the determination of the applicant ’ s rights and obligations does not automatically engage its responsibility under Article 1 of Protocol No. 1. While the State could be held responsible for losses caused by such determinations if the court decisions amounted to an arbitrary and disproportionate interference with possessions, this is not the case here. Referring to the above findings under Article 6 § 1 of the Convention that despite the Ministry of Agriculture ’ s decision being at odds with the Land Ownership Act, the national courts proceeded pursuant to domestic law, dealing with the applicant ’ s case in detail and giving full reasons for their decisions, the Court finds that the assessment made by the domestic courts cannot be regarded as having been arbitrary or manifestly unreasonable.

The Court finds that the applicant could therefore have no “legitimate expectation” of realising her claim to restitution of the disputed plots of land .

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the restitution proceedings ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] Parties to the proceedings are a rightful claimant and a person or entity possessing the real estate at issue and the Land Fund ( pozemkový fond ).

[2] Those obliged to make restitution are, in principle, the State or any legal person possessing the real property at the date when the Act entered into force. Natural persons can be obliged to return real property to a rightful claimant only in the circumstances set out in section 8, that is if they or their relatives acquired it from the State or another legal person either contrary to any law in force at the relevant time or for a price inferior to any applicable price regulations or on the basis of unlawful advantage.

[3] If there is a question on which a competent organ has already decided, the administrative authority is bound by its decision; otherwise, it may make its own judgment on this question or initiate proceedings before the competent organ.