Information Note on the Court’s case-law 53

May 2003

Harrach v. the Czech Republic (dec.) - 77532/01

Decision 27.5.2003 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Non-restitution of property confiscated at end of Second World War: inadmissible

The applicant was born in 1920 and has both Czech and Austrian nationality. His cousin Johann Harrach owned real estate in the former Czechoslovakia. In 1941 Johann Harrach made his will in which he appointed his son Ferdinand as his universal heir and nominated the applicant as testamentary substitute. Following the testator’s death in May 1945, his heir did not acquire the esta te. It therefore became hereditas iacens in accordance with the Civil Code of 1811, then in force. The estate was confiscated under President Beneš Decree No. 12/1945. The testator’s widow requested that the property be excluded from the confiscation on th e grounds that her husband had been loyal to Czechoslovakia. Her request was refused by the District National Committee in 1946. This decision was upheld by the National Land Committee in 1947. When Ferdinand Harrach died in 1961, the right to take over th e hereditas iacens passed to the applicant. He lodged a claim for restitution of the property in January 1993. The District Land Office found in March 1999 that the applicant was the owner of part of the property. It held that confiscation proceedings shou ld not have been brought against the hereditas iacens , but should instead have been instituted subsequent to ex officio inheritance proceedings. The transfer to the State was therefore unlawful, with reference to the Land Ownership Act, and had infringed t he applicant’s property rights. In October 1999, this decision was quashed by the Regional Court, which found that the facts of the case had not been sufficiently established, in particular the date on which the property had been confiscated, which would d etermine whether the case ought to be examined under the Restitution Act. In the Regional Court’s view, the relevant date was that of the National Land Committee’s decision in 1947. It further considered that the authorities that had dealt with the confisc ation were competent to do so, and that confiscation of the hereditas iacens had not been excluded by the Civil Code of 1811. It remitted the case to the administrative authority. In the meantime, the District Land Office found that the applicant was the o wner of the remainder of the property and that his claim for restitution was covered by the Land Ownership Act. This decision was quashed by the Regional Court in February 2000. It ruled that the main reason for the confiscation of Johann Harrach’s propert y had been his decision to take German nationality in 1939 and his involvement in German political parties, including the Nazi party in 1942. The effective date of confiscation was that of the 1945 Decree, the subsequent decisions being merely declaratory in nature. The confiscation was therefore outside the scope of the Land Ownership Act. It ordered the Land Office to examine whether Johann Harrach satisfied the conditions for property laid down in the Restitution Act. The Land Office decided that the app licant was not the owner of the estate, that it had been confiscated lawfully and that this occurred outside the temporal scope of the Land Ownership Act. As for the Restitution Act, the necessary conditions were not met since Johann Harrach did not renew his Czechoslovakian citizenship. The applicant had not acquired the estate, nor did he have the degree of kinship stipulated in the Restitution Act. On appeal, the Regional Court confirmed this decision. The applicant’s appeal to the Constitutional Court w as dismissed as manifestly ill-founded.

Inadmissible under Article 6 § 1: The applicant’s claim was dealt with by the national courts at public hearings. He had been assisted by counsel and was able to present his case and challenge the submissions of his adversary. The national judges gave detailed consideration to all aspects of the case, giving full reasons for their conclusions and addressing the applicant’s submissions. There was no indication that the proceedings were unfair or otherwise contrary to A rticle 6 § 1: manifestly ill-founded.

Inadmissible under Article 1 of Protocol No. 1: The national courts established that the applicant was not the owner of the estate, never having acquired it in inheritance proceedings. It had been lawfully confiscated in 1945. Neither the original owner nor the applicant satisfied the conditions stipulated in the Restitution Act. The reasons given by the domestic courts were relevant and sufficient, their decisions were not arbitrary and the proceedings were not unfair. The applicant therefore had neither an existing possession nor a legitimate expectation. Accordingly, the facts of the case did not come within the ambit of Article 1 of Protocol No. 1: incompatible ratione materiae .

Inadmissible under Article 14: The app licant claimed that he had been discriminated against on the grounds of his nationality. In relation to Article 6 § 1, his nationality had no bearing on the proceedings. The dismissal of his claim did not in itself constitute discrimination. In relation to Article 1 of Protocol No. 1, since his claim under this provision was incompatible ratione materiae , Article 14 was not applicable.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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