Information Note on the Court’s case-law 51

March 2003

Des Fours Walderode v. the Czech Republic (dec.) - 40057/98

Decision 4.3.2003 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Claim for restitution of property confiscated in Czechoslovakia in 1945: inadmissible

The applicant’s stepfamily were German nationals who owned real estate in former Czechoslovakia . The property was confiscated in 1945 under Presidential Decree No. 12/1945, which provided for the confiscation of agricultural land from persons of German or Hungarian origin. The applicant’s two stepbrothers had died in 1944 and 1945 respectively; his stepmother died in 1955, leaving her real estate to him and conferring the succession rights of her deceased sons on him. The applicant had in the meantime left Czechoslovakia, thereby forfeiting his Czechoslovak citizenship. He returned in 1991 and was gr anted Czech citizenship in 1992. He lodged a claim for restitution of the confiscated property but the Land Office dismissed his claim on the ground that he was not the owner of the property, since his stepmother and stepbrothers had not satisfied the requ irements for restitution. It found that they had not been loyal to Czechoslovakia during the German occupation and that they had not acquired Czechoslovak citizenship after the war. The applicant appealed, arguing that since his stepbrothers were both dead by the time the Presidential Decree entered into force, it should not have applied to their estates. He submitted that German law had been in force in Czechoslovakia at the time of their death and that in accordance with its provisions he had acquired the whole estate. The Municipal Court held, however, that the applicant’s stepbrothers were subject to Czech law at the time of their deaths. In accordance with the relevant provisions of the Czech Civil Code of 1811, the testator’s property was not automatic ally acquired by the heir; instead, the deceased remained the notional owner of the estate until its distribution. As distribution had not taken place, the applicant’s stepbrothers were the owners of the property at the time of confiscation, which had ther efore been valid. The applicant’s constitutional appeal was dismissed by the Constitutional Court, which held that, in view of the unlawfulness of the annexation of the Sudetenland, all legal relations in that region had been governed by the Czechoslovak l egal order. Consequently, the applicant had never acquired his stepbrothers’ property. Moreover, as his stepmother had never acquired Czechoslovak citizenship, he could not claim restitution as her heir.

Inadmissible under Article 1 of Protocol No. 1: Foll owing the confiscation in 1945, the property had been assigned to and used by different legal persons and the applicant’s family had had no practical possibility of exercising any rights in respect of it. The deprivation had occurred long before the Conven tion and its Protocols entered into force in respect of the Czech Republic and there was no question of a continuing violation that could be imputable to the Czech Republic. The claim regarding the deprivation was therefore incompatible ratione temporis . A s regards the proceedings which the applicant instituted in 1992, the reasons given by the domestic authorities for refusing restitution were sufficient and relevant, the decisions reached were not arbitrary and the proceedings were not unfair. In these ci rcumstances, the applicant’s claim did not relate to “existing possessions” and he did not have a “legitimate expectation” of having it upheld. He could not, therefore, argue that he had a “possession” and neither the judgments of the national courts nor t he application of the applicable law amounted to an interference with the peaceful enjoyment of his possessions: incompatible ratione materiae .

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