Information Note on the Court’s case-law 26

January 2001

Malhous v. the Czech Republic (dec.) [GC] - 33071/96

Decision 13.12.2000 [GC]

Article 34

Locus standi

Locus standi of sole heir of deceased applicant

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Expectation of having propriety right recognised long after confiscation: inadmissible

Facts : In 1949 plots of agricultural land own ed by the applicant’s father were expropriated under the New Land Reform Act of 1948. No compensation was paid. Title to the plots was transferred to legal persons, but some of the plots were subsequently transferred to natural persons in a procedure under the 1948 Act. The applicant’s father subsequently died. In 1991 a Real Estate Act was passed according to which property confiscated under the 1948 Act without compensation could be returned to its former owners or to their heirs if it was still in the po ssession of the State or of a legal person. If such property had been transferred to a natural person, the former owners or their heirs could claim the assignment of other equivalent property or financial compensation. On the basis of that Act, the applica nt entered into agreements with two legal persons for the restitution of land having belonged to his father before expropriation. The Land Office gave decisions refusing to approve the restitution agreements on the ground that some of the plots had been as signed to natural persons who had produced deeds of assignment certifying their property rights. The applicant lodged two appeals with the Municipal Court against the decisions of the Land Office, claiming restitution of the entire property. He disputed th e finding that the deeds of assignment in favour of the natural persons certified ownership of the property and asked to be allowed to consult them. The court upheld the decisions of the Land Office. It noted that, under the Code of Administrative Procedur e, the applicant could have consulted the deeds of assignment, which were in the file, at any time during the administrative proceedings. Moreover, in accordance with the Code of Civil Procedure, the court did not hold a hearing, as only points of law were in issue. The Land Office, to which the case had been referred back, confirmed the applicant’s property rights in respect of those plots which had not been re-assigned to natural persons and informed him that he could seek compensation for the plots which could not be returned. The applicant appealed – unsuccessfully – to the Constitutional Court. The Constitutional Court held, among other things, that the Municipal Court had correctly applied the Code of Civil Procedure in refusing to hold a hearing. In 1 998 the applicant died. His lawyer lodged with the Land Office a posthumous request for compensation by the assignment of other plots. The request was still pending. In the meantime the proceedings regarding the applicant’s inheritance ended with a finding of the District Court, which did not take into account the request pending before the Land Office, that the applicant had not left any estate. The applicant’s nephew requested the District Court to re-open the inheritance proceedings; those proceedings we re still pending. According to the applicant’s last will, produced by his nephew, the latter had been designated as his universal heir since he had disinherited his children. The applicant stated that he wished to pursue his uncle’s application before the Court.

Law : Article 34 – In a number of cases in which the applicant had died in the course of the proceedings, the Court has taken into account the statements of the applicant’s heirs or close members of his family who expressed the wish to pursue the pr oceedings before the Court. In this case it was the applicant’s nephew, who had been designated as universal heir in the deceased’s will. The fact that the inheritance proceedings were still pending did not affect the nephew’s position as the person design ated as universal heir. It appeared sufficient that the applicant had designated him in his will as his heir and that there were serious prospects of his eventually being recognised as such, in which case at least part of the applicant’s estate, including the restitution rights, would accrue to him. Moreover, over and above a material interest, cases before the Court had a moral dimension and persons near to an applicant might thus have a legitimate interest in seeing to it that justice was done even after the applicant’s death. Such was the case where, as here, the leading issue raised by the case transcended the person and the interests of the applicant and his heirs, and where other persons might be affected. If in such circumstances a potential heir wish ed to pursue the application it could not be said that the matter had been resolved or that for other reasons it was no longer justified to continue the examination of the application. An examination of the application in this case was therefore justified.

Article 1 of Protocol No. 1 – (a) The applicant complained that restitution had not been granted to him in respect of the entire property which had belonged to his father. The complaint lodged by the applicant’s nephew concerned only the property of which ownership had been transferred to natural persons and which, under the Real Estate Act of 1991, could not be returned. The applicant had been informed that he could claim compensation either in the form of other equivalent land or in the form of financial compensation. After his death, a request for the allocation of other equivalent land had been submitted on behalf of the applicant by his lawyer. The request was still pending. (b) With regard to the Government’s submission that the applicant had not exhau sted domestic remedies, none of the remedies could have provided the applicant any redress. The applicant’s nephew was not obliged to raise again the arguments raised by the applicant in his appeal to the Constitutional Court, since it was sufficient if an applicant had exhausted one of several alternative remedies likely to produce essentially the same result. Indeed, it could not be expected in the present case that the ordinary courts would have decided the matter differently from the Constitutional Cour t. The applicant had thus satisfied the conditions of exhaustion of domestic remedies. (c) The applicant’s possessions had been expropriated, some being attributed to natural persons before the Convention came into force in the Czech Republic. Therefore th e Court was not competent ratione temporis to examine the circumstances of the expropriation or the continuing effects produced by it. Furthermore, the deprivation of a property right or of another right in rem was in theory an instantaneous act and did no t produce a continuing situation of deprivation of a right. The applicant’s complaint, in so far as he could be understood to be challenging the measures taken pursuant to the 1948 Act in respect of his father’s property prior to the entry into force of th e Convention, was incompatible with the provisions of the Convention. However, the proceedings for restitution of land brought by the applicant before the administrative and judicial authorities under the 1991 Act had started after the Convention had enter ed into force. That part of the application could not therefore be rejected for lack of temporal jurisdiction. (d) The concept of possessions covered both existing possessions and assets in respect of which the applicant could argue that he had at least a legitimate expectation of obtaining effective enjoyment of a property right. The hope of recognition of the survival of an old property right which it had long been impossible to exercise effectively could not be considered as a “possession” within the mea ning of Article 1 of Protocol No. 1. In the instant case it had to be determined whether the applicant had a legitimate expectation of securing the restitution of land of which title had been assigned to natural persons. The authorities had, however, corre ctly applied the 1991 Act, according to which only property in the possession of the State or a legal person could be returned. Accordingly, the applicant’s nephew did not have any right or legitimate expectation of realising his claim to restitution and t hus did not have a possession in the meaning of Article 1 of Protocol No. 1: incompatible ratione materiae .

Article 6 § 1 (fair trial): With regard to the applicant’s complaint that he had not had a fair hearing, he could, under the Code of Administrative Procedure, have consulted the file and, in particular, the deeds of assignment of property to natural persons at any tim e during the proceedings. Furthermore, having considered that only questions of law had been raised before it, the Municipal Court was entitled to apply the provision of the Code of Civil Procedure to the effect that it was not necessary to hold a hearing if only questions of law were raised. The Constitutional Court subsequently upheld the merits of that reasoning. After the case had been referred back to the Land Office, the applicant could have consulted the administrative file containing the deeds of as signment. Moreover, the applicant could have lodged a further appeal against the last decision of the Land Office. There was no indication that the Constitutional Court had not given the applicant a fair hearing. Ultimately, there was nothing to suggest th at the applicant’s right to a fair hearing had been infringed: manifestly ill-founded.

Admissible under Article 6 § 1 (impartial and independent tribunal).

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

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