AS TO THE ADMISSIBILITY OF
Application No. 33667/96
by Richard BOUSKA
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 September 1996
by Richard BOUSKA against the Czech Republic and registered on
5 November 1996 under file No. 33667/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Czech citizen born in 1938. He lives in
Prague. Before the Commission, he is represented by Mr M. Koubek.
The facts, as submitted by the applicant, may be summarised as
follows.
In 1942 the applicant inherited from his father one twentieth of
a house in Prague.
Pursuant to Section 2 (5) of Presidential Decree No. 108/1945 on
the Confiscation of Enemies' Property and on the National Restoration
Funds ("the Decree"), which entered into force on 30 October 1945,
property belonging to a part owner could be confiscated on payment of
compensation if the majority joint owners of the property were German
nationals whose shares were subject to confiscation under the Decree.
By a decision of 16 March 1951 the former Prague 2 District
National Committee (obvodní národní vybor) confiscated the applicant's
property pursuant to Section 2(5) of the Decree. No compensation was
paid to the applicant.
In September 1991, pursuant to Extra-Judicial Rehabilitation Act
No. 87/1991 ("the Act"), the applicant wrote to the company in
possession of his property, Pragokámen, s.p., seeking an agreement as
to the restitution of his share of property. The company made it clear
that it did not intend to comply with this request. The applicant
applied to the Prague 1 District Court (obvodní soud).
On 18 June 1993, the Prague 1 District Court found against the
applicant. The Court considered that the property at issue had passed
into the possession of the State by the confiscation decision of the
former Prague 2 District National Committee dated 16 March 1951,
i.e. after 25 February 1948, the decisive date for restitutions under
the Act. However, the Court held that the confiscation under the Decree
could not be mistaken for expropriation or nationalisation, which under
certain circumstances constituted the legal entitlement to restitution
pursuant to the Act. The Court stated that the fact that no indemnity
had been paid to the applicant was not such a hardship that it could
be classified as a procedure violating generally recognised human
rights and freedoms within the meaning of Section 2(1)(c) of the Act.
It added that if the legislator had intended to remedy injustice in
cases such as the applicant's, where compensation for confiscation
should have been paid but was not, it would have done so by a special
law.
On 8 October 1993 the Prague Municipal Court (mestsky soud), on
appeal made by the applicant, confirmed this judgment. However, it
found that the applicant's property had passed into the possession of
the State by operation of law, i.e. by the entry into force of the
Decree on 30 October 1945 which was before the decisive date of
25 February 1948 specified in the Act. The Court noted that the
confiscation decision of 16 March 1951 had only declaratory character.
Accordingly, the Act did not apply to the applicant's case at all. The
Court considered it unnecessary to examine the remainder of the
applicant's appeal.
On 28 January and 1 December 1994 the applicant lodged a
constitutional appeal together with a request for abolition of Section
2(5) of the Decree which he considered to be contrary to Article 17
para. 2 of the Universal Declaration of Human Rights. The applicant
claimed that the finding of the Prague Municipal Court was incompatible
with domestic courts' case-law. He further claimed that the fact that
the former Prague 2 District National Committee had never paid him any
compensation, constituted a breach of generally recognised human rights
and freedoms within the meaning of Section 2(1)(c) of the Act.
On 7 July 1994 the Constitutional Court (Ústavní soud) dismissed
the applicant's request for Section 2(5) of the Decree to be abolished,
stating that the same matter had already been brought before the
Constitutional Court by Mr Rudolf Dreithaler requesting the abolition
of Presidential Decrees Nos. 108/1945, 12/1945 and 33/1945.
By a judgment of 8 March 1995 the Constitutional Court dismissed
Mr Rudolf Dreithaler's request and referred the applicant to its
reasoning in that case.
On 26 March 1996 the Constitutional Court dismissed the remainder
of the applicant's constitutional appeal. The Court held in particular:
"[T]he transfer of the applicant's property to the State
was effected by confiscation pursuant to Presidential
Decree No. 108/1945 ("the Decree"). According to the
established case-law ... such property can be restored only
under conditions provided for by Sections 6(2) and 2(1)(c)
of Extra-Judicial Rehabilitation Act No. 87/1991 ("the
Act") where administrative decisions were taken ... after
25 February 1948 ... This condition is fulfilled in the
present case as the former Prague 2 District National
Committee issued the confiscation decision on
16 March 1951. ...
The Constitutional Court has considered the applicant's
main objection that, contrary to Section 2(5) of the
Decree, no compensation had been paid to him. ... The
Constitutional Court finds that, according to the Property
Office (majetkovy úrad) no financial compensation was paid
either to the applicant or [his mother]. ...
... [T]he Constitutional Court has considered whether, in
the light of the protection of human rights and freedoms of
the applicant ..., the non-payment of the compensation is
relevant in the present case. This involves answering the
question whether ... the property should have been restored
under Section 6(2) [and] Section 2(1)(c) of the Act.
Section 2(1)(c) binds restitution of property to the
unlawful [confiscation] procedure which was the consequence
of political persecution or of a procedure violating
generally recognised human rights and freedoms. ...
However, it is not the present case. Section 2(5) of the
Decree ... has been applied to any joint owner, who owned
a minority share of the property to be confiscated
irrespective of his or her affiliation to a social or
property group or class. ... This situation is not
comparable with other cases of abusive confiscation under
the Decree ...
It remains to be considered whether the non-payment of
compensation for the confiscated property can be equated to
a procedure violating generally recognised human rights and
freedoms within the meaning of Section 2(3) of the Act.
According to this Section such behaviour is considered to
be a procedure ... which is incompatible with the
principles listed in Section 1(1) of the Act. [According
to] this provision, ... the Act is aimed at mitigating the
consequences of some property and other injustices caused
by civic, employment and judicial acts, performed between
25 February 1948 and 1 January 1990 which are incompatible
with the principles of a democratic society, respecting the
rights of citizens as enshrined in the Charter of the
United Nations Organisation, the Universal Declaration of
Human Rights ... Thus, the Act does not intend to remedy
the consequences of all injustices, but only to mitigate
some of them. It is, therefore, not possible to redress
other injustices than those included in the Act and in such
way as stated therein; dispossessions of property effected
for other reasons than specified in the Act have remained
generally valid.
Cases of restitution of property which have been
expropriated without compensation are regulated as follows:
Section 6(1)(j) of the Act: cases of confiscation ...;
Section 2(2) second line: cases of nationalisation ...
where entitled persons can claim under ... Act No. 92/1991.
Accordingly, if the legislator had intended to indemnify
cases of expropriation by confiscation where compensation
should have been paid but was not, it would have provided
for it expressly in Section 6(1) of the Act, or it would
have enlarged the possibilities of mitigation of the
consequences of ... injustices also to [those] cases ...
However, the legislator did not do so. Thus, the District
Court rightly decided that the applicant's request for
restitution of [his] property was unsubstantiated. ...
Finally, the Constitutional Court notes that the Decree,
including Section 2(5), ... remains valid. ... The
application of Section 2(5) of the Decree itself, if it was
not [abusive] ..., cannot be considered as in breach of
Section 2(1)(c) of the Act ...
[The applicant also alleged a violation of his right to
court protection under Article 36 of the Charter of
Fundamental Rights and Freedoms ("the Charter")]. According
to this provision, in the determination of his rights,
everyone is entitled to a fair hearing by an independent
and impartial tribunal ... This right, however, cannot be
interpreted as the right to success in court. In the
present case court protection was not denied as the courts
dealt with [the applicant's] action ...
The applicant further alleged a violation of Article 11
para. 1 of the Charter which guarantees the property rights
... In this regard the Constitutional Court recalls its
established case-law according to which this provision
protects existing property rights and not only an alleged
claim for [them] ..."
COMPLAINTS
The applicant claims, under Article 6 para. 1 of the Convention
and Article 1 of Protocol No. 1, that his action for restitution was
rejected because of the irregular procedure before the ordinary
domestic courts and the Constitutional Court and the wrong
interpretation of Extra-Judicial Rehabilitation Act No. 87/1991 and
that, accordingly, his rights to a fair trial and to peaceful enjoyment
of his possessions have been breached. He submits that the
Constitutional Court, which is a judicial institution outside the
system of ordinary domestic courts, extended the reasoning of the
ordinary courts and, in fact, decided as a court of first instance
giving a new legal opinion. He contends that with regard to the
judgment of the Constitutional Court his property was expropriated de
facto without any compensation. He maintains that the confiscation of
the property as well as the non-payment of the compensation was a
consequence of the political persecution of his family, and, therefore,
the property should have been returned to him, or, alternatively,
compensation should have been awarded.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)
of the Convention which, in so far as relevant, reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal established by law ..."
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention extends only to disputes ("contestations"), over (civil)
"rights and obligations" which can be said, at least on arguable
grounds, to be recognised under domestic law; it does not in itself
guarantee any particular content for (civil) "rights and obligations"
in the substantive law of the Contracting States (cf. Eur. Court HR,
Lithgow and others v. the United Kingdom judgment of 8 July 1986,
Series A no. 102, p. 70, para. 192). There is a question in the
present case as to whether Article 6 para. 1 (Art. 6-1) of the
Convention is at all applicable to the proceedings brought by the
applicant, as all the courts found that the Extra-Judicial
Rehabilitation Act relied on by the applicant did not apply to him.
However, the Commission is not required to decide that question in the
present case as, even assuming that Article 6 para. 1 (Art. 6-1) of the
Convention is applicable, the complaint is inadmissible for other
reasons.
With regard to the judicial decisions of which the applicant
complains, and, in particular to that of the Constitutional Court, the
Commission points out that, in accordance with Article 19 (Art. 19) of
the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, the Commission is not competent to deal with an application
alleging that errors of law or fact have been committed by domestic
courts, except where it considers that such errors might have involved
a possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (cf., for example, No. 21283/93, Dec. 5.4.94, D.R. 77,
pp. 81, 88).
In the present case, the national courts examined the applicant's
case on the basis of Extra-Judicial Rehabilitation Act No. 87/1991.
They found that the property concerned had not been expropriated by the
State within the meaning of this Act, but by Section 2(5) of
Presidential Decree No. 108/1945. The first instance court held that
the confiscation of property under the Decree could not be mistaken for
expropriation or nationalisation, which in certain circumstances can
give rise to an entitlement to restitution under the Act. The Court
stated that the fact that the applicant had not received any
compensation could not be regarded as a violation of generally
recognised human rights and freedoms within the meaning of
Section 2(1)(c) of the Act. The Court added that if the legislator had
intended to remedy injustice in cases where compensation for
confiscation should have been paid, but was not, it would have done so
by a special law. This reasoning was confirmed and expanded by the
Constitutional Court in its detailed judgment. There is no indication
of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 1 of Protocol
No. 1 (P1-1) which reads 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 Commission notes that the expropriation took place in
March 1951 which was long before the Convention entered into force in
respect of the Czech Republic. The Commission is therefore not
competent ratione temporis to examine the expropriation as such.
It is plain from the text of Article 1 of Protocol No. 1 (P1-1)
that it aims at securing the peaceful enjoyment of existing possessions
and that it does not guarantee, in general, a right to acquire property
(cf., for example, No. 11628/85, Dec. 9.5.86, D.R. 47, p. 270).
In the present case, the proceedings before the national courts
did not concern an expropriation of property after the date of the
entry into force of the Convention and Protocol No. 1 with respect to
the Czech Republic, but it relates to the applicant's claims for
restitution under Extra-Judicial Rehabilitation Act No. 87/1991.
However, those claims were rejected as the Act did not apply in
the case. The Commission considers therefore that the present
complaint only concerns the right to acquire property, which is not
covered by Article 1 of Protocol No. 1 (P1-1). There is nothing to
suggest that the applicant's right to peaceful enjoyment of his
possessions has in any way been violated by the refusal of his claims
for restitution.
Accordingly, the applicant's complaint falls outside the scope
of Article 1 of Protocol No. 1 (P1-1) and this part of the application
is therefore incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy