AS TO THE ADMISSIBILITY OF
Application No. 30143/96
by Estate of Eduard IV Haas
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 4 October 1995 by
Estate of Eduard IV Haas against the Czech Republic and registered on
8 February 1996 under file No. 30143/96;
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 legal entity under Austrian law. The
application is lodged on its behalf by Mrs. Elisabeth Haas who was
appointed its administrator. Before the Commission the applicant is
represented by Mr. Alexander Wanke, lawyer of Czerwenka & Partners in
Vienna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Eduard III Haas, an Austrian national, owned the food company
"Potravinárská továrna Eduard Haas Liberec" ("the company") established
in 1921. He died in 1986. His successor, Eduard IV Haas, died in
1990.
In 1945 the company was put under national administration and,
according to Czech authorities, it was confiscated pursuant to
Presidential Decree No. 108/1945 on Confiscation of Enemies' Property
and on Funds of National Reconstruction.
According to Notice No. 2150 issued by the Minister of Food on
18 August 1948 the company was nationalised pursuant to Act No.
115/1948 on Nationalisation of Food Industry.
On 9 March 1949 the Liberec District Court (Okresní soud)
confirmed that the reference to national administration of the company
had been deleted from the commercial registry as a result of its
confiscation and incorporation in the "Pozivatina" national company in
Liberec.
In 1974 the former Czechoslovak Socialist Republic and Austria
concluded a treaty on settlement of certain financial and proprietary
issues. By virtue of it Eduard III Haas received, in 1976 and in 1980,
compensation of 240,000 and 400,000 Austrian schillings respectively.
This compensation did not cover the value of his property in Liberec.
On 19 December 1991 the applicant lodged an action against
"Cokoládovny" Ltd. (of which the "Pozivatina" company in Liberec is a
subordinate production unit) before the Liberec District Court. The
applicant claimed to have established ownership of the factory in
Liberec on the ground that it could not have been confiscated under
Presidential Decree No. 108/1945. The applicant alleged, inter alia,
that the aforesaid decree was unlawful and that it had not been
applicable to Eduard III Haas.
The applicant also complained that Act No. 87/1991 on
Extrajudicial Rehabilitation (Zákon o mimosoudních rehabilitacích)
violated the principle of equal treatment since it subjected
restitution of property to Czechoslovak citizenship and to permanent
residence in the then Czechoslovakia.
The Liberec District Court established that in accordance with
Notice No. 2150 issued by the Minister of Food on 18 August 1948 the
company had been nationalised under Act No. 115/1948 as from 1 January
1948. For this reason it dismissed, on 2 July 1992, the applicant's
claim for ownership and for an interim measure to be ordered.
Thecourt did not consider it necessary to have the constitutionality
of the Extrajudicial Rehabilitation Act reviewed by the Constitutional
Court (Ústavní soud) as requested by the applicant.
On 15 September 1992 the applicant challenged the District
Court's decision as being erroneous before the Ústí nad Labem Regional
Court (Krajsky soud). In particular, the applicant claimed that it had
not been clearly established whether the alleged deprivation of
ownership fell under Presidential Decree No. 108/1945 (which, in its
view, had not been applicable to Eduard III Haas and which, if it had
been applicable, would have made a further nationalisation in 1948
superfluous) or under Act No. 115/1948 (in which case the
nationalisation had been unlawful since, in its view, the aforesaid Act
was invalid as from 1 January 1992 for being incompatible with the
Charter of Fundamental Rights and Freedoms). Finally, the applicant
challenged the constitutionality of Presidential Decree No. 108/1945
and of the Extrajudicial Rehabilitation Act.
The Regional Court upheld the first instance decision on
25 February 1993.
It held that if the national administration of the company had
been introduced in connection with Presidential Decree No. 108/1945
(which could not be clearly established), Eduard III Haas would have
been deprived of his factory in Liberec ex lege as from the entry into
force of that decree (i.e. 25 October 1945). The Regional Court
declared itself bound by that decree since it is a part of the Czech
legal order. In such a case the applicant's claim for ownership would
be, in the Regional Court's view, ill-founded.
The Regional Court also examined the alternative that the company
had been nationalised pursuant to Act No. 115/1948. It established
that Notice No. 2150 of the Minister of Food of 18 August 1948 stated
that the factory of Eduard III Haas in Liberec had been nationalised.
This notice had only declaratory character since the transfer of
ownership had in such a case taken place ex lege pursuant to Section
1 para. 3 of Act No. 115/1948 on 1 January 1948. The court further
recalled that Act No. 115/1948 was also part of the Czech legal order.
In the Regional Court's view a possible claim for restitution of
the company under the Extrajudicial Rehabilitation Act would have to
be rejected as that Act was applicable only to natural persons. It
further held that neither Presidential Decree No. 108/1945 nor the
legislation providing for restitution of property which had been
confiscated in the past violated the Constitution or international
treaties to which the Czech Republic was a party.
The applicant lodged a constitutional complaint and alleged a
violation of its property rights in that the courts had not confirmed
its ownership of the company notwithstanding that they had failed to
establish with sufficient certainty under which legal title its
predecessor had been dispossessed. The applicant maintained that the
deprivation was carried out under Presidential Decree No. 108/1945.
The applicant further complained that the inability of legal
entities to have property restored and making restitution subject to
Czech citizenship and permanent residence in the Czech Republic
violated, inter alia, Article 14 of the European Convention on Human
Rights.
Finally, the applicant claimed that the provisions of the
relevant laws pursuant to which restitution of property was subject to
Czechoslovak citizenship and to permanent residence in the former Czech
and Slovak Federal Republic should be quashed as being
unconstitutional.
On 2 December 1993 the Constitutional Court found that the
applicant lacked standing to challenge the constitutionality of the
aforesaid legal provisions. It held that the general courts had
dismissed the applicant's claim in this regard on the ground that the
Extrajudicial Rehabilitation Act did not entitle legal entities to
claim restitution of property. However, before the Constitutional
Court the applicant challenged different legal provisions which had not
been the basis of the dismissal of its action by the general courts.
The constitutional complaint was dismissed on 26 April 1995 as
a whole. The Constitutional Court established from the available
documents that in accordance with Notice No. 40899/46 of 4 October 1946
and Notice No. 1051/47 of 4 September 1947 delivered by the National
Committee in Liberec the company had been subject to confiscation
pursuant to Presidential Decree No. 108/1945. Although the notices
were not available, this fact was confirmed by other documents
including a statement to this effect made by Eduard III Haas in a
property registration form dated 18 December 1947.
The Ministry of Food had later nationalised the company as
apparently it had not been informed of its confiscation. The
Constitutional Court therefore considered that the 1948 nationalisation
was invalid.
It was further established that the compensation which had been
paid to Eduard III Haas in 1976 and 1980 by virtue of the Czechoslovak-
Austrian treaty of 1974 was to cover part of the damage which he had
suffered by the confiscation of his property pursuant to Presidential
Decree No. 108/1945.
The Constitutional Court further recalled that under the relevant
provisions of the Extrajudicial Rehabilitation Act property confiscated
pursuant to Presidential Decree No. 108/1945 could be restored only if
the decisions by which the property fell under the decree had been
taken after 25 February 1948. However, in the case of Eduard III Haas
such decisions were taken in 1946 and 1947.
The Constitutional Court held that even if the company had been
effectively nationalised in 1948, the applicant would have lacked
standing, as a legal entity, to claim its restitution.
Finally, the Constitutional Court recalled its case-law according
to which the constitutional protection of property rights applied only
to existing possessions. It found no discrimination in the applicant's
case.
COMPLAINTS
The applicant alleges a violation of Article 1 of Protocol No. 1
in that the Czech courts refused to confirm its ownership of the
factory in Liberec notwithstanding that they could not establish with
sufficient certainty the legal title under which the ownership had been
withdrawn from Eduard III Haas. The applicant alleges that the courts
did not take into consideration that Presidential Decree No. 108/1945
violated the Czech Constitution and also international treaties by
which the Czech Republic is bound, that it had not been applicable to
Eduard III Haas, and that, in any event, the latter had never been
officially notified of the confiscation. For these reasons the
applicant considers that its predecessor was never deprived of the
ownership of the property at issue.
The applicant also alleges a violation of Article 14 of the
Convention in that the relevant Czech laws, and in particular the
Extrajudicial Rehabilitation Act, subjected restitution of property to
discriminatory criteria, such as Czech citizenship, permanent residence
in the Czech Republic or to being a natural person.
THE LAW
1. The applicant alleges a violation of its rights guaranteed by
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."
a) The applicant claims that its predecessor did not cease to be
owner of his factory in Liberec as the circumstances under which he had
been deprived of his possessions were unlawful.
It is not contested by the applicant that Eduard III Haas lost
all ability to dispose of his factory long before the entry into force
of the Convention with respect to the Czech Republic. The Commission
considers that this dispossession is to be regarded as an instantaneous
act which did not produce a continuing situation of "deprivation of
right" (cf. No. 7742/76, Dec. 4.7.87, D.R. 14 p. 146; No. 24506/94,
Gasparetz v. the Slovak Republic, Dec. 28.6.95, unpublished).
The Commission recalls that in the proceedings before the Czech
courts which ended after the entry into force of the Convention with
respect to the Czech Republic the applicant, by means of a civil action
against a Czech company, sought to have its ownership of the property
at issue established.
The Constitutional Court held, for the reasons set out in its
judgment of 26 April 1995, that Eduard III Haas had been deprived of
the ownership of the factory in Liberec pursuant to Decree No. 108/1945
which is part of the Czech legal order. Thus, the national courts did
not find the applicant's property rights established under the Czech
legal order. However, a person complaining of an interference with his
or her right to property under Article 1 of Protocol No. 1 (P1-1) must
show that such a right existed (cf. No. 12164/86, Dec. 12.10.88, D.R.
58 p. 63).
The Commission therefore considers that in view of the domestic
courts' finding that the applicant did not own the company in Liberec
there has been no interference with the applicant's rights guaranteed
by Article 1 of Protocol No. 1 (P1-1) as interpreted by the Convention
organs (cf. Eur. Court H.R., Lithgow and Others judgment of 8 July
1986, Series A no. 102, p. 46, para. 106, with further references, and,
mutatis mutandis, No. 11949/86, Dec. 1.12.86, D.R. 51, pp. 195, 211).
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.
b) To the extent that the applicant complains, in substance, of its
inability to have its predecessor's property restored, the Commission
recalls that Article 1 of Protocol No. 1 (P1-1) applies only to
existing possessions and it does not guarantee any right to acquire
property (No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271, with further
references).
Before the Czech courts the applicant unsuccessfully challenged
the constitutionality of legal provisions disqualifying it from
applying for restitution of property under the Extrajudicial
Rehabilitation Act or under other laws related to this issue, and
alleged that they were not in conformity with international treaties
by which the Czech Republic is bound. The Commission considers that
this claim cannot be considered as a "possession" within the meaning
of Article 1 of Protocol No. 1 (P1-1) (cf., mutatis mutandis, Eur.
Court H.R., Pressos Compania Naviera S.A. and Others judgment of 20
November 1995, Series A no. 332, para. 31).
Accordingly, the applicant's complaints in this respect fall
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).
2. The applicant further alleges a violation of Article 14 (Art. 14)
of the Convention in that the relevant Czech laws, and in particular
the Extrajudicial Rehabilitation Act, subjected restitution of property
to discriminatory criteria.
The Commission recalls that it has found the applicant's
complaints under Article 1 of Protocol No. 1 (P1-1) concerning the
impossibility to have the claimed property restored inadmissible as
being incompatible ratione materiae with the Convention.
However, Article 14 (Art. 14) of the Convention only prohibits
discrimination with respect to the enjoyment of the rights and freedoms
set forth in the Convention (cf. No. 11278/84, Dec. 1.7.85, D.R. 43
pp. 216, 220).
It follows that this part of the application is also 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy