AS TO THE ADMISSIBILITY OF
Application No. 23318/94
by Antalné GEBLUSEK
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 11 May 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, 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 12 December 1993
by Antalné Geblusek against Hungary and registered on 25 January 1994
under file No. 23318/94;
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
A. The particular facts of the case
The applicant is a Hungarian citizen born in 1913. The facts of
the case, as submitted by the applicant and apparent from the documents
submitted, may be summarised as follows.
In 1952 real property (land in Budapest and two houses thereon)
owned by the applicant was expropriated by the State without
compensation. The houses have been divided into separate flats and from
this time onwards the applicant has rented one of them as a tenant.
On 6 January 1993 the applicant instituted judicial proceedings
and claimed that the ownership of the real property should be returned
to her.
On 21 January 1993 the Pest Central District Court (Pesti
Központi Kerületi Bíróság) refused the petition without summonsing the
applicant (keresetlevél idézés kibocsátása nélküli elutasítása),
consequently without holding a hearing. The applicant lodged an appeal.
On 2 June 1993 the Metropolitan Court (Fovárosi Bíróság) refused
the appeal, also without holding a hearing. The decision was served on
the applicant on 24 August 1993.
B. The relevant domestic law and practice
Under Hungarian law the expropriation was executed in 1952 in
compliance with Law-Decree No. 4 of 1952. This Law-Decree was declared
to be unconstitutional and was quashed by the Constitutional Court
(Alkotmánybíróság) in 1991 by its decision No. 27/1991 (V. 20) AB. This
decision has, however, no retroactive effect, i.e. it does not affect
expropriations made prior to the decision in compliance with the above
Law-Decree.
In 1991 and 1992 the Hungarian Parliament passed two laws, namely
Law XXV of 1991 and Law XXIV of 1992. These Acts provide for partial
compensation in respect of, inter alia, certain unlawful acts by the
former regime, but (with certain exceptions not relevant to the present
case) excluded restitution in respect of real property.
Section 115 of the Hungarian Civil Code declares that claims
based on the ownership of specific property are not subject to
prescription. This regulation, however, concerns only continuing
ownership and it is irrelevant in respect of ownership which no longer
exists. Other claims are subject to prescription. The maximum period
in this respect is 5 years. By Act 1027/1963 the then Government
permitted former owners of real property to claim release of
expropriation with the possibility of restitution. The time-limit for
lodging such claims was 17 December 1963. Hungarian law at the time of
the applicant's action provided, and still provides, no judicial remedy
as to claims for restitution of real properties expropriated in
compliance with Law-Decree No. 4 of 1952.
COMPLAINTS
The applicant complains that she has not been provided with a
fair and public hearing contrary to Article 6 para. 1 of the Convention
and that she had no effective remedy contrary to Article 13 of the
Convention. Under Article 1 of Protocol No. 1 she complains that her
right to the peaceful enjoyment of her property has been violated.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that she has not been provided with a fair and public
hearing.
Article 6 para. 1 (Art. 6-1) of the Convention, so far as
relevant, reads as follows.
"In the determination of his civil rights and obligations...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The question arises whether the action brought by the applicant
entailed the determination of civil rights within the meaning of this
provision.
The Commission notes in this respect that the applicant
instituted judicial proceedings in order to claim restitution in
respect of real property, the ownership of which was lost by her some
40 years before. Under Hungarian law the applicant had no locus standi
to claim restitution in respect of this real property. It follows that
before the Hungarian courts the applicant was claiming a right which
she did not have.
The Commission recalls that the Convention organs cannot create
by way of interpretation of Article 6 para. 1 (Art. 6-1) of the
Convention a substantive right which has no legal basis whatsoever in
the State concerned (e.g. No. 12763/87, Dec. 14. 7. 88, D.R. 57, p.
216-233). The Commission accordingly finds that the applicant`s
complaint does not involve a civil right or obligation within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Under Article 1 of Protocol No. 1 (P1-1) the applicant complains
that her right to the peaceful enjoyment of her property has been
violated.
The relevant provisions of Article 1 of Protocol No. 1 (P1-1)
read 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 general principles of
international law."
The Commission notes that according to the generally recognised
principles of international law, for all Contracting Parties, the
Convention governs only facts which arose after it came into force in
respect of the Party concerned.
The Commission recalls that the applicant`s real property was
expropriated in 1952 i.e. the applicant ceased to be the owner of it
some forty years before Hungary ratified the Convention on
5 November 1992. It follows that, insofar as the application concerns
her deprivation of possessions, the Commission is not competent,
ratione temporis, to examine them (cf. 21344/93 Dec. 30.6.93 to be
published in D.R. or, mutatis mutandis, No. 7775/77, Dec. 5. 10. 78,
D.R. 15, p. 143-158).
This part of the application is therefore incompatible ratione
temporis with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains finally under Article 13 (Art. 13) of the
Convention about the lack of an effective remedy.
Article 13 (Art. 13) of the Convention reads as follows.
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission points out, however, that the case-law of the
Convention organs establishes that Article 13 (Art. 13) requires a
remedy in domestic law only in respect of grievances which are arguable
in terms of the Convention (e.g. Eur. Court H.R., Boyle and Rice
judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In the
light of the conclusion that the applicant`s complaints under Article
6 para. 1 (Art. 6-1) and Article 1 of Protocol No. 1 (P1-1) are
incompatible with the provisions of the Convention, the Commission
finds that the applicant does not have an arguable claim of a breach
of these provisions for the purposes of a remedy under Article 13
(Art. 13) of the Convention.
This part of the application must therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
M. F. BUQUICCHIO A. WEITZEL
Full & Egal Universal Law Academy