AS TO THE ADMISSIBILITY OF
Application No. 28390/95
by Alzbeta PEZOLDOVÁ
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 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 25 August 1995 by
Alzbeta PEZOLDOVÁ against the Czech Republic and registered on
30 August 1995 under file No. 28390/95;
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 1947. She lives in
Prague. Before the Commission, she is represented by Mr F. Nevrela,
a lawyer practising in Prague 1.
The facts, as submitted by the applicant, may be summarised as
follows.
In 1965 the applicant inherited from her father, Jindrich
Schwarzenberg, a cousin and allegedly adoptive son of Adolf
Schwarzenberg, various properties belonging to the Hluboká branch of
the Schwarzenberg family. The remainder of Jindrich Schwarzenberg's
estate was left to his adoptive son, Karel Schwarzenberg.
Pursuant to Law No. 143/1947, also known as the "Lex
Schwarzenberg", which entered into force on 13 August 1947, the
properties of the Schwarzenberg family (the Hluboká branch) were
expropriated without any compensation.
The administrative authorities and in certain cases, where
appropriate, the courts (including the Constitutional Court) have
jurisdiction to deal with claims for the restitution of property by
virtue of Law No. 229/1991 on land.
In 1993 the applicant, pursuant to Law No. 229/1991, submitted
claims to the Land Office (Pozemkovy úrad) at Ceské Budejovice, Cesky
Krumlov and Klatovy for restitution of the real estate.
By decisions of 14 February, 20 May and 19 July 1994 the
applicant's claims were rejected on the ground that the last owner of
the real estate was Adolf Schwarzenberg. The applicant had not
established any family relationship with Adolf Schwarzenberg which
would qualify her as a person entitled under Article 4 of Law
No. 229/1991. She was not even a testamentary heiress of the original
owner. The land authorities noted that the property had not been
expropriated in one of the ways referred to in Law No. 229/1991, but
by Law No. 143/1947. As that law entered into force on 13 August 1947,
the expropriation could not be considered under Law No. 229/1991, which
relates to expropriations subsequent to 28 February 1948.
The applicant lodged appeals against these decisions with the
Prague Municipal Court (Mestsky soud v Praze), alleging inter alia
violation of her rights guaranteed by the Czech Constitution and the
Charter of Fundamental Rights and Freedoms. She maintained that the
passing of the property had been effected only when the State's right
was registered in the Land Register (Pozemková kniha). This entry was
registered on 15 July 1948. The applicant further claimed that her
father, Jindrich Schwarzenberg, was an adoptive son of the original
owner Adolf Schwarzenberg. She asked the court to find documentation
about the adoption in archives.
The Prague Municipal Court rejected the applicant's appeals by
a judgment of 27 June 1994 and two judgments of 28 February 1995. The
court considered in particular that:
[Translation]
"There is no doubt that the whole property at issue fell
under ... [L]aw [No. 143/1947], which means that the real
property which is the subject of the present proceedings
... passed into the possession of the State by law, i.e.
through the force of law (on 13 August 1947) ... before the
decisive date, i.e. before 25 February 1948. The court does
not share the applicant's objection that the passing of the
ownership in this case occurred only when the entry in the
Land Register was made ... Registration in this Register
was necessary to effect the transfer of the ownership of
real estate. However, [the present case involves] not a
transfer of ownership but a passing of ownership by
operation of law ...
[As t]he passing of the property was effected on 13 August
1947 on the basis of Law No. 143/1947, the real estate
cannot be returned pursuant to either of the two
restitution laws. ... Law No. 229/1991 is excluded because
the passing of property did not occur during the decisive
period, but before 25 February 1948; Law No. 243/1992 is
excluded, although it relates to expropriation of property
before 25 February 1948, since this law only refers to
property of which the owner was deprived pursuant to
Presidential Decrees Nos. 12/1945 or 108/1945. It cannot
be extended to property that was expropriated pursuant to
Law No. 143/1947."
Finally, the court considered it unnecessary to determine further
questions concerning the adoption of the applicant's father by Adolf
Schwarzenberg and the applicant's domicile.
On 20 August 1994 the applicant lodged a constitutional appeal
with the Constitutional Court (Ústavní soud) against the Prague
Municipal Court's judgment of 27 June 1994.
The applicant complained in particular that the Prague Municipal
Court had violated her right to court protection. She also suggested
that Law No. 143/1947 should be quashed as unconstitutional. The
applicant submitted that in this case, Law No. 143/1947 created legal
title only to the conveyance of property, and the proceedings were two-
phase proceedings which ended with the registration. Furthermore, she
noted that Article 444 of the Civil Code provided expressly that title
to real estate only ends upon removal from the Register, and maintained
that because the application of the Country National Committee for
removal of the original owner from the Land Register was filed on 15
July 1948, the ownership could not be terminated prior to that date.
Finally, the applicant alleged that the Prague Municipal Court had not
dealt sufficiently in its judgment with the issue of the applicant's
status, and therefore had failed to consider the decision of the Land
Office that the applicant could not be deemed to be a beneficiary
within the meaning of Law No. 229/1991.
On 9 March 1995 the Constitutional Court dismissed the
applicant's appeal as unsubstantiated. The Court considered, in
particular, that:
[Translation]
"... the Constitutional Court is no part of the system of
general courts ..., it is not a further level of
jurisdiction and it thus has generally no power to
reexamine the activities of those courts; it has such a
right only in those cases where the constitutional
principles have been breached. The applicant expressly
alleges a violation of her right to court protection ...
which is, in substance, a right to a fair trial, including
the issue of a court decision. However, in the contents of
the file ... nothing was identified to suggest that
principles of a fair trial were violated ... With regard
to the result of the dispute, it should then be added that
no interference with the rights guaranteed by the
Constitution can be derived from the fact that the
applicant's claim was not satisfied and that the applicant
does not share the court's conclusions ...
... Law No. 143/1947 brought about a change in the identity
of the owner of the property to which the law applied,
independently of the will of the existing owner. That is
how the Prague Municipal Court came to the conclusion that
there was a conveyance of the ownership right, not a
transfer thereof, which would have necessitated an
identical manifestation of will of the person transferring
the property and the person to whom it was transferred. ...
The conclusion of the Prague Municipal Court that title to
real estate could, within the period of validity of the
General Civil Code, be acquired even without a registered
record, can therefore be supported. The record of the
entry of the title to the real estate was, in the case of
Law No. 143/1947, of a declaratory character only, ... The
conveyance of the title with regard to the property and, at
the same time, the loss thereof by the initial owner ...
thus occurred, in the opinion of the Constitutional Court,
ex lege upon the entry into force of Law No. 143/1947 on 13
August 1947. ... the application of Law No. 229/1991 ...
in the present case does not come into consideration. ...
[E]ven if it was proved that the applicant's father was
adopted by Dr. Adolf Schwarzenberg, the final result of the
dispute would be the same. The fact that the Court did not
address in more detail the issue of adoption does not
amount to a violation of the right to court protection.
The opinion of the Prague Municipal Court that Law
No. 243/1992 was excluded was also correct. Although this
law applies to the property the expropriation of which
occurred prior to 25 February 1948, the effect of the law
cannot be extended beyond property expropriated under
Presidential Decrees Nos. 12/1945, 108/1945. The decision
as to which injustices should be put right, the conditions
for doing so, and the determination of the persons eligible
to apply, are matters for the legislative body.
[T]he applicant's constitutional appeal is clearly
unsubstantiated ... [and] it [is] not possible to address
the applicant's proposal to quash Law No. 143/1947."
COMPLAINTS
1. The applicant claims that, by reason of the continuing
deprivation of her property, which was unlawfully taken from her family
pursuant to Law No. 143/1947, her rights under Article 1 of the
Protocol No. 1 have been violated. She submits that she did not
institute a constitutional appeal against the two judgments of
28 February 1995 as this would have been futile in the light of the
Constitutional Court's decision in relation to the first case.
2. She also claims that her rights of access to an independent and
impartial tribunal guaranteed by Article 6 para. 1 of the Convention
have been violated by the Constitutional Court in that the Court
refused to consider her complaints about the unconstitutionality of Law
No. 143/1947 and about her title to restitution of property pursuant
to Law No. 229/1991 and rejected her claim that the taking of the
property occurred in the period provided for by Law No. 229/1991.
3. The applicant claims that she has been discriminated against in
the enjoyment of her rights under the Convention contrary to Article
14 of the Convention read in conjunction with Article 1 of Protocol
No. 1 and with Article 6 para. 1 of the Convention. She submits that
only her family was discriminated against as Law No. 143/1947
expropriated without any compensation her family's real estate.
THE LAW
1. The applicant claims that, by reason of the continuing
deprivation of her property, which was unlawfully taken from her family
pursuant to Law No. 143/1947, her rights under Article 1 of the
Protocol No. 1 (P1-1) have been violated.
Article 1 of Protocol No. 1 (P1-1) 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 1947
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. No. 11628/85, Dec. 9.5.86, D.R. 47 p. 270).
In the present case, the Commission observes that the proceedings
before the national judge did not concern an expropriation of the
applicant's property which took place 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 her claims for restitution.
It is true that the applicant, pursuant to Law No. 229/1991 on
land and Law No. 243/1992 on questions associated with Law
No. 229/1991, submitted her claims for restitution to the competent
authorities and then to the civil jurisdiction and to the
Constitutional Court. However, the applicant's claims were rejected
because neither of those two laws applied to her. Therefore, the
Commission considers 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 her possessions has in any way been violated
by the refused 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).
2. The applicant also complains that her rights of access to an
independent and impartial tribunal have been violated by the
Constitutional Court in that the Court refused to consider her
complaints about the unconstitutionality of Law No. 143/1947 and about
her title to restitution of property pursuant to Law No. 229/1991 and
that it rejected her claim that the taking of the property in question
occurred in the period provided for by Law No. 229/1991. She invokes
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 and public hearing ... by an
independent and impartial 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 H.R.,
Lithgow and others 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 which the applicant brought, as the courts all found
that neither of the laws relied on by the applicant applied to her.
However, the Commission is not required to decide that question in the
present case as, even if 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, 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, it 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. No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88).
In the present case, the national judge examined the applicant's
case on the basis of Law No. 229/1991 on land and Law No. 243/1992.
He found that the property concerned was not expropriated to the State
within the meaning of Law No. 229/1991, but ex lege by Law No. 143/1947
on 13 August 1947 which was before the period referred to in Law No.
229/1991. The result would not have been different even if the
applicant had been able to prove that her father had been adopted by
the original owner. In these circumstances, the national judge
considered it unnecessary to examine the applicant's claim about the
alleged unconstitutionality of Law No. 143/1947.
As regards Law No. 243/1992 which constitutes the lex specialis
in comparison with Law No. 229/1991 and which applies to restitution
of property expropriated pursuant to Presidential Decrees Nos. 12/1945
and 108/1945, the domestic court found it not to be applicable on the
ground that it refers only to property of which the owner was deprived
according to the said Decrees and thus not to property that was
confiscated under Law No. 143/1947.
Thus whilst the Constitutional Court did not consider the
entirety of the proceedings, the domestic judge gave full reasons for
his rejection of the applicant's claim, and the Constitutional Court
thereafter considered the constitutional aspects of the case.
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.
3. Finally, the applicant claims that she has been discriminated
against in the enjoyment of her rights under the Convention contrary
to Article 14 of the Convention read in conjunction with Article 1 of
Protocol No. 1 (Art. 14+P1-1) and with Article 6 para. 1
(Art. 14+6-1) of the Convention.
However, the Commission recalls that 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). In connection with
Article 1 of Protocol No. 1 read in conjunction with Article 14
(P1-1+14)of the Convention, the Commission recalls that it has
declared inadmissible the applicant's claim under Article 1 of Protocol
No. 1 (P1-1) as being incompatible ratione materiae with the
Convention.
As regards the applicant's complaint under Article 6 para. 1
(Art. 6-1) in connection with Article 14 of the Convention, the
Commission does not find any indication that the applicant was
discriminated against in the proceedings before the national judges who
considered the case on the basis of the applicable domestic law. The
fact that the applicant's claim was unsuccessful does not in itself
constitute discrimination. No allegations have been made of
discrimination as regards the procedure as such.
It follows that this part of the application must be rejected as
manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the
Convention.
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