CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)