CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1997

.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. 31091/96                       by K. R.                       against the Czech Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 15 January 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              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 12 January 1996 by K. R. against the Czech Republic and registered on 22 April 1996 under file No. 31091/96;        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 1926.   He is a pensioner and lives in Ostrava (Czech Republic).        The facts, as submitted by the applicant, may be summarised as follows.        A house belonging to the applicant's aunt was confiscated under Presidential Decree No. 108/45 on the Confiscation of Enemies' Property and on the National Restoration Funds: the Decree entered into force on 30 October 1945 and the confiscation was confirmed by the former Frystát National Committee (Okresní národní vybor) on 4 February 1949 and by the former Ostrava Regional Committee (Krajsky národní vybor) on 24 December 1949. The State authorities considered that the applicant's aunt was a German national.        The applicant's aunt died, and the applicant inherited her property.        On 2 June 1991 the applicant submitted compensation claims to the Ministry of Finance under the Extrajudicial Rehabilitation Act.   The claims were rejected on 19 August 1991 on the grounds that the property had been expropriated by Presidential Decree No. 108/1945 on 30 October 1945, that was before the date of 25 February 1948 specified in the Extrajudicial Rehabilitation Act.        By judgment of 1 July 1993 the Prague 1 District Court (Obvodní soud) accepted the applicant's compensation claims.        On 21 March 1994, the Prague Court of Appeal (Mestsky soud), on appeal made by the Ministry of Finance, quashed this judgment stating that the property at issue clearly fell under Presidential Decree No. 108/1945, which meant that it 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.   The Court noted that the confirmations by the State authorities have had only declaratory character.   The applicant could not participate for reasons of health in the hearing and sent his written comments to the Court of Appeal.        On 16 November 1994 the Court of Cassation (Vrchní soud), on the applicant's petition for cassation (dovolání), confirmed this decision. The applicant states that he was not invited to participate in the hearing.        On 6 February 1995 the applicant lodged a constitutional appeal (ústavní stíznost) with the Constitutional Court (Ústavní soud).   He alleged a violation of Article 11 of the Charter of Fundamental Rights and Freedoms (property right) and challenged the legal opinion of the national courts, in particular, the finding that the confiscation was effected at the date of the entry into force of Presidential Decree No. 108/1945.   The applicant also maintained that the confiscation was illegal as his aunt had never, in fact, lost Czechoslovak nationality and claimed that the courts did not examine the legality of the decision of the State authorities by which the confiscation was confirmed.   He claimed that her nationality was certified by the former Frystát District National Committee on 15 September 1947, a decision of which he presented a copy, and by the Karviná District Office on 13 April 1993.        On 30 November 1995 the Constitutional Court, after a public hearing, dismissed the applicant's appeal as unsubstantiated.   The Court considered, in particular:   [Translation]        "... from the documents presented before the Court it      appears that during the period of the German occupation,      ... [the applicant's aunt] obtained German citizenship on      26 October 1939 ...; on that day at the latest, [she]      therefore lost her Czechoslovak citizenship acquired under      Law No. 236/1920.        ... the applicant has not proved that [his aunt] had      obtained a certificate of national loyalty issued by the      Ministry of the Interior, which was a condition for      obtaining a certificate on Czechoslovak nationality. ... In      these circumstances, a copy of the certificate ... of      Czechoslovak nationality issued [to the applicant's aunt]      by the former Frystát District National Committee on      15 September 1947,   cannot be taken into consideration; in      general, such a certificate, which is not an administrative      act establishing state nationality, can be a public      certificate which proves facts contained therein, but only      if it satisfies conditions prescribed by law, which was not      the case."   COMPLAINTS   1.    The applicant claims that his case was not heard fairly by an independent and impartial tribunal.   He maintains that the courts did not consider all the documents presented by him and did not correctly determine the lawfulness of the application of Presidential Decree No. 108/1945.   He invokes Article 6 para. 1 of the Convention.   The applicant also claims, in substance, that he was not invited to participate in the hearings before the Court of Cassation.   2.    He also claims that, by reason of the continuing deprivation of his property which was unlawfully taken from his family pursuant to Presidential Decree No. 108/1945, his rights under Article 1 of Protocol No. 1 have been violated.   3.    The applicant claims that he has been discriminated against in the enjoyment of his 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.   He contends that his aunt's nationality was considered unlawfully and discriminatorily and complains that her Czechoslovak nationality was denied by the courts.   4.    Finally, the applicant invokes Article 17 of the Convention without any specification.   THE LAW   1.    The applicant claims, under Article 6 para. 1 (Art. 6-1) of the Convention, that his case was not heard fairly by an independent and impartial tribunal.   He maintains that the courts did not consider all the documents presented by him and did not correctly determine the lawfulness of the application of Presidential Decree No. 108/1945.   The applicant also claims, in substance, that he was not invited to participate in the hearings before the Court of Appeal and the Court of Cassation.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar 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 ..."   (a)   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, the 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 which the applicant brought, as the courts finally found that the Extrajudicial 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 if Article 6 para. 1 (Art. 6-1) of the Convention was applicable, the complaint is inadmissible for the following reasons.        With regard to the judicial decisions of which the applicant complaints, 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 (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88). In the light of this case-law, the Commission cannot decide whether the applicant's restitution claim was well-founded.        In the present case, the national courts examined the applicant's case on the basis of the Extrajudicial Rehabilitation Act No. 87/1991. They found that the property in question had not been expropriated by the State within the meaning of the Extrajudicial Rehabilitation Act, but ex lege by Presidential Decree No. 108/1945 of 30 October 1945, which was before the period referred to in the Extrajudicial Rehabilitation Act (from 25 February 1948 to 1 January 1990).        Furthermore, the Constitutional Court, after examination of all the documents presented by the applicant and the Ministry of Finance, considered that Presidential Decree No. 108/1945 was correctly applied to the applicant's aunt as she had been a German national.   The Court considered that on 26 October 1939 the applicant's aunt obtained German citizenship and lost her Czechoslovak citizenship obtained in accordance with Law No. 236/1920; the applicant had not established that his aunt had obtained the relevant papers.        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)   As to the applicant's complaint that he was not invited to participate in the hearings before the Court of Cassation, the Commission notes that the applicant failed to raise such complaint, either in form or in substance, in his constitutional appeal.        It follows that the applicant has not exhausted domestic remedies and that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant claims that, by reason of the continuing deprivation of his property, which was unlawfully taken from his family pursuant to the Presidential Decree No. 108/1945, his rights under Article 1 of 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 1945 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 proceedings before the national courts 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 his compensation claims under the Extrajudicial Rehabilitation Act.        However, those claims were rejected as the Extrajudicial Rehabilitation Act did not apply to them.   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 the 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).   3.    The applicant claims that he has been discriminated against in the enjoyment of his 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 (Art. 14+P1-1, 14+6-1) of the Convention.   He contends that his aunt's nationality was considered unlawfully and discriminatorily and complains that her Czechoslovak nationality was denied by the courts.        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 in connection with Article 14 (Art. 6-1+14) of the Convention, the Commission does not find any indication that the applicant was discriminated against in the proceedings before the national courts which considered the case on the basis of the relevant domestic law. The fact that the applicant's claims were 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.   4.    Finally, the Commission considers that no relevant issue arises under Article 17 (Art. 17) of the Convention invoked by the applicant.        It follows that this part of the application is also 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.           M.-T. SCHOEPFER                               G.H. THUNE          Secretary                                   President     to the Second Chamber                      of the Second Chamber