CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 33667/96                       by Richard BOUSKA                       against the Czech Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 3 December 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                  A. ARABADJIEV              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 3 September 1996 by Richard BOUSKA against the Czech Republic and registered on 5 November 1996 under file No. 33667/96;        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 1938.   He lives in Prague.   Before the Commission, he is represented by Mr M. Koubek.        The facts, as submitted by the applicant, may be summarised as follows.        In 1942 the applicant inherited from his father one twentieth of a house in Prague.        Pursuant to Section 2 (5) of Presidential Decree No. 108/1945 on the Confiscation of Enemies' Property and on the National Restoration Funds ("the Decree"), which entered into force on 30 October 1945, property belonging to a part owner could be confiscated on payment of compensation if the majority joint owners of the property were German nationals whose shares were subject to confiscation under the Decree.        By a decision of 16 March 1951 the former Prague 2 District National Committee (obvodní národní vybor) confiscated the applicant's property pursuant to Section 2(5) of the Decree. No compensation was paid to the applicant.        In September 1991, pursuant to Extra-Judicial Rehabilitation Act No. 87/1991 ("the Act"), the applicant wrote to the company in possession of his property, Pragokámen, s.p., seeking an agreement as to the restitution of his share of property. The company made it clear that it did not intend to comply with this request. The applicant applied to the Prague 1 District Court (obvodní soud).        On 18 June 1993, the Prague 1 District Court found against the applicant. The Court considered that the property at issue had passed into the possession of the State by the confiscation decision of the former Prague 2 District National Committee dated 16 March 1951, i.e. after 25 February 1948, the decisive date for restitutions under the Act. However, the Court held that the confiscation under the Decree could not be mistaken for expropriation or nationalisation, which under certain circumstances constituted the legal entitlement to restitution pursuant to the Act. The Court stated that the fact that no indemnity had been paid to the applicant was not such a hardship that it could be classified as a procedure violating generally recognised human rights and freedoms within the meaning of Section 2(1)(c) of the Act. It added that if the legislator had intended to remedy injustice in cases such as the applicant's, where compensation for confiscation should have been paid but was not, it would have done so by a special law.        On 8 October 1993 the Prague Municipal Court (mestsky soud), on appeal made by the applicant, confirmed this judgment.   However, it found that the applicant's property 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 specified in the Act.   The Court noted that the confiscation decision of 16 March 1951 had only declaratory character. Accordingly, the Act did not apply to the applicant's case at all.   The Court considered it unnecessary to examine the remainder of the applicant's appeal.        On 28 January and 1 December 1994 the applicant lodged a constitutional appeal together with a request for abolition of Section 2(5) of the Decree which he considered to be contrary to Article 17 para. 2 of the Universal Declaration of Human Rights.   The applicant claimed that the finding of the Prague Municipal Court was incompatible with domestic courts' case-law.   He further claimed that the fact that the former Prague 2 District National Committee had never paid him any compensation, constituted a breach of generally recognised human rights and freedoms within the meaning of Section 2(1)(c) of the Act.        On 7 July 1994 the Constitutional Court (Ústavní soud) dismissed the applicant's request for Section 2(5) of the Decree to be abolished, stating that the same matter had already been brought before the Constitutional Court by Mr Rudolf Dreithaler requesting the abolition of Presidential Decrees Nos. 108/1945, 12/1945 and 33/1945.        By a judgment of 8 March 1995 the Constitutional Court dismissed Mr Rudolf Dreithaler's request and referred the applicant to its reasoning in that case.        On 26 March 1996 the Constitutional Court dismissed the remainder of the applicant's constitutional appeal. The Court held in particular:        "[T]he transfer of the applicant's property to the State      was effected by confiscation pursuant to Presidential      Decree No. 108/1945 ("the Decree").   According to the      established case-law ... such property can be restored only      under conditions provided for by Sections 6(2) and 2(1)(c)      of Extra-Judicial Rehabilitation Act No. 87/1991 ("the      Act") where administrative decisions were taken ... after      25 February 1948 ... This condition is fulfilled in the      present case as the former Prague 2 District National      Committee issued the confiscation decision on      16 March 1951. ...        The Constitutional Court has considered the applicant's      main objection that, contrary to Section 2(5) of the      Decree, no compensation had been paid to him. ... The      Constitutional Court finds that, according to the Property      Office (majetkovy úrad) no financial compensation was paid      either to the applicant or [his mother]. ...        ... [T]he Constitutional Court has considered whether, in      the light of the protection of human rights and freedoms of      the applicant ..., the non-payment of the compensation is      relevant in the present case.   This involves answering the      question whether ... the property should have been restored      under Section 6(2) [and] Section 2(1)(c) of the Act.      Section 2(1)(c) binds restitution of property to the      unlawful [confiscation] procedure which was the consequence      of political persecution or of a procedure violating      generally recognised human rights and freedoms. ...      However, it is not the present case.   Section 2(5) of the      Decree ... has been applied to any joint owner, who owned      a minority share of the property to be confiscated      irrespective of his or her affiliation to a social or      property group or class.   ... This situation is not      comparable with other cases of abusive confiscation under      the Decree ...        It remains to be considered whether the non-payment of      compensation for the confiscated property can be equated to      a procedure violating generally recognised human rights and      freedoms within the meaning of Section 2(3) of the Act.      According to this Section such behaviour is considered to      be a procedure ... which is incompatible with the      principles listed in Section 1(1) of the Act.   [According      to] this provision, ... the Act is aimed at mitigating the      consequences of some property and other injustices caused      by civic, employment and judicial acts, performed between      25 February 1948 and 1 January 1990 which are incompatible      with the principles of a democratic society, respecting the      rights of citizens as enshrined in the Charter of the      United Nations Organisation, the Universal Declaration of      Human Rights ... Thus, the Act does not intend to remedy      the consequences of all injustices, but only to mitigate      some of them. It is, therefore, not possible to redress      other injustices than those included in the Act and in such      way as stated therein; dispossessions of property effected      for other reasons than specified in the Act have remained      generally valid.        Cases of restitution of property which have been      expropriated without compensation are regulated as follows:      Section 6(1)(j) of the Act: cases of confiscation ...;      Section 2(2) second line: cases of nationalisation ...      where entitled persons can claim under ... Act No. 92/1991.      Accordingly, if the legislator had intended to indemnify      cases of expropriation by confiscation where compensation      should have been paid but was not, it would have provided      for it expressly in Section 6(1) of the Act, or it would      have enlarged the possibilities of mitigation of the      consequences of ... injustices also to [those] cases ...      However, the legislator did not do so.   Thus, the District      Court rightly decided that the applicant's request for      restitution of [his] property was unsubstantiated. ...        Finally, the Constitutional Court notes that the Decree,      including Section 2(5), ... remains valid.   ... The      application of Section 2(5) of the Decree itself, if it was      not [abusive] ..., cannot be considered as in breach of      Section 2(1)(c) of the Act ...        [The applicant also alleged a violation of his right to      court protection under Article 36 of the Charter of      Fundamental Rights and Freedoms ("the Charter")]. According      to this provision, in the determination of his rights,      everyone is entitled to a fair hearing by an independent      and impartial tribunal ... This right, however, cannot be      interpreted as the right to success in court.   In the      present case court protection was not denied as the courts      dealt with [the applicant's] action ...        The applicant further alleged a violation of Article 11      para. 1 of the Charter which guarantees the property rights      ... In this regard the Constitutional Court recalls its      established case-law according to which this provision      protects existing property rights and not only an alleged      claim for [them] ..."   COMPLAINTS        The applicant claims, under Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1, that his action for restitution was rejected because of the irregular procedure before the ordinary domestic courts and the Constitutional Court and the wrong interpretation of Extra-Judicial Rehabilitation Act No. 87/1991 and that, accordingly, his rights to a fair trial and to peaceful enjoyment of his possessions have been breached. He submits that the Constitutional Court, which is a judicial institution outside the system of ordinary domestic courts, extended the reasoning of the ordinary courts and, in fact, decided as a court of first instance giving a new legal opinion.   He contends that with regard to the judgment of the Constitutional Court his property was expropriated de facto without any compensation.   He maintains that the confiscation of the property as well as the non-payment of the compensation was a consequence of the political persecution of his family, and, therefore, the property should have been returned to him, or, alternatively, compensation should have been awarded.   THE LAW   1.    The applicant alleges a violation of 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 ... hearing ... by [a] ...      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 HR, 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 brought by the applicant, as all the courts found that the Extra-Judicial 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 assuming that 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, and, in particular to that of the Constitutional Court, 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, the Commission 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., for example, No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88).        In the present case, the national courts examined the applicant's case on the basis of Extra-Judicial Rehabilitation Act No. 87/1991. They found that the property concerned had not been expropriated by the State within the meaning of this Act, but by Section 2(5) of Presidential Decree No. 108/1945.   The first instance court held that the confiscation of property under the Decree could not be mistaken for expropriation or nationalisation, which in certain circumstances can give rise to an entitlement to restitution under the Act.   The Court stated that the fact that the applicant had not received any compensation could not be regarded as a violation of generally recognised human rights and freedoms within the meaning of Section 2(1)(c) of the Act.   The Court added that if the legislator had intended to remedy injustice in cases where compensation for confiscation should have been paid, but was not, it would have done so by a special law.   This reasoning was confirmed and expanded by the Constitutional Court in its detailed judgment.   There is no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        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.   2.    The applicant also alleges a violation of 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."        The Commission notes that the expropriation took place in March 1951 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., for example, 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 property 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 the applicant's claims for restitution under Extra-Judicial Rehabilitation Act No. 87/1991.        However, those claims were rejected as the Act did not apply in the case.   The Commission considers therefore 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 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).        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