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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DES FOURS WALDERODE v. THE CZECH REPUBLIC - 40057/98 [2009] ECHR 880 (11 June 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/880.html Cite as: [2009] ECHR 880

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THE FACTS

The applicant, Mr Karel Des Fours Walderode, was a Czech and Austrian national. He was born in 1904 and died on 6 February 2000. On 25 February 2000 the applicant's widow, Mrs Johanna Kammerlander, took her late husband's place in the proceedings before the Court.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant's stepmother and his two stepbrothers, all German nationals, owned real estate in former Czechoslovakia. In 1945 the property was confiscated under Presidential Decrees nos. 12/1945 and 108/1945, which entered into force on 21 June and 25 October 1945 respectively.

The applicant's stepmother died in 1955 leaving her real estate to the applicant, and conferring the succession rights of her deceased sons on the applicant. She had never acquired Czechoslovak citizenship.

The applicant left Czechoslovakia in 1949, thereby forfeiting his Czechoslovak citizenship, and returned in 1991. He was granted Czech citizenship in August 1992.

Restitution proceedings

On 14 July 1992 the applicant lodged a claim for restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no. 12/1945 and which had been sold by his father before the Second World War. He referred to the Land Ownership Act of 1991, claiming that he had inherited the property.

On 6 February 1995 the Jablonec nad Nisou Land Office, referring to the documentary evidence, dismissed his claim on the ground that his stepmother and stepbrothers had not been loyal to the Czechoslovak State during the German occupation and had not acquired Czechoslovak citizenship after the Second World War. It found, with reference to section 2(1) of the Restitution Act 1992, that the applicant was not the owner of the property, as his stepmother and stepbrothers had not satisfied the requirements for restitution, and that the applicant's claim in respect of his father's former property fell outside the scope of the restitution legislation.

On 16 April 1996 the Municipal Court, having assessed a substantial amount of documentary evidence and having heard the parties to the dispute, upheld the Land Office's decision. It stated, inter alia, that under Article 819 of the General Civil Code of 1811 an heir acquired an estate only upon its distribution; thus the dates of the acquisition of the estate and the death of a testator were different. In fact, from the death of a testator until the time of distribution of the estate, the property was to be regarded as hereditas iacens. According to the court, real estate could be lawfully confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir. The court held that the property at issue had been confiscated ex lege by Presidential Decree no. 12/1945 from the applicant's stepbrothers, German nationals, after they had died but whilst they had still been the notional owners of the estate. As the original owners, including the applicant's stepmother, had not reacquired Czech citizenship as provided for in section 2(1) of the Restitution Act 1992, the applicant could not be considered to be entitled to restitution.

On 5 June 1997 the Constitutional Court dismissed a constitutional appeal by the applicant as unsubstantiated, stating in particular that, under the Civil Code of 1811, which had been applicable at the relevant time, an heir acquired the estate upon its distribution. In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period. In order to transfer the estate to an heir, special proceedings before the national courts had to be instituted of the court's own motion. If such proceedings were not instituted, the estate was hereditas iacens until delivery of a court judgment. Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings. The estate was considered to remain in the possession of the testator until acquired by an heir. The court observed that, in the present case, the confiscation had taken place when the applicant's stepbrothers died. However, the estate had not yet been administered by the national authorities and, therefore, the applicant had not acquired the property at issue. Moreover, as the stepbrothers had not been entitled to claim restitution of the property under the Land Ownership Act, and since the applicant's stepmother had been of German origin and had never acquired Czechoslovak citizenship, the applicant himself was not entitled to claim restitution pursuant to this Act.

Other proceedings

(a)  In 1995 the applicant instituted inheritance proceedings in Germany in respect of the property claimed in the above restitution proceedings. On 7 June 1995 two certificates of succession were issued to the effect that the applicant was the universal heir of his stepbrothers.

(b)  On 3 March 1995 the relevant German authority issued a document certifying that the applicant's stepbrothers had not served in the SS.

(c)  The applicant was the owner of real estate in Hrubý RohoZec. This was confiscated from him under Presidential Decree no. 12/1945. In August 1945 the former local authority acknowledged the confiscation and granted him leave to appeal to the Prague National Land Committee.

(d)  On 2 November 2001 the United Nations Human Rights Committee, considering the applicant's communication (no. 747/1997) concerning the Hrubý RohoZec real estate, held that Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 of the Covenant, had been violated by the Czech Republic.

COMPLAINTS

1.  The applicant complained under Article 6 § 1 of the Convention that the national courts had not established the facts thoroughly, had not assessed the evidence adequately and had not considered certain comments and evidence adduced by him. Moreover, they had not given his case sufficient consideration, especially as to the issues arising from the hereditas iacens rule and the application of Decree no. 12/1945. His restitution claim had been considered at only one level of jurisdiction.

He complained that the Constitutional Court had departed from its case-law in holding that the confiscation had been lawful, notwithstanding that no proceedings concerning the relevant property had been held beforehand. He argued, lastly, that the domestic courts had not sufficiently considered his claim regarding the alleged unconstitutionality of the Czech restitution laws and had not based their decisions on the domestic case-law.

2.  The applicant complained under Article 1 of Protocol No. 1 that his property and succession rights had not ceased to exist, and that he therefore had a legitimate expectation of obtaining the property claimed in the restitution proceedings. According to him, the confiscation amounted to a de facto deprivation of his property rights and constituted a continuous and unjustified interference with his ownership and succession rights.

3.  The applicant complained that he had been discriminated against in the enjoyment of his rights under the Convention, contrary to Article 14 read in conjunction with Article 6 § 1 of the Convention and with Article 1 of Protocol No. 1. He submitted that the restitution laws discriminated against persons not possessing Czech citizenship and that they also discriminated against foreigners. He further complained that the Restitution Act 1992 and section 2(2) of Law no. 30/1996 were discriminatory, and that his right to equal treatment before a court of law had been violated as he was a German speaker and had left Czechoslovakia in 1949.

THE LAW

1.  By a decision of 4 March 2003 the Court decided to declare the application inadmissible.

(a)  The Court first examined the applicant's complaints under Article 6 § 1 of the Convention, and found that the applicant's restitution claim had been considered by the national courts at a public hearing, that the applicant and his counsel had been present, and that the applicant had been provided with ample opportunity to present his arguments and challenge the submissions of the other parties to those proceedings. It held that the reasons on which the national courts had based their conclusions were sufficient to exclude any doubt as to whether the way in which they had established and assessed the evidence could have been unfair or arbitrary.

It noted that the national authorities had examined the applicant's case under the Land Ownership Act and the Restitution Act and had found that part of the property had been confiscated by the State ex lege, pursuant to Presidential Decree no. 12/1945, and that another part of it had been transferred by the applicant's father to third persons before the Second World War. The national courts had considered that Presidential Decree no. 12/1945 had been correctly applied to the applicant's stepmother and stepbrothers. According to those courts, all the German legal provisions enacted within the territory of former Czechoslovakia during the German occupation had been declared null and void by Law no. 195/1946, which provided for the continuity of the Czechoslovak legal order in the territory of former Czechoslovakia. The applicant could therefore not have acquired his deceased stepbrothers' estate upon their deaths as provided for by the German law then in force. In fact, under the Czechoslovak legislation then in force, in particular the General Civil Code, in order to acquire an estate a prospective heir would have had to file a request for inheritance within the framework of inheritance proceedings instituted of the court's own motion. However, there had been no such proceedings. The applicant had therefore never acquired the property before its confiscation under Presidential Decree no. 12/1945.

The Court noted the national authorities' finding that, although the original owners had died, the property regarded as hereditas iacens could be, and had been, confiscated under Presidential Decree no. 12/1945, and that, as the original owners had not satisfied the conditions set out in the Restitution Act, the applicant could not be considered to be a person entitled to claim restitution of the relevant property.

As to the applicant's second claim that his case had been considered at only one judicial level as no appeal lay against the Municipal Court's judgment, the Court reiterated that Article 6 § 1 of the Convention does not require the Contracting States to set up courts of appeal and that Article 6 § 1 does not guarantee an appeal against court judgments.

As regards the applicant's challenge to the impartiality of the national courts, the Court found nothing which would cast doubt on the impartiality of the domestic courts involved in the case. It added that the applicant had not raised this complaint with the national courts.

In respect of the applicant's complaint that the length of the proceedings had clearly exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention, the Court held that, having regard to the rather complex nature of the proceedings as a whole, this was not so.

As regards his submission that the national courts had not sufficiently considered his claim regarding the alleged unconstitutionality of the Czech restitution laws, the Court observed that Article 6 § 1 of the Convention does not guarantee a specific result for the proceedings in question or a right of access to a court empowered to invalidate or override a law.

(b)  The applicant further claimed that, by reason of the continuing deprivation of his property, both his property and succession rights had been violated. The Court observed in this regard that, following its confiscation in 1945, the property had been assigned to and had been used by different legal persons, and that the members of the applicant's family had had no practical possibility of exercising any rights over that property. Thus the applicant's family had been deprived of the property in question long before 18 March 1992, which was the date of entry into force of the Convention and its Protocols with respect to the Czech Republic. The Court excluded any question of a continuing violation of the Convention which could be imputable to the Czech Republic, or which could affect the temporal limitations of the Court's jurisdiction. It concluded that it was not competent ratione temporis to examine the circumstances under which the applicant's family had been deprived of the property.

To the extent that the applicant complained about a violation of his ownership rights in the context of the restitution proceedings, the Court was not satisfied that his claim related to “existing possessions” within the meaning of Article 1 of Protocol No. 1, or that he had had at least a “legitimate expectation” of having his restoration claim upheld and enforced. Accordingly, it declared this complaint incompatible ratione materiae with the provisions of the Convention.

(c)  As to the applicant's complaint relating to alleged discrimination, the Court first found unsubstantiated the applicant's allegation of discrimination because he was a German speaker and had left Czechoslovakia in 1949. In so far as he complained that the Restitution Act 1992 and section 2(2) of Law no. 30/1996 were discriminatory, in that they prevented him from recovering his relatives' property, the Court reiterated that Article 6 of the Convention does not in itself guarantee any particular content for civil rights and obligations in the substantive law of the Contracting States, and that Article 1 of Protocol No. 1 does not guarantee, as such, a right to acquire property. It reached a similar conclusion regarding the applicant's complaint that he had been discriminated against in the enjoyment of his property rights and because his action had been dismissed at the national level.

2.  By a letter of 4 April 2003 the applicant's widow, who had taken her late husband's place in the proceedings before the Court, challenged the Court's decision, claiming that the Court had wrongly relied on the findings of the national authorities without taking into consideration documents adduced by her proving that the Czech courts had reached decisions in various restitution cases which were contrary to what had been said in the present case. She submitted the following arguments:

(a)  Although the property had been confiscated ex lege by Presidential Decree no. 12/1945 on the date of its entry into force, it could not validly pass into the ownership of the State because the confiscation proceedings had not been completed by a confiscation decision adopted by the competent administrative authority.

(b)  The property belonging at the relevant time to the applicant's late stepbrothers had had the form of a hereditas iacens. It could be confiscated provided that there was a representative – a guardian or heir. Failing that, the confiscation decision had been void ex tunc.

In a letter of 25 November 2003 the applicant's widow, in seeking to substantiate her arguments, challenged the impartiality of the lawyer at the Registry who had worked on the case. She emphasised that the latter's husband worked as a legal adviser to the President of the Czech Republic, was a well-known opponent of the restitution of property to German-speaking emigrants and had defended the State in major restitution cases.

Even though neither the Convention nor the Rules of Court provide for the reopening of the Court's decisions, in the interests of justice the Court has examined the applicant's request, taking into account the particular circumstances of the present case.

The Court notes the unfortunate allegations concerning a particular temporary lawyer in the Registry who had some involvement in the processing of the application, but who is no longer employed at the Court. However, that person took no part in the decision that was rendered and had no influence on the outcome of the case.

The decision has now been reviewed by the Court, which notes that it was fully reasoned and taken unanimously. No new facts relating to the text of the decision have been presented by the applicant's widow that would in any way affect or require an amendment to the reasoning or the conclusions reached.

For these reasons, the Court unanimously

Confirms its decision of 4 March 2003 in application no. 40057/98;

Refuses the request by the applicant's widow to reopen the case.