FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40974/09
by Ernst Leonhard HARRACH
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 28 June 2011 as a Chamber composed of:
	Dean Spielmann, President,
	Karel Jungwiert,
	Boštjan M. Zupančič,
	Mark Villiger,
	Isabelle Berro-Lefèvre,
	Ann Power,
	Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 July 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ernst Leonhard Harrach, is an Austrian national who was born in 1920 and lives in Bruck an der Leitha, Austria. He is represented before the Court by Mr P. A. Hrdina, a lawyer practising in Prague.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is an heir of Jan Harrach, who owned certain real property in the Czech Republic that was, according to the applicant, illegally confiscated by the State in 1945.
In 2001 the applicant requested the Hradec Králové District Court (okresní soud) to open inheritance proceedings regarding the confiscated property, arguing that it was still part of the estate, since it was hereditas iacens and had therefore to be considered as being in the possession of the testator until acquired by an heir.
On 25 May 2006 the District Court rejected the applicant’s request, holding that there was no property in the estate. It referred to an opinion of the plenary of the Constitutional Court (Ústavní soud) of 1 November 2005 (Pl. ÚS – st. 21/05) where the Constitutional Court had harmonised its interpretation of the restitution laws, stating that they covered all the property that the State had acquired before 1989, even if acquired without legal justification, and that restitution of such property could be claimed only through the restitution laws. The District Court noted that the property concerned had been confiscated before 1948 and thus was not covered by the restitution laws that provided for restitution of certain property confiscated between 25 February 1948 and 1 January 1990. The court also held that inheritance proceedings were regulated by the procedural rules applicable at the time of the death of the testator and consequently it had applied the Imperial Patent of 1854 regulating non-contentious proceedings.
On 20 July 2006 the Hradec Králové Regional Court (krajský soud) dismissed an appeal by the applicant, endorsing fully the reasoning of the District Court.
The applicant lodged, simultaneously, an appeal on points of law (dovolání) and a constitutional appeal (ústavní stížnost).
On 16 November 2006 the Constitutional Court dismissed the constitutional appeal as premature, holding that the time-limit for lodging a constitutional appeal would start to run only on the day of service of the decision of the Supreme Court on his appeal on points of law. It added that even if the latter was declared inadmissible, a subsequent constitutional appeal could not be dismissed as being lodged out of time.
On 24 September 2008 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law as inadmissible. It held that since the proceedings before the lower courts had been governed by the rules of procedure in force before 31 December 2000, the admissibility of an appeal on points of law had to be decided by applying those rules, set out in Article 239 of the Code of Civil Procedure in force at that time. Yet, it observed that the appellate court had not granted leave to appeal on points of law, applying Article 239 § 1 of the Code of Civil Procedure, and the applicant had not even applied for leave for such an appeal under Article 239 § 2 of the Code of Civil Procedure. It added that in any case the appeal on points of law would not have been admissible even if the current rules in force from 1 January 2001 had been applied, since the impugned decisions did not give rise to a question of crucial legal importance as the legal conclusions of the lower courts were in conformity with the established case-law.
After receiving that decision from the Supreme Court the applicant lodged another constitutional appeal.
On 13 January 2009 the Constitutional Court rejected his second constitutional appeal without examining its merits as having been submitted too late. It held that the sixty-day time-limit for lodging a constitutional appeal had not been suspended by the appeal on points of law because the latter had not been dismissed for reasons depending on the Supreme Court’s discretion, as envisaged by Section 72(4) of the Constitutional Court Act.
B.  Relevant domestic law and practice
The relevant domestic law and practice concerning the admissibility of appeals on points of law and constitutional appeals are set out in the Court’s judgment in the case of Adamíček v. the Czech Republic, no. 35836/05, 12 October 2010.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that the domestic courts violated his right to protection of property.
Under Article 6 of the Convention, he disagrees with the domestic decisions and considers them arbitrary.
Lastly, relying on the same provision, the applicant complains that he was denied access to the Constitutional Court.
THE LAW
1.  The applicant complained that the decisions of the domestic courts had been wrong and that they had interfered with his right to his inheritance, which was a property right. He challenged in particular the opinion of the Constitutional Court Pl. ÚS – st. 21/05, which was crucial in deciding his case.
He relied on Article 6 of the Convention, the relevant part of which provides:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
He also relied on Article 1 of Protocol No. 1, which provides:
“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 Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation”. There is, however, a difference between a mere hope of acquiring a property and a “legitimate expectation”, which must be of a more concrete nature and based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 73, ECHR 2002-VII).
Similarly, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX).
Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution or to choose the conditions under which they agree to restore the property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).
Turning to the present case, the Court firstly notes that the applicant never entered into possession of the property concerned. According to him, the confiscation in 1945 was null and void and the property had, therefore, always been hereditas iacens. He sought to enforce his rights to it by instituting inheritance proceedings.
The Court observes in this regard that the domestic courts found that there was no hereditas iacens and, thus, there was no reason to institute inheritance proceedings. They based their decisions on the opinion of the plenary Constitutional Court, according to which any possible property rights of the applicant had been extinguished by the restitution laws in 1991 at the latest, that is before 18 March 1992, the date of the entry into force of the Convention with regard to the Czech Republic.
The Court does not find the decisions of the domestic courts to be arbitrary or manifestly unreasonable. On the contrary, they were in line with the existing case-law of the Supreme Court and the Constitutional Court at that time. It notes that the applicant disagreed with the opinion of the plenary Constitutional Court (Pl. ÚS – st. 21/05), considering it wrong and in contradiction with the previous case-law of its chambers.
It observes that under the domestic law an opinion of the plenary Constitutional Court is a mechanism for settling possible divergences among its chambers. The opinion has been consistently applied since then by the domestic courts, including in the applicant’s case, and in the Court’s view no problem with legal certainty arises (see Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008).
Moreover, the development of case-law is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010). The Court does not consider that the development in the Constitutional court’s case-law on restitution claims that resulted in the opinion of the plenary court Pl. ÚS – st. 21/05 could give rise to any issue under the Convention. It adds that the opinion of the plenary court was extensively reasoned and there is no reason why it would not sufficiently justify departure from the case-law of some of its chambers (see a contrario ibid.).
Regarding the applicant’s complaint that the opinion of the Constitutional Court was wrong, the Court reiterates that it is established in its case-law that it is not a court of fourth instance and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I and Jantner v. Slovakia, no. 39050/97, § 32, 4 March 2003). Further it cannot substitute its view for that embodied in the case-law of the Czech Constitutional Court or Supreme Court (see Baťa v. the Czech Republic (dec.), no. 43775/05, 24 June 2008). It does not consider the opinion arbitrary or manifestly unreasonable.
The Court thus concludes that the applicant had no property right under domestic law and his claim had no basis in domestic law to qualify as an “asset” protected by Article 1 of Protocol No. 1. This part of the application is therefore incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
In the light of all the material in its possession, and in so far as the matters complained of under Article 6 of the Convention are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2.  Relying on Article 6 of the Convention, the applicant complained that the Constitutional Court had dismissed his first constitutional appeal as premature, holding that he had to await a decision on his appeal on points of law, and that when he had done so his second constitutional appeal had been dismissed as being lodged out of time on the ground that he should not have waited for the outcome of his appeal on points of law.
The Court considers that it cannot determine the admissibility of this complaint on the basis of the case file and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning access to the Constitutional Court;
Declares the remainder of the application inadmissible.
	Claudia Westerdiek	Dean Spielmann
	Registrar	President