AS TO THE ADMISSIBILITY OF
Application no. 17120/04
by Josef BERGAUER and 89 Others
The European Court of Human Rights (Second Section), sitting on 13 December 2005 as a Chamber composed of:
Mr J.-P. Costa,
Mr A.B. Baka,
Mr R. Türmen,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged
Having deliberated, decides as follows:
The applicants are 90 German, Austrian or
American nationals, all
of German ethnic origin. They or their ancestors were residing in former
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants or their ascendants lost their
Czechoslovak citizenship as a consequence of the Munich Pact (Mnichovská dohoda) concluded between
The applicants submit that, during the
liberation of Czechoslovakia and after
On 23 May 1945 Presidential Decree no. 5/1945
on the Invalidation of Certain
during the period of Lack of Freedom and on the National Administration of the Values
of Germans, Hungarians, Traitors and Collaborators, and Certain Organisations
and Institutes (dekret presidenta
republiky o neplatnosti některých majetkově-právních jednání z doby nesvobody a o národní správě majetkových hodnot Němců, Maďarů, zrádců a kolaborantů a některých organisací a ústavů)
entered into force. It provided, inter
alia, that “any form of property transfer and transaction affecting
property rights, in terms of movable and immovable assets and public and
private property, shall be invalidated if it was adopted after
On 23 June 1945 Presidential Decree no. 12/1945 on the Confiscation and Accelerated Allocation of the Agricultural Property of Germans, Hungarians, Traitors and Enemies of the Czech and Slovak nations (dekret presidenta republiky o konfiskaci a urychleném rozdělení zemědělského majetku Němců, Maďarů, jakož i zrádců a nepřátel českého a slovenského národa) entered into force. It provided for the expropriation, with immediate effect and without compensation, of agricultural property for the purposes of land reform. It concerned any agricultural property, with its attachments - buildings and movable goods - in the ownership of all persons of German and Hungarian origin, irrespective of their citizenship status.
Following the resolution adopted at the
Potsdam Conference with
the unanimous consent of the Allied Powers, the German populations from the
Decree no. 108/1945 on the
Confiscation of Enemy Property and the National
Restoration Funds (dekret presidenta
republiky o konfiskaci nepřátelského majetku a Fondech národní obnovy)
entered into force on
“Each of the signatory governments, through the form fixed on its own discretion, will keep German enemy property under its authority, or will dispose of it in such a way that it could not return under German ownership or control, and will subtract this property from its share of the reparations.”
Established in 1947, ad hoc parliamentary committees investigated the circumstances of
acts of violence committed after the liberation in 1945, as a result of which a
number of criminal proceedings had commenced and continued until February 1948,
when the democratic constitution of
II. The period shortly before and after 18 March 1992, the date of the entry into force of the European Convention on Human Rights with regard to the Czech Republic
In a judgment of
On 8 March 1995 the
“(...) since the enemy occupation of the Czechoslovak territory by the armed forces of the Reich had made it impossible to assert the sovereign State power which sprang from the Constitutional Charter of the Czechoslovak Republic, introduced by Constitutional Act no. 121/1920, as well as from the whole Czechoslovak legal order, the provisional Constitutional Order of the Czechoslovak Republic, set up in Great Britain, must be looked upon as the internationally recognised legitimate constitutional authority of the Czechoslovak State. In consequence thereof and as a result of their ratification by the Provisional National Assembly by Constitutional Act no. 57/1946 of 28 March 1946, all normative acts of the Provisional Constitutional Order of the Czechoslovak Republic are expressions of legal Czechoslovak (Czech) legislative power, so that as a result thereof the striving of the nations of Czechoslovakia to restore the constitutional and legal order of the Republic was achieved. (...)
(...) it is true in principle that that which emerges from the past must, face to face with the present, pass muster in respect of values; nevertheless, this assessment of the past may not be merely the present passing judgment upon the past. In other words, the present order, which has been enlightened by subsequent events, draws upon those experiences, and looks upon and assesses a great many phenomena with the advantage of hindsight, may not sit in judgment upon the order which has prevailed in the past. (...)
In view of the fact that [the Decree] has already accomplished its purposes and for a period of more than four decades has not created any further legal relations, so that it no longer has any constitutive character, in the given situation its inconsistency with constitutional acts or international treaties (...) cannot be reviewed today.”
In a judgment of
In a judgment of
According to the applicants, this state of
law, whereby the Presidential Decrees of 1945 were considered a valid part of
the national legal system and a condition of lasting citizenship was required
for claiming restitution, prevented them from raising their restitution claims
before the courts. Due to this discouragingly defined position, they did not
attempt to seek either restitution or financial compensation before the
national courts, nor did they lodge an appeal or a proposal to repeal
particular acts with the
On 21 January 1997 the Czech-German Declaration regarding Mutual Relations and their Future Development (Česko-německá deklarace o vzájemných vztazích a jejich budoucím rozvoji; Deutsch-tschechische Erklärung über die gegenseitigen Beziehungen und deren künftige Entwicklung) was concluded by the respective governments expressing their regret for the grievances arising from the period of 1938–1945 and a determination to maintain good neighbourly relations.
1. The applicants first complain that, by means of the post-war confiscation and expulsion policy, they were discriminated against in the enjoyment of their rights guaranteed by the Convention, contrary to Article 14 read in conjunction with Article 1 of Protocol No. 1, particularly as regards the allegedly discriminatory character of Presidential Decrees Nos. 5/1945, 12/1945, 33/1945 and 108/1945, and Act No. 115/1946.
In relation to acts occurring during the post-war period of 1945, the applicants contend, that they and/or their ancestors were subject to genocide allegedly carried out by the Czechoslovak Government against the ethnic German population after the Second World War by means of expulsion and confiscation. In this respect, they claim compensation in recognition of their non-pecuniary damage and suffering.
2. The applicants further manifest their
disapproval of the political and legal criterion, standpoint and reasoning
embodied in Czechoslovak (Czech) State policy, embracing issues arising from
the historical event of the Second World War and its outcome. They challenge
the idea of the constitutional continuity of
The applicants also allege the discriminatory character of national legislation adopted after 1990, referring in particular to the condition restricting restitution claims to persons possessing Czechoslovak (Czech) citizenship. In this respect, the applicants dispute the Czech Republic’s failure to uphold the principle of the prevalence of natural law over statute law in the norms dealing with restitution of property.
The applicants finally maintain that the
regret expressed in the Czech-German Declaration of 1997 constituted the basis
for an obligation on the part of the
The applicants complain that, after the Second World War, they were
expelled from their homeland in genocidal circumstances, and that their
property was confiscated by the former Czechoslovak authorities. They reproach
Article 1 of Protocol No. 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.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Court points out that the rule of
exhaustion of domestic remedies referred to in Article 35 § 1 of
the Convention obliges those seeking to bring their case against the State
before an international judicial or arbitral organ to use first the remedies
provided by the national legal system. Consequently, States are dispensed from
answering to an international body for their acts before they have had an
opportunity to put matters right through their own legal system (see Ilhan v. Turkey, judgment of
The Court observes that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus, the six-month time-limit runs from the date of the final decision or, in the absence of a domestic remedy, from the date of the act of which the applicant complains.
Lastly, the Court observes that the purpose of
the six-month rule is to promote security of the law and to ensure that cases
raising issues under the Convention are dealt with within a reasonable time.
Furthermore, it protects the authorities and other persons concerned from prolonged
uncertainty and ensures the possibility of ascertaining the facts of the case
before the evidence fades away, which would make the fair examination of the application
next to impossible (see Baybora and Others v.
Cyprus (dec.), no. 77116/01,
In the present case none of the applicants pursued his or her individual restitution claim before the competent national authorities although the applicants could have been expected to file a petition, seeking either a remedy or compensation before the domestic courts, and challenge before higher Czech courts, including the Constitutional Court, decisions or/and provisions of law which they considered contrary to the Convention. The Court notes the applicants point about the inconsistent decisions of the national courts and that the case-law of the Czech judiciary is rather complex and not entirely settled yet. Therefore, the Court could not anticipate the outcome of proceedings brought by the applicants before the Czech courts had such proceedings been pursued. Thus, the assertion of the absence of domestic remedies is unsubstantiated.
Nevertheless, even assuming that the applicants have complied with the criteria of the exhaustion of domestic remedies, their application is still inadmissible for the following reasons.
The Court reiterates that, according to its case-law, “possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realized (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31).
The Court notes that the expropriation of the
applicants’ or their predecessors’ property occurred shortly after the Second
World War almost fifty years ago, long before the entry into force of the
Convention with respect to the Czech Republic. Moreover, according to the
Convention case-law, a deprivation of ownership or other rights in rem is in principle an instantaneous
act and does not produce a continuing situation of the “deprivation of a right”
(see Malhous v. the Czech Republic
(dec.) [GC], no. 33071/96, ECHR 2000-XII, with further references).
Therefore, the Court is of the opinion that the applicants had no “existing
possessions” within the meaning of Article 1 of Protocol No. 1 at the time of
the entry into force of the Convention with respect to the
The Court reiterates that Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele, cited above, § 48). Nor can it be interpreted as creating any general obligation for the Contracting States to restore property which had been expropriated before they ratified the Convention, or as imposing any restrictions on their freedom to determine the scope and conditions of any property restitution to former owners (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX).
However, once a Contracting State has enacted legislation for the restitution or compensation of property expropriated under the previous regime, and it has remained in force after the State ratified the Convention, including Protocol No. 1, that legislation may be regarded as having created a new property right protected by Article 1 of Protocol No. 1 for those persons satisfying the legislative conditions (see Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004-V).
Given the absence of any general obligation to restore property which was expropriated before ratification of the Convention (see Kopecký, cited above, § 35), it cannot be argued that the Czech Republic is obliged under the Convention to restore the property confiscated under the Presidential Decrees to the former owners. Notwithstanding this conclusion, it should be further noted that the case-law of the Czech courts made the restitution of property available even to persons expropriated contrary to the Presidential Decrees, thus providing for the reparation of acts which contravened the law then in force. The Czech judiciary thus provides protection extending beyond the standards of the Convention.
The Court reiterates that the expropriations in the present case took place almost fifty years ago. The Court refers in this connection to its judgment in the case of Prince Hans-Adam II of Liechtenstein v. Germany (§§ 84-86, ECHR 2002-VII) in which it held as follows:
“85. As regards this preliminary issue, the Court observes that the expropriation [of paintings belonging to the applicant’s father] had been carried out by authorities of the former Czechoslovakia in 1946, as confirmed by the Bratislava Administrative Court in 1951, that is before 3 September 1953, the date of entry into force of the Convention, and before 18 May 1954, the date of entry into force of Protocol No. 1. Accordingly, the Court is not competent ratione temporis to examine the circumstances of the expropriation or the continuing effects produced by it up to the present date (see Malhous, cited above, and the Commission’s case-law, for example, Mayer and Others v. Germany, nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92, Commission decision of 4 March 1996, DR 85-A, p. 5).
The Court would add that in these circumstances there is no question of a continuing violation of the Convention which could be imputable to the Federal Republic of Germany and which could have effects as to the temporal limitations of the competence of the Court (see, a contrario, Loizidou (merits), cited above, p. 2230, § 41). Subsequent to this measure, the applicant’s father and the applicant himself had not been able to exercise any owner’s rights in respect of the painting, which was kept by the Brno Historical Monuments Office in the Czech Republic.
In these circumstances, the applicant as his father’s heir cannot, for the purposes of Article 1 of Protocol No. 1, be deemed to have retained a title to property nor a claim to restitution against the Federal Republic of Germany amounting to a “legitimate expectation” in the sense of the Court’s case-law.
This being so, the German court decisions and the subsequent return of the painting to the Czech Republic cannot be considered as an interference with the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 ...”
In the present case, the Court would repeat
Accordingly, this aspect of the case may be deemed to be incompatible ratione materiae with the provisions of the Convention (Article 35 §§ 3 and 4).
As to the applicants’ allegation of genocide,
the Court has examined the matter under Articles 2 or 3 of the Convention. It
observes that the alleged acts of violence took place shortly after the Second
World War, long before the entry into force of the Convention with regard to
Accordingly, this aspect of the case may be deemed to be incompatible ratione temporis with the provisions of the Convention (Article 35 §§ 3 and 4).
As to the applicants’ allegation of discrimination on the grounds of their foreign nationality and citizenship, the Court recalls that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the Convention; there can be no room for its application unless the facts in issue fall within the ambit of one or more of its provisions.
Having regard to its above conclusions that the applicants’ other complaints are essentially incompatible, the Court considers that Article 14 of the Convention cannot apply in the instant case.
In the light of all circumstances of the present case, the Court finds that the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
List of the applicants
1. Josef Bergauer, born in 1928
2. Brunhilde Biehal, born in 1931
3. Günther Biehal, born in 1932
4. Friedebert Volk, born in 1935
5. Reingard Chahbazian, born in 1942
6. Gerald Glasauer, born in 1969
7. Ernst Proksch, born in 1940
8. Johann Liebl, born in 1937
9. Gerhard Mucha, born in 1927
10. Rudolf Putz, born in 1936
11. Marianne Schillai, born in 1926
12. Hella Hermine Dory, born in 1929
13. Walter Stoppel, born in 1933
14. Gerolf Fritsche, born in 1940
15. Ilse Edeltraud Wiesner, born in 1920
16. Erika Endisch, born in 1928
17. Otto Höfner, born in 1930
18. Walter Frey, born in 1945
19. Herwig Dittrich, born in 1929
20. Richard Blaschke, born in 1923
21. Berthold Theimer, born in 1930
22. Ingobert Franz Stiebitz, born in 1928
23. Rosa Saller, born in 1927
24. Herta Rösel, born in 1922
25. Frant Rösel, born in 1957
26. Franz Penka, born in 1926
27. Richard Linhart, born in 1929
28. Adolf Linhard, born in 1941
29. Herlinde Lindner, born in 1928
30. Aloisia Leier, born in 1932
31. Walter Larisch, born in 1930
32. Dr. Herbert Küttner, born in 1928
33. Guido Bernt, born in 1920
34. Johann Fina, born in 1930
35. Emma Hammerl, born in 1929
36. Karl Hausner, born in 1929
37. Erich Klimesch, born in 1927
38. Rudolf Franz Pueschel, born in 1934
39. Alois Reitmeier, born in 1925
40. Albin Schüch, born in 1939
41. Siegmund Schüch, born in 1941
42. Manfred Fridrich Kurt Threimer, born in 1933
43. Dr. Walter Staffa, born in 1917
44. Johann Zeidler, born in 1934
45. Rüdiger Stöhr, born in 1941
46. Erich Titze, born in 1930
47. Walter Titze, born in 1942
48. Hans-Rainer Petsch, born in 1931
49. Edmund Liepold, born in 1927
50. Rotraua Wilsch-Binsteiner, born in 1931
51. Dr. Karl Röttel, born in 1939
52. Hans Pöchmann, born in 1934
53. Jutta Ammer, born in 1940
54. Franz Weiser, born in 1919
55. Erika Titze, born in 1933
56. Wolfgang Kromer, born in 1936
57. Roland Kauler, born in 1928
58. Johann Beschta, born in 1933
59. Helmut Binder, born in 1927
60. Kurt Peschke, born in 1931
61. Wenzel Pöhnl, born in 1932
62. Franz Löhnert, born in 1937
63. Erhard Hübl, born in 1938
64. Else Mackert, born in 1939
65. Horst Hübl, born in 1942
66. Walter Hübl, born in 1947
67. Josef Peter Hübl, born in 1950
68. Erhard Lug, born in 1931
69. Edgar Hornischer, born in 1935
70. Marianne Scharf, born in 1930
71. Dr. Herbert Vonach, born in 1931
72. Heinrich W. Brditschka, born in 1930
73. Elisabeth Ruckenbauer, born in 1929
74. Ralf Enzmann, born in 1958
75. Rosa Förster, born in 1927
76. Irmgard Siegl, born in 1926
77. Wenzel Valta, born in 1936
78. Dr. Adolf Frank, born in 1933
79. Anna Philipp, born in 1934
80. Ferdinand Hausmann, born in 1923
81. Marianne Schieβl, born in 1935
82. Peter Bönisch, born in 1971
83. Karl Peter Spörl, born in 1932
84. Ing. Herta Haunschmied, born in 1940
85. Franz Rudolf Drachsler, born in 1924
86. Elisabeth Teicher, born in 1932
87. Margit Bayer, born in 1942
88. Klaus Weiβhäupll, born in 1939
89. Inge Walleczek, born in 1942
90. Herbert Skala, born in 1933
 See the appendix
 The Munich Pact represents one of the
milestones in the process of the German territorial aggression throughout
 The Second Republic (Druhá republika) lasted from the date of the Munich Pact of
30 September 1938 to the date of proclamation of Hitler’s Protectorate of
Bohemia and Moravia (Protektorát
Čechy a Morava), following the German occupation of the territory on
15 March 1939. Slovakian territory was simultaneously separated from
 Germany and Czechoslovakia concluded in November 1938 an agreement on State citizenship and option rights (Smlouva mezi Česko-Slovenskou republikou a Německou říší o otázkách státního občanství a opce) under which, inter alia, former Czechoslovak citizens of German ethnic origin, who acquired the citizenship of the Third Reich by virtue of that agreement, could have opted for Czechoslovak citizenship.
 The Czechoslovak
Government in exile headed by President Beneš, and recognized by Allies, passed more than a hundred decrees providing a fundamental
legal framework to be implemented in the
 The Decree was not signed by President Beneš until the conclusion
of the Potsdam Conference to ensure that it was in line with the Allies’
decision. It was repealed by the Acquisition and Loss of Czechoslovak Citizenship
Act no. 194/1949 which entered into force on
 The conference took place from 17 July to
 No reparation whatsoever has been paid by
 Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic and lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, was loyal to the Czechoslovak State and reacquired (Czechoslovak) citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act.
Section 2(3) provides that if such an entitled person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired a part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children.
 Under section 2(2), amending section 2(3) of the Restitution Act, any natural person satisfying the condition of section 2(1) can claim restitution, provided that he or she was a Czech citizen on 31 January 1996 and acquired Czech citizenship either pursuant to Acts nos. 245/1948, 194/1949 or 34/1953, or pursuant to Presidential Decree no. 33/1945, and who did not lose Czech citizenship before 1 January 1990.
 In the declaration, the German side acknowledged its responsibility for events leading to the Munich Pact, expulsion of inhabitants of Czechoslovak border regions and seizure of
. It expressed regret over the injustice and suffering inflicted on the Czechoslovak people during the Second World War and acknowledged that the German National Socialist policy during the War contributed to the post-war transfer of the German population from Czechoslovak territory. The Czech side expressed regret for the excesses occurred during the post-war period committed against innocent people as well as for the legal framework provided by the Law No. 115/1946, which assisted in the creation of an environment, in which certain acts could have not been prosecuted by the competent authorities. The declaration is of political nature and does not have any legal implication. Czechoslovakia