DES FOURS WALDERODE v. THE CZECH REPUBLIC
Inadmissible
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. 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. (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 Rohožec. 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 Rohožec 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.