FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54337/10 by Marta KRYŽOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 20 September 2011 as a Chamber composed of:

Dean Spielmann , President , Elisabet Fura , Karel Jungwiert , Mark Villiger , Isabelle Berro-Lefèvre , Ann Power , Angelika Nußberger , judges , and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 10 September 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Marta Kr yžová, is a Czech national who was born in 1942 and lives in Chlumec n ad Cidlinou.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summari s ed as follows.

On 29 April 1993 the applicant , as the “ entitled person ”, concluded an agreement on the settlement of her restitution claims with the State enterprise L . (hereinafter “ L. ”) , as the “ liable person ”, in which the parties agreed that a part of the applicant ’ s claim for livestock (both dead and living) would be compensated by the transfer to her of a farmstead and a plot of land. The material accuracy of this part of the agreement was to be later confirmed by the Ministry of Agriculture , after which the applicant and the Land Fund of the Czech Republic (hereinafter “Land Fund”) w ere to conclude a contract on the transfer of the ownership of the immovable property, the Land Fund being the only entity which had the authorit y to do so on behalf of the S tate.

On 30 December 1993 the c ontract on the transfer of ownership was concluded between the Land Fund and the applicant , but it only covered the farmstead, and not the p lot of land . In this contract, t he applicant explicitly agreed that after the transfer to her of ownership of the farmstead, she would be complete ly compensat ed in respect of her restitution claim. Thus, with effect from 30 December 1993, the applicant was registered in the land register as the new owner of the farmstead. The Land Fund later argued that the plot of land in question fell within its exclusive administrative authority and that L. had no power to dispose of it, and that therefore the agreement between L. and the applicant could not be valid in this regard . Nonetheless , on 2 February 1994 the Land Fund and the applicant concluded a rental agreement with respect to the p lot of land, which expired on 31 December 2005. In the meantime, the p lot of land was transferred to the m unicipality of K . by a contract dated 15 April 2002.

Nearly twelve years after the conclusion of the above contract, t wo sets of court proceedings were initiated by the applicant. On 6 October 2005 she lodged a claim, seeking an official declar ation that the Czech Republic was still in ownership of the above plot of land and , on 15 November 2005 she init iated an action to compel the Land Fund to transfer the ownership of the plot to her . Subsequently , the latter proceedings were discontinued , pending the outcome of the first proceedings. Since the applicant satisfied the legal conditions provided in the Code of Civil Procedure , she was exempted from the payment of court fees and on 9 March 2006 the Znojmo District Court appointed a lawyer to represent her before the first - instance and appellate courts; the costs of this legal representation w ere to be fully paid by the S tate.

On 18 January 2007 the Znojmo District Court dismissed the applicant ’ s claim seeking an official declaration that the Czech Republic w as still the owner of the plot of land, because in the meantime the m unicipality of K . had acquired the p lot of land l awfully and the evidence also proved that since 25 June 1991 , only the Land Fund could dispose of the p lot of land .

The applicant appealed against th at decision , but her appeal was dismissed on 14 April 2008. The Brno Regional Court stressed that the transfer of the property from the Land Fund to the m unicipality of K . had been totally in accordance with the law and it also confirmed the first ‑ instance court ’ s opinion as regards the partial invalidity of the agreement between the applicant and L., owing to the latter ’ s lack of authority to enter into such an agreement concerning the p lot of land .

T he applicant subsequently lodged an appeal on points of law with the Supreme Court. She argued that one of the witnesses had submitted a false statement , which had led the courts t o an incorrect decision on the merits , t hat a question of crucial legal importance arose regarding the invalidity of the contract between her and L., and that t he breach of the agreement was contra bonos mores .

By a decision dated 15 July 2008 the Znojmo District Court exempted the applicant from the payment of court fees in the proceedings relating to her appeal on points of law, and appointed a lawyer free of charge for her for the purpose of those proceedings .

On 24 September 2009 the applicant ’ s appeal on points of law was declared inadmissible because in the Supreme Court ’ s view, the applicant ha d not raised any question of crucial legal importance and , in any event, the conclusions of both the first - instance and the second - instance courts had been legally correct.

A s a consequence, the proceedings which had been previously discontinued were re sumed . Nonetheless , on 9 February 2010 th at action was also dismissed by the Znojmo District Court , owing to the partial invalidity of the contract between L. and the applicant , and the fact that the m unicipality o f K . had bec o me the owner of the p lot of land .

In the meantime, the applicant lodged a constitutional appeal against the decisions of the Supreme Court dated 24 September 2009; the Brno Regional Court dated 14 April 2008; and the Znojmo District Court dated 18 January 2007. She complained mainly that there had been a violation of her property rights and that the proceedings had been unfair.

On 13 January 2010 the Constitutional Court invited the applicant to remedy the defec ts in her appeal and, inter alia , to find a lawyer within fifteen days to represent her in the proceedings .

Therefore the applicant requested the Czech Bar Association (hereinafter “CBA”) to appoint a lawyer who would represent her free of charge. The CBA declined to do so on 12 February 2010 , stating that the applicant did not satisfy the necessary legal requirements. The applicant ’ s monthly pension in the amount of 7 , 206 Czech korunas ( CZK - about 29 5 euros (EUR) ) , and her being the owner of a house, were the CBA ’ s reasons for concluding that she was not totally needy, without any income or with an income on the threshold of the bare minimum. T he CBA stated , however, that if the applicant insisted that she be provided with a lawyer for a reduced fee , her request would undoubtedly be granted, but that it could not decide on this issue ultra petit a partium . The applicant tried to challenge the decision before the CBA, submitting a new request for a free of charge lawyer, but to no avail.

Consequently, after two more extensions of the prescribed period for remedying the defects in the applicant ’ s appeal , she applied to the Constitutional Court , requesting that it assist her in finding a lawyer as it had done in another case (namely, case no. II. ÚS 2624/08) . However, the Constitutional Court rejected this request , maintaining that its approach in the other case had been based on exceptional circumstances resulting from an amendment to the A dvocacy Act , and from its agreement with the CBA in effect from May 2005 , in which the CBA promised to provide legal representation to appellants to whom it had previously been denied if the P resident of the Constitutional Court had asked the CBA to do so , and if their case was “live”. The Constitutional Court then stressed that the law which was then currently in force d id not give it the authori ty to ask the CBA to appoint a free of charge lawyer for appellants and that, additionally, the applicant must have known from past experience that legal representation was necessary . For these reasons, on 21 April 2010 the Constitutional Court rejected the applicant ’ s constitutional appeal as not c omplying with the formal legal requirements .

B . Relevant domestic law and practice

At the material time, the relevant provisions of Act no. 99/1963, Code of Civil Procedure, as amended, read as follows:

Section 30

“(1) Upon his or her request, a party who meets the criteria for the waiver of court fees may be appointed a representative , where this is necessary to protect his or her interest s .

(2) Where it is necessary to protect the interests of a party, the presiding judge shall appoint a lawyer to represent the party referred to in paragraph 1.”

Section 138

“(1) Upon an application lodged by a party, the presiding judge may exempt th a t party from the payment of all or a part of court fees , if the party is destitute and if the application does not constitute an arbitrary or manifestly unfounded attempt to exercis e or defend one ’ s right s . Unless the presiding judge decides otherwise, exemption is granted in respect of the whole proceedings and has retroactive effect; however, fees that ha ve been paid prior to the decision on exemption shall not be reimbursed.

(2) At any time during the proceedings, the presiding judge may withdraw the exemption, even with retroactive effect, if it becomes apparent prior to the conclusion of the proceedings that the personal situation of the party does not or did not warrant the exemption.

(3) Where the party exempted from the payment of court fees has been appointed a representative, the exemption shall also apply to the representative ’ s cash expenses and representation fee.”

Section 140

“(2) Where the party has been appointed a lawyer , that lawyer ’ s cash expenses and fee shall be paid by the State ... ”

The relevant provisions of the Constitutional Court Act ( no. 182/1993 ) , as amended, read as follows:

Section 30

“(1) A natural or a legal person who is a party or a intervening party to proceeding s before the Constitutional Court must be represented by a lawyer to the extent provided for in particular statutes and enactments.”

Section 72

“(3) A constitutional appeal m ust be submitted within sixty days of the delivery of the decision in the final procedure provided for by law to the appellant for the protection of his rights ...”

Section 83

“(1) Should the personal situation or financial means of the appellant justify it, especially if he or she has insufficient financial means to pay the costs connected with his or her representation (hereinafter ‘ lawyer ’ s fees ’ ), and if the constitutional appeal has not been rejected on procedural grounds, on the basis of an application submitted by the appellant prior to the first oral hearing, the judge shall rule that the appellant ’ s lawyer ’ s fees shall be paid by the S tate, in whole or in part. ”

The r elevant Constitutional Court case-law ( decision no. III.ÚS 569/04 dated 22 October 2004) states that e xceptions to the rule of obligatory representation of an individual appellant in proceedings before the Constitutional Court can not be accepted because under the Constitutional Court Act , provisions of the Code of Civil Procedure apply only “ reasonably ” . Likewise, the requirement of legal aid and the issue of the appointment of lawyers by the Constitutional Court a re reflected in its case-law which states that it is beyond the Constitutional Court ’ s authority to appoint a lawyer for applicants and that this duty o n the part of the S tate is sufficiently – even with regard to obligatory representation in proceedings before the Constitutional Court – safeguarded by the A dvocacy Act , even if that might be a source of difficulty to those seek ing legal aid.

In case no. II. ÚS 2624/08, the appellant had a lawyer for a reduced fee appointed by the CBA. However, she objected to this, claiming that she had no money to pay the reduced fee, which she further corroborated with reference to the subject matter of the dispute – social support benefits. The Constitutional Court “with respect to these facts” extended the period for remedying the defects in her appeal and asked the CBA to appoint a free of charge lawyer for the appellant. The CBA complied with this request.

In case no. I. ÚS 22/10, the Constitutional Court annulled the decision of the Prague High Court which had not appointed an attorney for the appellant on the grounds that if she, although retired and disabled, could pay for Internet and cable television, she had sufficient means to hire an attorney. The Constitutional Court viewed this decision as arbitrary and contrary to the right to privacy under Article 8 of the Convention.

The relevant provisions of the Advocacy Act ( no. 85/1996 ) , as amended, read as follows:

Section 18

“(2) A person who does not fulfil the requirements under special legislation to have a lawyer to act in his case appointed by the court, and who is also not entitled to be provided with legal services under th is Act (hereinafter referred to as the ‘ applicant ’ ), shall have the right to have his lawyer appointed by the Czech Bar Association upon a timely application. The CBA may appoint a lawyer only once in one case; this rule shall not apply should the appointed lawyer refuse to provide legal services on the grounds provided under section 19 of this Act . In its decision on the appointment the CBA shall define the case in relation to which the lawyer shall be obliged to provide legal services as well as their scope. The CBA may, in its decision, identify other conditions for the provision of legal services, including the duty to provide services free of charge or for a reduced fee if the property and income situation of the applicant so warrant . A lawyer appointed by the CBA shall be obliged to provide legal services to the applicant under the conditions stipulated by the CBA . This rule shall not apply if there are grounds for the refusal of the provision of legal services under section 19, or where the enforcement or protection of rights appear to be obviously unreasonable; in such cases the lawyer shall notify the CBA and the applicant, in writing and without delay, of the grounds for his refusal. The appointment of a lawyer by the CBA shall not replace the power of attorney required by special legislation to defend in criminal proceedings the person for whom the lawyer was appointed by the CBA or to represent him in other proceedings.

(3) Where an applicant requires that legal services be provided by an appointed lawyer free of charge or for a reduced fee, he shall be obliged to prove, when submitting his application for the appointment of a lawyer by the CBA , that his income and property situation warrants such provision of legal services; the m anner of proving the income and property situation of an applicant, as well as the scope of required information to be submitted to the CBA by the applicant, shall be stipulated by the Ministry of Justice in its executive regulation , upon the CBA ’ s expressing its opinion on th is matter.”

Section 45

“(2) The President of the CBA shall be competent to decide on

( a) the appointment of a lawyer under section 18 (2), and the cancellation thereof under section 18 (4) . ”

COMPLAINTS

1. Relying on Article 6 § 1 of the Convention , the applicant complains that the length of the proceedings in her case was unreasonable.

2. Under the same provision, she alleges that her right of access to a court was violated by the failure of the Constitutional Court to appoint a lawyer for her and the failure of the Czech public authorities to decide consistently and fair ly on the same issue . She argues that from the beginning of the proceedings, the costs of her representation were paid for by the State because of her oppressive financial situation and thus the Constitutional Court should have proceeded accordingly and allowed for the costs of her legal representation. Furthermore, the applicant argues that the decision of the Czech Bar Association was entirely contrived, because the latter incorrectly evaluated the factual background of her case, failed to address all her objections, and ignored some of the facts which justified the appointment of a free of charge lawyer.

3. Relying on Articles 6 and 13 of the Convention, the applicant asserts that her right to an effective remedy before a national authority was violated because Czech law prescribes obligatory legal representation in proceedings before the higher courts and the Constitutional Court .

4 . Relying on Article 1 of Protocol No. 1, the applicant complains that her right to the peaceful enjoyment of her possessions was infringed because the plot of land was not transferred to her on the terms of her restitution claim.

5. Relying on Article 14 of the Convention, the applicant submits that the prohibition of discrimination has not been observed because in a case allegedly similar to hers on the merits, the Constitutional Court ruled in favour of the respective appellant.

6. Finally, relying on Article 17 of the Convention, the applicant claims that the prohibition of the abuse of rights was not observed because the principles of Recommendation s CM/ Rec (2007)7 and R( 2000 ) 10 of the Committee of Ministers were ignored.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings in her case. The relevant part of that provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

In the case of Vokurka v. the Czech Republic (( dec .) no. 405 52/02, §§ 11 and 25-33, 16 October 2007) , the compensatory remedy provided for by Act no. 82/1998 Coll., as amended, was found to be effective for the purposes of Article 35 § 1 of the Convention in respect of complaints concerning the length of judicial proceedings in the Czech Republic .

As t he applicant failed to resort to the compensatory remedy under Act no. 82/1998 Coll., as amended, the present complaint must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Relying on the same provision, the applicant alleged that her right of access to court has been violated by the failure of the Constitutional Court to appoint her a lawyer, which was inconsistent with its previous decisions concerning the appointment of a lawyer in civil court proceedings . She argued that from the beginning of the proceedings, the costs of her legal representation were paid for by the State because of her oppressive financial situation and thus, the Constitutional Court should have proceeded accordingly and allowed for the costs of her representation. Additionally , the applicant argued that the decision of the Czech Bar Association was entirely contrived because of the incorrect evaluation of the factual background of her case, the failure to address all her objections and the overlooking of some facts which justified the appointment of a free of charge lawyer for her.

T he Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. Relying on Articles 6 and 13 of the Convention, the applicant complain ed that her right to a fair trial and a corresponding effective remedy before a national authority has been violated , as Czech law prescribes compulsory legal representation in proceedings before the higher courts and the Constitutional Court .

The Court observes that t he Convention does not forbid S tates to require mandatory legal representation because in proceedings before higher courts, such a requirement may be proportionate, it has a legitimate purpose and the goal it aims to achieve is actually favourable to those who seek the protection of their rights before the domestic courts. Such proceedings are usually complex and the aim of mandatory legal representation is actually to safeguard the right of access to court. The Court has also stated that the requirement of representation by a lawyer in proceedings before a higher court does not of itself infringe the principles of the Convention (see, for example, Vacher v. France , 17 December 1996, § § 24 and 28 , Reports of Judgments and Decisions 1996 ‑ VI ) .

It follows that the complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

4. Relying on Article 1 of Protocol No. 1, the applicant complained that her right to the peaceful enjoyment of her possessions has been breached because the plot of land was not transferred to her on the terms of her restitution claim.

The Court notes that Article 1 of Protocol No. 1 does not guarantee the right to acquire property and that a mere hope of recognition of a property right cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX ). Besides, it appears from the case file that the applicant herself accepted that her restitution claims had been fully satisfied by the transfer to her of the farmstead without the plot of land.

This complaint is thus incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

5. Relying on Article 14 of the Convention, the applicant submitted that the prohibition of discrimination has not been complied with because in a case allegedly similar to hers on the merits (namely, the decision of the Constitutional Court no. I .ÚS 755/06 dated 10 December 2008), the Constitutional Court ruled in favour of the respective appellant.

It is not the Court ’ s 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 the rights and freedoms protected by the Convention. In the present case, the fact that the Constitutional Court decided differently on two different cases, even if the applicant consider s them to be similar, cannot amount to discrimination under Article 14.

It follows that the complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

6. Relying on Article 17 of the Convention, the applicant alleged that the prohibition of the abuse of rights has not been observed .

The Court considers that no question under Article 17 arises in this case . The complaint is thus manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the right of access to a court under Article 6 § 1 of the Convention ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Dean Spielmann              Registrar              President