FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5297/03 by Martin DOSOUDIL and Jindra CHYTRÁČKOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 6 January 2009 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Karel Jungwiert , Renate Jaeger , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 6 February 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Martin Dosoudil and Ms Jindra Chytráčková , are Czech nationals who were born in 1940 and 1941 respectively and live in Prague . They were represented before the Court by Mr J. Ondroušek, a lawyer practising in Pra gue . The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice .

A. The circumstances of the case

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

i. By a judgment of 20 December 1994, the Benešov u Prahy District Court ( Okresní soud ) decided that a restitution agreement concluded between a state enterprise H. and the applicants on 18 September 1992 was null and void. On 14 November 1995 the Prague Regional Court ( Krajský soud ) upheld this judgment.

ii. On 24 March 1992 the applicants brought restitution proceedings against that state enterprise.

By a judgment of 7 September 2001 the District Court ordered the state enterprise to conclude a restitution agreement with the first applicant. In respect of the second applicant the court found that she had introduced her restitution action outside the statutory time-limit; her claims were therefore dismissed.

On 15 January 2003 the Prague Regional Court upheld the first-instance court ' s judgment.

On 29 May 2003 the first applicant filed a constitutional appeal complaining about delays in the restitution proceedings. He further alleged a violation of his property rights.

On 23 October 2003 the Constitutional Court (Ústavní soud) dismissed the first applicant ' s constitutional appeal.

On 29 June 2004 the Supreme Court (Nejvy šší soud) rejected an appeal on points of law (dovolání) by the state enterprise H. against the Prague Regional Court ' s judgment of 15 January 2003.

iii. On 10 July 2003 the first applicant brought an action for eviction of a private company H.I. Ltd. from the property he had recovered as a result of the restitution proceedings. According to the information in the case file, the eviction proceedings were terminated on 8 June 2005 when the parties agreed to a friendly settlement .

iv. On 1 August 2003 the first applicant brought an action in the Benešov District Court against H.I. Ltd. seeking payment of rent arrears for the period during the eviction proceedings. This action seems to be still pending.

v. In a letter of 3 July 2006 the applicants informed the Court that they intended to seek non-pecuniary damages for the length of the restitution proceedings by means of an application to the Ministry of Justice. The outcome of the proceedings is unclear from the case file.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court ' s decision in the case of Vokurka v. the Czech Republic ((dec.) no. 405 52/02, §§ 11, 25-33, 16 October 2007).

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention about the delays in the restitution proceedings, in particular before the first-instance court. Also under that provision, they alleged that as the first applicant ' s action for eviction of the H.I. Ltd. company was still pending before the courts, the final judgment adopted in the restitution proceedings in fact remained unexecuted.

2. Secondly, relying on Article 13 of the Convention they alleged that they had not had any effective domestic remedy against the length of the proceedings.

3. Lastly, they asserted that as a result of the non-execution of that judgment and of the length of the restitution proceedings they had not been able to peacefully enjoy their possessions, in violation of Article 1 of Protocol No. 1.

THE LAW

1. The applicants complained under Article 6 § 1 of the Convention about the length of the restitution proceedings and the non-execution of the final judgment adopted in those proceedings. 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...”

1.1. Regarding the length of the proceedings, the Government asserted that the applicants had failed to exhaust domestic remedies.

The Court notes that in the case of Vokurka (cited above, § 65) it found the compensatory remedy provided for by Law no. 82/1998, as amended, to be effective for the purposes of Article 35 § 1 of the Convention in respect of complaints about the length of judicial proceedings in the Czech Republic .

In the instant case the applicants decided to use this remedy. However, according to the information submitted to the Court, the proceedings before the Ministry of Justice appear to be still pending. In any case, even if their claim was not fully satisfied by the Ministry of Justice within six months, they could have brought a civil action in the domestic courts under section 15(2) of Law no. 82/1998, as amended.

The Court therefore considers that the applicants have not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The complaint must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

1.2. Regarding the alleged non-execution of the final judgment adopted in the restitution proceedings, the Government claimed that the first applicant ' s title to the property had been recorded in the land register with effect from 19 May 2003 and that that date was to be regarded as the date of execution of the final judgment adopted in the restitution proceedings.

The applicants contended that the judgment had not in fact been executed as the property in issue was being occupied by a third party, H.I. Ltd., on the basis of a lease agreement concluded between that third party and the former owner, the state enterprise H. As a result, the first applicant had had to institute proceedings for the eviction of that company, which were still pending at the time of lodging the application with the Court.

The Court observes that the final judgment adopted in the restitution proceedings obliged the state enterprise H. to conclude an agreement with the first applicant to restore the property in issue. An agreement to that effect was concluded and, in accordance with its terms, title to the property was recorded in the land register in favour of the first applicant. The fact that the property in issue was leased to a third party is of no relevance in respect of the execution of the judgment adopted in the restitution proceedings. The Court therefore holds that the final judgment adopted in the restitution proceedings has been executed.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Under Article 13 of the Convention the applicants complained of the non-existence of an effective remedy against the length of the restitution proceedings. The relevant part of that provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

As already stated above, the Court has found that Law no. 82/1998, as amended, provided for an effective remedy in respect of the length of judicial proceedings in the Czech Republic (see Vokurka , cited above, § 65).

In the instant case, the applicants thus had an effective remedy at their disposal. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Relying on Article 1 of Protocol No. 1, the applicants complained that they had not been able to use the property in issue in the course of the restitution proceedings and of the eviction proceedings, during the latter period as a result of the non-execution of the final judgment adopted in the restitution proceedings. The relevant part of that provision 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.”

The Government argued that the restitution judgment had been executed. They further stated that although the first applicant had perhaps faced difficulties in actually realizing his property rights and had had to institute new legal proceedings even after the judgment in the restitution proceedings had become final, this did not relate to the [non-]execution of the restitution judgment but was aimed at clarification of the existing legal relations concerning the property in issue.

The applicants asserted that the actual non-execution of the restitution judgment had resulted in a further violation of their property rights.

Concerning the first applicant, the Court deems it necessary to examine the two aspects of this complaint separately.

3.1. Regarding the alleged violation of Article 1 of Protocol No. 1 as a result of the length of the proceedings, the Court notes that Law no. 82/1998, as amended, provides that non-pecuniary and pecuniary damages may be sought for an unlawful decision or incorrect official procedure. The latter includes the failure to render a decision within areasonable time. In the case of Petr v. the Czech Republic ((dec.), no. 16308/03, 26 February 2008) the Court held that this remedy must be exhausted also in respect of alleged violations of Article 1 of Protocol No. 1 resulting from the length of the proceedings.

On the assumption that the first applicant had a possession, within the meaning of that provision, before his title was established by the final judgment adopted in the restitution proceedings, and further assuming that the substance of this complaint raises a different issue from the one already examined above under Article 6 of the Convention, the Court observes that the first applicant failed to seek redress for pecuniary damages before the national authorities under Law no. 82/1998 as amended, as described above.

The Court therefore considers that the first applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. This complaint, in so far as brought by the first applicant, must therefore be declared inadmissible in accordance with Article 35 §§ 4 of the Convention.

3.2. Concerning the purported violation of Article 1 of Protocol No. 1 as a result of the alleged non-execution of the final judgment adopted in the restitution proceedings, the Court considers that, in accordance with the reasoning already developed above, the final judgment adopted in the restitution proceedings has been executed. Moreover, on 1 August 2003 the first applicant brought an action in the Benešov District Court seeking payment of rent arrears for the period during the eviction proceedings . This action seem s to be still pending.

It follows that this complaint, in so far as brought by the first applicant, is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.3. In respect of the second applicant, the Court observes that her restitution action was dismissed. In these circumstances, the Court holds that she cannot claim to be a victim within the meaning of Article 34 of the Convention of a violation of her property rights as those rights have never been established.

It follows that the complaint under Article 1 of Protocol No. 1, in so far as brought by the second applicant, must be rejected as being incompatible, ratione personae , pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President