FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41679/04 by Pavel MAREK against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 29 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Rait Maruste , Mark Villiger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 15 November 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

H aving regard to the decision to grant priority to the above application under Rule 41 of th e Rules of Court,

Having regard to the partial decision of 18 October 2005,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pavel Marek, is a Czech and Swiss national who was born in 1950 and lives in Uznach , Switzerland . He was represented before the Court by Ms K. Veselá-Samková, 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 . The Government of Switzerland did not make use of their right to intervene (Article 36 § 1 of the Convention).

A. The circumstances of the case

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

The applicant ’ s parents owned a house with land in Prague 6. In 1969 the whole family failed to return from a stay in Switzerland and remained abroad without the consent of the Czechoslovak authorities. In a judgment of 25 January 1972, the Prague 6 District Court ( obvodní soud ) convicted in absentia the applicant ’ s father, his mother and himself of deserting the Republic ( opuštění republiky ), sentenced them to imprisonment and ordered the confiscation of all their property. On 16 May 1973 the house was sold by the Czechoslovak State to Mr and Ms B., with the right to use the land.

On 31 October 1995 the applicant ’ s father filed an action for the restitution of the confiscated property, pursuant to the Extra-Judicial Rehabilitation Act, against Ms B. and her daughter. On 17 September 1996 he died. The rights of the applicant and his mother over his estate were confirmed in inheritance proceedings.

On 18 July 1997 one of the defendants died. On 20 July 1998 the District Court stayed the restitution proceedings pending the outcome of inheritance proceedings. On 5 December 2001 the inheritance proceedings were closed.

On 26 March 2002 the District Court resumed the restitution proceedings. On 20 May 2003 the court decided that the applicant could continue with the restitution case alon e, his mother having died on 29 November 2002. After joining the restitution proceedings, the applicant learnt that he had been adopted seven days after his birth and that his biological parents had been of Jewish origin. He also discovered that his adoptive mother had been tortured in Nazi concentration camps and that, as a consequence, she could not have children. According to the applicant, this news caused him enormous mental suffering and distress.

In a judgment of 26 January 2006 the District Court dismissed the applicant ’ s restitution action.

On 9 February 2007 the Prague municipal Court ( městský soud ) upheld this judgment in respect of the merits, but quashed the District Court ’ s decision concerning the court fees and returned this matter to the District Court for further consideration.

It appears that the restitution proceedings are still pending.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court ’ s decision in the case of Vokurka v. Czech Republic , no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings had lasted an unreasonably long time.

He also alleged a violation of Article 13 of the Convention.

Invoking Article 8 of the Convention, he further complained that his right to respect for his private and family life had been violated. According to him, due to the lengthy proceedings, during which the original claimants had died, he had discovered that they had not been his biological parents. He claimed that his adoptive parents had been unable to see the end of the restitution proceedings and have their property back, which had been confiscated by the communist regime.

THE LAW

1. The applicant complained about the excessive length of the proceedings which, according to him, was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which, so far as relevant, 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.”

The Government noted that the applicant could have resorted to the compensatory remedy provided for by Act no. 82/1998.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of certain complaints about the length of judicial proceedings in the Czech Republic . In particular, it considered that the remedy was capable of providing adequate redress for any breach of the reasonable time requirement that has already occurred. The Court also specified that the applicants whose claims for damages had not been granted by the Ministry of Justice or had been only partly granted, had to file a civil action against the State before competent courts in order to exhaust domestic remedies in this respect (see Vokurka v. Czech Republic , cited above, §§ 58-65).

Turning to the present case, the Court observes that the applicant applied for compensation pursuant to Act no. 82/1998 as amended on 23 April 2007 and that the compensation proceedings are still pending before the Ministry of Justice as it appears from the applicant ’ s letter dated 4 December 2007.

In these circumstances, the Court considers that the applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. His length-of-proceedings complaint must therefore be declared inadmissible according to Article 35 § 4 of the Convention.

2. The applicant also complained that he had no effective domestic remedy at his disposal, as required under Article 13 of the Convention, which provides:

“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.”

The Court has already found that Act no. 82/1998 as amended does provide the applicants with an effective remedy in respect of the complaint about the length of the proceedings. That finding is valid in the context of the complaint under Article 13 of the Convention.

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

3. The applicant finally complained that his right to respect for his private and family life had been violated. He invoked in this respect Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court has examined the complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

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

4. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application s .

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President