FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44213/02 by MORAVIA SHOP INVEST, S.R.O. 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 12 December 2002,

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

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, Moravia Shop Invest, s.r.o. , is a private company incorporated under Czech law with its head office in Prague . The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

i. Planning proceedings

On 10 May 2000 the applicant company instituted planning proceedings ( územní řízení ) , seeking the delivery of a planning decision on the location of a commercial building.

By a public notice ( veřejná vyhláška ) of 7 August 2000 the Local Planning and Construction Office announced the commencement of the planning proceedings, but suspended them by a public notice of 11 October 2000 until it would be provided with a final judgment of the Brno Municipal Court ( městský soud ) relating to the ownership title to some of the real estates involved in the planning proceedings. This public notice was put on the notice board on 17 October 2000.

On 19 October 2000 the applicant company filed a complaint alleging inactivity on the part of the Planning and Construction Office, pursuant to Article 50 of Act no. 71/1967 on the Administrative Procedure which provided for measures against inactivity of administrative authorities. On 1 November 2000 the Brno Metropolitan Office ( magistrát města ) dismissed the applicant company ’ s complaint, sharing the opinion of the Local Planning and Construction Office that the planning proceedings could be resumed after the judicial proceedings would be terminated upon a final judgment. This decision was notified to the applicant company ’ s representative on 9 November 2000.

On 15 November 2000 the Metropolitan Office rejected the applicant company ’ s request for review of the decision of 11 October 2000 pursuant to Article 65 of Act no. 71/1967 which provided for review of a decision outside the formal appeal procedure ( přezkoumán í rozhodnutí mimo odvolací řízení ).

On 11 January 2001 the applicant company lodged a constitutional appeal ( ústavní stížnost ) in which it complained, under Article s 36 and 38 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) and Article 6 of the Convention, of the inactivity of the administrative authorities as well as the Local Planning and Construction Office ’ s decision of 11 October 2000.

In a decision of 11 June 2002, served on the applicant company ’ s lawyer on 18 June 2002, the Constitutional Court dismissed the applicant ’ s constitutional appeal as having been filed outside the sixty-day statutory time-limit provided for in section 72(2) of the Constitutional Court Act finding that the company ’ s request for review under Article 65 of Act no. 71/1967 did not constitute a remedy for the purpose of section 72(2). Accordingly, the time-limit laid down for introducing a constitutional appeal had started running on 9 November 2000, on the date of the notification of the Metropolitan Office ’ s decision of 1 November 2000 to the applicant company ’ s representative, a nd had expired on 8 January 2001 .

The Constitutional Court added that the constitutional appeal had been filed outside the time-limit also in respect of the applicant company ’ s request to quash the Local Planning and Construction Office ’ s decision of 11 October 2000.

On 31 May 200 4 the Local Planning and Construction issued, in favour of a third private company, a planning decision on the location of a construction partly situated on the lands involved in the planning proceedings initiated by the applicant company in May 2000. The latter appealed, but on 6 August 2004 the Metropolitan Office upheld the planning decision.

ii. Proceedings concerning the title to real estates

On 8 April 1998 A., a private company incorporated under Czech law, instituted proceedings against the applicant company seeking to determine the title to the real estates involved in the planning proceedings instituted by the applicant company in May 2000.

On 15 October 2004 the Municipal Court found that A. was the owner of these real estates. The Regional Court upheld this judgment on 12 July 2005.

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

In its application form, t he applicant company complained under Article s 6 § 1 and 13 of th e Convention and Article 1 of Protocol No. 1 that its right to a fair hearing within a reasonable time had been violated by the Constitutional Court which had dismissed its constitutional appeal as having been lodged outside the statutory time-limit and, therefore, had refused to protect the applicant company ’ s rights. It further challenged the inactivity of the administrative authorities which, according to the applicant company, had committed a number of procedural errors.

As a result, the applicant company had suffered substantial damage.

THE LAW

1. The applicant company originally complained that the administrative authorities had violated its right to a hearing within a reasonable time under 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.”

On 4 May 2006 the Government submitted complementary observations concerning the introduction of a new compensatory domestic remedy in cases relating to the length of proceedings. In a letter of 10 August 2006 the applicant company noted, inter alia , that the facts of its application did not concern any direct or indirect delay in judicial proceedings but raised a question of the unjustified proceedings in the course of which the administrative authorities had adopted the decisions to its detriment. It did therefore not intend to use the new compensatory remedy.

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 (see Vokurka v. Czech Republic , cited above, §§ 58-65).

However, the applicant company despite having been informed by the Court of the possibility of using this remedy maintained that he should not be required to exhaust such a remedy. It thus appears that it has chosen not to avail himself of this remedy.

The Court therefore considers that the applicant company has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The application must therefore by declared inadmissible according to Article 35 §§ 4 of the Convention.

2. The applicant company also complained under Article 6 § 1 of th e Convention that its right to a fair hearing had been violated by the Constitutional Court which had rejected its constitutional appeal as having been introduced outside the statutory time-limit.

The Court considers that the decision of the Local Planning and Construction Office of 11 October 2000 was of a procedural and interim nature in that the administrative authority thereby suspended the planning proceedings, without prejudging the merits thereof, pending the outcome of the judicial proceedings relating to the ownership title to the real estates involved in the planning proceedings. The Court further considers that when criticising the administrative authorities for remaining inactive, the applicant company in fact challenged in its constitutional appeal the above administrative decision.

In the light of these circumstances, the proceedings before the Constitutional Court and its decision complained of by the applicant company did not, as such, involve a “determination” of the latter ’ s civil rights and obligations, from which it follows that Article 6 § 1 of the Convention does not apply to it. Consequently, the Court finds that the applicant company ’ s complaint must be rejected as incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.

3. The applicant company also complained that the inactivity of the administrative authorities had caused it great economic losses and had violated its property rights as guaranteed by Article 1 of Protocol No. 1 which 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 Court notes that the core of the applicant company ’ s complaints is the suspension of the planning proceedings and its financial consequences for the applicant company. Accordingly, the Court finds that the complaint under Article 1 of Protocol No. 1 does not give rise to a separate issue ( Zanghì v. Italy , judgment of 19 February 1991, Series A no. 194-C, § 23).

4. The applicant company further alleged a violation of Article 13 of the Convention which provides 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.”

The Court recalls that Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform their obligations under Article 13 (see, e.g., Chahal v. the United Kingdom , judgment of 15 November 1996, Reports 1996-V, § 145). However, this provision applies only in respect of grievances under the Convention which are arguable (see, e.g., Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

Having regard to its conclusions on the applicant company ’ s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court finds that its complaint under this head is not arguable and is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Accordingly, it must be rejected pursuant to Article 35 § 4.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President