FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36854/03 by Hana BUŠKOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 15 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 November 2003,

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, Ms Hana Bušková , is a Czech national who was born in 1955 and lives in Jind ř ich ů v Hradec. 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 fo llows.

1. Restitution proceedings

On 16 March 1992 V. and T. brought restitution proceedings against the applicant .

The case was dealt with fourth times by the Jindřichův Hradec District Court ( okresní soud ) , five times by the České Budějovice Regional Court ( krajský soud ) and once by the Supreme Court ( Nejvyšší soud ). The Regional Court ’ s last judgment of 21 October 2004 became final on 16 November 2004. The applicant was ordered to surrender three eights of the property to V.

On 12 January 2005 she filed an appeal on points of law ( dovolání ) which seems to be still pending before the Supreme Court.

2. Proceedings on termination and distribution of joint ownership

On 22 March 2004 the applicant filed an action for termination and distribution of the joint ownership of the property.

In a judgment of 25 March 2005 the District Court assigned the whole property to the applicant who was ordered to pay CZK 1,687,500 (EUR 63,212 [1] ) to V. in compensation for the latter ’ s share.

B. The relevant domestic law

Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings (as in force until 26 April 2006)

Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.

On 27 April 2007 Act no. 160/2006 entered into force amending, inter alia , section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.

Act no. 160/2006 also introduced a new s ection 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the restitution proceedings which had caused her substantial financial losses.

In a letter of 21 November 2005 the applicant referred to the Court ’ s Pinc and Pincová v. Czech Republic judgment (no. 36548/97, ECHR 2002-VIII) in which the Court had observed, inter alia , that the purchase price paid in 1967, which had been given back to the applicants in compensation for the property which they had been ordered to surrender to the former owners, could not be reasonably related to the value of the property thirty years later (§ 61). According to the applicant, her situation was similar.

THE LAW

1. The applicant ’ s first complaint relates to the length of the restitution proceedings which, a ccording to her , is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which 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 as amended and claim compensation for non-pecuniary damage on account of the excessive length of the proceedings. The applicant replied that she did not wish to use this remedy specifying that she did not claim compensation for non-pecuniary damage resulting from the delays in the restitution proceedings but, referring to the Pinc and Pincov á v. Czech Republic judgment, instead sought compensation for pecuniary damage.

The Court observes that under section 13(1) of Act no. 82/1998, the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. It finds that through such an action, the applicant could obtain compensation for pecuniary damage caused by undue delays in the judicial proceedings (see, a contrario for non-pecuniary damage, Hartman v. Czech Republic , no. 53341/99, § 68, ECHR 2003-VIII). It considers, therefore, that this is a sufficiently accessible and effective remedy for litigants and, accordingly, one that should have been used in the present case.

In these circumstances, the Court finds that, owing to her failure to make use of the procedures available under domestic law to seek reparation, the applicant has not exhausted domestic remedies relating to her length-of-proceedings complaint, as she was required to do by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also complained that the length of proceedings had caused her the substantial financial losses and had infringed her right to the peaceful enjoyment of her possessions.

The Court notes that the application relates solely to the length of the proceedings and its consequences for the applicant. It finds, therefore, that the complaint raised in substance under Article 1 of Protocol No. 1 does not give rise to any separate issue (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, § 23; Szenk v. Poland , no. 67979/01, § 63, 22 March 2005).

3. 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

[1] 1 EUR = 26.73 CZK