SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64660/01 by Pavel JANATA against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 21 March 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr K. Jungwiert , Mr M. Ugrekhelidze , Ms D. Jočienė , Mr D. Popović, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 20 October 2000 ,

Having regard to the partial decision of 18 May 2004 ,

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 ap plicant, Mr Pavel Janata, is a Slovakian national who was born in 1970 and lives in Pra gue . He is rep resented before the Court by Mr J. Buzalka, a lawyer practising in Pra gue .

A. The circumstances of the case

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

On 2 June 1976 the former Prague 1 National Council ( místní národní výbor ) assigned a two-room flat to Mr X and his wife, Ms Y, in a State owned apartment house.

On 23 April 1990 the Prague 1 H o us i ng Association ( bytový podnik ) brought proceedings against Mr X and a certain Ms Z before the Prague 1 District Court ( obvodní soud ) asking that their tenancy be terminated and that Mr X and Ms Z be ordered to leave the flat. It alleged that the tenants had failed to pay the rent for more than three months.

By a judgment of 20 September 1990 , the District Court terminated the tenancy of Mr X and Ms Z, and ordered t hem to leave the flat within 15 days of the allocation of a substitute flat by the competent national council . The judgment was served on the parties at the end of 1990 . On 14 May 199 2 it became final .

On 11 February 1991 Mr X commenced divorce proceedings against Ms Y. The judgment declaring the divorce was notified to the latter at her new address in May 1991. The judgment of 20 September 1990 was served on her in March 1992.

In April 1993 the applicant became the owner of the apartment.

On 22 February 1994 he introduced a civil action in the District Court, seeking a declar ation that the eviction of Mr X sh ould not be condition al on the allocation of a lternative accommodation . The applicant claimed that the former tenant had not paid the rent and maintenance contributions for seven months. He submitted that the flat had been assigned to Mr X and his wife, Ms Y, on 2 June 1976 and that after their divorce, Ms Y had been provided with a substitute flat, Mr X having continued to occupy the common flat. The applicant further submitted that the District Court had terminated the tenancy of Mr X and his wife, and had ordered them to leave the flat within 15 days of the allocation of a substitute flat by the competent national council .

On 27 June 1995 the District Court dismissed the applicant ’ s action finding, inter alia , that the fact that Mr X owed rent for over three months , or that he had caused disorder in the house , did not substantiate the applicant ’ s argument that the circumstances , on which the original judgment of 20 September 1990 had been based , had changed, thereby justifying its modification .

On 14 August 1996 the Prague Municipal Court ( městský soud ) quashed the first instance judgment, finding that the former tenant ’ s continued unlawful behaviour, which had constituted the reason for the termination of the tenancy , had to be considered as an alteration of the circumstances ( změna poměrů ) on which the District Court had originally based its judgment of 20 September 1990 . It ordered the District Court to clarify the circumstances in which Mr X had defaulted on the payment of his rent.

On 19 June 1997 the District Court again dismissed the applicant ’ s action on the ground that the applicant had not proved that Mr X had violated his tenancy obligations. It further held that the amount of rent which the applicant had asked Mr X to pay was contrary to the national law.

On 8 January 1998 the Municipal Court upheld the District Court ’ s judgment applying, inter alia , section II I(6) of Act no. 519/1991 which amended the Code of Civil Procedure. The court modified, however, the reasons for the decision . It held that the judgment of 20 September 1990 had not become final and could not, therefore, be modified upon the applicant ’ s request. It found that the eviction order had not been directed against the same persons, to whom the flat had originally been allocated in 1976. It further found that Ms Y had not been a party to the 1990 proceedings, and the fact that the 1990 judgment had been notified to her in March 1992 was irrelevant.

On 31 January 2000 the Prague High Court ( Vrchní soud ) dismissed the applicant ’ s appeal on points of law ( dovolání ) . The court, considering that the judgment of the Municipal Court was a decision which had modified the first instance judgment, applied section 238(1)(a) and section 241(3)(d) of the Code of Civil Procedure (see “Relevant domestic law”, below) . It shared the Municipal Court ’ s opinion that , if the original decision ordering the tenant ’ s eviction upon the allocation of a substitute flat ha d not become final, the applicant could not evict him without alternative accommodation being provided . The court added that the relevant judgment had clearly referred to Ms Z and not Ms Y , and that this had not been rectified , at least under section 164 of the Code of Civil Procedure.

On 31 August 2000 the Constitutional Court ( Ústavní soud ) dismissed as being manifestly ill-founded the applicant ’ s constitutional appeal ( ústavní stížnost ) , in which the applicant had alleged a violation of Articles 36 §§ 1 and Article 38 § 2 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) , as well as Article 6 § 1 of the Convention.

B. Relevant domestic law

The Code of Civil Procedure

Section 159(1) and (3) provides that a judgment, which has been duly served and which can no longer be appealed, becomes final. Once a case has been adjudicated and the decision has become final, it may not be reconsidered.

Pursuant to section 164(1), the president of a chamber may rectify anytime and, if necessary ex officio , clerical errors or any other evident incorrectness in a judgment.

Under section 238(1)(a), an appeal on points of law is admissible against a judgment of an appellate court, whereby the first instance judgment was modified.

Pursuant to section 241(3)(d), an appeal on points of law may be filed on the ground that a decision was based on the incorrect legal consideration of the matter.

Act no. 519/1991 to amend the Code of Civil Procedure (in force as of 1 January 1992 )

Section III, containing the concluding and interim provisions, provides in its sixth sub-section that final judgments ordering an eviction from an apartment which were adopted before the entry into force of this Act, and which made the eviction conditional on the allocation of a substitute flat or other accommodation, retain their conditional nature. The beneficiary may nevertheless request a court, which is competent to execute the judgment, to modify that order and declare that the party leaving the flat should only be provided with substitute accommodation rather than a flat, or that no alternative housing need be allocated at all.

The Charter of Fundamental Rights and Freedoms

Article 36 § 1 provides that everyone may assert his or her rights before an independent and impartial court of justice or, in specified cases, before another authority.

Under Article 38 § 2, everyone is entitled to have his or her case considered in public without unnecessary delay, in his or her presence, and to express his or her opinion on all the submitted evidence. The public may be excluded only in those cases specified by law.

COMPLAINT

The applicant complains that his case was not dealt with fairly and that he was denied effective access to a court, in that the Municipal Court, High Court and Constitutional Court contested the validity of the judgment of 20 September 1990 , and thereby made it impossible for him to have his dispute with the former tenant duly examined.

THE LAW

The applicant complains that his case was not dealt with fairly and that he was denied effective access to a court. He relies on Article 6 § 1 of the Convention which, so far as material, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by a tribunal ...”

The Government submit that the applicant was by no means prevented from raising his claim concerning his civil rights before the competent court of first instance and from initiating proceedings concerning his claim (see Golder v. the United Kingdo m , judgment of 21 February 1975, Series A no. 18, § 36). Moreover, his civil action was considered at all levels of general jurisdiction and by the Constitutional Court . He had therefore a clear and effective opportunity to challenge the act he considered to be an interference with his civil rights (see Bellet v. France , judgment of 4 December 1995 , Series A no. 33-B, § 36). It was possible for the applicant, who was legally represented throughout the proceedings, to present all the facts and arguments both of procedural and substantive law that could, in his view, secure for him a favourable outcome in the dispute.

The Government submit that, in its judgment of 8 January 1998, the Municipal Court ruled that the District Court ’ s judgment of 20 September 1990 had not become final and binding because it had been directed against Ms Z rather than against Ms Y, the former not being liable to be sued before the courts. As there was no impediment in the form of res iudicata , the Government contend that, following the Municipal Court ’ s judgment of 8 January 1998 , there was nothing to prevent the applicant from bringing a new action against Mr X, seeking the termination of the tenancy and his eviction, without being obliged to provide him with alternative accommodation.

The applicant contests the Government ’ s arguments. He maintains that he was deprived of his right to have his dispute heard by a court. The validity of this principle was clearly connected to the final and binding judgment of 20 September 1990 .

He submits that the Supreme Court which dealt with his appeal on points of law did not take into consideration the fact that Ms Y had left the common household and that Mr X had therefore been the only tenant of the flat.

He submits that a final and binding judgment could not be discussed again, that Ms Z did not have right to use the flat, she was not the party to the proceedings and that, under section 164 of the Code of Civil Procedure, only typing and numerical errors in a judgment could be corrected. However, it was not possible to modify the name of the party to the proceedings cited in the action and the judgment. According to the applicant, the High Court ’ s suggestion to correct the name in the judgment of 20 September 1990 would be against the law.

The Court notes that the applicant actually complains of the outcome and result of the proceedings before the national courts.

It recalls in this respect that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its 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 rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing , it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and national courts (see Schenk v. Switzerland , judgmen t of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; García Ruiz v. Spain , judgment of 21 January 1999, § 28, ECHR 1999-I).

Turning to the present case, the Court finds no indication that the applicant , who was legally represented throughout the proceedings, could not properly argue his case or that he was prevented from submitting his arguments to the courts, or that the proceedings were otherwise unfair. In the circumstances of the present case, it cannot conclude that the applicant ’ s ac tion was arbitrarily dismissed.

The Court further recalls that o ne of the fundamental aspects of the rule of law is the principle of legal certainty , which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question ( see Roşca v. Moldova , no. 6267/02, § 24, 22 March 2005).

Legal certainty presupposes respect for the principle of res judicata , i.e. the principle of the finality of judgments. As a result, no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing or a fresh determination of the case. The h igher courts ’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character ( ibid ., § 25).

For the Court, the concept of the validity of the national court judgment maintained by the appellate court, High Court and Constitutional Court in the present case was not at odds with section 159(1) of the Code of Civil Procedure, according to which “a judgment which has been duly served and which can no longer be subject to appeal becomes final”. It does not consider that t he appellate court ’ s opinion that the judgment could not become final because it was not directed against the same persons , to whom the flat had been allocated in 1976 , lack ed a proper or logical basis .

In the light of these considerations, the Court finds sufficiently convincing the Government ’ s argument that the applicant could bring a new action against Mr X, seeking the cancellation of his tenancy without being obliged to provide Mr X with alternative accommodation.

Accordingly, there is no appearance of a violation of the applicant ’ s right to a fair hearing under Article 6 § 1 of the Convention

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The procedure under Article 29 § 3 of the Convention must therefore be discontinued.

For these reasons, the Court unanimously

Declares the application in admissible.

S. Dollé J.-P. Costa Registrar President