SECOND SECTION

PARTIAL 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 18 May 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Pavel Janata, is a Czech national, who was born in 1970 and lives in Praha.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , 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 Ms Y in a State owned apartment house.

On 23 April 1990 the Prague 1 Housing 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 them to leave the flat within 15 days of the allocation of a substitute flat (náhradní byt) by a competent national council. The judgment was served on the parties in the end of 1990. On 18 January 1991 it became final (pravomocný).

On 11 February 1991 Mr X commenced divorce proceedings. The judgment declaring the divorce was notified to Ms Y 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 house.

On 22 February 1994 he introduced a civil action in the District Court, seeking a declaration that the eviction of Mr X should not be conditional on the allocation of alternative accommodation. The applicant claimed that the former tenant had not paid the rent and maintenance contributions for seven months.

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 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 III(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 not relevant.

On 31 January 2000 the Prague High Court (Vrchní soud) dismissed the applicant's appeal on points of law (dovolání) . The court, considering the judgment of the Municipal Court as a judgment which had modified the first instance decision, applied section 238(1)(a) and section 241(3)(d) of the Code of Civil Procedure. It shared the Municipal Court's opinion that, if the original decision ordering the tenant's eviction upon the allocation of a substitute flat had not become final, the applicant could not evict him without alternative accommodation being available. 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. The 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 (pravomocný) . 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 rectifies 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 incorrect legal consideration of the matter.

Act no. 519/1991 to amend the Code of Civil Procedure (entered into force on 1 st 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, are considered, for the purposes of execution proceedings, to make the eviction conditional on the allocation of a substitute flat only. The beneficiary may nevertheless request a court which is competent to execute the judgment to declare that the party leaving the flat should only be provided with substitute accommodation other than a flat, or that no alternative housing should be allocated at all.

The Charter of Fundamental Rights and Freedoms

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

Under Article 38 § 2 everyone is entitled to have his or her case considered in public without unnecessary delay and 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.

COMPLAINTS

1. 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.

2. He also complains under Article 1 of Protocol No. 1 that the fact that the national courts contested the validity of the relevant judgment, the tenant continues to occupy the flat in question. He adds that he cannot claim damages for pecuniary loss sustained and that he is unable to sell or rent the flat at a market value price. The national courts put a heavy burden on the applicant who is not sure whether, and if so, when, he could bring an action, seeking a modification of the relevant judgment.

THE LAW

1. 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 examined by a court.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2(b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. He also complains under Article 1 of Protocol No. 1 that, because the national court contested the validity of the judgment of 20 September 1990, the tenant still occupies the flat concerned.

The Court recalls that, under Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

In the present case, the applicant's complaint under Article 1 of Protocol No. 1 to the Convention was not brought before the Constitutional Court.

It follows that the applicant did not exhaust the remedies at his disposal under Czech law, as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning his access to a court;

Declares inadmissible the remainder of the application.

S. Dollé J.-P.Costa Registrar President