SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75135/01 by Jaroslav PATŘIČNÝ and Eliška PATŘIČNÁ against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 11 March 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen ,

Mrs A. Mularoni , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 2 April 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Jaroslav Patřičný and Mrs Eliška Patřičná , are Czech nationals, who were born in 1928 and 1934 respectively and live in Dortmund, Germany.

A. The circumstances of the case

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

From 8 April to 22 April 1989 the first applicant was permitted by the Czechoslovak authorities to spend his holiday in Germany. The second applicant obtained the same permission for the period from 13 March to 11 April 1989. As the first applicant had to undergo surgery in Germany, the applicants did not return before the end of the authorised period. On 3 May 1989 the first applicant asked the Czechoslovak Embassy in Bonn whether his permission to stay in Germany could be extended. He was served with a reply stating that his stay in Germany was illegal and was notified that his property would be immediately confiscated as a consequence. He was also notified that he had to file a request for permission to return to Czechoslovakia. The applicants did not file a request.

On 5 September 1989 the Czechoslovak authorities made an inventory of  the applicants’ property. They subsequently sold all the movable items and transferred their flat owned by a co-operative, and in respect of which the applicants had a right of beneficial use, back to the co-operative. The co-operative then allocated their flat to a third person.

On 16 March 1992 the applicants brought proceedings before the Jablonec nad Nisou District Court seeking damages of CZK 100,000 from the State for having deprived them of their property and for having prevented them from returning to Czechoslovakia in 1989. They relied on Act No. 58/1969. They claimed that their property, which they assessed at CZK 100,000, had been confiscated contrary to the law in force at the material time.

On 18 August 1994 the Jablonec nad Nisou District Court rejected the applicants’ claim. The court held that the applicants had lodged neither a request for an extension of their permit to stay abroad nor a request for permission to return to Czechoslovakia. In its view, the Czechoslovak authorities had not proceeded contrary to the relevant law. The court concluded that there was nothing to indicate that the State was liable for any illegal measure.

In September 1994 the applicants appealed, challenging the District Court’s material and legal consideration of their case. On 2 January 1995 the Ústí nad Labem Regional Court quashed the District Court’s judgment and remitted the case to it. The court stated that the applicants, who had stayed abroad after the expiry of their permits, had not acted illegally and that there was no causal link between their stay abroad and the fact that they had no possibility of using their property. It held that the obligation to request permission to return to Czechoslovakia had prevented them from exercising their property rights. The court concluded that the national authorities had seized and disposed of the applicants’ property illegally.

On 13 and 24 February 1995 the applicants extended their original claim for damages to CZK 200,000, claiming that the inventory of their movable property had not been complete and that the value of many objects had been underestimated. On 13 August 1996 the District Court, after having assessed additional evidence including several expert reports concerning the damage incurred by the applicants, and being bound by the Regional Court’s legal opinion, held that the State was to pay damages in the sum of CZK150,000 to the applicants. The court rejected the remainder of their claim. It stated that there was nothing to prove that there had been any movable assets other than those which had been included in the inventory.

On 3 December 1996 the Regional Court, upon the defendant’s appeal, upheld this judgment , slightly modifying the rate of the default interest.

On 23 April 1998 the Supreme Court, upon the defendant’s appeal on points of law, quashed the lower courts’ judgments and remitted the case to the District Court for further consideration. The Supreme Court held that the applicants’ claim fell within the scope of the Extra-Judicial Rehabilitation Act which was a lex specialis compared to Act No. 58/1969 and to the Civil Code provisions on liability .

On 10 December 1998 the District Court, being bound by the Supreme Court’s judgment , rejected the applicants’ action for damages in the amount of CZK 200,000. The court stated that the applicants should have lodged their claim under the Extra-Judicial Rehabilitation Act.

The applicants appealed, claiming that their flat had been allocated to a third person after the expiry of the relevant period set out in the Extra-Judicial Rehabilitation Act (i.e. after 1 January 1990) and that many objects had not been included in the inventory.

On 20 April 1999 the Regional Court upheld the first instance judgment . The court added that the applicants had wrongly lodged their claim under Act No. 58/1969. It ruled that the State could not be held liable under the Extra-Judicial Rehabilitation Act as it had transferred the property to third persons.

The applicants filed a request for the re-opening of the proceedings prior to the delivery of the Regional Court’s judgment of 20 April 1999. They claimed that the courts, being bound by the Supreme Court’s decision of 23 April 1998, had failed to consider assets which had not been recorded in the inventory. On 5 February 2002 the District Court rejected their request as there were no facts, decisions or evidence which could not have been assessed and used in the previous proceedings in the applicants’ favour.

The applicants lodged an appeal on points of law, requesting the Supreme Court to adjudicate on whether the Extra-Judicial Rehabilitation Act was applicable to events which had occurred after 1 January 1990. They claimed that State officials had acted contrary to the relevant law, and that the State was liable to pay damages under Act No. 58/1969 which, they claimed, was a lex specialis compared to the Extra-Judicial Rehabilitation Act.

On 15 November 2000 the Supreme Court rejected the applicants’ appeal on points of law, quashed the District Court’s judgment of 10 December 1998 and the Regional Court’s judgment of 20 April 1999 to the extent that they concerned the extended claim of CZK 50,000 filed by the applicants in February 1995, and discontinued the proceedings in this respect. It stated that the District Court in its judgment of 10 December 1998 had repeatedly adjudicated on their extended claim despite the fact that the former decision had become res iudicata . The court further examined the lower courts’ legal consideration of the applicants’ case and concluded that there had been no shortcomings. It added that the legal question of the application of the Extra-Judicial Rehabilitation Act to the applicants’ property, which had been disposed of by the State after the relevant period (i.e. after 1 January 1990), had not been the subject-matter of the proceedings. It referred in this connection to the District Court’s judgment of 13 August 1996.

On 17 January 2001 the applicants lodged a constitutional appeal, requesting the Constitutional Court to hold that they were entitled to damages in the amount of CZK 200,000. On 20 February 2001 the Constitutional Court rejected their appeal on the ground that it did not satisfy the formal requirements of the Constitutional Court Act. It stated that the applicants had submitted a claim for damages, a matter which was outside the Constitutional Court’s jurisdiction.

COMPLAINTS

1. The applicants complained under Articles 6 and 13 of the Convention of the unfairness of the proceedings. They alleged, in particular, that the national courts had insufficiently assessed the evidence produced by them, that the Constitutional Court had rejected their constitutional appeal and that they had not had any effective remedy. They also complained about the length of the proceedings.

2. Invoking Article 1 of Protocol No. 1 to the Convention, the applicants complained that they had been deprived of their property illegally, that their flat had not been restored to them and that they had not been compensated for the loss of their movable property.

3. Invoking Article 2 of Protocol No. 4 to the Convention, the applicants complained that they had been prevented from entering their homeland during the communist regime.

4. Invoking Article 7 § 2 of the Convention, the applicants complained that the national courts had not considered that the officials who had seized their property on behalf of the competent national authority had proceeded illegally. They also complained that the national courts had not taken any procedural steps in order to institute criminal proceedings against those officials.

5. Invoking Article 17 of the Convention, the applicants complained that the national authorities had not paid them the profits made from the sale of their property.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicants complained about the alleged unfairness and the length of the compensation proceedings. They also complained that the Constitutional Court had dismissed their constitutional appeal. Article 6 § 1 of the Convention, as far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (...)

(a) To the extent that the applicants allege that the proceedings were unfair, the Court finds that the applicants have not shown that this complaint was raised, at least in substance, before the Constitutional Court. They did not, therefore, exhaust the remedies available to them under Czech law in respect of this complaint.

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

(b) To the extent that the applicants complain that the Constitutional Court dismissed their constitutional appeal, the Court finds that the applicants failed to submit their constitutional appeal in due and proper form as prescribed by the Constitutional Court Act having lodged a claim for damages, a matter outside the Constitutional Court’s jurisdiction. Therefore, the dismissal of the applicants’ constitutional appeal by the Constitutional Court cannot be said to have constituted an arbitrary decision rendering the proceedings unfair; nor can it be considered as unduly restricting the applicants’ right of access to a court.

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

(c) In so far as the applicants complain that the proceedings were not conducted within a reasonable time, the Court reiterates that the reasonableness of the length of proceedings must be considered with regard to the circumstances of the particular case in the light of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case and what was at stake in the litigation for the applicant (see Styranowski v. Poland , judgment of 30 October 1998, Reports of judgments and decisions 1998-VIII, § 47; Philis v. Greece (no. 2), judgment of 27 June 1997, Reports 1997-IV, p. 1083, § 35; Portington v. Greece, judgment of 23 September 1998, Reports 1998-VI, p. 2630, § 21, and Süßmann v. Germany , judgment of 16 September 1996, Reports 1996-IV, pp. 1172–73, § 48). Moreover, the Court reiterates that only delays for which the State can be held responsible may justify a finding that a “reasonable time” has been exceeded (see Papachelas v. Greece [GC], no. 31423/96, § 40, ECHR 1999-II).

The Court finds that the proceedings in the present case commenced on 16 March 1992 and ended on 20 February 2001. The period under consideration thus lasted 8 years and more than 11 months. During this period the case was repeatedly examined by the ordinary courts at three levels of jurisdiction and, subsequently, by the Constitutional Court.

The Court notes that the proceedings before the first instance court (two years, five months and two days) were rather lengthy. However, no excessive delays in the proceedings occurred in the higher courts. Bearing in mind that the matter had to be remitted on several occasions to the lower courts for further consideration, the Court does not find that the conduct of the courts led to significant and unreasonable delays in the proceedings as a whole. In addition, the Court observes that the issues were not particularly straightforward and required the commissioning of several expert reports to assist the courts in deciding the applicants’ case.

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

2. Invoking Article 7 § 2 of the Convention, the applicants complained that the national courts had not considered that the officials who had seized their property on behalf of the competent national authority had proceeded illegally. Moreover, the courts failed to institute criminal proceedings against those officials. Article 7 of the Convention provides:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed that the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. “

The Court notes that the applicants did not bring this issue before the Constitutional Court, thus failing to exhaust all domestic remedies available to them under Czech law. In any event, it recalls that the right to have criminal proceedings instituted against a third person is guaranteed neither by Article 7 of the Convention nor by any other provision of the Convention.

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

3. The applicants invoked Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention. Article 13 of the Convention 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 recalls that Article 13 applies only where an individual has “an arguable claim” to be the victim of a violation of a Convention right (see E. and Others v. the United Kingdom , no. 33218/96, § 109, unreported, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 112, ECHR 2002). The Court has found above that the applicants’ complaints were inadmissible either for non-exhaustion of domestic remedies or as being manifestly ill-founded. For similar reasons it holds that, in respect of these complaints, the applicants did not have an arguable claim for the purposes of Article 13 of the Convention.

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

4. The applicants alleged a breach of Article 1 of Protocol No. 1 to the Convention, which provides:

“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.”

(a) In so far as the applicants complain that they were deprived of their property illegally, the Court notes that the deprivation of their property took place in 1989, that is before 18 March 1992, the date on which the Convention became effective with respect to the Czech Republic. However, the Convention only governs facts subsequent to its entry into force with respect to the Contracting Party concerned.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 as being incompatible ratione temporis with the provisions of the Convention.

(b) The applicants also complain that their flat has not been restored to them and that they have not been compensated for the loss of their movable property.

Firstly, the Court observes that the applicants did not seek to have the flat restored to them before the national courts.

Secondly, as to the applicants’ complaint that they have not recovered damages for the loss of their movable property, the Court finds that the applicants failed to submit their constitutional appeal in due and proper form pursuant to the Constitutional Court Act.

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

5. The applicants also complained that they were prevented from entering their homeland during the communist regime. They alleged a violation of Article 2 of Protocol No. 4 which provides:

“2. Everyone shall be free to leave any country, including his own. “

The Court observes that the alleged violation occurred in 1989, that is before 18 March 1992, the date on which the Convention became effective with respect to the Czech and Slovak Federative Republic which became the Czech Republic and the Slovak Republic.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 as being incompatible ratione temporis with the provisions of the Convention.

6. To the extent that the applicants have raised complaints under Article 17 of the Convention, the Court finds, in so far as these complaints have been substantiated and fall within its competence, that they do not disclose any appearance of a violation of the Convention or its protocols.

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

For these reasons, the Court by a majority

Declares the application inadmissible.

S. Dollé              J.-P. Costa Registrar President