SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70861/01 by Petr MLYNÁŘ and Karel MLYNÁŘ against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 10 December 2002 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 , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 31 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Petr Mlynář and Mr Karel Mlynář, are Czech nationals. They were born in 1947 and live in Litomyšl and České Budějovice respectively.

A. The circumstances of the case

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

On 26 September 1994 the applicants brought proceedings in the Žďár nad Sázavou District Court ( okresní soud ). They submitted that they were entitled to claim restitution of immovable property, which had been confiscated from an agricultural co-operative in 1948. They relied on sections 4 and 4a (3c) of the Land Ownership Act. They alleged that their ascendants had acquired the property on payment of a purchase price to the agricultural co-operative in 1938, and submitted third party affidavits proving that their ascendants had bought the property.

On 1 October 1996 the District Court dismissed their claim. It found that the applicants’ predecessors had concluded a pre-contract agreement with the above-mentioned co-operative, in 1935, subjecting any future transfer of the property to the approval of the Ministry of Agriculture ( Ministerstvo zemědělství ). The court concluded that, although the applicants’ ascendants had paid the purchase price, they had never possessed the property in good faith as they must have been aware of their obligation to obtain the approval of the Ministry of the Agriculture before concluding a contract of sale giving them ownership title to the property.

The applicants appealed, claiming that their ancestors had used and possessed the property in good faith and that, pursuant to section 4a (3c) of the Land Ownership Act, they did not have to prove that a contract of sale had been approved by a state authority or that the property had been registered in the Land Register. They claimed that they only had to prove possession of the property, and that the court’s finding that their ascendants had not possessed the property bona fide was false. They asserted that the pre-contract agreement had been, in fact, a contract for the sale of the property.

On 22 November 1999 the Brno Regional Court ( krajský soud ), declining to grant leave to appeal, upheld the District Court’s judgment . It held that persons entitled to claim restitution of property under the Land Ownership Act were those who had owned the property before it was transferred to the State within the statutory qualifying period , or the persons specified in section 4 (2) of the Act. The Regional Court further held that section 4a (3c) of the Land Ownership Act required the existence of an ownership title to the property, which, in the applicants’ case, would have been a contract of sale concluded between their ascendants and the co-operative. The court found that as no contract of sale had been concluded, the applicants’ predecessors had never legally acquired ownership of the property at issue.

On 3 February 2000 the applicants lodged an appeal on points of law, challenging the lower courts’ interpretation of the Land Ownership Act and claiming that their ascendants had acquired the property when they had paid the purchase price. On 12 April 2000 the Supreme Court ( Nejvyšší soud ) rejected the applicants’ appeal on points of law, holding that the applicants’ ascendants had not acquired the property either by concluding a contract of sale or by adverse possession.

On 6 March 2000 the applicants lodged a constitutional appeal ( ústavní stížnost ), alleging a violation of their property rights. It was rejected as unsubstantiated by the Constitutional Court ( Ústavní soud ) on 20 June 2000. The Constitutional Court, endorsing the reasons of the ordinary courts’ decisions, found no violation of the applicants’ property rights.

B. Relevant domestic law

The Act on the Adjustment of Ownership Rights to Land And Other Agricultural Property (“the Land Ownership Act “)

The Land Ownership Act regulates, inter alia , the restitution of certain agricultural and other property (defined in section 1) which was ceded or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6 (1) lists the acts giving rise to a restitution claim.

The categories of persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Pursuant to section 4 (1), any natural person who was a citizen of the Czech and Slovak Federal Republic and who lost his or her property, which once formed his or her agricultural homestead in the period from 25 February 1948 to 1 January 1990 in one of the ways set out in section 6 (1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is deceased or reported missing without trace, the latter’s heirs or near relatives in a specified order (section 4 (2)). Pursuant to section 4 (2), persons who can claim restitution are those natural persons who were citizens of the Czech and Slovak Federal Republic and at the same time are , in order of precedence a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired a part of the estate, c) children and spouses, d) parents, and e) brothers and sisters or their spouses and children.

The conditions under which the “persons deemed rightful claimants” are entitled to apply to the Land Office for restitution are set out in section 4a (3). Pursuant to section 4a (3a), upon the request of a rightful claimant, the Land Office can grant his/her property claim provided that such a deemed rightful claimant submits either a decision on inheritance or a contract or any other document proving his/her ownership rights (or those of his/her predecessor) in cases when the transfer of property did not become effective because of the failure to enter it in the relevant register.

Pursuant to section 4a (3c), upon the request of a person deemed a rightful claimant, the Land Office can grant his/her property claim provided that such a  claimant proves that he/she or his/her legal predecessors possessed the property claimed, but cannot submit a proof of ownership either because the ownership was not registered in the Land Register or because the Land Register’s data have been destroyed.

COMPLAINTS

1. The applicants complain under Articles 6 § 1 and 13 of the Convention about the unfairness and length of the proceedings. They submit, in particular, that the national courts did not consider the affidavits produced by them and gave insufficient consideration to their case. They further complain that they did not have any effective remedy at their disposal.

2. Invoking Article 1 of Protocol No. 1, the applicants complain that their property rights were violated as their restitution claim was rejected by the national courts.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicants complain about the unfairness and length of the restitution proceedings. They submit that the national courts gave insufficient consideration to their case and that they did not consider the affidavits produced by them. 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 restitution 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 pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b) The applicants complain that the proceedings were not conducted within a reasonable time, as required by Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to communicate this part of the application to the respondent Government.

2. The applicants allege 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.”

The Court observes that the applicants cast doubt on the courts’ interpretation of the relevant provisions of the Land Ownership Act, this being the core of their argument before the higher courts. The Court reiterates in that connection that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, inter alia , the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 43). The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. The Court further recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see García Ruiz v. Spain , ECHR 1999-I, § 21). In particular, it is not for the Court to re-assess the factual or legal elements of the case before the domestic courts when the decisions taken had a basis in law and provided relevant and sufficient reasons (see the Barbera , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68).

The Court further observes that the national courts examined the applicants’ claim and found, for reasons expressly stated in their judgments , that the applicants were not entitled to have the property restored. In particular, the District Court established that the applicants’ predecessors had concluded a pre-contract agreement with the above-mentioned co-operative, in 1935, subjecting any future transfer of the property to the approval of the Ministry of Agriculture. As the applicants’ predecessors neither concluded a valid purchase contract nor obtained the approval of the Ministry of the Agriculture, they could not be regarded as owners of the property in question for the purposes of the Land Ownership Act.

The Brno Regional Court upheld this conclusion. In its judgment it held that section 4a (3c) of the Land Ownership Act required the existence of an ownership title to the property, which would have been in the applicants’ case a valid contract of sale concluded between their predecessors and the co-operative. However, there was nothing to show that the applicants’ predecessors had acquired ownership of the property at issue in accordance with the relevant law. Subsequently, this view was endorsed by the Supreme Court and the Constitutional Court.

The Court finds no indication that the national courts decided arbitrarily. In particular, the fact that the property in question was confiscated from the co-operative in 1948 indicates that at that time the applicants’ predecessors were not considered its owners.

Thus, the applicants failed to comply with the requirements laid down in section 4a (3c) of the Land Ownership Act, as interpreted and applied by the national courts. Accordingly, they had neither a right nor a claim amounting to a legitimate expectation to seek restitution of the property and, therefore, no “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis , Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII).

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

3. The applicants invoke Article 13 of the Convention in conjunction with Article 6 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.”

(a) As regards the applicants’ complaint that they had no effective remedy at their disposal as regards the alleged unfairness of the restitution proceedings, the Court recalls that this Article applies only where an individual has “an arguable claim” to be the victim of a violation of a Convention right. The Court has found above that the applicants failed to exhaust all domestic remedies available to them in respect of their complaint of the alleged unfairness of the restitution proceedings as they did not submit this complaint to the Constitutional Court. For similar reasons the Court holds that in this respect the applicants did not have an arguable claim for the purposes of Article 13, which is, therefore, inapplicable to this case.

This part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) In so far as the applicants complain that they did not have any effective means available for raising a complaint about the length of the proceedings, the Court considers, having regard to all the information in its possession, that it cannot determine the admissibility of this complaint. It is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the length of the civil proceedings and the alleged absence of an effective remedy in this respect;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President