SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19621/02 by Michal KLEPETÁŘ against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 15 October 2002 as a Chamber composed of

         Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 28 April 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Michal Klepetář, is a Czech national, who was born in 1946 and lives in Prague. He is represented before the Court by Mr M. Hulík, a lawyer practising in Prague.

A. The circumstances of the case

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

On an unspecified date in 1992 the applicant brought proceedings before the Brno Municipal Court ( městský soud ) claiming restitution of property which had been confiscated from his relatives under the President Beneš Decree No. 108/1945.

On 30 June 1998 the Municipal Court rejected the applicant’s restitution action. It held that the applicant had not proved his restitution title under section 3(4) of the Extra-Judicial Rehabilitation Act (hereinafter “the Act”), that the second defendant was not a person obliged to make restitution under the Act, that the applicant had not asked the third defendant to restore the property within the time-limit set out in the Act, and that a part of the property was excluded from restitution under section 8(3) of the Act.

The applicant appealed. At the same time, he requested that the presiding judge be disqualified for bias, claiming that she had rendered an anti-Semitic judgment . On 5 September 2000 the Brno Regional Court quashed the first instance judgment and remitted the case to the Municipal Court, stating that the judgment lacked sufficient reasoning which consisted in mere references to the legal opinions of the parties and to facts presented by them. It also disqualified the Municipal Court presiding judge from considering the applicant’s case, as she had herself filed a request to be withdrawn, whilst rejecting the applicant’s allegation of anti-Semitism.

On 28 April 2000 the applicant lodged a constitutional appeal ( ústavní stížnost ) complaining about the delays in the restitution proceedings and submitting that the national courts had discriminated against him because of his Jewish origin. He also requested the Constitutional Court ( Ústavní soud ) to review the constitutionality of the Act.

On 23 October 2000 the Constitutional Court declared the applicant’s constitutional appeal inadmissible, stating that, although the restitution proceedings were long, the Regional Court had acted in the meantime by rendering its decision on 5 September 2000. The court did not examine the merits of the appeal as the proceedings were still pending.

On 26 April 2001 the Brno Municipal Court took a partial decision on the applicant’s request that the original action be modified. The applicant lodged a constitutional appeal, requesting the Constitutional Court to recognise the delays in the proceedings and to quash certain statutory provisions. On 20 June 2002 the Constitutional Court rejected this constitutional appeal as being manifestly ill-founded.

B. Relevant domestic law

The Extra-Judicial Rehabilitation Act

Section 3(1) provides that all natural persons who are nationals of the Czech and Slovak Federal Republic are entitled to claim restitution of any of their property that passed into State ownership in the circumstances referred to in section 6.

Section 4 requires that the State and/or any legal entity in possession of confiscated property on the date on which the Act came into force to return that property. Paragraph 2 provides that any natural person who acquired property from the State unlawfully or by means of an unlawful advantage is likewise required to return the property.

Under section 5, a person who is obliged to make restitution shall make restitution to the person so entitled upon receipt of a written request for restitution. Paragraph 2 provides that any request for restitution shall be made within the period of six months from the date on which the Act came into force, failing which the relevant claim shall lapse. Under paragraph 3, the person obliged to make restitution shall enter into a restitution agreement with the person entitled to restitution, and shall restore the latter’s possessions within 30 days following the expiry of the six-month period referred to in paragraph 2. Paragraph 4 provides that where the person obliged to make restitution refuses to do so, the person entitled to restitution may commence proceedings before a court within a year from the date of the entry into force of the Act.

According to section 6(1)(k), the obligation to return the property shall be applied if the property had passed into State ownership during the decisive period by a nationalisation carried out contrary to the law then in force.

Section 8(3) provides that property on which a building has been constructed after its cession to the State is excluded from restitution.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the restitution proceedings.

Under the same provision, he complains that the restitution proceedings were unfair. He submits in particular that that the Constitutional Court rejected his constitutional appeal, that the Regional Court gave insufficient consideration to his case and that it held that the first instance court judge had been impartial and was not anti-Semitic. He adds that he has not been informed of the identity of the new first instance court judge presiding over his case.

2. The applicant complains under Article 14 of the Convention that his property rights were violated and that the Act is discriminatory in that it lacks special provisions for the restitution of Jewish property.

THE LAW

1. The applicant complains that the restitution proceedings have not been held within a reasonable time, as required by Article 6 § 1 of the Convention which, 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...”

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 applicant also complains under Article 6 § 1 of the Convention about unfairness in the restitution proceedings. He alleges under Article 14 of the Convention that he has been discriminated against as the Act lacks special provisions for the restitution of Jewish property.

However, the Court observes that the restitution proceedings in the present case are still pending before the Brno Municipal Court. It therefore finds that this part of the application is premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the restitution proceedings ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President