SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57321/00 by Ingrid BREIEROVÁ AND OTHERS against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 8 October 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. Doll é , Section Registrar ,

Having regard to the above application introduced on 18 January 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ingid Breierová, Markéta Žaludová and Jana Matyášová are three Czech nationals, born in 1966, 1978 and 1938 respectively, and live in Bystřice pod Hostýnem and Přerov. They are represented before the Court by Ms L. Palatinová, a lawyer practising in Kroměříž.

A. The circumstances of the case

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

A.C. owned a plot of land which was nationalised without any compensation, pursuant to a decree of the Ministry of Industry dated 29 April 1952.

On 25 March 1992 the third applicant, A.C.’s daughter lodged an action for the restitution of one half of the plot of land. On 1 April 1992 the mother of the first and second applicants, another daughter of A.C. , also filed an action for restitution of the whole plot of land.

On 15 September 1992 the Prague 10 District Court (obvodní soud) rejected the latter’s action, finding that she had directly claimed restitution instead of filing a request for a restitution agreement with the defendant which had to be approved by a court.

On an unspecified date in 1993, the Prague Municipal Court (městský soud) quashed this judgment and remitted the case to the District Court for a further hearing. It ordered the District Court to consider whether the Extra-Judicial Rehabilitation Act (hereinafter “the Act”) or the Land Ownership Act should be applied to the case, and to establish whether the nationalisation of the property had been carried out contrary to Presidential Decree No. 100/45, and whether the original owner had been financially compensated.

On 29 March 1994 the District Court joined the restitution actions of the third applicant and the mother of the first and second applicants. On 23 August 1995 the latter died, and the first and second applicants took over the restitution proceedings as her heirs. On 20 May 1997 the District Court, having assessed documentary evidence and having heard the parties, rejected the applicants’ restitution claims. It established that the property at issue was expropriated without any compensation by a decree of the Ministry of Industry contrary to law. The court found that the applicants were entitled to claim restitution under section 3(4)(c) of the Act and that the defendant was obliged to restore the property to the applicants under section 6(1)(k) of the Act. It held, however, that the property could not be returned to the applicants in natura as a building had been constructed on the land after its expropriation, and was therefore excluded from restitution by section 8(3) of the Act. Nevertheless, the applicants could claim financial compensation under section 13 of the Act.

On 15 September 1998 the Municipal Court upheld the first instance judgment .

On 16 July 1999 the first applicant lodged a constitutional appeal (ústavní stížnost) , claiming a violation of her right to a fair hearing. On 4 November 1999 the Constitutional Court ( Ústavní soud ), without holding a public hearing, dismissed her constitutional appeal as manifestly ill-founded.

B. Relevant domestic law

The Extrajudicial 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. According to paragraph 4(c), if the person whose property has been transferred to the State in cases specified in section 6 dies before the expiry of the time-limit specified in section 5(2), the entitled persons, provided they are citizens of the Czech and Slovak Federal Republic, shall be his or her spouse and children.

Section 6(1)(k) provides that the obligation to surrender property shall be applied to those cases where the property had been transferred to the State during the prescribed period by nationalisation executed contrary to the legal regulations in force at the time when the expropriation took place.

According to section 8(3), property on which a building has been built after its cession to the State shall be excluded from restitution.

Constitutional Court Act No. 182/1993

According to section 43(2), the reporting judge was to dismiss a constitutional appeal if it was inadmissible, without holding a public hearing and without the parties being present.

COMPLAINTS

1. Invoking Article 6 § 1 of the Convention, the applicants complain that their right to a fair hearing within a reasonable time by an independent and impartial tribunal was violated in the restitution proceedings. They submit in particular that the national courts did not examine the conditions for restitution of the property and that the Constitutional Court considered the first applicant’s constitutional appeal in camera .

2. They further complain under Article 1 of Protocol No. 1 about being denied the use and enjoyment of their property.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicants complain that the national courts did not examine their restitution actions fairly, independently and impartially, or within a reasonable time. They also complain that the Constitutional Court did not hold a public hearing. Moreover, they allege that their property rights were violated. 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. (...)

Article 1 of Protocol No. 1 to the Convention 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.”

1. Second and third applicants

(a) The second and third applicants complain of unfairness and the length of the restitution proceedings, as well as the impossibility on their part to use the property in issue.

The Court observes that the final decision, within the meaning of Article 35 § 1 of the Convention, is the judgment of the Municipal Court on 15 September 1998. The decision of the Constitutional Court taken on 4 November 1999 could not postpone the running of the six months’ time-limit, the applicants not being a party to the constitutional proceedings.

It follows that this part of the application falls outside the six months’ time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b) These applicants further complain of the lack of a public hearing before the Constitutional Court.

The Court has already noted that the second and third applicants were not party to those proceedings. They cannot therefore claim to be victims of any violation of their rights under Article 6 § 1 of the Convention in respect of them.

It follows that their complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

2. First applicant

(a) As regards the first applicant’s allegation that the national courts did not examine the conditions for the restitution of the property, the Court recalls that it is not its task to substitute itself for the domestic jurisdictions. 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, Reports 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).

In the present case, the Court observes that the first applicant’s restitution action was considered by the national courts by way of a public hearing, that the applicant and her counsel were present at those hearings and that she was provided with an ample opportunity to present her arguments and challenge the submissions of the defendant. The national courts gave full reasons for their decisions. The Constitutional Court, upon the first applicant’s appeal, thereafter considered the constitutional aspects of the case. In the light of these circumstances, the Court does not find that the applicant has substantiated any procedural unfairness in the conduct of the proceedings.

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

(b) The first applicant further complains that the Constitutional Court did not hold a public hearing.

The Court recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair hearing, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, for example, the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, § 33, and Malhous v. the Czech Republic [GC], no. 33071/96, 12 July 2001, § 55). The Court’s task is, above all, to ascertain whether the special features of the domestic proceedings viewed as a whole justify a departure from the principle that there should be a public hearing (see, among other authorities, the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31-32).

In the instant case, the Court finds that public hearings were held at first instance and on appeal at which the factual and legal issues of the applicant’s case were examined. Admittedly, the proceedings in the Constitutional Court were conducted without a public hearing. However, the Court observes that these proceedings, being limited to the examination of questions of constitutionality, did not involve a direct and full determination of the applicant’s civil right to restitution. The Court considers that the fact that no public hearing was held by the Constitutional Court was sufficiently compensated by the public hearings held at the decisive stage of the proceedings, when the merits of the applicant’s restitution claim were determined (see Constantinescu v. Romania , no. 28871/95, § 53, ECHR 2000-VI).

Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

(c) As regards the applicant’s challenge to the impartiality of the national courts, the Court notes that there is nothing in the case-file which would cast doubt on the impartiality of the domestic courts which heard the applicant’s case.

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

(d) This applicant next complains that the restitution proceedings before the Czech courts were unreasonably long.

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 § 3 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

(e) As to the alleged violation of the applicant’s property rights, the Court first notes that the fact that the State, through its judicial system, provided a forum for the determination of the applicant’s rights and obligations does not automatically engage its responsibility under Article 1 of Protocol No. 1. While the State could be held responsible for losses caused by such determinations if the court decisions amounted to an arbitrary and disproportionate interference with possessions, this is not the case here. Referring to the above findings under Article 6 § 1 of the Convention that the national courts proceeded pursuant to domestic law, giving full reasons for their decisions, the Court finds that the assessment made by the domestic courts cannot be regarded as having been arbitrary or manifestly unreasonable.

The Court observes that the national courts rejected the applicant’s action for restitution as the property claimed was excluded from restitution under the Act and that the applicant could seek financial compensation instead. The Court notes that it is true that, in respect of property which cannot be the object of restitution, the Act provides the alternative of financial  compensation. The applicant’s entitlement to such compensation, which is derived from the provisions of the Extra-Judicial Rehabilitation Act and not from her relative’s former ownership rights as such, may well be considered as a “possession” within the meaning of Article 1 of Protocol No. 1. However, the applicant in fact does not complain of any interference with that entitlement. Her only complaint under this provision concerns the fact that she could not obtain restitution of the land at issue. It is clear that under the applicable legislation she neither had a right nor a claim amounting to a legitimate expectation to obtain such restitution 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, 13 December 2000, 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.

For these reasons, the Court unanimously

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

Declares inadmissible the remainder of the application .

S. Dollé J.-P. Costa Registrar President