SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58358/00 by Karel BEČVÁŘ and Hana BEČVÁŘOVÁ against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 4 June 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 with the European Commission of Human Rights on 6 August 1997 and registered on 21 June 2000,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, two Czech citizens, born in 1951 and 1952 respectively, are living in Svoboda nad Úpou. They are represented before the Court by Ms Volfová, a lawyer practising in Trutnov.

A. The circumstances of the case

Restitution proceedings

a. Facts prior to 18 March 1992, the date of the entry into force of the Convention with regard to the Czech Republic

On 2 January 1986 the applicants bought from the State a family house, which had been seized after the emigration of the former owners in 1985. The purchase price of CZK 344,846 was fixed on the basis of an expert report. It was agreed that the applicants would pay CZK 100,000 by 30 April 1986 and that the rest of the purchase price, amounting to CZK 244,846, would be paid within fifteen years by annual instalments, without risk of forfeiture should an instalment remain unpaid.

On 1 April 1991 the Extra-Judicial Rehabilitation Act ( zákon o mimosoudních rehabilitacích - “the Act” ) came into force setting out the conditions for Czech citizenship and permanent residence in the Czech Republic for persons claiming the restitution of property which had been confiscated under the former communist regime.

Pursuant to this Act, on 6 December 1991 Mr and Ms H. brought an action against the applicants for the restitution of their family house with its site and a plot of land, and a request that the applicants be ordered to conclude a restitution contract with them.

On 10 January 1992 Mr and Ms H. restricted their claim to the restitution contract for the family house, its site, the plot of land, accessories, outside improvements, vegetation and enclosures.

b. Facts after 18 March 1992

On 9 September 1992 the Plzeň 2 Municipal Office (Úřad městského obvodu) informed the District Court that, since 11 September 1991, Mr and Ms H. had been living in Plzeň.

On 21 September 1992 the Plzeň 2 Police (obvodní oddělení policie) informed the District Court that Mr and Ms H. were not in Plzeň, but had joined a relative in California, United States of America.

On 22 October 1992, 18 January, 8 April and 7 June 1993 the District Court held hearings. According to the applicants, the court did not include the aforementioned information, produced at its request, in the evidence.

On 12 July 1994, with effect from 1 November 1994, the Constitutional Court repealed inter alia the Czech residential condition for entitlement to restitution as being contrary to the Constitution and Article 1 of Protocol No. 1.

By judgment of 18 November 1994 the District Court ordered the applicants to conclude a restitution agreement with Mr and Ms H., as they had had an illegal advantage when acquiring the house as regards the payment by unconditional annual instalments, contrary to Decree No. 90/1984 on the Administration of National Property (vyhláška o správě národního majetku ) . The court held in particular:

“The condition of permanent residence on the territory of the Czech and Slovak Federal Republic ... was repealed on 1 November 1994 by the judgment of the Constitutional Court no. 164/94. The claimants proved that the property at issue had been transferred to the State ... for the reason mentioned in section 6(1)(a) of [the Extra-Judicial Rehabilitation Act. ...

By decision of 18 January 1993 the court accepted the modification of the claimants’ action for restitution, the only remaining subject of which was the house ...”

On 12 December 1995 the Hradec Králové Regional Court (krajský soud) upheld this judgment. On 18 January 1996 the appeal judgment became effective.

On 6 August 1996 the Supreme Court (Nejvyšší soud) declared inadmissible the applicants’ appeal on points of law (dovolání) which they had lodged on 6 February 1996. On 2 September 1996 this decision was notified to the applicants.

On 12 February 1997 the Constitutional Court (Ústavní soud) rejected the applicants’ constitutional appeal (ústavní stížnost) in which they alleged a violation of their property rights guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod ), and claimed that the ordinary courts had not established the facts correctly or fully.

By judgment of 14 September 1998 the District Court, upon Mr and Ms H.’s request of 7 August 1997, ordered the applicants to vacate the house within fifteen days of receiving compensatory accommodation. At the same time, the court stayed the proceedings insofar as Mr and Ms H. had also sought the vacation of the plot of land.

On 17 May 1999 the Regional Court modified this judgment, ordering the applicants to leave the house within a year of the coming into force of  the District Court’s judgment.

On 1 July 1999 the applicants lodged an appeal on points of law relating to the fact that Mr and Ms H. had not been obliged to ensure that they had a compensatory apartment.

On 31 August 2000 the Supreme Court, upon the applicants’ request of 10 January 2000, decided to postpone the execution of the District Court judgment until it had determined the applicants’ appeal.

On an unspecified date in July 2001 the Supreme Court dismissed the applicant’s appeal. On 19 July 2001 this decision became effective.

On 30 April 2001 the applicants paid the last annual instalment of the purchase price pursuant to the contract of 2 January 1986.

On 4 February 2002 the District Court ordered the execution of its judgment of 17 May 1999 evicting the applicants with all their movable property from the house.

On an unspecified date in February 2002, the applicants filed an appeal against this order. The appellate proceedings are still pending before the Regional Court.

Proceedings for the re-opening of the restitution proceedings

On 31 May 1999 the District Court dismissed the applicants’ request to reopen the procedure, filed on 13 January 1998.

On 7 September 1999 the Regional Court upheld this decision.

Proceedings for damages

On 19 January 1999 the applicants lodged an action for damages against the Ministry of Finances (ministerstvo financí) and the Trutnov District Office (okresní úřad) , seeking compensation in the sum of CZK 500,000 for damage caused by the erroneous action of a public authority (apparently, the action was based on the State Liability Act [1] ).

On 20 January 1999 the Prague 1 District Court transferred the action, for territorial reasons, to the Trutnov District Court.

On 12 March 2001 the latter court adjourned the proceedings pending the Supreme Court’s decision on the applicants’ appeal on points of law.

On 30 October 2001 the District Court decided that the proceedings for damages could be resumed, the decision of the Supreme Court rejecting the applicants’ appeal having become effective on 19 July 2001.

B. The relevant domestic law

Extra-Judicial Rehabilitation Act No. 87/1991 of 23 March 1991

In the preamble to this Act, the Federal Assembly of the Czech and Slovak Federal Republic affirmed its will to prevent the violations of the past.

Section 1(1) of the Act aims to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law, or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens, as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.

According to Section 2(1)(c) and (3) of the Act, such redress consists in the restitution of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms, that is, an act contradicting the principles referred to in Section 1(1). When an entitled person was deprived of his or her property rights without appropriate compensation under the nationalisation laws adopted between 1945 and 1949, that person has a claim under the Act to be raised under the Privatisation Act.

Section 3(1) provides that, in order to be entitled to restitution, a claimant must be a physical person and a citizen of the Czech and Slovak Federal Republic whose property was ceded to the State in the circumstances laid down in Section 6 of the Act.

According to section 4(1), the State and any legal person holding confiscated property on the date when the Act came into force, shall be obliged to restore that property to its former owner. Paragraph 2 provides that any natural person who acquired property from the State contrary to any law in force at the relevant time, for a price inferior to any applicable price regulations, or on the basis of any unlawful advantage, is also obliged to restore such property to its former owner.

Section 6(1)(a) of the Act provides that the restitution obligation concerns property which was transferred to the State pursuant to Section 453a) of the Civil Code [2] , or Section 287a) of Act No. 87/1950 as amended by Act No. 67/1952.

According to Section 7(4) of the Act, if the value of the property has increased so much that its current value substantially exceeds its original value, it is left to the discretion of the entitled person whether he or she will request financial compensation under Section 13 of the Act or the property’s restitution. If the claimant insists on restitution, the entitled person shall compensate the interim owner for the difference in value. Both price values shall be assessed in conformity with the price regulations in force on the date of entry into force of the Act.

Section 11 of the Act entitles physical persons who are under an obligation to restore property to recover the price they originally paid from the State.

Charter of Fundamental Rights and Freedoms

Article 11 § 1 of the Charter provides inter alia that everybody has the right to own property. The property rights of every owner are equal in the eyes of the law and enjoy the same legal protection.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the restitution proceedings were unfair in that the court of first instance did not properly assess the evidence before it, in particular the information proving that Mr and Ms H. were not permanently resident in the Czech Republic when introducing their restitution action, as had been required by the Extra-Judicial Rehabilitation Act. They also complain that the court of first instance did not clearly establish the merits of Mr and Ms H.’s action when they allowed its partial amendment.

2. The applicants further complain that the restitution proceedings were unreasonably long. They submit that if the proceedings had terminated before the condition of permanent residence in the Czech Republic for claimants was repealed by the Constitutional Court, they would not have been forced to vacate the house which they acquired bona fide and for which they had regularly paid the annual instalments of the purchase price. They consider unjust the decisions of the national courts ordering their eviction.

3. In their letter to the Court of 4 January 2000, the applicants submitted that on 19 January 1999 they had lodged an action for damages against the State which is still pending before the Trutnov District Court, and in which not a single hearing has been held to date. They further submitted that they are in a very difficult situation. They risk eviction from their house without any possibility of alternative accommodation

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention that the restitution proceedings were unfair in that the court of first instance did not properly assess the evidence before it, in particular the information proving that Mr and Ms H. were not permanently resident in the Czech Republic when introducing their restitution action, as had been required by the Extra-Judicial Rehabilitation Act. They also complain that the court of first instance did not clearly establish the merits of Mr and Ms H.’s action when they allowed its partial modification.

The applicants further complain that the restitution proceedings were unreasonably long. They submit that if the restitution proceedings had terminated before the Constitutional Court’s repeal of the Czech residence condition, the national courts would have rejected Mr and Ms H.’s claim for restitution.

2. To the extent that the applicants complain that the restitution proceedings were unfair as regards the evaluation of the facts and the application of domestic law, the Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. The Court is not competent to deal with alleged errors of law or fact 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. In particular, the Court has no general jurisdiction to consider whether domestic courts have appraised the evidence correctly; its task is to establish whether evidence produced for or against the defendant was presented in such a way as to ensure a fair hearing (see, mutatis mutandis e.g. the García Ruiz v. Spain judgment of 21 January 1999, Reports 1999-1, § 28, and the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68).

In the present case, the applicants were assisted by a lawyer, and it does not appear from the documents before the Court that they were deprived of the opportunity to challenge the evidence against them in an adversarial procedure or that the proceedings were otherwise unfair. Furthermore, the domestic courts gave detailed reasons for their decisions which, in the Court’s view, do not appear arbitrary.

The Court adds that it cannot speculate as to the outcome of the restitution proceedings had the position been otherwise if the information about the permanent residence of Mr and Ms H. had been taken into consideration or if the restitution proceedings had ended earlier.

In these circumstances, the Court considers that the restitution proceedings do not disclose any appearance of a violation of the fairness requirement of Article 6 § 1 of the Convention. 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.

3. As to the allegedly unreasonable length of these proceedings, the Court may  take account of the period beginning on 18 March 1992 when the former Czech and Slovak Federal Republic, to which the Czech Republic is one of the successor states, ratified the Convention and recognised the right of individual application (see, e.g., Kuchař and Štis v. the Czech Republic , no. 31534/96). The proceedings ended on 12 February 1997 when the Constitutional Court dismissed the applicants’ appeal. Accordingly, the period under consideration is almost five years. During this time, the merits of the case were examined by four levels of jurisdiction, with various procedural steps being taken. Considering the proceedings as a whole, the Court finds that the “reasonable time” requirement has been respected.

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.

4. In their letter to the Court of 4 January 2000, the applicants submitted that on 19 January 1999 they had lodged an action for damages against the State which is still pending before the Trutnov District Court, and in which not a single hearing has been held to date.

The Court considers it appropriate to examine the applicants’ submission under the “reasonable time” requirement of Article 6 § 1 of the Convention and the right to property ensured by Article 1 of Protocol No. 1. It considers that it cannot, on the basis of the file, determine the admissibility of the complaint at this stage and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of it to the respondent Government.

5. As to the applicants’ complaint that their eviction has been ordered without provision of alternative accommodation, despite their precarious circumstances, the Court considers this to be an integral element of the above unreasonable length and property issues (point 4), which does not require a separate examination.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the length of the compensation proceedings, and an interference with their property rights;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[1] Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action ( Zákon o odpovědnosti za škodu způsobenou rozhodnutím orgánu státu nebo jeho nesprávným úředním postupem ) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions.

[2] If the owner committed an illegal act by which he permanently deprived himself of the use of his property, the property is transferred to the State if its subsequent use by the owner is contrary to the interests of society.