SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56519/00 by Miroslav MAŘÍK against the Czech Republic

The European Court of Human Rights (Second Section) , sitting on 8 January 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 17 February 2000 and registered on 12 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Miroslav Mařík, is a Czech [Note1] and French national born in 1938 and living in Switzerland.

A. The circumstances of the case

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

In 1968 the applicant left the former Czechoslovak Socialist Republic and settled in France, obtaining the status of a political refugee. In 1979 he obtained French citizenship. Since his emigration, the applicant has never resided in the Czech Republic or former Czechoslovakia.

By judgment of the Prague 7 District Court ( okresní soud ) on 25 January 1983, the applicant was found guilty of deserting the Republic and sentenced to two years’ imprisonment and the confiscation of his property.

In November 1984 the applicant’s property was sold by the State to other persons.

On 1 July 1990 the Judicial Rehabilitation Act entered into force. According to section 2(1), all convictions between 25 February 1948 and 1 January 1990 relating to events occurring after 5 May 1945 were quashed with effect from the date on which they were pronounced, together with any consequential decisions. Decisions concerning confiscation of property were an example. According to section 23(2), the conditions under which the provisions of the Act were to apply to restitution claims, as well as the manner of redress and the scope of such claims, were to be defined in separate legislation.

On 1 April 1991 the Extra-Judicial Rehabilitation 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.

On 12 July 1994, with effect from 1 November 1994, the Constitutional Court repealed inter alia the condition of being a permanent resident in the Czech Republic, as being contrary to the Constitution of the Czech Republic and to Article 1 of Protocol No. 1 to the Convention.

On 21 April 1995 the applicant, still residing in France, brought, pursuant to the Extra-Judicial Rehabilitation Act, an action for the restitution of his property before the Prachatice District Court.

On 20 March 1998 the District Court ordered the defendant to conclude a restitution agreement with the applicant.

On 16 September 1998 the České Budějovice Regional Court ( krajský soud ) , upon the defendant’s appeal, modified the District Court’s judgment and dismissed the applicant’s action. The court held that it had not been proved that the defendant had acquired the property concerned in an illegal manner, for a price inferior to any applicable price regulations, or on the basis of any unlawful advantage, within the meaning of section 4(2) of the Extra-Judicial Rehabilitation Act.

On 20 November 1998 the applicant lodged an appeal on points of law ( dovolání ) .

On 12 September 2000 the Supreme Court ( Nejvyšší soud ) quashed the judgments of the lower courts and sent the matter back to the District Court for further consideration. It ordered the District Court to establish clearly the circumstances of the acquisition of the property by the defendants and to answer the question whether the sale price had been correct.

On 17 August 2001 the District Court decided in the applicant’s favour, ordering the defendant to conclude a restitution agreement with the applicant. On 2 October 2001 the judgment was served on the applicant.

On 4 October 2001 the defendant appealed. The proceedings are still pending before the Regional Court.

B. Relevant domestic law

Judicial Rehabilitation Act no. 119/1990 (in force from 1 July 1990)

According to section 2(1), all convictions between 25 February 1948 and 1 January 1990 relating to events which occurred after 5 May 1945 were quashed with effect from the date on which they were pronounced, together with any consequent decisions.

Section 23(2) provides that the conditions under which the Act is to apply to restitution claims, as well as the manner of redress and the scope of such claims, is to be defined in separate legislation.

Extra-Judicial Rehabilitation Act no. 87/1991 (in force from 1 April 1991)

According to section 2(1), infringements of property rights which occurred during the period concerned shall be redressed either by the restitution of property or by way of financial compensation.

Section 3(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in section 6.

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 an unlawful advantage, is also obliged to restore such property to its former owner.

Section 5(3) provides that any request for restitution shall be made within six months of the date of the Act coming into force, failing which the claim shall lapse.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the restitution proceedings before the Czech courts have been unreasonably long.

2. He further complains under the same provision that, until the condition of being a permanent resident in the Czech Republic was repealed by the Constitutional Court on 12 July 1994, he was prevented from bringing his restitution claim before the national courts for three years and seven months.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicant complains that the restitution proceedings before the Czech courts have been unreasonably long.

The Court 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.

2. The applicant further complains under Article 6 § 1 of the Convention that until the condition of being a permanent resident in the Czech Republic was repealed by the Constitutional Court on 12 July 1994, he was prevented from bringing his restitution claim before the national courts.

Article 6 § 1 reads, insofar as relevant for the present case, as follows:

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

However, the Court notes that the applicant’s rights under Article 6 only arose as of 1 November 1994 when the Constitutional Court judgment of 12 July 1994 came into effect. By reason of the operation of Article 35 § 1 of the Convention, the applicant cannot complain of matters arising more than six months before the lodging of his application with the Court on 17 February 2000, unless a continuing situation can be shown.  However, this aspect of the case does not disclose any continuing situation.

It follows that this part of the application has been submitted too late and must 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 inadmissible the remainder of the application.

S. Dollé J.- P.Costa Registrar   President

[Note1] To be checked.