FIFTH SECTION

DECISION

Application no . 54337/10 Marta KRYŽOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 22 October 201 3 as a C ommittee composed of:

Angelika Nußberger , President, André Potocki , Paul Lemmens, judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 10 September 2010,

Having regard to the partial decision of 20 September 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Marta Kryžová, is a Czech national who was born in 1942 and lives in Chlumec nad Cidlinou. She was represented before the Court by M s L. Kryžová . The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm , from the Ministry of Justice.

The circumstances of the case

The facts of the case, as submitted by the parties , may be sum m arised as follows.

In October 2005 the applicant lodged a claim before the Znojmo District Court , seeking a declaration that the Czech Republic was in ownership of a plot of land which she wanted to be transferred.

On 22 February 2006, the applicant was exempted from the payment of court fees on the basis of a declaration of means which she had submitted upon the court ’ s request. In this declaration she stated that she perceived a monthly old-age pension of CZK 5,662 (approx. EUR 220) and that she was the owner of a cottage in Korolupy; she also mentioned her husband ’ s old-age pension and a family house owned by him.

O n 9 March 2006 the Znojmo District Court appointed a lawyer to represent the applicant before the first-instance and appellate courts; the costs of this legal representation were to be fully paid by the State.

On 18 January 2007 the Znojmo District Court dismissed the applicant ’ s claim. Later, her appeal against this judgment was dismissed by the Brno Regional Court .

The applicant subsequently lodged an appeal on points of law with the Supreme Court.

By a decision dated 15 July 2008 the Znojmo District Court exempted the applicant from the payment of court fees in the proceedings relating to her appeal on points of law, and appointed a lawyer free of charge for her for the purpose of those proceedings.

On 24 September 2009 the applicant ’ s appeal on points of law was declared inadmissible .

Afterwards , the applicant lodged a constitutional appeal , asserting that there had been a violation of her property rights and that the proceedings had been unfair.

On 13 January 2010 the Constitutional Court invited the applicant to remedy the defects in her appeal and, inter alia , to find a lawyer within fifteen days to represent her in the proceedings.

By a letter of 28 January 2010, the applicant requested the Czech Bar Association (hereinafter “CBA”) to appoint a lawyer who would represent her free of charge pursuant to Section 18 of Act No. 85/1996 on Advocacy . In the attached statutory declaration she mentioned the monthly old-age pension of CZK 7,206 ( approx. EUR 2 80 ) as her only income and a family house as real estate for her housing, in which she lived alone; the applicant did not declare the ownership of any other real property.

On 12 February 2010, t he CBA declined to appoint a lawyer to the applicant , stating that she did not satisfy the necessary legal requirements. The applicant ’ s monthly pension in the amount of CZK 7, 206 and the fact that she was t he owner of a house were the CBA ’ s reasons for concluding that she was not totally needy, without any income or with an income on the threshold of the bare minimum. The CBA stated, however, that if the applicant insisted that she be provided with a lawyer for a reduced fee, her request would undoubtedly be granted, but that it could not decide on this issue ultra petita partium .

The applicant tried to challenge the decision before the CBA, submitting a request for a review , but to no avail. In its response of 29 March 2010, the CBA noted that it had taken into consideration the Supreme Court ’ s decision of 24 September 2009 granting the applicant CZK 421,772 (approx. EUR 16 364) as a settlement of her restitution claims. It further added that it had knowledge from previous proceedings of the fact that the applicant lived in a common household with her husband and daughter; however, she failed to mention their income and property.

Consequently, after two more extensions of the prescribed period for remedying the defects in her appeal, t he applicant requested the Constitutional Court to assist her in finding a lawyer as it had done in another case. However, the Constitutional Court rejected this request, maintaining that its approach in the other case had been based on exceptional circumstances resulting from an amendment to the Advocacy Act, and from its agreement with the CBA in effect from May 2005, in which the CBA promised to provide legal representation to appellants to whom it had previously been denied if the President of the Constitutional Court had asked the CBA to do so, and if their case was “live”. The Constitutional Court then stressed that the law which was then currently in force did not give it the authority to ask the CBA to appoint a lawyer free of charge for appellants and that, additionally, the applicant must have known from her past experience that legal representation was necessary. For these reasons, on 21 April 2010 the Constitutional Court rejected the applicant ’ s constitutional appeal as not complying with the formal legal requirements.

COMPLAINT

Relying on Article 6 § 1 of the Convention, the applicant alleges that her right of access to a court was violated by the failure of the Constitutional Court to appoint a lawyer for her and the failure of the Czech public authorities to decide consistently and fairly on the same issue. She argues that from the beginning of the proceedings, the costs of her representation were paid for by the State because of her difficult financial situation and thus the Constitutional Court should have proceeded accordingly and allowed for the costs of her legal representation. Furthermore, the applicant argues that the decision of the Czech Bar Association was entirely contrived, because the latter incorrectly evaluated the factual background of her case, failed to address all her objections and ignored some of the facts which justified the appointment of a free of charge lawyer.

THE LAW

The applicant complained that her right of access to court has been violated by the failure of the Constitutional Court to appoint her a lawyer, which was inconsistent with its previous decisions, and by the decision of the Czech bar Association which was entirely contrived. She relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”

First, the Government considered the application inadmissible for non-exhaustion of domestic remedies because the applicant did not challenge the Czech Bar Association ’ s decision of 12 February 2010 by means of an administrative action lodged pursuant to Act No. 150/2002 on the Rules of Administrative Justice.

Second, the Government invited the Court to assess, in particular, the misleading information given by the applicant about her property situation. They observed that the applicant had not informed the domestic courts, the Czech Bar Association and also the Court about the vast majority of her real estate and about her actual personal situation. In fact, according to the ownership title sheets in the Land Register (copies of which have been submitted by the Government), the applicant and her husband own a number of properties, including several buildings and numerous plots of land, which they inherited or purchased. Most of these properties are lucrative, located near town and municipality centres. In the Government ’ s view the Court should take into consideration the disproportion between the amount that the applicant would have paid for filing a constitutional appeal through a lawyer had she been duly represented, and the size of her real estate on the value of which it is not possible to comment. The Government underlined that complete information about the applicant ’ s property situation was crucial for the assessment of whether or not free-of-charge legal aid should have been granted to her at the domestic level. However the applicant misled the Court by claiming the she was in a precarious situation, which is contrary to the facts found by the Government. The Government thus believed that the applicant ’ s conduct amounts to an abuse of the right of application (see, mutatis mutandis , Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007).

In her observations in reply to those of the Government, the applicant asserted, first, that she could not lodge an administrative action because of the time-limits set and, second, that the Government had made numerous false statements with a view to shifting the responsibility for serious deficiencies of the Czech legal order to her. Without challenging the Government ’ s information on her real property, the applicant stated that part of it was valueless or in a bad state due to attacks from delinquents and wild animals, so that it represented rather a burden for her.

The Court considers that in the present case it can leave open the question whether the applicant exhausted domestic remedies because even assuming that this requirement has been fulfilled he r complaints are in any event inadmissible for the following reasons.

The Court recalls that according to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Predescu v. Romania , no. 21447/03, §§ 24-27, 2 December 2008).

Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007 ; Červeňáková v. the Czech Republic (dec.), no. 26852/09, 23 October 2012 ).

In the present case, the Court notes that the applicant did not submit any explanation for the failure to properly inform the Court about her financial situation and her real estate property. Having regard to the importance of the information at issue for the proper determination of the present application , the Court finds that the applicant ’ s conduct was contrary to the purpose of the right of individual petition, as provided for i n Article 34 of the Convention.

In the light of the above considerations and all the material in its possession, the Court f inds that the present application amount s to an abuse of the applicant ’ s right of application within the meaning of Article 35 § 3 of the Convention.

For these r easons, the Court unanimously

Declares the remainder of the application inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President