FIFTH SECTION

DECISION

Application no . 21547/06 Frantisek Oldř ich KINSKÝ against the Czech Republic and 9 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 19 February 2012 as a Committee composed of:

Angelika Nußberger , President, Ganna Yudkivska , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the applications in the list appended ,

Having regard to the declaration submitted by the respondent Government on 3 December 2012 requesting the Court to strike the applications out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

Mr František Oldřich Kinský (“the first applicant”) was an Austrian and Argentinean national born in 1936 who di ed on 2 April 2009. On 30 April 2009 the first applicant ’ s son and heir, Mr Carlos Kinský (“the second applicant”) informed the Court that he wished to pursue the applications originally introduced by h is father. Mr Jaroslav Čapek , a lawyer from Czech Bar Association in Prague is their representative.

Details of all the applications are set out in the appendix.

The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm , of the Ministry of Justice.

The part of the applications concerning Article 6 of the Convention had been communicated to the Government .

A. The circumstances of the cases

1. Background to the applications

For background information to the applications, including interventions of politicians and the Ministry of Justice in the first applicant ’ s proceedings and police investigation of the first applicant and his counsel see Kinský v. the Czech Republic , no. 42856/06 , §§ 6-36, 9 February 2012.

2. Facts pertaining to the individual applications

a. Application no. 21547/06

On 9 January 2004 the Rakovník District Court dismissed the first applicant ’ s action against Lesy České republiky , a State company, to determine ownership of several plots of land, finding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 15 November 2004 the Prague Regional Court ( krajský soud ) upheld the judgment.

On 3 August 2005 the Supreme Court dismissed as inadmissible the first applicant ’ s appeal on points of law. It found that it had not been conclusively established that the first applicant ’ s property had been duly confiscated, but that in any case the property had been transferred to the State, which had used it since then. Applying its previous case-law, the court held that a property taken by the State before 1990 could not be claimed in civil proceedings but only under the restitution laws.

On 24 November 2005 the Constitutional Court ( Ústavní soud ) dismissed the first applicant ’ s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS- st . 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant.

b. Application no. 49363/06

This application consists of three separate proceedings.

On 2 March 2004 the Děčín District Court dismissed the first applicant ’ s action against L. to determine ownership of several plots of land, finding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945. On 20 September 2005 the Ústí nad Labem Regional Court upheld the judgment.

On 4 May 2005 and 11 June 2004, respectively, the Chrudim District Court dismissed the first applicant ’ s actions against two respective companies to determine ownership of several plots of land, finding that the property had been taken by the State in 1945 and then it acquired the ownership by prescription. On 16 March 2005 the Hradec Králové Regional Court upheld the judgments of the court of first instance holding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945. On 27 October 2005 the Supreme Court dismissed as inadmissible the first applicant ’ s appeals on points of law.

On 31 May 2006 the Constitutional Court dismissed the first applicant ’ s constitutional appeals whereby it was contended that he had not had a fair trial and had been discriminated against. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS- st . 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant.

c. Application no. 1800/07

On 24 November 2003 the Děčín District Court dismissed the first applicant ’ s action against company M. to determine ownership of several real properties, finding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 30 September 2004 the Ústí nad Labem Regional Court upheld the judgment.

On 28 April 2005 the Supreme Court dismissed as inadmissible the first applicant ’ s appeal on points of law. Applying its previous case-law, it held that a property taken by a State before 1990 could not be claimed in civil proceedings but only under the restitution laws.

On 6 June 2006 the Constitutional Court dismissed the first applicant ’ s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court referred to its case-law, represented particularly by its opinion no. Pl. ÚS- st . 21/05.

d. Application no. 8303/07

This application consists of seven separate proceedings.

On 27 April 2004 the Prague 1 District Court dismissed the first applicant ’ s action against the State to determine ownership of a building in Prague ’ s city centre, finding that it had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 20 October 2004 the Prague Municipal Court upheld the judgment.

On 8 August 2005 the Supreme Court dismissed as inadmissible the first applicant ’ s appeal on points of law agreeing with the lower courts.

On 3 August 2006 the Constitutional Court dismissed the first applicant ’ s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court referred to its case-law, represented particularly by its opinion no. Pl. ÚS- st . 21/05.

On 5 November 2004 the Chrudim District Court dismissed the first applicant ’ s action against the village of Prachovice to determine ownership of a plot of land, finding that it had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 13 February 2006 the Hradec Králové Regional Court upheld the judgment.

On 1 November 2007 the Constitutional Court dismissed the first applicant ’ s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court referred to its case-law, represented particularly by its opinion no. Pl. ÚS- st . 21/05.

On 17 February 2006 the Chrudim District Court dismissed another action of the first applicant against several defendants claiming ownership of several plots of land by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

The applicant did not appeal considering it futile, in view of the reasoning referring to the established case-law of the Constitutional Court .

On 23 June 2005, 16 June 2006, 6 November 2006, and 6 June 2007, respectively, the Chrudim District Court dismissed other actions of the first applicant against several defendants claiming ownership of real property, finding that they had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

The judgments were upheld by the Hradec Králové Regional Court by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

The applicant did not lodge constitutional appeals considering it futile in view of the reasoning referring to the established case-law of the Constitutional Court .

e. Application no. 27082/08

This application consists of eight separate proceedings.

On 27 January 2006, 31 January 20 06 (two judgments), 16 February 2006, 7 April 2006 and 7 June 2006, respectively, the Chrudim District Court and on 27 January 2006 and 11 May 2006, respectively, the Ústí nad Orlicí District Court dismissed other actions of the first applicant against several defendants claiming ownership of real property by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

The judgments were upheld by the Hradec Králové Regional Court .

The applicant did not lodge constitutional appeals considering it futile in view of the reasoning referring to the established case-law of the Constitutional Court .

f. Application no. 30210/08

This application consists of two separate proceedings.

On 23 February 2008 the Chrudim D istrict Court and on 5 December 2007 the Kladno District Court, respectively, dismissed actions of the first applicant claiming ownership of several plots of land by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

The applicant did not appeal considering it futile in view of the reasoning referring to the established case-law of the Constitutional Court .

g. Application no. 34225/08

This application consists of two separate proceedings.

On 28 May 2008 the Chrudim District Court dismissed an action of the first applicant claiming ownership of several plots of land finding that they had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 10 December 2007 the Hradec Králové Regional Court upheld the judgment by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

On 24 July 2006 the Kladno District Court dismissed another action of the first applicant claiming ownership of real property.

On 24 October 2007 the Prague Regional Court upheld the judgment by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

The applicant did not lodge constitutional appeals considering it futile in view of the reasoning referring to the established case-law of the Constitutional Court .

h. Application no. 41381/09

On 24 July 2006 the Chrudim District Court dismissed an action of the first applicant claiming ownership of real property finding that it had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945.

On 1 October 2008 the Hradec Králové Regional Court upheld the judgment by referring to the opinion no. Pl. ÚS- st . 21/05 of the Constitutional Court .

On 21 January 2009 the Constitutional Court dismissed the first applicant ’ s constitutional appeal whereby it was contended that he had not had a fair trial, had been discriminated against and his right to property had been violated. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS- st . 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently held that it was unnecessary to consider the detailed arguments of the first applicant concerning the alleged violation of his right to a fair trial.

i . Application no. 1851/10

On 27 June 2007 the Děčín District Court dismissed another action of the first applicant against Lesy České republiky , a State company, to determine ownership of hundreds of plots of land by referring to the opinion of the Constitutional Court no. Pl. ÚS- st . 21/05.

On 13 February 2009 the Ústí nad Labem Regional Court upheld the judgment.

On 16 June 2009 the Constitutional Court dismissed the second applicant ’ s constitutional appeal whereby it was contended that his father had not had a fair trial, had been discriminated against and his right to property had been violated. The court referred to its case-law, represented particularly by its opinion no. Pl. ÚS- st . 21/05.

j. Application no. 30757/10

On 7 December 2007 the Chrudim District Court dismissed an action of the first applicant against a company H. to determine ownership to certain real property by referring to the opinion of the Constitutional Court no. Pl. ÚS- st . 21/05.

On 9 February 2009 the Hradec Králové Regional Court upheld the judgment.

On 17 July 2009 the Constitutional Court dismissed the second applicant ’ s constitutional appeal whereby it was contended that his father had not had a fair trial, had been discriminated against and his right to property had been violated. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS- st . 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant.

COMPLAINTS

1. The applicants complained under Article 6 of the Convention that the civil proceedings for recovery of property had not been fair.

2. The applicants further complained under Article 1 of Protocol No. 1 that the domestic law had been applied wrongly and that as a result they had been unable to recover property of which they were the rightful owners.

3. Lastly, the applicants complained under Article 14 of the Convention that the first applicant had been discriminated against on the basis of his origins because the courts had rejected his actions even though they had ruled in favour of other claimants with the same actions.

THE LAW

1. The Court notes that the subject matter of all ten applications (see the list appended) is similar and that they were submitted by the same applicants. It is therefore appropriate to join them, in application of Rule 42 of the Rules of Court.

2. The applicants complained that they had not had a fair trial before the domestic courts. They relied on Article 6 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 3 December 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby acknowledge that in cases nos. 21547/06, 49363/06, 1800/07, 8303/07, 27082/08, 30210/08, 34225/08, there has been a violation of the first applicant ’ s right to a fair trial guaranteed by Article 6 of the Convention, to the extent identified in the judgment of 9 February 2012 in Kinský v. the Czech Republic , no. 42856/06.

Having regard to the fact that the basis for the violation alleged under Article 6 § 1 in the applications nos. 41381/09, 1851/10 and 30757/10, filed by the second applicant, is identical to that in the above applications lodged by the first applicant, and pursued by the second applicant as his legal successor, the Government concede to acknowledge the same violation of Article 6 § 1 of the Convention also in respect of these three applications.

The Government offer to pay the second applicant a sum of EUR 25,000 (twenty-five thousand euros ). The Government note in this context that according to Section 3(4)(d) of Act no. 586/1992, on income tax, payment of just satisfaction awarded by the Court or stemming from a friendly settlement of the case before the Court is not subject to personal income tax.

This sum will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.”

By a letter of 1 January 2013, the applicants indicated that they were not satisfied with the terms of the unilateral declaration, preferring still to continue negotiations with a view to reach a friendly settlement.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reas on established by the Court, it is no longer justified to continue the examination of the applications” .

It also recalls that in certain circumstances, it may strike out an applications under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

The Court has already examined an identical complaint lodged by the first applicant and found a violation of Article 6 § 1 of the Convention (see Kinský v. the Czech Republic , cited above ).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

3. Relying on Article 14 of the Conventio n and Article 1 of Protocol no. 1 the applicants also complained that their property rights had been violated and that the first applicant had been discriminated against.

Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols (see Harrach v. the Czech Republic ( dec .), no. 40974/09, 28 June 2011 and Kinský v. the Czech Republic , cited above , § 121, 9 February 2012).

For these reasons, the Court unanimously

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application s inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President

Appendix

No

Application No

Lodged on

Applicant

Date of birth

21547/06

23/05/2006

František Oldřich KINSKÝ

07/10/1936

49363/06

04/12/2006

František Oldřich KINSKÝ

07/10/1936

1800/07

20/12/2006

František Oldřich KINSKÝ

07/10/1936

8303/07

13/02/2007

František Oldřich KINSKÝ

07/10/1936

27082/08

29/02/2008

František Oldřich KINSKÝ

07/10/1936

30210/08

04/06/2008

František Oldřich KINSKÝ

07/10/1936

34225/08

14/07/2008

František Oldřich KINSKÝ

07/10/1936

41381/09

24/07/2009

Carlos KINSKY

10/01/1967

1851/10

22/12/2009

Carlos KINSKY

10/01/1967

30757/10

04/02/2010

Carlos KINSKY

10/01/1967