FIFTH SECTION

DECISION

Application no . 4807/09 KOMUNITA ŘÍMSKÉ UNIE ŘÁDU SV. VORŠILY V PRAZE against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 23 October 2012 as a Committee composed of:

Mark Villiger , President, Karel Jungwiert , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 20 January 2009,

Having regard to the declaration submitted by the respondent Government on 23 July 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Komunita Římské unie řádu sv . Voršily v Praze , is a religious congregation registered under Czech law and has its registered office in Prague . It was represented before the Court by Mr O. Choděra , a lawyer practising in Prague .

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

The part of the application concerning access to the Constitutional Court had been communicated to the Government .

On 13 January 2003 the applicant congregation lodged a claim to the Prague 1 District Court ( obvodní soud ) regarding unjust enrichment of the City of Prague ( Město Praha ), which allegedly used the applicant ’ s plot of land for business purposes without a legal ground.

In a judgment of 21 January 2005 the District Court found that in 1995 the City of Prague using the land owned by the applicant congregation had concluded a contract with a private company which had operated paid parking zones in that area. The contract provided that the income went to the operating company and thus the purposes of the use of the land by the City of Prague were not business. The amount of unjust enrichment awarded to the applicant congregation had therefore to be determined on the basis of a rent regulation applicable to land used for non-business purposes, which was considerably lower than the average business rent in the area .

The applicant congregation appealed to the Prague Municipal Court ( městský soud ) which upheld the District Court ’ s decision on 26 August 2005.

The applicant congregation lodged an appeal on points of law under Articles 237 § 1 (c) and 241a § 2 (b) of the Code of Civil Procedure in which it contested the decision that the City of Prague did not use the property for business purposes.

On 28 February 2008 the Supreme Court ( Nejvyšší soud ) dismissed the appeal on points of law on the ground that it did not raise a question of crucial legal importance.

On 21 May 2008 the applicant congregation lodged a constitutional appeal against all decisions of the ordinary courts complaining that they did not provide protection of its right to property.

On 18 December 2008 the Constitutional Court ( Ústavní soud ) declared the constitutional appeal inadmissible. In the part regarding the appeal on points of law the court found the appeal manifestly ill-founded and in the part regarding the district and municipal courts ’ decisions it found that the appeal had been submitted outside the sixty-day time-limit. With reference to section 72(4) of the Constitutional Court Act it held that since the appeal on points of law had not raised any legal question, even less a question of crucial legal importance, the Supreme Court ’ s decision was not based on its discretion and therefore the constitutional appeal should have been lodged within sixty days after the Municipal Court ’ s decision.

COMPLAINTS

The applicant congregation complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that its case had not been dealt with fairly before the domestic courts, that it had been denied access to the Constitutional Court and that the domestic courts had not protected its right to property.

THE LAW

1. The applicant congregation complained that the Constitutional Court dismissed its constitutional appeal partly as out of time even though the dismissal of its appeal on points of law had been in the discretion of the Supreme Court. It relied on Article 6 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 23 July 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 application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

In that declaration, the Government acknowledged the violation of the applicant congregation ’ s rights under Article 6 of the Convention on account of the lack of access to the Constitutional Court . The Government declared their intention to pay the applicant congregation 2,500 euros (EUR) as just satisfaction for both pecuniary and non-pecuniary damage and costs and expenses to be converted into Czech korunas at the rate applicable at the date of settlement. It will be payable within three months from the date of notification of the decision taken by t he Court pursuant to Article 37 § 1 (c) of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertook 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 period plus three percentage points. This payment will constitute the final resolution of the case.

In a letter of 16 August 2012, the applicant congregation indicated that it was not satisfied with the terms of the unilateral declaration on the ground that the proposed sum was insufficient.

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 reason established by the Court, it is no longer justified to continue the examination of the application” .

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case 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 (see 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, 18 September 2007 ).

The Court has established in a number of cases against the Czech Republic its practice concerning complaints about the violatio n of Article 6 of the Convention because of lack of access to the Constitutional Court (see, for example, Adamíček v. the Czech Republic , no. 35836/05, 12 October 2010; Tieze and Semeráková v. the Czech Republic , nos. 26908/09 and 30809/10, 13 October 2011; and Šurý v. the Czech Republic , no. 16299/10, 13 October 2011).

Regarding the amount of compensation contained in the unilateral declaration the Court notes that it is smaller then the usual amount of EUR 4,000 in respect of non-pecuniary damage awarded in similar cases (see Tieze and Semeráková , cited above, § 52 and Šurý , cited above, § 35). The Government justified the smaller amount by the fact that the present applicant was not a physical person and referred to the case-law of the Court in which it held that awarding compensation in respect of non-pecuniary damage to corporations was governed by specific criteria and cannot be presumed (see, for example, Forminster Enterprises Limited v. the Czech Republic (just satisfaction), no. 38238/04 , § 25, 10 March 2011). The Court does not consider, however, that this case-law concerning commercial companies is fully applicable to the present application where the applicant is a religious congregation. It is nevertheless prepared to accept that the amount of compensation for non-pecuniary damage can be lower given that the applicant is not a physical person. Consequ ently, it is satisfied that EUR 2,000 for non-pecuniary damage is sufficient to conclude that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case. It further considers the remaining amount of EUR 500 to be sufficient to cover the proceedings before the Court, which only can be reimbursed, because the violation took place before the Constitutional Court .

Accordingly, h aving regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of the application (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 application (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 Articl e 37 § 2 of the Convention (see Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

2. Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 the applicant congregation also complained that its case was not dealt with fairly before the domestic courts and that the domestic courts did not protect its right to property.

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.

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

For these reasons, the Court unanimously

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 application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President