FIFTH SECTION

DECISION

Application no . 40974/09 Ernst Leonhard HARRACH against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 19 June 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 13 July 2009,

Having regard to the partial decision of 28 June 2011,

Having regard to the declaration submitted by the respondent Government on 12 January 2012 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ernst Leonhard Harrach , is an Austrian national who was born in 1920 and lives in Bruck an der Leitha , Austria . He is represented before the Court by Mr P. A lfery Hrdina , a lawyer practising in Prague .

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

A. The circumstances of the case

The applicant instituted civil proceedings but both the first-instance court and the appellate court dismissed his claim.

The applicant lodged, simultaneously, an appeal on points of law ( dovolání ) and a constitutional appeal ( ústavní stížnost ).

On 16 November 2006 the Constitutional Court ( Ústavní soud ) dismissed the constitutional appeal as premature, holding that the time-limit for lodging a constitutional appeal would start to run only on the day of service of the decision of the Supreme Court ( Nejvyšší soud ) on the applicant ’ s appeal on points of law. It added that even if the latter was declared inadmissible, a subsequent constitutional appeal could not be dismissed as being lodged out of time.

On 24 September 2008 the Supreme Court dismissed the applicant ’ s appeal on points of law as inadmissible.

After receiving that decision from the Supreme Court the applicant lodged a new constitutional appeal.

On 13 January 2009 the Constitutional Court dismissed his second constitutional appeal without examining its merits as having been submitted too late. It held that the sixty-day time-limit for lodging a constitutional appeal had not been suspended by the appeal on points of law because the latter had not been dismissed for reasons depending on the Supreme Court ’ s discretion, as envisaged by section 72(4) of the Constitutional Court Act.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the admissibility of appeals on points of law and constitutional appeals are set out in the Court ’ s judgment in the case of Adamíček v. the Czech Republic , no. 35836/05 , 12 October 2010 .

THE LAW

The applicant complained that he had been denied access to the Constitutional Court . He relied on Article 6 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligation s ... everyone is entitled to a fair ... hearin g ... by [a] ... tribunal ...”

By a letter dated 12 January 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 ’ 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 4,500 euros 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 the 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.

The letter was sent to the applicant for comments on 17 January 2012 but he has not replied.

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 wish 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).

The Court has established in a number of cases, including those brought against the Czech Republic , its practice concerning complaints about the violation 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).

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 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 ).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

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

Stephen Phillips Mark Villiger Deputy Registrar President