Information Note on the Court’s case-law 47

November 2002

Zvolský and Zvolská v. the Czech Republic - 46129/99

Judgment 12.11.2002 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Formal requirements for appeal to Constitutional Court: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Obligation to return, without compensation, of prope rty acquired in good faith under the Communist regime by voluntary donation and for value: violation

Facts : In 1967, the applicants concluded a contract of sale and gift with M.R. whereby the latter sold them a dwelling house and conveyed to them free of charge the associated agricultural land. At the time, the conveyance of a rural holding was made by the sal e of the dwelling house and the gift of the associated land operated by a socialist organisation. In accordance with the legal provisions then in force, the applicants, in order to be able to acquire the dwelling house, were required to give an undertaking to work for the socialist cooperative in M.R.'s place. In addition to the purchase price of the real estate, they paid M.R. the sum of 30,000 Czechoslovak crowns (CSK) to compensate for the value of the land conveyed to them. In 1991, M.R. signed a declar ation that he had conveyed the land at the material time of his own will. In 1993, M.R. brought an action seeking , inter alia , annulment, on the basis of the Law of 1991 on land ownership, of the part of the contract relating to the conveyance of the agric ultural land. The competent district court found in favour of M.R. It held that the declaration whereby M.R. expressly stated that he had sold his land voluntarily at the agreed purchase price had no legal value. In February 1996, the regional court upheld the judgment of the district court. At the same time, it dismissed the applicants' application for leave to appeal on a point of law, as no question of crucial legal importance arose. According to Article 239-2 of the Code of Civil Procedure, an appeal on a point of law is admissible where the Court of Cassation considers that the contested decision is of crucial legal importance. Relying on that provision, the applicants appealed on a point of law. In July 1997, the Supreme court declared the applicants' appeal on a point of law inadmissible on the ground that the judgment of the regional court did not constitute a decision of crucial legal importance. The judgment of the Supreme Court was served on the applicants in mid-September 1997 at the earliest. In mid-November 1997, the applicants lodged a constitutional appeal. According to Article 72-2 of the Law on the Constitutional Court, a constitutional appeal must be brought within sixty days of the date on which the decision on the last legal remedy for the protection of his rights was served on the applicant. The Constitutional Court held that the judgment of the Court of Cassation did not constitute a decision on the last legal remedy for protection of the applicant's rights. A constitutional appeal could only be brought against the judgment of the court of appeal. Since the constitutional appeal had been lodged more than sixty days after the date on which the judgment of the court of appeal had become final, the condition laid down in Article 72-2 of the L aw on the Constitutional Court was not satisfied and the appeal was inadmissible on the ground that it was out of time.

Law : Article 6 § 1 (access to a court) – The question concerns the interpretation of the point at which time begins to run for the purpo se of calculating the period of sixty days within which an appeal must be brought before it; the Constitutional Court considered that time began to run as from the date of the decision of the court of appeal, since the appeal on a point of law was declared inadmissible. The admissibility of the applicants' appeal depended entirely on the opinion of the Supreme Court as to whether the contested decision was of “crucial importance from the legal standpoint”. In those circumstances, neither the applicants nor their lawyer were in a position to evaluate the chances of their appeal being declared admissible by the Supreme Court. The applicants none the less decided, notwithstanding the refusal by the court of appeal to admit the appeal and in accordance with the case-law of the Constitutional Court, to appeal on a point of law under Article 239-2 of the Code of Civil Procedure. Taking the view that the appeal on a point of law was a last remedy within the meaning of Article 72-2 of the Law on the Constitutional Co urt, they considered in good faith that the sixty-day period for lodging a constitutional appeal began to run with service of the decision of the Court of Cassation. According to Article 72-2 of the Law on the Constitutional Court, a constitutional appeal must be brought within sixty days from the date on which the applicant was served with the decision on the last legal remedy for the protection of his rights. Article 75-1 of that law provides that a constitutional appeal is inadmissible where the applican t has not exercised all remedies, with the exception of an action for a review of the procedure. Furthermore, under Article 239-2 of the Code of Civil Procedure,  the admissibility of an appeal on a point of law depends on the opinion of the Supreme Court as to whether the contested decision is of “crucial importance from the legal standpoint”. The application of the rules fixing the periods for lodging appeals must not prevent the person concerned from using an available remedy. In the present case, the is sue is the interpretation of a procedural requirement which prevented an examination of the merits of the applicants' case, in breach of the right to effective judicial protection. If the applicants decided to lodge their appeal on a point of law, they wer e merely making use of the possibility provided by Article 239-2 of the Code of Civil Procedure, and that must not cause them harm. Nor can they be criticised for having erred in not submitting their constitutional appeal until mid-November 1997, since the question of the day on which time began to run was controversial. Article 75-1 of the Law on the Constitutional Court does not distinguish between ordinary appeals and extraordinary appeals and the persons concerned are required to exhaust both appeals, w ith the exception of an action for a review of the procedure, which is expressly excluded. If the applicants were thus required to appeal on a point of law in order not to have their constitutional appeal declared inadmissible, time for the purpose of intr oducing the constitutional appeal should not have started to run until the decision of the Supreme Court, or it should have at least been suspended when the appeal on a point of law was lodged. As regards the simultaneous lodging of an appeal on a point of law and a constitutional appeal, recommended by the Government, that is an aleatory remedy which finds no support in the provisions of the law and does not provide an appropriate solution, consistent with the requirement of legal certainty. Accordingly, t he period of sixty days for lodging a constitutional appeal should have run only from the date on which the decision of the Supreme Court on the applicants' appeal on a point of law was served on them. Last, the requirement that “all remedies” be exercised , laid down in Articles 72-2 and 75-1 of the Law on the Constitutional Court, without any distinction being drawn – except as regards an action for a review of the procedure – between ordinary appeals and extraordinary appeals and the lack of foreseeabilit y of the admissibility of an appeal on a point of law resulting from the application of Article 239-2 of the Code of Civil Procedure infringe the very substance of the right of appeal by imposing a disproportionate burden on the applicants. It follows that the particularly rigorous interpretation by the Constitutional Court of the procedural rule in issue deprived the applicants of the right of access to a court.

Conclusion : violation (unanimously).

Article 1 of Protocol No 1 – The domestic courts decided t o annul the part of the contract relating to the gift of the land. The interference in the applicants' exercise of their right to the peaceful enjoyment of their possession was provided for by law. The aim pursued by the Law on property ownership is to mit igate the consequences of the economic wrongs caused under the Communist regime and the Court accepts that the Czech State was entitled to deem it necessary to resolve that problem, which it regarded as harmful to its democratic regime. The general objecti ve of the law is “in the public interest”. The Law on the ownership of land makes no provision for any form of compensation where a contract of gift is annulled. As it has already been established that the contested interference satisfied the condition of legality and was not arbitrary, the lack of compensation does not in itself render unlawful the State's seizure of the applicants' assets. It is normal that the legislation should take a global approach to the economic wrongs that arose under the Communist regime, although it may be necessary to distinguish them for the purpose of the analysis and the exceptional circumstances in question – the manner, generally, in which the assets were previously acquired – justify the absence of compensation. However, th e Court does not understand why the Czech legislation precluded the possibility of examining, in individual cases, the particular circumstances in which the assets were transferred at the material time. In a case like this, it would have been necessary to establish clearly whether the conveyance of the land in question was made against the will of the former owner – which does not appear to have been the case, given the declaration made by the former owner himself – and whether it was indeed an economic wro ng, regard being had to the consideration provided. The possibility that the courts might annul the contract without taking into consideration the compensation paid at the material time by the present owners or the declaration by the former owner that he f ully assented gives rise to a situation which upsets, to the applicants' disadvantage, the just balance that must be struck between the protection of individual property and the requirements of general interest. Notwithstanding the legitimate aim pursued b y the Law on the ownership of land when it was enacted in 1991, the requirement that the applicants give back, without compensation, the assets acquired by them in good faith, in favour of a gift made freely and against payment of an equivalent sum must be analysed as a disproportionate burden which cannot be justified under the second paragraph of Article 1 of Protocol No 1.

Conclusion : violation (unanimously).

Article 41 – The Court considers that the findings of violations provide in themselves just satisfaction for the non-pecuniary harm. It awards the applicants €50,000 by way of compensation for the pecuniary harm and €3,000 by way of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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