Resolution CM/ResDH(2013)58

4 cases against Czech Republic (Adami č ek, Šurý , Tieze and Semeráková, Janyr and others)

Execution of the judgments of the European Court of Human Rights

(Application No. 35836/05, judgment of 12/10/2010, final on 12/01/2011

Application No. 16299/10, judgment of 13/10/2011, final on 13/01/2012

Application No. 26908/09, judgment of 13/10/2011, final on 13/01/2012

Application No. 12579/06, judgment of 13/10/2011, final on 13/01/2012)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action reports provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)332E ) ;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Action report submitted in its consolidated version by the government on 14 March 2013

In its judgment of 12 October 2010 in Adamíček, the Court found a violation of the applicant ’ s right of access to a court due to the declaration of inadmissibility of his constitutional appeal (violation of Article 6 § 1 of the Convention). The judgment became final on 12 January 2011 according to Article 44 § 2 letter b) of the Convention.

In its three judgments of 13 October 2011 in Janyr and others, Tieze and Semeráková and Šurý, the Court found a similar violation of Article 6 § 1 of the Convention. The judgments became final on 13 January 2012 according to Article 44 § 2 of the Convention.

The present report is intended to inform the Committee of Ministers about the indi ­ vidual and general measures concerning the execution of the judgments.

I. INDIVIDUAL MEASURES

The government observed that the cases of the applicants had been considered on the merits by the courts of both the first and second instance and it does not seem that the violation of the Convention – which occurred before the Constitutional Court – affected the outcome of the various proceedings before ordinary courts.

Moreover, the alleged violations of the Convention which the applicants had intended to raise before the Constitutional Court were dismissed as inadmissible by the Court in its decisions of 9 December 2008 (applicant Adamíček), 21 September 2010 (applicants Janyr, Lučivňák and Záleský) and of 28 September 2010 (applicants Semeráková and Šurý) and in its judgment of 13 October 2011 (applicant Tieze).

Finally, the amounts awarded by the Court to five of the seven applicants (applicants Adamíček, Janyr, Lučivňák, Tieze and Šurý) have been duly paid. [1]

In view of the aforementioned, the government is convinced that there are no individual measures to adopt in the applicants ’ cases.

Nonetheless, Mr Lučivňák and Mr Janyr have applied for the reopening of their proceedings before the Czech Constitutional Court in accordance with Section 119 of the Constitutional Court Act (CCA) as their constitutional appeal was directed against ordinary courts ’ decisions given in criminal proceedings. [2] While Mr Lučivňák ’ s request for reopening remains pending, the plenary of the Constitutional Court already decided to grant Mr Janyr ’ s request by its decision of 18 December 2012 reasoning, inter alia, that its initial decision declaring the applicant ’ s constitutional appeal inadmissible was contrary to the Court ’ s judgment.

II. GENERAL MEASURES

The Court ’ s judgments in the present cases were translated and published on the website of the Ministry of Justice (portal.justice.cz) and they were also discussed at meetings of the plenary of the Constitutional Court held after the pronouncement of the judgments.

As stated in its Resolution CM/ResDH(2010)68 concerning the execution of the Court ’ s judgment in the Drahorád and Drahorádová, Mourek, Hoření, Ješina and Glaser v. the Czech Republic cases, following earlier similar cases, the Czech authorities adopted a number of measures to prevent new violations, namely:

a) the plenary of the Constitutional Court changed its practice in 2003 (communication published in the Official Journal no. 32/2003 of 3 February 2003);

b) Parliament adopted Act No. 83/2004 (which entered into force on 1 April 2004) which amended the CCA.

Furthermore, in its judgment No. Pl. ÚS 29/11 of 21 February 2012, the Czech Constitutional Court repealed (with effect from 1 January 2013) as unconstitutional Section 237 § 1(c) of the Code of Civil Procedure (CCP) according to which an appeal on points of law is admissible if the decision of the court of appeal has to be regarded as dealing with a question of crucial legal importance. The Constitutional Court held, among other things, that the contested provision did not define clearly the situations where an appeal on points of law was admissible.

In the meantime, the government presented a bill amending the CCP and the CCA, which was adopted by Parliament on 24 October 2012 and became Act No. 404/2012. This Act, which entered into force on 1 January 2013, defines more clearly the situations where an appeal on points of law should be deemed admissible. Moreover – and this is of crucial importance for the execution of the present judgments – this Act changes the wording of Section 75 § 1 of the CCA so that before lodging their constitutional appeals the litigants will have to exhaust all remedies afforded by law for the protection of their rights, including (and not “with the exception of” as this provision currently reads) those whose admissibility depends on the discretion of the competent authorities. Accordingly, the applicants in every case (not only in civil, but also in criminal proceedings) will have to lodge an appeal on points of law first. Thus, their following constitutional appeals should not be declared inadmissible as lodged out of time if lodged within two month time limit running from the delivery of the decision of the Supreme Court on the appeal on points of law.

III. CONCLUSION

The Government of the Czech Republic concluded that with respect to implementation of the judgments in Adamíček, Janyr and Others, Tieze and Semeráková and Šurý v. the Czech Republic, all the necessary measures of execution have been taken.

[1] The issue of payment of just satisfaction is dealt with separately.

[2] The possibility to ask for reopening exists in crim i nal matters and could have been availed of also by applicant Záleský. In his case, the statutory time limit of six months after the finality of the Strasbourg Court judgment for d o ing so has lapsed.