Resolution ResDH(2006)71 [1]

Execution of the judgments of the European Court of Human Rights Milatová and others and Exel against the Czech Republic

(Applications No 61811/00 and 48962/99, judgments of 21 June 2005 and of 5 July 2005, final on 21 September 2005 and on 5 October 2005)

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 referred to as “the Convention” and “the Court”);

Having regard to the final judgments in these cases, transmitted by the Court to the Committee on 21 September 2005 and on 5 October 2005;

Recalling that the violations of the Convention found by the Court in these cases concern denials of the right to a fair hearing (infringement of the right of defence in Milatová and lack of a public hearing in Exel (Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Czech Republic ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of

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

- general measures preventing similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and DECIDES to close their examination.

Appendix to Resolution ResDH(2006)71

Information about the measures to comply with the judgments in the cases of

Milatová and others and Exel against Czech Republic

Introductory case summary

These cases concern denials of the right to a fair hearing (violations of Article 6, paragraph 1).

In the Milatová case which concerned proceedings to obtain restitution of real property, the European Court found that the applicants were denied the opportunity to take part properly in proceedings before the Constitutional Court inasmuch as certain documents had not been disclosed to them, depriving them of the possibility of commenting on them.

The Exel case concerns the absence of a hearing before the Commercial Court and the superior court in proceedings concerning the applicant ' s bankruptcy. The European Court found that it would have been important and useful to hold a hearing given the complexity of certain issues involved.

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Milatová and others 61811/00

­

­

€ 1 116

€ 1 116

Paid on 29/11/2005

Exel

48962/99

No just satisfaction

b) Individual measures

2) Exel case : The applicant was declared bankrupt in 1995 and the bankruptcy proceedings are still pending. Since then, oral hearings have been held at which the applicant had the opportunity to participate. Moreover, the applicant has not asked for any further individual measures.

1 ) Following the Milatová judgment , the Constitutional Court was invited to review its practice concerning the right of applicants to a fair trial. The issue was discussed by the plenum, which adopted a recommendation on 25 May 2005. According to this recommendation, where parties have been asked to submit observations, reporting judges are invited to communicate them to the applicant for possible comments when they contain, or might contain, new facts, allegations or lines of argument.

2) Following the Exel judgment , the Supreme Court, in its decision of 31 January 2006, defined the circumstances in which first-instance courts are obliged to hold oral hearings to examine requests for the declaration of bankruptcy. It noted that such an obligation may be based on a law or, for instance, on Article 6 of the Convention. The Supreme Court concluded that an oral hearing is not necessary: 1) when the debtor does not object to the declaration of bankruptcy requested by the creditor; 2) when the litigation between the parties concerns only points of law and no point of fact; or 3) when there is a true litigation concerning the facts but the facts may be established on the basis of documentary evidence and the parties to the procedure have renounced their right to an oral hearing.

Moreover, the Czech P arliament has adopted a new law on bankruptcy (Law No. 182/2006) which will enter into force on 1 July 2007. This law provides the right to an oral hearing before the court declaring the bankruptcy (Article 133) according to the principles enumerated by the European Court and the Supreme Court in its decision of 31 January 2006.

The judgments of the European Court have been translated and published in the internet site of the Ministry of Justice ( www.justice.cz ) and sent out to national courts with a covering letter.

[1] Adopted by the Committee of Ministers on 20 December 2006 at the 982nd meeting of the Ministers’ Deputies