Communicated on 11 December 2017

FIRST SECTION

Application no. 54168/15 Otakar DOHNAL against the Czech Republic lodged on 26 October 2015

STATEMENT OF FACTS

The applicant, Mr Otakar Dohnal , is a Czech national who was born in 1942 and lives in Prague. He is represented before the Court by Mr D. Strupek , a lawyer practising in Prague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

In 1950 the applicant ’ s mother and his uncle, J.W., inherited a plot of land with a surface are a of 6,850 square metres (hereinafter “the plot of land”) which was located in the Prague area, in the cadastral municipality of Vyso č any.

In 1964 the applicant ’ s mother offered her half of the plot of land to the State as a gift. Consequently, the company Prague Orchards, Forests, and Gardening ( Sady , lesy a zahradnictví hlavního měst a Prahy ) was listed as the owner of that half of the plot of land.

2. Possession and disposition of the plot of land

In 1972 a Prague company in charge of public communications ( Pražská správ a komunikací ) filed an application to initiate expropriation proceedings, after an unsuccessful attempt to buy the rest of the plot of land. In May 1972 the expropriation proceedings were opened but not concluded, and J.W. remained registered as the owner. He died abroad in December 1982, and his death became known in the Czech Republic as late as 2001.

In the meantime, on 31 July 1989 the department of Prague ’ s chief architect ( Útvar hlavního architekta ) had decided on the location of a construction, namely metro line B. The construction affected the plot of land.

On 12 January 1990 the company Orchards, Forests and Gardening concluded an agreement with the Prague Public Transport Company ( Dopravní podnik hlavního měst a Prahy ) about the temporary use of part of the plot of land in order to construct the metro line.

On 11 September 1992 the Ministry of Finance transferred movable and immovable property owned by the State to the Prague municipality. The Prague Metropolitan Office subsequently applied to be entered in the land register as the owner of half of the plot of land.

In 2001 the Prague Public Transport Company started negotiations with the applicant, as a potential heir, about the use of the plot of land. On 21 May 2002 the applicant agreed that the property could be used as requested by the Prague Public Transport Company.

On 16 February 2004 the Prague 9 District Court ( obvodní soud , hereinafter “the District Court”) confirmed that the applicant had inherited seventeen fortieths of the plot of land, and another heir, J.K, had inherited three fortieths. The applicant and J.K. were entered in the land register as co-owners of the plot of land.

On 6 June 2005 the Prague Metropolitan Office initiated proceedings for approval of a construction ( kolaudační řízení ) on the plot of land. As a co ‑ owner, the applicant was informed.

On 23 June 2005 he commented on the proceedings and stated that the plot of land was being used unlawfully.

The construction company offered to purchase the applicant ’ s share of the plot of land on 12 July 2005.

On 7 September 2005 the applicant, J.K. and the Prague Metropolitan Office, as co-owners, entered into a lease agreement with a third party. The agreement concerned the placement and operation of a fast-food stand on the plot of land. On the same day, the applicant was invited by the Prague Metropolitan Office to attend the hearings in the construction approval proceedings.

On 20 September 2005 the construction company again invited the applicant to enter into negotiations about the sale of his share of the plot of land. On 24 October 2005 the applicant brought a claim against the Prague Public Transport Company in respect of unjust enrichment ( bezdůvodné obohacení ).

On 21 December 2005 the Prague Metropolitan Office proposed to settle the issue of ownership with the applicant.

3. Court proceedings lodged by the applicant

On 16 February 2006 the applicant filed a claim against the Prague Public Transport Company, seeking compensation in respect of unjust enrichment.

On 10 April 2006 the District Court issued a payment order against the Prague Public Transport Company, which appealed on 24 April 2006. In its submissions of 22 May 2006 the company further expressed its intention to settle the issue outside of formal judicial proceedings, not disputing the applicant ’ s ownership.

At a hearing held on 14 December 2006 both parties expressed their willingness to settle the case. The court adjourned the hearing. The applicant ’ s ownership was not disputed.

In August 2008 the Prague 9 Municipality Office ( Městská část ) issued a statement concerning the plot of land. It recommended purchasing the respective shares belonging to the applicant and J.K.

In submissions of 14 February 2008 the applicant lowered the value of the unjust enrichment claim. The court accepted the amendment to his action and terminated the proceedings in respect of the remainder of the original amount claimed on 17 March 2008.

In submissions of 7 April 2008 the Prague Public Transport Company argued, for the first time, that the applicant had failed to prove his ownership of the share of the plot of land, as the State had taken ownership before 1989 and the applicant should have claimed ownership through restitution laws. The applicant disagreed in a written response of 30 May 2008.

In the meantime, on 29 April 2008 the city of Prague had filed an action seeking termination and settlement of the co-ownership arrangement ( zrušení a vypořádání podílového spoluvlastnictví ) in respect of the plot of land.

In its subsequent submissions of 19 March, 10 April and 19 October 2009, the Prague Public Transport Company repeated its arguments challenging the applicant ’ s ownership of the plot of land.

On 29 October 2009 the District Court issued an interim judgment approving the fact that the legal basis of the applicant ’ s claim for unjust enrichment was well-founded. The court stated, inter alia :

“... it cannot be concluded that during the relevant period the plot of land was transferred to the State as a whole and that the claimant or another entitled person should have claimed its surrender through restitution laws.”

On 9 November 2009 the court discontinued the proceedings concerning the termination and settlement of the co-ownership arrangement, initiated on 29 April 2008.

Upon an appeal by the Prague Public Transport Company, the Prague Municipal Court ( městský soud ) quashed the decision of 29 October 2009 and remitted the case to the District Court, stating, inter alia :

“The decision on inheritance based on J.W. ’ s registered ownership cannot be followed ... it is necessary to establish with certainty whether the State, during the relevant period ... had taken over the relevant part of the plot of land without any legal basis and disposed of it. ... the court of first instance limited itself to the question of the State ’ s ownership, without dealing with the question of factual possession of the part of the plot of land concerned during the relevant period ...”

On 1 November 2010 the District Court asked the applicant to supplement his factual statements, which he did on 29 November 2010.

On 22 February 2011 the Prague 9 Municipality Office filed a statement confirming that it had no documents concerning the date when the State had taken possession of the plot of land. The archives contained documents confirming the initiation of the expropriation proceedings and partial documents proving that the State had taken care of the plot of land.

The Prague Public Transport Company filed additional statements on 6 April, 2 May and 17 October 2011. The applicant submitted another explanation on 18 July 2012.

By a judgment of 24 July 2012 the District Court dismissed the applicant ’ s action, holding in particular:

“It was established without any doubt, and not contested by the claimant, that the State had taken possession of the property ( a plot of land) after 1948, in the absence of a legal basis. ... in fact the property had been seized, even though it had not been backed up by law. ... It follows from decision no. 31 Cdo 1222/2001 of ... the Supreme Court that, in such a case, the entitled person should have claimed his right in restitution proceedings. ...”

The Municipal Court upheld that judgment on 11 April 2013, finding in particular:

“ A basic condition for an unjust enrichment claim is the existence of a share in the co-owned plot of land concerned. ... The Supreme Court, in its well-established case-law, has held for a long time that the lack of an agreement or other legal reason for an assumption (seizure) of property by the State entails a reason for restitution. ... The first-instance court ascertained the facts of the case in a sufficient manner and correctly assessed the case from the legal side. ...”

On 12 June 2013 the applicant lodged an appeal on points of law ( dovolání ), but this was dismissed by the Supreme Court ( Nejvyšší soud ) on 10 June 2014.

He filed a constitutional complaint ( ústavní stížnost ), alleging that his right to a fair trial and right of property had been violated. On 9 April 2015 the Constitutional Court ( Ústavní soud ), referring to its plenary opinion no. Pl. ÚS- st. 21/ 05, dismissed the complaint as manifestly ill-founded, holding that there was no reason for an exemption from the general rule of first applying restitution laws.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the restitution of property, including the case-law of the Constitutional Court, is set out in the Court ’ s decisions in the case of Žáková v. the Czech Republic , no. 2000/09 , § § 32-40, 3 October 2013.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that his right of property was violated, as the courts applied an unforeseeable principle providing that the State became the owner of de facto occupied immovable property at the moment an entitled person failed to file a restitution claim.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of his possessions within the meani ng of Article 1 of Protocol No. 1?

2. Was the applicant deprived of his possessions in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 (see Beyeler v. Italy [GC], no. 33202/96, §§ 104-05, ECHR 2000 I)?

3. If so, was the interference necessary? In particular, did the interference impose an excessive individual burden on the applicant (see Žáková v. the Czech Republic , no. 2000/09, §§ 79-96, 3 October 2013)?