CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 33456/96                       by Alexander ZVOLENSKY and Others                       against the Czech Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 25 July 1996 by Alexander ZVOLENSKY and Others against the Czech Republic and registered on 16 October 1996 under file No. 33456/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, four Czech nationals born in 1931, 1945, 1917 and 1924, reside in Prague.   Before the Commission, the first applicant represents the three others.        The facts of the case, as submitted by the applicants, may be summarised as follows.        On 12 July 1976 the applicants purchased a house in Zlivice (Czech Republic) from the South Bohemia Forest State Enterprise (Jihoceské státní lesy). The purchase price was fixed by an expert's report at 33,035 crowns.   The purchase contract became effective on 29 July 1976 when it was registered by the Písek State Notary.        On 20 February 1991 the South Bohemia Forest company (Jihoceské lesy, a.s.) ("the company"), a legal successor to the South Bohemia Forest State Enterprise, brought before the Písek District Court (okresní soud) an action against the applicants claiming that the purchase contract had been void as it was contrary to the law, and that the company was still the owner of the house.   The company stated that the purchase price had been contrary to Price Regulation No. 43/1969 (vyhláska o cenách staveb v osobním vlastnictví a o náhradách pri vyvlastnení) ("the Regulation").        On 12 May 1993 the Písek District Court declared the purchase contract void ab initio under Section 39 of the Civil Code, according to which a legal act is void if its contents or purpose are unlawful or are contrary to the interests of society.   The Court found that the purchase price fixed in the purchase contract had not been in accordance with the Regulation.   Consequently, the company remained the owner of the house and the applicants were ordered to vacate it.   The applicants recovered the purchase price of 33,035 crowns.        The Court heard five witnesses.   Two of them had rented the house before it was sold to the applicants.   They stated that they had been interested in buying the house, but that the South Bohemia Forest State Enterprise had informed them that the purchase price was exorbitant and that there was another purchaser.        The Court also examined the Ceské Budejovice Prosecutor's investigation file from which it appeared that the prosecutor had investigated the circumstances in which the purchase was effected and had concluded that no criminal offence had been committed.   During the investigation the prosecutor found that another expert's report had valued the house at 95,236 crowns.   The prosecutor heard the expert whose report had been taken as a basis for the purchase price. The expert explained that he had taken a higher rate of depreciation, but he had not been aware that the house had been renovated in 1963 at a cost of 154,386 crowns, and that central heating had been installed in 1970.        Finally, the Court read an expert's report which had been ordered during the trial.   According to the report, the value of the house in 1976 was 57,124 crowns. The report explained the difference in price as due, not to the basic valuation, but to a different way of calculating depreciation.   It was added that the report had been drafted solely on the basis of the documentation in the court case- file.        On 8 June 1994, upon the applicants' appeal, the Ceské Budejovice Regional Court (krajsky soud) upheld the lower court's judgment.   The Court confirmed that there had been a breach of the Regulation and added that the purchase contract had been concluded contrary to Ministry of Finance Directive No. 10/1964 ("the Directive"), according to which a state organisation, when selling a house, was required to offer it for sale to the tenants before offering it to third parties. The Court held that according to two tenants' witness statements, they had not been allowed to purchase.   In that respect the purchase contract was concluded in contradiction with the interests of society within the meaning of Section 39 of the Civil Code.   The Court did not accept that the applicants had acquired the house by prescription.        In their ensuing constitutional appeal to the Constitutional Court (Ústavní soud) the applicants claimed that the District Court and the Regional Court had breached Articles 1, 2(2), 4(1), 11(1) and (3) of the Charter of Fundamental Rights and Freedoms which guarantee liberty and equality, the limitation of interferences of state authority with fundamental rights and freedoms and the protection of property rights.   The applicants criticised in particular the courts' legal findings and the wrong application and interpretation of the law.        On 20 February 1996 the Constitutional Court, after a public hearing, dismissed the applicants' constitutional appeal, finding that there had been no violation of their rights guaranteed by the Charter of Fundamental Rights and Freedoms.   The Court held in particular:        "In the present case the domestic courts found that the law      ... had been breached and that Section 39 of the Civil Code      should have been applied because of the choice of the      purchasers ... and the fixing of the particularly low      purchase price.        The judgment of the Regional Court was based on Section 39      of the Civil Code ...   As to the applicants' submission      that they had acquired the house by prescription, the      Constitutional Court endorses the opinion of the Regional      Court ...   As regards the choice of the persons interested      in the purchase of the house ..., it appears from the      assessment of evidence by the domestic courts that the      former tenants were interested in the purchase, but they      were denied the purchase contrary to the Directive of the      Ministry of Finance ...        From the case-file and the witnesses' statements it [also]      appears that the sale of the house ... was effected with      special political preferences on behalf of [the first      applicant]. ...        ... the principle of equality was breached by the ...      purchase ... Moreover, the property rights established in      the original purchase contract had no legal basis.      According to Article 11 para. 3 of the Charter of      Fundamental Rights and Freedoms, ownership may not be      misused to the detriment of the rights of others or against      legally protected public interests.   According to Article 4      para. 3 of the Charter, any statutory limitation of the      fundamental rights and freedoms must apply equally to all      cases   meeting the   set conditions.   For these reasons,      the    Constitutional Court cannot accept the            applicants' submission that the judgments of the            domestic courts breached the above-mentioned            constitutional principles ...        ... the substance of the constitutional appeal consists of      [the applicants'] disagreement with the legal findings of      the domestic courts, in particular that of the Ceské      Budejovice Regional Court.   The Constitutional Court      endorses the findings of this [Court] which duly dealt with      the case and examined in detail [the applicants']      submissions.   As to the assessment of evidence, the Court      ... proceeded according to Section 132 of the Code of Civil      Procedure. ...        The Constitutional Court is not part of the system of      general courts, cannot interfere with their jurisdiction      and cannot act as an appellate court in matters which are      within the jurisdiction of the domestic courts.   It has      such a right only in those cases where the constitutional      principles have been breached ...   The Constitutional Court      also considers that the right to protection by the courts      [has not been breached in the present case].   The case-file      of the domestic courts indicates that the domestic courts,      having applied the relevant provisions of the Civil Code      and the Code of Civil Procedure, respected the principles      laid down in Articles 36, 37 and 38 of the Charter of      Fundamental Rights and Freedoms [which are similar to      Article 6 of the Convention]."     COMPLAINTS        The applicants claim, under Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention, that by the judgments of the domestic courts they have been deprived of their property unlawfully, arbitrarily and not in the public interest.   They submit that they purchased the house according to the legal provisions then in force. The purchase price was fixed by the expert appointed by the South Bohemia Forest State Enterprise and the applicants simply accepted it. They also submit that the purchase contract was registered by the State Notary without any objection and that this cannot be changed by an expert report drafted 15 years later.   The applicants claim that the expert appointed by the District Court stated that the only difference in his assessment consisted of the different methodology in the calculation of depreciation.   They maintain that the expert did not have any technical building documentation or other material to assess the condition of the house at the time of the conclusion of the purchase contract.    They note that the former law prohibited only a price higher than the law indicated.        The applicants deny that they had an advantage in the purchase of the house, because when they purchased the house, it had been vacant for more than one year and there were no other potential purchasers. They submit that it was not proved in the proceedings that the political recommendation was a decisive element in the sale of the house to them.   The applicants further maintain that they acquired the house by prescription and that the amended Civil Code applies to their case.      The applicants claim that as they are all retired (two of them are disabled pensioners), they have to find another suitable accommodation.   They add that the actual value of the house is 600,000 crowns.     THE LAW   1.    The applicants allege a violation of Article 1 of Protocol No. 1 (P1-1), which reads as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.        The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."        The Commission recalls that Article 1 of Protocol No. 1 (P1-1) comprises three distinct rules.   The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of possessions.   The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 14, para. 41).        The Commission considers that although the courts nullified the applicants' title to the house, the applicants may nevertheless be considered as having been deprived of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).        In order to be justified, it must be shown that the deprivation was in accordance with the conditions provided for by law and in the public interest.   Furthermore, not only must the aim of the deprivation of property be in the public interest, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, Eur. Court HR, Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 34, para. 70).   This implies that a fair balance must be struck between the demands of the general interests of the community and the requirement to protect the individual's fundamental rights, which balance would not be found if the individual was found to have borne an excessive burden (see Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 26-28, paras. 69-73).        The Commission observes in this respect that the applicants' title to the house was declared void as being contrary to the law and the interests of society, pursuant to Section 39 of the Civil Code. The civil courts' finding that the purchase contract was void followed from the facts that the price fixed in the purchase contract had been contrary to Price Regulation No. 43/1969 and that the applicants had an unfair advantage in the purchase, contrary to Ministry of Finance Directive No. 10/1964.   It is clear, therefore, that the deprivation was provided for by law.        As to the requirement of a legitimate aim in the public interest, the Commission recalls that the deprivation of property in pursuance of legitimate social, economic or other policies may be in the public interest, even if the community at large has no direct use or enjoyment of the property (see Eur. Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 32, para. 45).   Moreover, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is "in the public interest". In performing their assessment the national authorities therefore enjoy a wide margin of appreciation (ibidem, p. 32, para. 46).        In the present case the Commission considers that Section 39 of the Civil Code pursues a legitimate aim to safeguard the legality of legal transactions and their compatibility with the interests of society.   In these circumstances, and having regard to the State's margin of appreciation, the Commission accepts that the deprivation took place in the public interest.        There must, however, also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised and in this respect the Commission finds that in view of the wide margin of appreciation enjoyed by the Contracting States in this area, a decision declaring an unlawful purchase contract void may be a proportionate measure for the enforcement of the general aim.   In these circumstances the Commission notes that the applicants received the purchase price, and had been living in the house for 15 years.        The Commission finally recalls that, although Article 1 of Protocol No. 1 (P1-1) contains no explicit procedural requirements, the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with his or her rights under Article 1 of Protocol No. 1 (P1-1).   In ascertaining whether this condition has been satisfied a comprehensive view must be taken of the applicable procedure (see, for example, Eur. Court HR, Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55; Eur. Court HR, Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 21, para. 49).        In the present case the Commission finds that the proceedings viewed as a whole afforded the applicants a reasonable opportunity of putting their case to the domestic courts with a view to establishing a fair balance between the conflicting interests at stake.   The Commission notes that during the proceedings the applicants were legally represented and were able to advance all their arguments.   The courts gave detailed reasons for their factual findings and their interpretation of the law.   Contrary to the applicants' contention, there is no indication that the courts decided arbitrarily.   Having regard to its finding above, the Commission considers that the applicants during the civil proceedings could effectively challenge the measures interfering with their rights under Article 1 of Protocol No. 1 (P1-1).   Accordingly, there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) in the particular circumstances of this case.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants also allege a breach of Article 6 para. 1 (Art. 6-1) of the Convention, which, in so far as relevant, provides:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing by [a] ... tribunal      established by law ..."        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Contracting States.   In particular, it is not competent to deal with an application alleging that errors of fact or law have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention (see, for example, No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81).        The Commission notes that the applicants were represented by a lawyer throughout the proceedings at issue and that they were provided with ample opportunity to present their views and challenge the submissions of their adversary in the proceedings.        In view of these circumstances, the Commission finds no indication that the proceedings were unfair and considers, therefore, that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority        DECLARES THE APPLICATION INADMISSIBLE.       M.-T. SCHOEPFER                              J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber