CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 septembre 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s29100277 { font-family:Arial; font-weight:bold } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s8BD2CFA4 { width:35.21pt; display:inline-block } .s8926CEEB { width:194.11pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 38338/02 by Jiří KOLMAN and Others against the Czech Republic The European Court of Human Rights (Second Section), sitting on 20   September 2005 as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   I. Cabral Barreto ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mrs   E. Fura-Sandström, judges , and Mr S. Naismith , Deputy Section Registrar , Having regard to the above application lodged on 16 October 2002, Having deliberated, decides as follows: THE FACTS The applicants, Mr Jiří Kolman, Dagmar Paterová, Eva Stodolová and Helena Karafiátová are four Czech nationals, born in 1940, 1936, 1933 and 1942, and living in Prague and Dolní Břežany, respectively. They are represented before the Court by Ms A. Moravcová, a   lawyer practising in Prague.   The facts of the case, as submitted by the applicants, may be summarised as follows. In a judgment of 16 July 1949 the former Prague State Court ( státní soud ), upheld by the Supreme Court ( Nejvyšší soud ) on 18 October 1950, convicted the applicant’s father of high treason ( velezrada ) and sentenced him, inter alia , to confiscation of all his property. On 26 May 1982 the confiscated property was sold by the Czechoslovak State to one V.K., her husband and mother. The sale price – 121,165 Czechoslovak crowns (CSK) – was fixed on the basis of an expert report of 2 February 1981 which was adjusted on 17 February 1982. In 1983 the applicant’s mother sold half of the property to a certain E.F. On 15 November 1990 the Prague Municipal Court ( městský soud ) declared that, pursuant to section 2 of the Judicial Rehabilitation Act, the applicants’ father’s conviction and all ancillary decisions had been quashed with retrospective effect. On 16 March 1992 the applicants’ father brought an action in the Prague 4 District Court ( obvodní soud ) against V.K. and E.F. for recovery of the property pursuant to the Extra-Judicial Rehabilitations Act. He alleged that the State had sold the property for a price which had not been fixed in accordance with the national law then in force and that the purchasers had enjoyed an unlawful advantage. On 19 October 1994 the applicants’ father died. On 20 November 1994 the applicants requested the court to adjourn the restitution proceedings pending the outcome of proceedings regarding their father’s inheritance. On 18 October 1995 a notary dealing with the applicants’ father’s inheritance informed the District Court that she had closed her part of the inheritance proceedings on 27 June 1995. By a judgment of 30 November 1995 the District Court, having held a   hearing which the applicants and their legal representative did not attend, dismissed the restitution action. On 31 January 1996 the applicants appealed against this judgment to the Municipal Court. They requested first that the judgment be quashed due to a   procedural error committed by the District Court in that it had been decided in their absence, despite the applicants’ apologies and a request to adjourn the proceedings. Secondly, they objected to an expert report which fixed the original purchase price, arguing that the same expert had evaluated another immovable property, the restitution of which they claimed before the same court which had already found that the expert had not classified the property correctly having reduced the purchase price by 25%. They claimed that both real estates were identical. On 12 July 1996 the Municipal Court quashed the first instance judgment and remitted the case to the District Court, ordering it to identify the restitution claimants as they appeared from the inheritance proceedings and to advise the parties of their rights and duties and to invite them to adduce evidence which the court would then assess. On 26 September 1996 the District Court invited the applicants to complete the restitution action. On 16 October 1996 they informed the court that they were the legal successors of their father. They completed the restitution action claiming that the purchase price had not been fixed pursuant to the regulations in force at the time and that, therefore, the purchasers had acquired the property contrary to the law then in force. They referred to errors in the expert report alleging that the purchase price had been unlawfully reduced by about 25%. The District Court heard the first applicant and the defendants. At the applicants’ request, it commissioned an audit expert opinion to establish whether the purchase price fixed by the expert in 1981 and 1982 had been correctly calculated and had complied with the regulations then in force. By a judgment of 24 September 1998 the District Court dismissed the applicants’ restitution action. It held that E.F. was not obliged to make restitution of her part of the property, not having acquired it from the State as provided for in section 4(2) of the Extra-Judicial Rehabilitations Act [1] . It further held that it was not found that V.K. had acquired the property from the State contrary to the applicable price regulations. It observed that the original and audit experts drew concurrent conclusions as to the purchase price and classification of the house. Referring to the findings of the audit expert, the court stated that the purchase price had been fixed properly pursuant to the regulations in force at the relevant time and that there was nothing to show that the State had sold the property for a lower price than the price officially announced corresponding to the price calculated under the price regulations then in force, i.e. Decree no. 43/1969. The District Court considered irrelevant the applicants’ argument that they consulted other experts who had expressed views different from those of the audit expert. On an unspecified date, the applicants appealed. They challenged the insufficient and erroneous establishment of the facts by the District Court which, according to them, had not assessed the evidence which had been necessary for a right decision. They complained that the court had not heard all of them and had based its decision on the audit expert opinion without having examined their significant and well-founded objections to the classification of different parts of the property, which were crucial for the calculation of the purchase price. On 7 February 2001 the Municipal Court upheld the first instance judgment stating, inter alia : “The expert report which fixed the purchase price of the house was drawn up by ... [F.H.] on 2 February 1981 and adjusted on 17 February 1982. The purchase price ... was fixed at CZK 118,261 .... The first instance court took as evidence the expert report of [V.V.] drawn up on 24 June 1997 with a view to establishing whether the price fixed by [F.H.] in 1981-1982 corresponded to the objective price of the property [at the relevant time] and was based on the price regulations then in force. ... [V.V.] ... deduced that the house is in the third class ..., and that the prices of [the individual parts of] the property calculated under the price regulations in force at the date of the valuation, i.e. Decree no. 43/1969, are practically comparable such that he associates with the valuation made by [F.H.] in 1981-1982 as to the final price. The [audit] expert maintained his conclusions despite the claimant’s ... objections and reservations ... [made] ... on 2 December 1997, 16 February 1998, 3 July 1998 and 31 July 1998. The court ... completed the taking of evidence by the audit expert’s written statement of 15 November 2000. On the basis of this statement and the expert’s interview ... on 7 February 2001 the court concluded that the house in question was rightly classified as a house of the third class under the above price regulation. This final conclusion was not affected by the fact that the expert accepted the [applicants]’ objections against the classification of windows and doors .... The appellate court did not have any reason to put a question-mark against the professional conclusions of ... [V.V.] and, despite the [applicants]’ request to commission a new expert report, did not continue to examine further evidence.” The Municipal Court also dismissed an application by the applicants for leave to appeal on points of law ( dovolání ) against its judgment which, in its opinion, did not constitute a decision of crucial legal importance, the question of the price of real estates calculated under Decree no. 43/1969 having already been considered in the national case-law. Article 239 § 2 of the Code of Civil Procedure provides that leave to appeal on points of law will be granted if the court hearing the appeal on points of law ( dovolací soud ) considers that the impugned decision gives rise to a question of crucial legal importance. In reliance on that provision, the applicants appealed to the Supreme Court, on 26 April 2004, alleging, inter alia , that the proceedings contained errors which caused the courts to make a wrong decision. The first applicant argued that contrary to the Municipal Court’s order of 25 June 1998 the applicants had been heard neither at the first instance nor before the appellate court, where their statements would have been important. The applicants further submitted that the courts did not examine certain documentary evidence, and they did not assess as evidence a case-file relating to other restitution proceedings held before the same District Court which concerned a house which was virtually identical to the house at issue. On 21 May 2001 the applicants filed a constitutional appeal ( ústavní stížnost ) alleging a violation of their right to judicial protection within the meaning of Article 36 § 1 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ). They challenged in particular the establishment of the facts of the case and the assessment of the evidence by the lower courts. They also criticised the refusal of the lower courts to admit further documentary evidence. In a judgment of 11 September 2001, the Supreme Court refused the applicants leave to appeal on points of law, holding that the Municipal Court’s judgment did not give rise to a question of crucial legal importance as provided for in Article 239 § 1 of the Code of Civil Procedure. On 30 April 2002 the Constitutional Court ( Ústavní soud ), without holding a public hearing, dismissed the applicants’ constitutional appeal, finding that there had been no violation of their constitutional rights. It observed, inter alia , that the first instance court had substantiated its refusal to commission a new expert opinion, having noted that the audit expert had reached virtually the same conclusions as the original expert. The Constitutional Court further observed that the appellate court, following the applicants’ objections against the findings of the audit expert, had completed the evidence by the latter’s written statement and by hearing him. It had found that the property in issue had been rightly classified in the third class within the meaning of the relevant price regulations. The Constitutional Court also noted that the first instance court had considered in detail the question relating to the circumstances in which the gas installation had been carried out. The Constitutional Court accepted the applicants’ arguments that the lower courts had not heard them and had not deal with the applicants’ request to complete the material evidence. However, this evidence would not clarify the case or would not establish new important facts, taking into account that the lower courts had found the audit expert opinion convincing and sufficient. The Constitutional Court added that the case-file relating to the restitution proceedings held before the same District Court which concerned the house which was, according to the applicants, virtually identical to the house at issue did not have any direct relationship with the present case. Finally, the Constitutional Court, referring to the minutes of the appellate proceedings and the defendants’ observations to the applicants’ appeal on points of law, considered that the applicants’ additional hearing in respect of the state of the property when it had been sold was superfluous, the applicants having expressed their views in writing on all disputed questions, in particular those relating to the audit expert report request. Moreover, they had not occupied the house at the relevant time. COMPLAINTS The applicants complain under Article 6 § 1 of the Convention that their restitution case was not dealt with by the national courts fairly, publicly and within a reasonable time. They submit that the District Court held the hearing and decided on 30   November 1995 without their and their legal representative’s presence, despite their request to adjourn the proceedings. The applicants also contend that the courts did not conduct the proceedings without unreasonable delays. They complain of delays in the proceedings held before the two first court instances. They further complain that the national courts failed to include as evidence the case-file concerning their action on restitution of a house which is located in the same site and is practically identical but which, on the basis of two expert opinions, was classified as a second class property. They add that the restitution of this house was granted to them in March   2005. The applicants finally challenge the national courts’ refusal to complete evidence by their additional interviews, to order a new expert report, to examine their objections and reservations against the audit expert report and to assess as evidence documents concerning the gas installation in the house. According to them, the courts failed to give relevant and sufficient reasons for their procedural steps. THE LAW The applicants complain that their right to a fair and public hearing within a reasonable time was violated by the domestic courts. They relied on Article 6 § 1 of the Convention, which provides in so far as relevant:   “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” (a) As to the applicants’ complaint that the District Court decided on 30   November 1995 in their and their lawyer’s absence, the Court observes that the District Court’s judgment was subsequently quashed by the Municipal Court following the applicants’ appeal and the case was remitted to the District Court which continued to deal with it in the applicants’ presence. The defects of the original hearing were therefore remedied by those subsequent proceedings. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (b) The applicants further complain that the length of the proceedings in their case exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention. The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of it to the respondent Government. (c) To the extent that the applicants allege that the restitution proceedings were unfair in that the national courts failed to establish the facts fully and thoroughly and considered their case arbitrarily without assessing necessary evidence, the Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, mutatis mutandis, Kopp v.   Switzerland , judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 54, § 59; García Ruiz v. Spain [GC], no. 30544/96, §   28, ECHR 1999-I). The Court observes that the ordinary courts and the Constitutional Court examined the applicants’ case carefully and extensively in a reasoned manner and that there is nothing to show that they arbitrarily disregarded any relevant arguments or submissions. It finds that the reasons for the judicial decisions complained of were sufficient and relevant and that the courts thoroughly replied to the applicants’ arguments, reservations or suggestions, in particular those concerning their additional hearing, the new and audit expert reports and the gas installation in the house. The Court further considers that while the District Court interviewed only the first applicant, it does not appear that the other applicants, being actively involved in the case, did not have an opportunity to have knowledge of and comment on the evidence before the courts, and that they were free to present their case with the assistance of their lawyer and to submit any evidence which they considered relevant. In the light of the foregoing considerations, the Court finds that the reasons on which the national courts based their conclusions are sufficient to exclude any doubt that the way in which they established and assessed the evidence in the applicants’ case was unfair or arbitrary. The Court notes that the applicants maintain that the domestic courts failed to include as evidence the case-file concerning their restitution action for a house which is located in the same site and is practically identical but which, on the basis of two expert opinions, was classified as a second class property. However, having regard to the entirety of the restitution proceedings, this would not constitute in itself a violation of their right to a fair hearing. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicants’ complaint relating to the length of the restitution proceedings; Declares the remainder of the application inadmissible.   S. Naismith   J.-P. Costa Deputy Registrar   President   [1] Section 4 requires the State and/or any legal entity in possession of confiscated property on the date on which the Act came into force to return the property. Paragraph 2 provides that any natural person who acquired property from the State unlawfully or by means of an unlawful advantage is likewise required to return the property.