CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 3 mars 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s21B97EC1 { width:25.99pt; display:inline-block } .s4BAE41EE { font-family:Arial; font-size:11pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB4D5CB4E { width:4.94pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .s7A5A2521 { font-family:Arial; font-size:10pt; font-weight:bold; font-style:italic } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s4B8D41EE { font-family:Arial; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     158   3.3.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF KRČMÁŘ AND OTHERS v. THE CZECH REPUBLIC     In a judgment [1] delivered at Strasbourg on 3 March 2000 in the case of Krčmář and Others v. the Czech Republic, the European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded to each of the applicants 1,350,000 Czech crowns for all heads of damage taken together and 80,000 Czech crowns for legal costs and expenses.   1.   Principal facts   The applicants, Roman Krčmář, Marie Hanušová, Jaroslava Bartošová, Eduarda Ottová, Dagmar Rýdlová, Eva Kaňoková and Michaela Krčmářová, Czech nationals, were born in 1957, 1922, 1923, 1931, 1932, 1935 and 1967 respectively, and live in Prague (Czech Republic) and in Speyer (Germany). They are successors in title to František Otta, a company in Rakovník which belonged to members of their family until it was nationalised by the former communist regime.   In January 1946 the former Minister of Food declared the applicants’ company nationalised pursuant to Presidential Decree no. 101/1945, according to which companies producing margarine which had more than 150 employees were nationalised. The nationalisation procedure was closed by the ministerial order of 11 January 1949 determining the final extent of the nationalisation. The order was based on Act no. 115/1948.   In March 1991 the company was transformed into Rakona a.s. with 100% property participation of the State. In June 1991 Procter & Gamble, a foreign company, concluded a purchase contract with the National Property Foundation and in July 1991 the Czech Government approved a privatisation plan to sell the company to Procter and Gamble. In November 1991, pursuant to the Extra-Judicial Rehabilitations Act no. 87/1991, the applicants lodged an action for restitution of the company claiming that the nationalisation condition of more 150 employees required by the Presidential Decree was not satisfied and that, therefore, the company had been nationalised under Act no. 115/1948, that is after 25 February 1948, the decisive date for restitution under the Extra-Judicial Rehabilitations Act. On 29 June 1993 the Prague 1 District Court found against the applicants finding that ownership of the applicants‘ property had passed to the State in January 1946 and that the subsequent ministerial order from January 1949 had only a declaratory character. The court also stated that the fact that the Presidential Decree had been applied to the applicants’ property contra legem , as the company had less than 150 employees, could not influence its finding as to the decisive date of the nationalisation. The court considered in this regard documentary evidence proving that the average number of employees was 117.3.   On 24 November 1993 the Prague Municipal Court dismissed the applicants‘ appeal stating that the company had been nationalised under the Presidential Decree. On 28 July 1995 the High Court upheld this decision.   On 2 October 1996 the Constitutional Court, after a public hearing, dismissed the applicants‘ constitutional appeal. It recalled that nationalisation of property takes place by operation of law under a particular presidential decree if the conditions prescribed by it are complied with. Considering the question of the number of employees in the company at the time of the nationalisation as a crucial point in order to establish whether the Decree had correctly been applied, the Constitutional Court decided to complete the taking of evidence and asked certain national institutions to submit further documentary evidence. The documents submitted to the court contained, in particular, information about the different number of employees – less or more than 150 - in the company in different categories of production. The court, basing its finding particularly on these documents, which had not been shown to the parties during the hearing, stated that the nationalisation had been effected in compliance with the conditions established in the Decree, i.e. before 25 February 1948, and that, therefore, the applicants were not entitled to the restitution of the Company under the Extra-Judicial Rehabilitation Act.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 17 March 1997.   Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 the case was transferred to the Court. It was assigned to the Third Section, which declared the application admissible on 27 April 1999.   Judgment was given by a Chamber of seven judges, composed as follows: Sir Nicolas Bratza (British), President , Jean-Paul Costa (French), Loukis Loucaides (Cypriot), Françoise Tulkens (Belgian), Willi Fuhrmann (Austrian), Karel Jungwiert (Czech), Kristaq Traja (Albanian), Judges ,   and also Sally Dollé , Section Registrar.   3.   Summary of the judgment [2]   Complaint   The applicants complained, under Article 6 § 1 of the European Convention on Human Rights, that they did not have a fair hearing in the proceedings before the Constitutional Court, as the court based its decision, in particular, on documentary evidence which was not considered at the hearing and was not shown to or discussed by the parties.   Decision of the Court   Article 6 § 1 of the Convention   The Court first held that Article 6 § 1 applies in the present case stating that the applicants had a right to claim restitution, which was of a pecuniary nature, and that this provision applies to proceedings before constitutional courts.   The Court then considered that the documentary evidence at issue, which was produced at the request of the Constitutional Court but not read out during the oral hearing, was manifestly aimed at influencing this court’s decision. It further considered that even if such evidence was submitted and read during the oral hearing, this would not have satisfied the right of the applicants to adversarial proceedings, given the character and importance of this evidence. A party to the proceedings must have the possibility to familiarise itself with the evidence before the court, as well as the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time, if need be, in a written form and in advance. The Court further considered that granting the applicants the possibility to discuss all the documentary evidence was all the more necessary because the evidence which was reiterated by the Constitutional Court had formed part of the basis on which the Prague 1 District Court had found that the nationalisation of the company had been carried out contra legem . In addition, the documents did not contain facts which were generally known or known to the Constitutional Court through the exercise of its functions, nor did they constitute generally binding legislative or regulatory instruments published or announced in the Official Gazette, none of which, according to the Code of Civil Procedure, would have been necessary to prove. The Court found, therefore, that the applicants’ right to a fair hearing under Article 6 § 1 of the Convention was breached.   Article 41 of the Convention   The Court held that it could not speculate as to the outcome of the hearing had the position been otherwise, but it found it reasonable to regard the applicants as having suffered a loss of real opportunities. The Court awarded each of the applicants 1,350,000 Czech crowns in respect of all heads of damage taken together and 80,000 Czech crowns for legal costs and expenses.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1]   Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] This summary by the registry does not bind the Court.