SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18806/02 
by Bohuslav JEŠINA 
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 4 October 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 28 October 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bohuslav Ješina, is a Czech national who was born in 1942 and lives in Bruntál. He included with his application a power of attorney in his favour signed by his wife.

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

i.      Background of the case

In 1992 the applicant started to run his business manufacturing cinder blocks. In order to build a production line, he got a bank loan of CZK 560,000 (EUR 18,667) from the Czech Savings Bank (Česká spořitelna). His production line was built on land in the ownership of the Bruntál Land Fund (pozemkový fond), with which the applicant concluded a rent contract on 4 March 1993. The land was subsequently restored to its former owner who, in May 1994, served notice on the applicant asking him to leave the premises by 31 August 1994. In June 1994 the Land Fund informed the applicant that the rent contract was quashed. The applicant moved his production line to neighbouring land which he rented from the Land Fund. In 1995 the applicant was ordered to remove the construction though – he says – nothing on the land could be classified as a construction. The applicant’s business started to decline and profits fell considerably.

On 5 March 1996 he had a traffic accident. His driving licence was withdrawn. The fact that he could not drive motor vehicles negatively affected his business and, consequently, his financial situation and it ended in a number of judicial disputes.

ii. Restitution proceedings

On 27 March 1998 the Bruntál Land Office (pozemkový úřad) decided that the applicant’s mother-in-law was the owner of three plots of land. She appealed claiming that the plots could not be used for business. On 8 March 1999 the Ostrava Regional Court (krajský soud) discontinued the proceedings following her withdrawal of her appeal.

On 16 November 1999 the Land Office informed the applicant’s mother-in-law that she had been registered as the person presumed to be entitled to restitution of a mill and a housing lot. However, on 1 December 1999 she was told that the Land Office had not granted her restitution claim.

On 5 January 2000 the applicant’s mother-in-law, being represented by the applicant, lodged a restitution action. On 24 February 2000 the Regional court dismissed her action as having been submitted out of time. On 13 March 2000 the applicant’s mother-in-law died.

On 9 May 2001 the Constitutional Court (Ústavní soud) declared inadmissible the appeal of the applicant’s wife and her sister, in which they alleged a violation of their right to judicial protection, relying on Article 36 §§ 1 and 2 and Article 37 § 3 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).

iii. Proceedings for damages against the applicant

On 26 September 1996 a certain S. brought proceedings for damages against the applicant in connection with the traffic accident.

On 21 October 1996 the District Court granted his action and delivered a payment order against the applicant who filed a protest (odpor) on 3 November 1996 alleging that S. was responsible for the accident.

On 28 March 1997 the Regional Court dismissed the applicant’s challenge of the District Court’s judge for bias.

On 5 February 1998 the District Court appointed an expert in the price and valuation of motor vehicles. On 27 March 1998 the expert drew up his opinion.

In the meantime, on 9 March 1998, S. had died.

On 30 December 1998 the applicant requested the District Court to suspend the proceedings in order to bring the case to the Constitutional Court, maintaining that the court would apply a certain provision of the Code of Civil Procedure which was allegedly in contradiction with Articles 2 § 2 and 37 § 3 of the Charter. On 20 January 1999 the District Court dismissed his request. It further allowed S.’s heirs’ request to modify his action. On 30 April 1999 the Regional Court upheld this decision. On the same day, the court dismissed the applicant’s challenge of the District Court’s judge for bias.

On 17 August 1999 the District Court adjourned the proceedings pending the outcome of inheritance proceedings.

On 2 September 1999 the court resumed the proceedings and ordered the applicant to pay the disputed damages plus 16% default interest as of 1 November 1996, basing its finding on the parties’ statements, the police file concerning the traffic accident and other documentary evidence. The court did not grant the applicant’s request to suspend the proceedings pending the outcome of proceedings for damages which he had brought against police officers who had investigated the accident.

On 11 October 1999 the applicant appealed against this judgment.

In a letter of 3 September 2000 the applicant informed the Regional Court that he could not take part in a hearing scheduled for 26 September 2000. He asked the court that his letter be read out if the appellate proceedings continued.

On 26 September 2000 the Regional Court upheld the District Court’s judgment. It also dismissed an application by the applicant for leave to appeal on points of law (dovolání) against its decision.

On 27 February 2001 the applicant lodged a constitutional appeal (ústavní stížnost) alleging, inter alia, a violation of Articles 37 §§ 2 (the right to legal assistance) and 3 (equality of the parties) and 38 § 2 (the right to a public hearing without delay and the right to comment on submitted evidence) of the Charter.

On 14 May 2001 the Constitutional Court declared the applicant’s appeal inadmissible for failure to exhaust statutory remedies by appealing on points of law. It referred to Article 239 § 2 of the Code of Civil Procedure1.

iv. Proceedings for damages against police officers

On 28 June 1999 the applicant filed an action for damages against the police for abuse of public authority by police officers involved in the investigation of the car accident.

On 1 July 1999 the Bruntál Prosecutor Office (okresní státní zastupitelství) informed the applicant that it was not competent to find out the personal data of the police officers concerned or to obtain the police file concerning the accident, as he had requested.

On 14 July 1999 the District Court invited the applicant to clarify and complete his action. On 2 August 1999 he replied that his action had been introduced in time, in a proper form, and that he had nothing to add. On 18 November 1999 the court discontinued the proceedings, the applicant having not substantiated his action.

On 15 May 2000 the Regional Court, following the applicant’s appeal of 15 December 1999, upheld this decision. At the same time, it rejected the applicant’s application for leave to appeal on points of law against its decision.

On 24 July 2000 the applicant filed a constitutional appeal, in which he alleged a violation of Article 7 § 1 (inviolability of a person and his privacy) Article 10 § 2 (respect for private and family life) and Article 36 §§ 2 and 3 (right to judicial protection), but which the Constitutional Court dismissed as unsubstantiated on 27 November 2001.

v. Proceedings for payment

On 24 June and 16 July 1998 respectively, a private company called Teplo Rýmařov which had delivered cinder to the applicant, filed an action against him for payment of two invoices of CZK 4,340 (EUR 145) and CZK 2,411 (EUR 80) respectively.

On 18 August and 31 August 1998 respectively, the District Court ordered the applicant to pay the sums requested. The applicant filed two protests.

On 31 May and 23 July 1999 respectively, the Regional Court dismissed the applicant’s challenges of two District Court’s judges for bias.

In two judgments of 31 August and 4 November 1999, the District Court ordered the applicant to pay CZK 2,411 and CZK 4,340 plus default interest from 23 July 1994 and 26 June 1994 respectively, and to reimburse the claimant’s court fees and expenses to be paid to the State.

On 19 April 2000 the Regional Court, upon the applicant’s appeal of 15 December 1999, partly upheld and partly modified the District Court’s judgment of 4 November 1999, but quashed it in respect of the court fees and expenses to be paid to the State.

On 19 September 2000 the Constitutional Court dismissed the applicant’s constitutional appeal against the judgments of 4 November 1999 and 19 April 2000, finding that his rights guaranteed by Article 36 § 1 of the Charter had not been violated by the lower courts.

In the meantime, on 31 August 2000, the Regional Court had quashed the District Court’s judgment of 31 August 1999 and had remitted the case to it for further consideration. On 14 December 2000 the latter, following the company’s withdrawal of its action, discontinued the proceedings.

On 1 February 2001 the District Court ordered the private company to pay CZK 347 (EUR 11.60) to the applicant in respect of his expenses in the proceedings concerning the payment of CZK 4,340. It further held that the applicant and the private company had to pay to the State CZK 252 (EUR 8.40) and CZK 1,395 (EUR 46.5) respectively, for the court fees.

On 29 March 2001 the Regional Court, upon the applicant’s appeal of 2 January 2001, quashed the District Court’s decision of 14 December 2000, by which the proceedings concerning the payment of CZK 2,411 had been discontinued.

On 9 May 2001 the District Court rejected the applicant’s request for re-opening of the proceedings relating to the payment of CZK 4,340. On 27 September 2001 the Regional Court upheld this decision.

In the meantime, on 11 June and 25 July 2001 the District Court had invited the applicant to submit his observations on the private company’s withdrawal of its action. The applicant complied on 17 June and 31 July 2001. On 3 September 2001 the District Court discontinued the proceedings concerning the payment of CZK 2,411.

vi. Dispute with the Czech Savings Bank

On 16 June 1995, upon the Czech Savings Bank’s proposal of 5 April 1994, the Ostrava Regional Commercial Court (krajský obchodní soud) issued a payment order against the applicant for CZK 350,461.31 (EUR 11,682) in respect of his debts.

On 26 June 1995 the applicant filed a protest.

On 26 June 1997 he acknowledged his debt of CZK 388,159.01 (EUR 12,939) before a notary.

On 21 August 1997 the Commercial Court invited the applicant to submit his observations concerning his protest.

On 13 August 1998 the District Court, upon the Savings Bank’s proposal of 21 April 1998, ordered the execution of the notarial record (notářský zápis) by the sale of movable property. On 26 April and 6 September 1999 respectively, a judicial executor informed the Savings Bank that no movable property belonging to the applicant was found.

On 3 March 2000 the District Court discontinued the execution proceedings.

On 21 August 2001 the court requested the applicant to provide information about his bank accounts and income.

vii. Criminal proceedings

On 5 April 2000 the applicant was charged with harm done to a creditor, under section 256(1)(a) of the Criminal Code, as he was suspected of having sold his property to his daughter for a price significantly lower than that estimated by an expert, to the detriment of the Savings Bank.

On 14 June 2000 the police investigator appointed an expert in order to assess the damage allegedly caused by the applicant.

On 4 July 2000 the Bruntál District Prosecutor (okresní státní zástupce) informed the applicant that the act for which he was prosecuted would be considered as giving an advantage to a creditor under section 256(a)(1) of the Criminal Code. On the same day, the applicant was officially indicted.

On 25 July 2000 he was convicted by the District Court and sentenced to six months’ imprisonment, suspended for a probationary period of one year. On 9 August 2000 he challenged the order.

In a judgment of 26 September 2000 the District Court, after a hearing, convicted the applicant of having given an advantage to a creditor, and sentenced him to six months’ imprisonment, suspended for a probationary period of one year. He was further ordered to pay damages of CZK 138,044 (EUR 4,601) to the Savings Bank. The court based its finding in particular on the applicant’s statement and the statements of two witnesses, expert and material evidence, including the expert report, the notarial record and the applicant’s credit agreement, with amendments.

On 6 March 2001 the Regional Court, upon the applicant’s appeal of 22 October 2000, quashed the judgment in respect of the damages he had been ordered to pay, and upheld it as to the rest.

On 14 March 2002 the Constitutional Court, upon the applicant’s constitutional appeal of 5 June 2001, quashed the aforesaid judgments.

The criminal case was remitted to the District Court, which held a hearing on 24 April 2002. On 6 May 2002 it appointed an expert to evaluate the applicant’s production line and the price indicated in a purchase contract which the applicant had concluded with his daughter.

At a hearing held on 12 July 2002, a judge at the District Court dismissed the applicant’s motion for bias. On 29 August 2002 the Regional Court upheld this decision.

By a judgment of 8 October 2002, the judge at the District Court again convicted the applicant and sentenced him to six months’ imprisonment, suspended for a probationary period of one year. The court heard the applicant, two witnesses including the applicant’s daughter, and assessed further material evidence. It stated, inter alia, that the applicant had admitted that he had transferred his property to his daughter in order to restart his business later on; he also stated that he had concluded the credit agreement as a physical person and not as a businessman. On 17 December 2002 the Regional Court, on the applicant’s appeal of 8 October 2002, upheld the first instance judgment.

On 23 January 2003 the applicant was invited to pay court fees.

On 20 February 2003 the District Court rectified a typing error in its judgment.

On 19 March 2003 the applicant was again invited to pay the court fees.

On 6 May 2003 the Ministry of Justice (ministerstvo spravedlnosti) dismissed the applicant’s request to file a complaint for a breach of law (podnět ke stížnosti pro porušení zákona). The applicant’s renewed request of 1 June 2003 was rejected on 6 June 2003.

viii. Dispute with the General Health Insurance Company

On 7 October 1997 and 12 June 2001, two payment assessments were issued against the applicant in respect of a contractual penalty and the regular premium owed to the General Health Insurance Company (Všeobecná zdravotní pojišťovna; “the GHIC”).

On 4 July and 7 November 2001, following the GHIC’s requests of 3 July and 23 October 2001, the District Court ordered the execution of the payment assessments by attaching the applicant’s earnings in order to satisfy the regular claims and court fees.

On 11 October 2001 the applicant brought proceedings against the GHIC seeking, inter alia, a declaration that he did not owe anything, and the discontinuance of the execution proceedings. On 8 and 19 November 2001 he was invited to clarify and complete his action. On 13 and 23 November 2001 the applicant replied.

On 21 January 2002 the District Court rejected his action, the applicant not having sufficiently specified its merits. The applicant appealed on 1 February 2002. On 11 February 2002 he was requested to clarify his appeal within ten days. He complied on 24 February 2002.

On 25 March 2002 the Regional Court dismissed the applicant’s motion of 24 February 2002 challenging two District Court judges for bias.

On 28 June 2002 the Regional Court upheld the District Court’s decision of 21 January 2002, instructing the applicant that an appeal on points of law was allowed to be lodged against its decision.

On 25 June 2003 the Constitutional Court declared the applicant’s appeal of 6 October 2002 inadmissible for failure to exhaust statutory remedies by appealing on points of law. It referred to section 239(3) of the Code of Civil Procedure2.

ix. Dispute with the electricity supply company

On 9 August 1993 the applicant signed a contract for an electricity supply.

On 19 December 2001 the electricity company invited him to pay an electricity bill for the period from 11 December 2000 to 10 December 2001. On 10 January 2002 the applicant informed the company that it had breached the payment conditions of the contract. On 8 February 2002 the company assured the applicant that the bill was correct.

On 21 May 2002 the electricity supplier, after a further exchange of letters with the applicant, terminated the contract, the applicant not having paid bills for the electricity which had been provided to him.

On 15 May, 16 June and 5 August 2002 the applicant was reminded to pay his debt of CZK 13,983 (EUR 466). On 18 and 30 September and 23 October 2002, a debt collector to which the applicant’s debt had been transferred, requested the applicant to cover the debt.

x. Dispute with the Social Security District Administration

On 8 August 1995 the Bruntál Social Security District Administration (okresní správa sociálního zabezpečení; “the SSDA”) informed the applicant that, due to his failure to pay premiums for the year 1994, he had lost entitlement to sickness benefits.

On 3 April 1996 it informed him that he would not be obliged to pay an advance on the policy for the year 1996, his earnings being too low.

On 9 October 1996, 19 June 1997 and 4 February 1998 respectively, the SSDA filed three enforcement actions requiring the applicant to pay his outstanding premiums of CZK 22,523 (EUR 751), CZK 9,896 (EUR 330) and CZK 4,145 (EUR 138) respectively, by sale of his movable property.

On 22 October 1996, 24 June 1997 and 20 February 1998 respectively, the District Court granted these actions.

On 29 July 1998 the SSDA informed the applicant that it had requested the Commercial Bank to write off CZK 8,789 (EUR 293) from his bank account in order to settle his debt which the SSDA had determined in a payment assessment of 18 July 1997. On 4 May 1999 the SSDA, referring to this payment assessment, filed an enforcement action seeking the payment of CZK 7,853 (EUR 262). On 13 May 1999 the District Court granted the action.

On 22 July and 6 December 1999 respectively, the District Court discontinued the execution proceedings regarding the debts of CZK 22,523, CZK 4,145, CZK 9,896 and CZK 7,853, finding that no movable property belonging to the applicant could be sold.

On 20 January 2000 the SSDA, making a reference to the payment assessment of 18 July 1997, informed the applicant that he had to pay CZK 8,789. However, having reimbursed only CZK 936 (EUR 31), he still had to pay CZK 7,853. On 9 February 2000 it ordered to the Czech Social Security Administration (Česká správa sociálního zabezpečení; “the CSSA”) to execute the payment assessment by attaching the applicant’s retirement benefits.

On 20 April 2000 the SSDA reminded the applicant that he owed CZK 25,068 (EUR 836). On 24 May 2000 it issued an order to execute this debt by the attachment of his retirement benefits, the first deduction taking place in August 2000. However, on 3 August 2000 the CSSA informed the applicant and the SSDA that the deductions could not be carried out.

On 11 August and 3 October 2000 respectively, the applicant challenged the execution order. The CSSA replied on 19 September, and 12 and 18 October 2000.

On 18 January 2001 the SSDA filed another enforcement action, seeking the payment of the applicant’s outstanding premium of CZK 2,166 (EUR 72). On 23 January 2001 the District Court granted this action.

On 9 May 2001 it granted another action filed by the SSDA concerning the applicant’s debt of CZK 7,275 (EUR 243). On 10 August 2001 the CSSA informed the applicant that it would deduct CZK 524 (EUR 17) a month from his retirement benefits.

On 11 October 2001 the applicant brought an action against the director of the SSDA and two administrators of the CSSA in connection with the above-mentioned events. On 8 November 2001 he was invited to clarify and complete his action. The applicant replied on 13 November 2001. However, on 20 December 2001, the District Court rejected the action, the applicant not having properly rectified and completed it. On 21 January 2002 the applicant appealed. On 23 January 2002 he was invited to complete and clarify his appeal. He replied on 6 February 2002.

In the meantime, on 7 November 2001, the District Court adopted another execution order against the applicant.

On 15 February 2002 the applicant challenged all judges at the District Court for bias. On 23 May 2002 he was invited to rectify his challenge. He complied on 3 June 2002.

On 27 June 2002 the Regional Court upheld the District Court’s decision of 20 December 2001.

On 5 November 2002 the Constitutional Court declared manifestly unsubstantiated the applicant’s constitutional appeal filed against the above court decisions in which he alleged, inter alia, a violation of his rights guaranteed by Articles 2 § 2, 4 § 4 and 36 §1 of the Charter.

On 27 November 2002 the District Court discontinued the execution proceedings regarding the applicant’s debt of CZK 2,166.

COMPLAINTS

The applicant complains under Articles 6, 13, 14 and 17 of the Convention that his right to a fair hearing was breached by the national courts who failed to apply the domestic law correctly. He claims that the courts wrongly rejected his actions, depriving him of effective remedies. He submits that the courts and other State authorities abused the law to his detriment, discriminated against him and intentionally persecuted him in order to liquidate his business.

THE LAW

1. The applicant raises several complaints under Articles 6, 13, 14 and 17 of the Convention.

In so far as relevant, Article 6 § 1 reads as follows:

 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

Article 13 in its relevant parts reads as follows:

 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 of the Convention provides:

 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 17 reads as follows:

 “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

a) In so far as the applicant’s complaints may be understood to concern the decision of the Constitutional Court of 14 May 2001, by which his constitutional appeal was dismissed for failure to exhaust statutory remedies by appealing on points of law, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b) As regards the rest of the applicant’s complaints, the Court is of the opinion that, even assuming that in this respect the applicant can claim to be a victim and has exhausted domestic remedies as required by Article 35 § 1 of the Convention, and to the extent that these complaints have been substantiated, there is no indication in the case file that the applicant’s rights under this provision have not been respected.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the decision of the Constitutional Court of 14 May 2001, by which the applicant’s constitutional appeal was dismissed for failure to exhaust statutory remedies by appealing on points of law;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

1 Section 239(2) as worded at the material time provided that if an appeal court refused to grant an application for leave to appeal on points of law that had been made by one of the parties before the decision upholding the decision at first instance was adopted, leave to appeal could only be obtained if the Supreme Court itself considered that the appeal court’s decision gave rise to a question of crucial legal importance.


2 Section 239(3) as worded since 1 January 2001 provides, inter alia, that an appeal on points of law is also admissible against a decision of the appellate court by which a decision of the first instance court dismissing an action was upheld.


JEŠINA v. THE CZECH REPUBLIC DECISION


JEŠINA v. THE CZECH REPUBLIC DECISION