SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26128/03 
by K.S. AND M.S.  
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 15 November 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Ms D. Jočienė, 
 Mr D. Popović, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 5 August 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, K.S. and M.S., are Czech nationals who were born in 1953 and 1958 respectively and live in North York (Canada).

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

Background of the case

On 29 July 1991 the applicants were granted a State allowance of CZK 65,000 (EUR 2,241) to construct a family house.

By a letter of 10 November 1993, the first applicant informed the Karviná District Health Office (okresní hygienik) about his intention to construct a petrol station on his land. On 18 November 1993 he was told that his project conflicted with the construction of a bus station.

On 25 March 1994 the Ministry of Education, Youth and Sport (Ministerstvo školství, mládeže a tělovýchovy) included a special private nursery school directed by the second applicant in the list of State pre-school institutions. The nursery school was run from the applicants’ family house.

On 7 December 1994 the Karviná District Office (okresní úřad) registered a private health and rehabilitative institution run by the second applicant at the same address.

On 12 February 1996 the District Office discontinued planning proceedings concerning the construction of a station band (apparently connected with the construction of the bus station). The applicants filed a complaint against this decision, without success.

In March or April 1996 the applicants publicised their problems through the Czech TV Channel (Česká televize). Moreover, an article was published in the local press.

On 17 May 1996 the District Office informed the applicants that it was not possible for the General Health Insurance (Všeobecná zdravotnická pojišťovna) to collaborate with the special health institution run by the second applicant.

On 12 December 1997 the second applicant filed a criminal complaint against Mr K. She alleged that he had threatened to kill her. On 23 February 1998 the Karviná District Police Office (obvodní oddělení policie) dismissed the complaint, finding that the criminal offence of violence against a group of citizens or an individual (násilí proti skupině obyvatelů nebo jednotlivci) fell under the amnesty of the President of the Czech Republic of 3 February 1998.

In a judgment of 12 March 1998, the Karviná District Court (okresní soud) ordered the applicants to reimburse CZK 65,000, with punitive interests of 19% in respect of the period from 13 May 1996, to the District Office. The court discontinued the proceedings in respect of the remaining claim of the District Office concerning the period from 6 May to 12 May 1996.

By a letter of 16 July 1998, the District Office informed the applicants that their request to pay the aforesaid award in monthly instalments had been rejected.

On 17 January 1995 the applicants divorced.

On 23 October 1998 the applicants paid CZK 59,000 (EUR 2,034) into the District Office’s bank account.

On an unspecified date in 1999, the applicants and their two children left the country, their relatives taking care of the house. On 20 March 2000 they were granted refugee status in Canada.

On 16 October 2003 the Czech Savings Bank (Česká spořitelna) approved a loan to the second applicant for CZK 600,000, to be reimbursed with interest by 15 July 1998. On 30 August 1996 this time-limit was extended until 15 July 2002. The Bank said that the second applicant had paid altogether CZK 983,475.65 (EUR 33,913).

Civil proceedings

On 6 September 1994 Mr K. brought an action before the Karviná District Court (okresní soud) against the applicants, then still married, seeking the payment of CZK 229,798.20 (EUR 7,924) regarding construction works he had carried out for them.

According to the applicants, in 1994 they filed a counterclaim which has never been considered by the court.

On 19 September 2000 an expert carried out an inspection of the site.

According to the applicants, the District Court published their address in Canada. Mr K. could therefore continue “to persecute” them in the Czech Republic.

On 7 December 2000 the applicants complained to the Karviná District Prosecutor (okresní státní zástupce) that on 19 September 2000 Mr K., together with some other people, had entered their house, allegedly to inspect the site, even though the applicants had not previously been given notice of this intervention and had instructed their relatives not to give Mr K. access to the premises. The applicants alleged that Mr K. had behaved in a vulgar manner, and that he had forced the second applicant’s 84 year old mother to let him into the house. However, the police remained inactive, saying that this was a civil dispute.

On 2 February 2001 the Český Těšín District Police dismissed the applicants’ complaint.

On 6 March 2002 the expert carried out a further inspection of the site.

On 22 April 2002 the applicants sold the building on which the construction works had been carried out.

On 4 December 2002 the court heard the expert.

On 13 March 2003 the applicants filed a counterclaim for the payment of CZK 193,000 (EUR 6,655). At a hearing of 24 April 2003, the District Court decided to exclude the counterclaim for a separate examination. A written decision in this respect was adopted on 9 December 2003.

In a judgment of 1 April 2004 the District Court, having heard the parties to the proceedings, the expert and seven witnesses, and having assessed a substantial amount of documentary evidence, partly granted Mr K.’s action and ordered the applicants to pay him CZK 202,838.60 with interest on late payment.

On 23 April 2004 the District Court dismissed the applicants’ request of 16 April 2004 to be exempted from the court fees in the proceedings concerning their counterclaim. It also refused to appoint an ex officio lawyer for them.

On 10 May 2004 the applicants appealed against the District Court’s judgment of 1 April 2004. On 14 and 23 May 2004 they supplemented their appeal.

On 4 October 2004 the applicants complained about the delays in the proceedings.

On 19 January 2005 the Ostrava Regional Court (krajský soud) held a hearing, which it then adjourned, ordering the applicants’ lawyer to inform the court, by 13 February 2005, about her clients’ standpoint on a possible friendly settlement of the case.

On 27 January 2005 the applicants complained of the unreasonable length of the appellate proceedings challenging, at the same time, the impartiality of the chamber dealing with their case.

On 2 February 2005 the applicants submitted their opinion on a friendly settlement of the case, referring, inter alia, to their counterclaim of 13 March 2003.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the proceedings have lasted an unreasonably long time and that Mr K. continues to persecute them. They further complain that the District Court never examined their counterclaim, which they had filed in 1994.

2. Invoking Article 8 of the Convention, the applicants complain that the single judge at the District Court dealing with Mr K.’s action violated the applicants’ procedural rights, as well as their right to respect for their private and family life and domicile, when ordering the on-site inspection.

They submit that the police and prosecutor failed to protect their rights.

Relying on the same provision, the applicants further allege that the Czech authorities – the Mayor and his officers – infringed their rights, and pressured them and their private business. According to the applicants, the Czech authorities published untrue information about the applicants’ family, thereby damaging the applicants’ business in the public utility sector.

3. The applicants finally complain under Article 1 of Protocol No. 1 that the national authorities started to build a bus station on their land without the applicants’ consent.

THE LAW

1. The applicants complain that the proceedings have lasted an unreasonably long time. They rely on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by an independent and impartial tribunal established by 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.

2. They further complain under the same provision that the District Court never examined their counterclaim which they had filed in 1994.

Since the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 65-66), it is not for the Court to speculate on the outcome of the civil proceedings which are currently pending, and the various legal avenues which may become open to the applicants after their termination.

It follows that this complaint must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.

3. Relying on Article 8 of the Convention (the right to respect for private and family life and the home), the applicants complain that the single judge at the District Court dealing with Mr K.’s action violated their procedural rights. They allege that the judge also breached their right to respect for their private and family life and domicile when ordering the on-site inspection. They submit that the police and prosecutor failed to protect their rights.

Relying on the same provision, the applicants further allege that the Czech authorities – the Mayor and his officers – infringed their rights, and pressured them and their private business. The Czech authorities allegedly published untrue information about the applicants’ family, thereby damaging the applicants’ business in the public utility sector.

The applicants finally complain under Article 1 of Protocol No. 1 (the right to property) that the national authorities started to build a bus station on their land without the applicants’ consent.

The Court first considers that the applicants’ complaint that Mr K. continued to persecute them during civil proceedings, should be also examined under Article 8 of the Convention

It recalls that, under the terms of Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. Where a complaint is made about the absence of an adequate remedy against a particular act which is alleged to be in breach of the Convention, the six-month period runs from the date when that act took place (see, Slivenko v. Latvia [GC] (dec.), no. 48321/99, 23.1.2002, ECHR 2002).

The Court observes that the applicants lodged the present application on 5 August 2003, which is more than six months after the events of which complaint is made. Moreover, the applicants did not raise these matters before the competent judicial authorities, including the Constitutional Court. Accordingly, the Court is not convinced that they took reasonable steps to bring their complaints to the attention of the judicial authorities or to obtain available redress.

In the circumstances, this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning the length of the civil proceedings;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

K.S. AND M.S. v. THE CZECH REPUBLIC DECISION


K.S. AND M.S. v. THE CZECH REPUBLIC DECISION