SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41679/04 
by Pavel MAREK 
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 18 October 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 Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 15 November 2004,

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 applicant, Mr Pavel Marek, is a Czech and Swiss national who was born in 1950 and lives in Uznach (Switzerland). He is represented before the Court by Ms K. Veselá-Samková, a lawyer practising in Prague.

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

The applicant’s parents owned a house with land in Prague 6. In 1969 the whole family failed to return from a stay in Switzerland and remained abroad without the consent of the Czechoslovak authorities. In a judgment of 25 January 1972, the Prague 6 District Court (obvodní soud) convicted in absentia the applicant’s father, his mother and himself of deserting the Republic (opuštění republiky), sentenced them to imprisonment and ordered the confiscation of all their property. On 16 May 1973 the house was sold by the Czechoslovak State to Mr and Ms B., with the right to use the land.

On 31 October 1995 the applicant’s father filed an action for the restitution of the confiscated property, pursuant to the Extra-Judicial Rehabilitation Act, against Ms B. and her daughter.

On 17 September 1996 he died and the rights of the applicant and his mother over his estate were confirmed.

On 13 November 1996 the defendants submitted comments on the restitution action.

On 21 March 1997 the District Court invited the applicant’s father to adduce evidence in support of his arguments. The applicant did so on 6 May 1997, explaining to the court that his father had died.

On 18 July 1997 one of the defendants died. On 20 July 1998 the District Court stayed the restitution proceedings pending the outcome of inheritance proceedings.

On 5 December 2001 the inheritance proceedings were closed.

On 26 March 2002 the District Court resumed the restitution proceedings.

On 20 May 2003 the court decided that the applicant could continue with the restitution case alone, his mother having died on 29 November 2002.

After joining the restitution proceedings, the applicant learnt that he had been adopted seven days after his birth and that his biological parents had been of Jewish origin. He also discovered that his adoptive mother had been tortured in Nazi concentration camps and that, as a consequence, she could not have children. According to the applicant, this news caused him enormous mental suffering and distress.

A hearing held before the District Court on 11 November 2003 was adjourned until 20 January 2004. On 20 May, 12 August and 23 November 2004 the court held three further hearings.

It appears that the proceedings are still pending before the District Court.

COMPLAINTS

1. The applicant complains under Articles 6 § 1 of the Convention, alone and in conjunction with Article 13, that the restitution proceedings have lasted an unreasonably long time.

2. Invoking Article 8 of the Convention, he complains of a violation of his right to respect for his private and family life resulting from the length of the restitution proceedings. He says that due to the lengthy proceedings, during which the original claimants died, he discovered that they were not his biological parents. He further claims that his adoptive parents were unable to see the end of the restitution proceedings and have their property back, which had been confiscated by the communist regime.

3. The applicant finally complains under Article 1 of Protocol No. 1 that he and his adoptive parents’ property rights have been violated as a consequence of the lengthy restitution proceedings.

THE LAW

1. The applicant complains under Articles 6 § 1 of the Convention, alone and in conjunction with Article 13, that the restitution proceedings have lasted an unreasonably long time.

Article 6 § 1 of the Convention, in so far as relevant, provides:

 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ....”

Article 13 of the Convention provides:

“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.”

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.

2. The applicant further complains of a violation of his right to respect for his private and family life resulting from the length of the proceedings complained of. He says that due to the lengthy restitution proceedings, during which the original claimants died, he discovered that they were not his biological parents. He further claims that his adoptive parents were unable to see the end of the restitution proceedings and use their property again which had been confiscated by the communist regime.

The applicant relies on Articles 8 of the Convention which, insofar as relevant, states:

 “1. Everyone has the right to respect for his private and family life,

  2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”

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.

3. The applicant finally complains that he and his adoptive parents’ property rights have been violated as a consequence of the lengthy restitution proceedings. He invokes Article 1 of Protocol No. 1 which provides:

 “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 Court notes that the restitution proceedings initiated by the applicant’s late father in October 1995 have not yet been terminated. Hence, the applicant’s property rights remain uncertain and his complaint to the Court premature.

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 restitution proceedings which are currently pending, and the various legal avenues which may become open to the applicant after their termination.

This part of the application must therefore 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 applicant’s complaints under Articles 6 § 1 and 13 of the Convention relating to the length of the restitution proceedings and the alleged absence of an effective remedy in this respect, and his complaint under Article 8 of the Convention concerning the repercussions of the length of the proceedings on his right to respect for his private and family life;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

MAREK v. THE CZECH REPUBLIC DECISION


MAREK v. THE CZECH REPUBLIC DECISION