SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5521/03 
by Petr MEIER and Gerte GRÁFOVÁ 
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 3 May 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mrs A. Mularoni
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 11 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicants are two Czech nationals who were born in 1945 and 1913 respectively, and live in Prague and Vienna (Austria) respectively. The first applicant is the second applicant's nephew. They are represented before the Court by Mr J. Kalista, a lawyer practising in Prague.

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

In 1949 a Prague company having belonged to the applicants' family was nationalised.

On 24 September 1991 the first applicant made a request to the company and the Ministry of Administration of National Property and its Privatisation (Ministerstvo pro správu národního majetku a jeho privatizaci) under the Extrajudicial Rehabilitation Act for restitution of the company which, according to him, had been nationalised contrary to the law then in force. He claimed restitution on his behalf and on behalf of the second applicant, who had originally owned one fourth of the property, and three successors in title to the other original co-owners.

As the company apparently refused to restore the property, the first applicant brought an action in the Prague 8 District Court (okresní soud) for its recovery.

On 16 September 1992, the District Court granted the restitution action. On 29 January 1993 the Prague Municipal Court (městský soud) quashed the judgment and remitted the case to the District Court which, on 26 January 1995, dismissed the restitution action, finding that the first applicant had not proved that the property had been unlawfully nationalised. On 22 May 1995 the Municipal Court upheld this judgment. On 15 May 1996, the Supreme Court rejected the first applicant's appeal on points of law.

On 19 December 1996 the Constitutional Court quashed the Supreme Court's judgment, finding that the company had been nationalised contrary to Presidential Decree no. 115/1948 and, therefore, should be restored under section 6(1)(k) of the Extra-Judicial Rehabilitation Act.

On 18 September 1998, the District Court, being bound by the legal opinion of the Constitutional Court, granted the restitution action, ordering the company to conclude a restitution agreement with the first applicant. On 8 October 1999 the Municipal Court upheld this judgment in respect of the three fourths of the property, modifying it in respect of the remaining fourth which had belonged to the second applicant. It stated that the restitution entitlement could not be assigned to another person and that the first applicant, who could be considered as the successor in title to the original co-owners of three fourths of the property, could not seek restitution of the remaining fourth which had belonged to the second applicant and who was still alive.

The Supreme Court (Nejvyšší soud) quashed the judgment in respect of the above fourth of the property and, at the same time, quashed the relevant part of the District Court's judgment of 18 September 1998. It stated, inter alia, that the findings of the Municipal Court did not violate the rule according to which the ordinary courts are bound by the legal opinions of the Constitutional Court. It further stated that an assignor could assign only an arguable entitlement. This was, however, not yet established in the instant case.

On 18 May 2001 the District Court dismissed the remainder of the restitution action, holding that the second applicant was the only person who was entitled to seek restitution of the outstanding fourth of the property and, therefore, could not validly assign her restitution entitlement to the first applicant. It noted that, while the second applicant had made the request to the company for restitution, she had not sought restitution before the courts, having assigned her restitution entitlement to the first applicant one day earlier. It further held that, as the company had been nationalised contrary to the law then in force, the second applicant continued to be the owner of her share of the property.

On 11 October 2002 the Municipal Court, upheld the operative part of this judgment with certain modifications to the reasoning. It held that the second applicant, had not validly assigned her restitution entitlement to the first applicant, having done it before she had officially sought restitution of her part of the property. The court found incorrect the District Court's opinion that she continued to be the owner of her share of the property.

COMPLAINTS

Without invoking any provision of the Convention, the applicants complain that the ordinary courts did not respect the Constitutional Court's binding opinion that the company was nationalised illegally, and dismissed their restitution action as to one fourth of the property.

They also complain that the proceedings lasted an unreasonably long time.

THE LAW

1. The applicants complain that the ordinary courts did not respect the binding opinion of the Constitutional Court that the company was nationalised contrary to the law then in force, and dismissed the applicants' restitution action in respect of one fourth of the property.

The Court recalls that, under Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court recalls that the Convention forms an integral part of the Czech legal system, where it takes precedence over domestic law, pursuant to Article 10 of the Constitution (see Kröhnert v. the Czech Republic, no. 60224/00; Manoussos v. the Czech Republic and Germany, no. 46468/99). It notes that Article 6 of the Convention and Article 1 of Protocol No. 1 are directly applicable. The applicants could therefore have relied on those provisions before the Municipal Court in the second set of restitution proceedings. However, at no time did the applicants do so, either in form or in substance.

The Court further notes that the applicants failed to challenge the judgment of the Municipal Court of 11 October 2002 before the Constitutional Court.

It follows that the applicants did not exhaust the remedies at their disposal under Czech law, as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicants further complain that the restitution proceedings lasted an unreasonably long time.

The Court considers that this complaint should be examined under Article 6 § 1 of the Convention which, as far as relevant, provides as follows:

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

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants' complaint concerning the length of the restitution proceedings;

Declares the remainder of the application inadmissible.

S. Dollé J.-P.Costa 
 Registrar President

MEIER AND GRÁFOVÁ v. THE CZECH REPUBLIC DECISION


MEIER AND GRÁFOVÁ v. THE CZECH REPUBLIC DECISION