SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61811/00 
by Dana MILATOVÁ and Others 
against the Czech Republic

The European Court of Human Rights (Second Section), sitting on 30 November 2004 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs A. Mularoni, 
 Ms D. Jočienė, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 21 August 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Dana Milatová, Lubomír Milata, Dušan Milata and Danuše Nováková, Czech nationals born in 1929, 1952, 1950 and 1949 respectively, are a mother and her three adult children. They live in the Nový Jičín region. They were represented before the Court by Mr A. Pejchal, a lawyer practising in Prague. The respondent Government were represented by Mr V. A. Schorm, Agent.

A.  The circumstances of the case

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

On 18 December 1991 the first applicant and her husband claimed, pursuant to the Land Ownership Act, restitution of their real property (a house with land), alleging that they had been forced in May 1985 to sell it to the State - represented by the former Federal Ministry of National Defence (federální ministerstvo národní obrany) - under conditions that had been imposed on them. At the date of the entry into force of the Land Ownership Act, the property was managed by the Military Repair Enterprise (vojenský opravárenský podnik; hereafter “the defendant”), the authority which was obliged to make the restitution to them, pursuant to section 5(1) and section 5(2) of the Act.

The restitution claim was dealt with by the Nový Jičín Land Office (pozemkový úřad).

On 10 August and 6 September 1992 respectively, the first applicant's husband signed two powers of attorney in the name of his wife. On 18 September 1992 the Nový Jičín Geodesy Centre (středisko geodézie) issued a geometric plan in respect of the land. The plan was, however, found to be incomplete by the Land Office.

On 26 September 1993 the first applicant's husband died, and their three children joined the proceedings as his legal successors. Their right to do so was confirmed by the Nový Jičín District Court on 19 November 1993. In a medical report of 29 March 1994, it was specified that the premature death of the first applicant's husband was directly linked to an illness which had started after he had been forced to leave the house and to renounce his property.

On 22 February 1994 the Nový Jičín Cadastral Office (katastrální úřad) issued a new comparative plan of the land. Four other documents issued on 15 May, 3 and 8 June 1994 were also included in the case file. Two geometric plans, issued on the defendant's and the Land Office's request, were produced on 11 November 1994 and 26 January 1995 respectively.

On 12 September 1995 the Land Office, having assessed the material in the case file and having heard five witnesses who had been directly or indirectly involved in the negotiations for the sale of the applicants' property, including Mr R. who was the defendant's lawyer, declared that the applicants were the owners of a major part of the property. It found that the contract of sale had been concluded under duress on strikingly unfavourable conditions, within the meaning of section 6(1)(k) of the Land Ownership Act.

The Land Office established among other things that, contrary to the law then in force, the first applicant and her husband had not been considered parties to administrative proceedings which had resulted in the adoption of a decision on 20 March 1984 on the location of a construction site (rozhodnutí o umístění stavby). It also established that the purchase price had been determined by an expert, pursuant to Decree No. 128/1984.

On 26 October 1995, the defendant, represented by Mr R., appealed against the administrative decision to the Ostrava Regional Court (krajský soud) which, on 9 July 1996, carried out an inspection of the site.

In their observations on the defendant's appeal submitted on 29 January and 11 June 1996, the applicants challenged, inter alia, the statement of Mr R. who had legally represented the defendant in the past and who acted again as its lawyer in the restitution proceedings.

On 9 July 1996 a meeting took place at the site.

On 20 August 1996 the Regional Court, sitting as a chamber presided by Mrs T. and composed of judges C. and B., quashed the decision and sent the case back to the Land Office for further consideration. The court stated that the existence of the grounds for restitution of the property under section 6(1)(k) of the Land Ownership Act had not been sufficiently established.

On 13 May 1997 the Land Office again decided, having taken into account further documentary evidence submitted by the first applicant and having re-heard two witnesses, that the applicants were the owners of the property. It examined in detail the circumstances of the sale of the property. It noted, inter alia, that the first applicant's husband had been head of the personnel department (oddělení práce a mzdy) of the defendant and that the defendant had needed his property for the construction of a heating plant and, afterwards, a production unit. It further noted that the first applicant's husband had not been threatened with dismissal or the loss of his job in the event of his refusal to conclude the contract of sale.

Nevertheless, the Land Office held that the lengthy negotiations for the sale of the applicants' property or its expropriation, which had started in 1977, had seriously interfered with the lives of the first applicant and her husband, and that the circumstances in which these negotiations had been carried out undoubtedly affected the health and mental condition of the first applicant's husband.

The Land Office finally noted that, according to the record of the negotiations of 2 February 1977, the first applicant and her husband had agreed to the sale on condition that, inter alia, they would be provided with two three-rooms flats with garages, and that a one-room apartment in a day- care house would be placed at the disposal of the first applicant's mother. However, in addition to the price to be paid for the applicants' property - which could have, but was not, increased by 20% as allowed by Decree no. 128/1984 - the first applicant and her husband were granted in 1983 a two-room flat. Furthermore, a three-room apartment was made available to their son. In addition, it was noted that the first applicant and her late husband had lived in the house for 34 years and that the benefits they had derived from the adjacent land, which they had used for agricultural purposes, had considerably increased the family's economic and social situation.

On 16 June 1997 the defendant appealed against this decision.

On 1 August and 1 September 1997 respectively, the applicants and their legal representative presented their observations on the defendant's appeal.

On 10 April 1998 a chamber of the Regional Court presided by Mrs C. and composed of Judges R. and H., after having held a hearing on 6 April 1998 and having received the applicants' further comments concerning the case on 8 April 1998, quashed the administrative decision, finding that the Land Office had not proved to its satisfaction that the sale had been carried out under duress. The court considered that it was not necessary to examine whether the contract of sale had been concluded on conditions unfavourable to the applicants. The court held that, although the Land Office had reached its decision on the basis of the fully-established and accurate facts of the case, it did not share its legal opinion.

The court noted that from the witnesses' statements and from the documentary evidence which it had supplemented by means of the report of 12 December 1985 on the working activities of the first applicant's husband, the first proposal for the purchase of the applicants' property had been made in 1977 at a time when the defendant had needed part of the land for the construction of a heating plant. The court observed that on 2 February 1977 the owners provisionally had agreed to the sale and had imposed certain conditions which had to be satisfied before the construction works could be started. Moreover, they had stipulated that the sale had to be completed before the end of 1978. At that time, both the former owners were employed; the first applicant's husband was employed by the defendant in a senior post and was politically active. Their economic and social situation was such that it did not create a basis for a state of duress.

Moreover, the negotiations carried out with a view to concluding the contract of sale had lasted eight years as a result of the owners' continuous disagreement with the fulfilment of the conditions which they had imposed and with the purchase price offered, which had finally been increased by CZE 86,000.

The court also noted that the purchaser had proved that it had made efforts to meet the owners' requirements when, for instance, it had urged that a telephone line be speedily installed in one of the new flats, had paid the telephone connection fees and had assigned the apartments to them even before the contract of sale had been signed. The purchaser had only come up with the suggestion to expropriate the applicants' property after having unsuccessfully negotiated over several years.

Finally, the court did not find any causal link between the contract concluded in 1985 and the first applicant's husband's health problems, which problems began in 1986, i.e. one year after the contract had been signed, and his subsequent death in 1993.

On 12 May 1998 the judgment was notified to the applicants' legal representative.

The case was referred back to the Land Office which took a new decision on 15 June 1998. In accordance with the opinion of the Regional Court, by which it was bound by virtue of Article 250(r) of the Code of Civil Procedure, the Land Office ruled that the applicants were not the owners of the property because the contract of sale had not been concluded under duress, within the meaning of section 6(1)(k) of the Act. The Land Office considered that it was therefore unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable conditions as provided for in the same provision.

On 10 December 1998 this decision was upheld by the Regional Court, sitting in a chamber presided by Mrs C. and composed of Judges R. and H.

On 15 February 1999 the applicants filed a constitutional appeal (ústavní stížnost) against the Regional Court's judgments of 10 April and 10 December 1998 and the Land Office's decision of 15 June 1998. The applicants alleged a violation of Articles 11 (protection of property rights) and 36 § 1 (right to judicial protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). They challenged the assessment of the evidence and the Regional Court's incorrect understanding of the notion of “duress”. They also criticised the failure of the Regional Court to assess properly the notion of “strikingly unfavourable conditions” pursuant to section 6(1)(k) of the Land Ownership Act.

On 3 March 1999 a judge rapporteur (soudce zpravodaj) invited the Regional Court, and the enjoined parties to the proceedings, i.e. the Land Office, the Military Repair Enterprise and Land Fund (Pozemkový fond), to submit written observations on the applicants' constitutional appeal.

By letters of 11 and 25 March 1999 respectively, the Land Fund and the Land Office waived their position as an enjoined party.

On 7 April 1999, the Military Repair Enterprise presented its written observations, suggesting the rejection of the applicants' constitutional appeal.

In its written observations of 9 April 1999, the Regional Court recalled the case-law according to which the Constitutional Court is not superior to the general courts and that it was not entitled to interfere with their decisions unless and in so far as they may have infringed rights and freedoms protected by the Constitution. It further referred to the reasoning in its judgment of 10 December 1998, and noted that the constitutional appeal had been introduced outside the sixty day time-limit insofar as it was directed against the Regional Court's judgment of 10 April 1998.

On 16 April 1999 the judge rapporteur asked the Regional Court and the Land Office to forward their case files to it, which they did.

On 10 May 2000 the Constitutional Court (Ústavní soud), without holding a public hearing, stated that the constitutional appeal, insofar as it was directed against the Regional Court's judgment of 10 April 1998, had been filed outside the sixty-day time limit and, to the extent that it concerned the same court's judgment of 10 December 1998, was unsubstantiated. The Constitutional Court included the written observations of the defendant and the Regional Court on the applicants' constitutional appeal in its summary of the facts. The court stated, inter alia, that it was for the competent national authorities to examine the existence of duress on the basis of all the relevant circumstances of the case. It recalled in this context that it could not examine issues falling within the jurisdiction of the general courts. The Constitutional Court, recapitulating briefly the reasoning of the national authorities involved in the case, did not find unconstitutional the Regional Court's conclusion that the existence of duress on the applicants' side during the contractual negotiations was excluded by the fact that they had imposed certain conditions on which they had been willing to conclude the contract with the State, and that a person acting under duress would have concluded the contract under any conditions.

According to the Government, it appears from the Constitutional Court's case file that on 27 June 2000 the first applicant inspected the documents included in the file and was provided with copies of the written observations submitted by the Regional Court and the Military Repair Enterprise.

B.  Relevant domestic law

The Land Ownership Act

Section 4 provides for the restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in section 6. Where such persons are no longer alive, their successors are entitled to restitution under the conditions specified in paragraph 2 of section 4.

Section 6(1)(k) provides for the restitution of immovable properties which were transferred to the State or other legal person on the basis of a contract concluded under duress, on strikingly unfavourable conditions.

The Constitutional Court Act

Under section 28(1) and (2), parties to proceedings are the petitioner and those specified by this Act. Persons to whom this Act grants the status of enjoined parties may waive that status. They have the same rights and duties as other parties to the proceedings.

Section 32 provides that parties and enjoined parties are entitled to give their views on a constitutional appeal, make submissions to the Constitutional Court, examine a case file (with the exception of voting records), make excerpts from and copies of it, take part in any oral hearing in the matter, put forward evidence, and be present during any taking of evidence.

Under section 40(2) if the petition concerns a matter within the jurisdiction of a chamber, it is assigned to a judge rapporteur who is a permanent member of the chamber and who is designated as the judge rapporteur by the work schedule.

Under section 42(4) a judge rapporteur shall, without delay, send the constitutional appeal to the other parties and, when appropriate, also to the enjoined parties, with a request to present their written observations on the appeal within time-limits fixed by him or her, or as indicated by the Act.

Section 43(2)(a) provides that, without holding an oral hearing and without the parties being present, the chamber may reject the petition if it is manifestly ill-founded.

Section 49(1) provides that any means which can serve to establish the facts of the case may be used as evidence, in particular the testimony of witnesses, expert opinions, the reports and statements of State authorities and legal persons, documents, results of inquests, and the testimony of parties.

COMPLAINTS

1. Invoking Articles 6 § 1 of the Convention the applicants complain that the Regional Court, the decision of which ultimately bound the Land Office, did not consider their case fairly, independently and impartially. They state that it only took into consideration the defendant's untrue and distorted arguments, without allowing the applicants to make their comments. They further state that the Regional Court followed the statements of the legal representative of the defendant who had defended the latter's interests in the sale of the property at the relevant time. However, it did not examine the real circumstances in which the sale had taken place, nor the fact that the applicants could not oppose the purchase or expropriation of their property. Moreover, the court did not have regard to their living, social and economic conditions after the sale and did not examine the extent to which they were disadvantaged by it.

Furthermore, the Regional Court cast doubt on the medical expert report describing the origins of the first husband's illness and his premature death, whilst not accepting as evidence the first applicant's husband's medical file. In addition, it instructed the Land Office to comply with its legal opinion even though the latter had repeatedly reached the opposite conclusion. The applicants note that the Regional Court, on all occasions sitting as a chamber composed of the same judges, delivered the judgment on 10 December 1998 and that no appeal was available against that judgment.

2. The applicants also complain that the court proceedings concerning their restitution claims lasted an unreasonably long time, i.e. eight years and almost five months.

3. They further complain that the Constitutional Court did not hold a public hearing. They maintain that they could have presented documents at a hearing in order to prove violations of the national law and to demonstrate the unfairness of the Regional Court's consideration of their case. A hearing would also have allowed them an opportunity to comment on the written statements filed by the Regional Court and by the defendant which were used by the Constitutional Court in reaching its decision. Moreover, the Constitutional Court took one year and two months merely to reject their appeal as being out of time, insofar as it concerned the Regional Court's decision of 10 April 1998.

4. Invoking Article 8 § 1 of the Convention, the applicants state that they felt humiliated by the fact that the Regional Court admitted the report on the first applicant's husband's working activities, which had been produced in December 1985.

5. The applicants allege that they were discriminated against on account of the defendant's refusal to restore land to them which had been adjacent to the property concerned and registered in the land register from 10 May 1995 to 16 June 1998. They invoke in this connection Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

6. The applicants finally complain that they were not considered parties to the administrative proceedings in 1984 and that the State violated their right to the peaceful enjoyment of their possessions, in that they were forced to sell their property to the State under duress and on conditions which were strikingly unfavourable to them. They added that their property rights had also been violated by the State as a result of the dismissal of their restitution claim. According to the applicants, there was no legal obstacle to restoring their property to them. The applicants contend that, contrary to Malhous v. the Czech Republic and Gratzinger and Gratzingerová v. the Czech Republic, they had a legitimate expectation to have their property back, which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicants complain about the proceedings concerning the restitution of their property. They allege a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

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

a) The applicants complain that the Regional Court failed to establish correctly the circumstances of the case. It did not take into consideration relevant and important facts and did not admit and assess relevant evidence or give them an opportunity to state their case.

The Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, García Ruiz v. Spain, § 28, ECHR 1999-I). In accordance with Article 19 of the Convention, the Court's duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. It is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedom protected by the Convention (see A.B. v. Slovakia, no. 41784/98, § 66, 4 March 2003).

In the present case the Ostrava Regional Court, after having quashed the first and second decisions of the Land Office allowing the applicants' restitution claim, upheld the Land Office's third administrative decision by which the applicants' claim for restitution of real property was dismissed on the ground that the requirements laid down in section 6(1)(k) of the Land Ownership Act had not been met. In its judgment of 10 December 1998 the Regional Court addressed the applicants' arguments and facts based on the documents presented to it and gave sufficient and relevant reasons for its conclusion that the applicants' property had not been sold to the State under duress within the meaning of section 6(1)(k) of the Act. It thus found it unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable conditions as stipulated in the same provision.

The Court considers that the reasons on which the Regional Court based its previous judgment of 10 April 1998, and which was binding on the Land Office, are sufficient to exclude any claim that the way in which it established and evaluated the evidence in the case was either unfair or arbitrary. Furthermore, the Court finds no appearance of unfairness or lack of impartiality and independence, within the meaning of Article 6 § 1 of the Convention, in the manner in which either the Regional Court or the Land Office dealt with the applicants' case.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

b) The applicants further complain that the court proceedings concerning their case lasted an unreasonably long time.

The Court notes that the proceedings were brought on 18 December 1991. However, the relevant period only began on 18 March 1992, when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual petition pursuant to former Article 25 of the Convention. As of 1 January 1993, the Czech Republic, as one of the two successor States, took over, according to the territorial principle, all rights and obligations arising under international treaties which had bound the Czech and Slovak Federal Republic and made relevant statements to this effect at the international level. The Court notes that the proceedings ended with the Constitutional Court's decision on 10 May 2000.

In order to determine the reasonableness of the length of time in question, regard must be had to the state of the case on 18 March 1992. On the above understanding, the proceedings lasted eight years, four months and eleven days, out of which eight years, one month and twenty-three days have to be taken into consideration by the Court (see, e.g., Matter v. Slovakia, no. 31534/96, § 53, 5 July 1999).

The reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation (see Gast and Popp v. Germany, no. 29357/95, § 70, ECHR 2000-II).

In the Court's view, the case concerned a complex restitution issue which was examined on three occasions by two instances and finally by the Constitutional Court.

As regards the applicants' conduct, it is undisputed that they did not act in a way which unduly prolonged the administrative or judicial proceedings.

As to the conduct of the authorities, the Court notes that, while it is true that the Land Office took three years, eight months and thirteen days to deliver its first administrative decision, it must also be observed that, during this period, the applicants supplemented the case file on numerous occasions, the husband of the first applicant died and was replaced in the proceedings by their children, and six procedural steps were taken either by the Land Office or at its request. Thereafter the proceedings before the Land Office and the Regional Court continued at a normal pace.

The Court further notes that during the proceedings at issue, the Constitutional Court had to ask the Nový Jičín Land Office and the defendant to submit their written observations on the applicants' constitutional appeal.

The Court observes that the proceedings before the Constitutional Court lasted one year, two months and twenty-three days. As regards the conduct of this court, the Court recalls that, as it has repeatedly held, Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time.

  Although this obligation also applies to a Constitutional Court, when so applied it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution makes it particularly necessary for it to establish priorities other than the mere chronological order in which cases are entered on its list, such as the nature of a case and its importance in political and social terms. Furthermore, while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (see the above-mentioned judgment in Gast and Popp v. Germany, § 75).

  Making an overall assessment of the length of the proceedings in the present application, it did not, in the Court's view, go beyond what may be considered reasonable in the particular circumstances of the case. The applicants' complaint does not, therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c) The applicants also complain that they were not granted a public hearing before the Constitutional Court during which they could have presented documents proving violations of the national law and the unfairness of the legal measures taken by the Regional Court, and made comments on the written statements submitted by the Regional Court and the defendant, which were used in the decision of the Constitutional Court.

The Government note that in their constitutional appeal, the applicants merely repeated their arguments submitted in the proceedings before the Land Office and the Regional Court, thereby basically seeking to review the Regional Court's judgment.

They submit that, once a constitutional appeal is filed, the judge rapporteur to whom it has been assigned sends it to the other parties and enjoined parties to the proceedings, inviting them to present their observations. The constitutional appeal is then ready for deliberation unless it is immediately rejected as being out of time, inadmissible, defective or ill-founded. According to the Government, this system respects the principle of the economy of proceedings.

The Government further submit that, in inviting the parties to the proceedings to present their observations, despite the fact that the case was later dismissed as manifestly ill-founded, the judge rapporteur was actually acting over and beyond his/her legislative duty, because the applicants' constitutional appeal could have been dismissed immediately on the basis of their appeal application. Moreover, it was not necessary to send the written observations of the Regional Court and the Military Repair Enterprise to the applicants, as those observations did not contain any new facts, and the first applicant had inspected the Constitutional Court's case file on 27 June 2000, after the decision of the Constitutional Court had been adopted, and was provided with the copies of any documents she wished to have. The Government do not have any proof that the applicants or their legal representative had inspected the case file before the decision was taken. Had they done so, they would have gained prior knowledge of the written observations in question.

The Government add that parties' written observations to the proceedings are always sent to the appellant if the constitutional appeal is to be examined on the merits. They note that the observations of the Regional Court and the Military Repair Enterprise were not capable of influencing the Constitutional Court's decision, although the text of the decision mentioned these observations (a contrario, Krčmář and Others v. the Czech Republic, no. 35376/97, 3 March 2000). Moreover, the observations of the Military Repair Enterprise contained statements which had already been presented beforehand.

To the extent that the applicants complain that their constitutional appeal of 15 February 1999 was partially dismissed as having been introduced outside the sixty day time-limit, the Government recall that the Regional Court delivered its judgment on 10 April 1998 and the applicants' legal representative received it on 13 May 1998. The time-limit for introducing the constitutional appeal therefore expired in mid-July 1998. According to the Government, the Constitutional Court would have reached the same conclusion even if the Regional Court had not raised the point in its written observations.

The Government further submit that when examining the applicants' allegations of violations of Articles 11 § 1 and 36 § 1 of the Charter, the Constitutional Court had based itself on the files forwarded by the Land Office and the Regional Court. Originally these two authorities had held different legal opinions on the questions raised by section 6(1)(k) of the Land Ownership Act. However, in its decision of 15 June 1998 the Land Office had rallied to the legal opinion of the Regional Court, which was later approved by the Constitutional Court. The Constitutional Court did not therefore rely on the parties' written observations.

The Government conclude that in the light of the content of the constitutional appeal and the contents of the written observations of the parties in question, the judge rapporteur at the Constitutional Court, having carefully examined them, had rightly considered it unnecessary to forward them to the applicants.

The applicants note at the outset that their constitutional appeal was in fact directed against both judgments of the Regional Court of 10 April 1998 and 10 December 1998.

They dispute the Government's argument that their constitutional appeal could have been declared manifestly ill-founded immediately. They argue that the principle of “equality of arms” cannot be assured by a mere opportunity given to the parties to have access to a constitutional court case-file.

They reiterate that in the afore-cited Krčmář case the Court held that the parties to the proceedings must have the opportunity to have made known any evidence needed for their claims to succeed, and also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court's decision. Moreover, the parties must also have the possibility to familiarise themselves with the evidence before the court, as well having the opportunity to comment on its content and authenticity in an appropriate form and within an appropriate time, if need be, in a written form and in advance.

The applicants also dispute the Government's argument that the written observations in question could not have influenced the decision of the Constitutional Court, and argue that the Government is not competent to assess the prospects of success which the constitutional appeal could have offered the applicants. They underline that the written observations of the Military Repair Enterprise contained a number of half-truths and untrue allegations which the applicants did not have the opportunity to contest, supported by relevant documentation. They conclude that the principle of “equality of arms” was breached in the proceedings before the Constitutional Court.

The Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. 

2. The applicants further complain that they were not considered parties to the administrative proceedings held in 1984 and that the State violated their right to the peaceful enjoyment of their possessions in that they were forced to sell their property to it under duress and on strikingly unfavourable conditions, and that their restitution claim was dismissed. They invoke 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.”

a) The Court first recalls that the facts complained of relate to a period prior to 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual petition. However, the Convention only governs, for each Contracting Party, facts which are subsequent to its entry into force with respect to that Party.

 It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.

b) To the extent that the applicants complain of the dismissal of their restitution claim, the Court recalls that Article 1 of Protocol No. 1 applies only to existing possessions and does not guarantee a right to acquire property (see, e.g., Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48). Accordingly, anyone who complains of an interference with one of his or her property rights must show that such a right existed. In accordance with the Court's practice, a conditional claim which lapses as a result of the non-fulfilment of a statutory condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see, e.g., Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII).

In the present case, the Regional Court, for the reasons clearly set out in its third judgment of 10 December 1998, upheld the view of the Land Office expressed in the latter's third decision of 15 June 1998, that the property in question could not be restored since one of the requirements laid down in section 6(1)(k) of the Land Ownership Act, namely that the contract of sale had been concluded under duress, was not met. The Land Office thus considered it unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable conditions within the meaning of the same provision. The Court has found no indication that this conclusion of the national authorities was arbitrary or incompatible with the relevant provisions of the Czech law.

In these circumstances, the Court finds that the applicants' claim falls outside the scope of Article 1 of Protocol No. 1.  It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The Court has finally examined the applicants' complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, but finds that, insofar as they have been substantiated and are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms relied on.

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

For these reasons, the Court,

by a majority, declares admissible, without prejudging the merits, the applicants' complaint that they did not have a fair hearing before the Constitutional Court which did not allow them an opportunity to comment on the written statements filed by the Regional Court and by the defendant which were used by the Constitutional Court in reaching its decision;

by a majority, declares inadmissible the applicant's complaint concerning the length of the proceedings;

unanimously, declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa 
 Registrar President

MILATOVÁ AND OTHERS v. THE CZECH REPUBLIC DECISION


MILATOVÁ AND OTHERS v. THE CZECH REPUBLIC DECISION