FIFTH SECTION
CASE OF ŽÁKOVÁ v.
THE CZECH REPUBLIC
(Application no. 2000/09)
JUDGMENT
(Merits)
STRASBOURG
3 October 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Žáková v. the Czech Republic,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
September 2013,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
. The case
originated in an application (no. 2000/09) against the Czech Republic lodged
with the Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Ms
Sylvie Žáková (“the applicant”), on 7 January 2009.
. The
applicant was represented by Mr V. Kotek, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by
their Agent, Mr Vít A. Schorm, of the Ministry of Justice.
. On 20 June 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
. The
applicant was born in 1938 and lives in Landshut, Germany.
. In 1968
the applicant left the then communist Czechoslovakia. In 1970 she was found
guilty of the offence of fleeing the Republic, and all her property was
confiscated, including two plots of land (nos. 1141 and 1142) in the cadastral
area of Kožichovice (“the land”).
. On 31
May 1976 the State transferred the right to the use of the land to the
Třebíč municipality.
. In 1990
the majority of the land was transferred to the Třebíč cadastral area
and the plots were renumbered. The land now comprises the following plots: no. 7283 and parts of nos.
7281, 7378, 2174/1, 2174/2 and 2174/3 in the cadastral area of Třebíč
and nos. 1136/1, 1136/19 and a part of no. 1138/1 in the cadastral area of
Kožichovice.
. On 27
March 1991 the Nový Jičín District Court quashed the applicant’s
conviction and all ancillary decisions including the decisions on the
confiscation of property with retrospective effect, pursuant to the Judicial
Rehabilitation Act.
. According
to the applicant, she had been registered as the sole owner of the land without
interruption from 1960, and in support of that claim she provided extracts from
the land register dated 17 September 1992 and 15 August 1995. According to
the Government, both the applicant and the State were mistakenly registered as
owners after 1971, when the applicant’s property was confiscated, whereas the
State should have been registered as the sole owner.
A. The land within the cadastral area
of Třebíč
. The
municipality has been using the part of the land in the cadastral area of
Třebíč, which has been partly built upon, for companies providing
communal services.
. At the
end of 1992 the applicant sent a letter to the municipality enclosing a
document from the Land Registry confirming that she was the owner and the
municipality as the user of the land in issue. On 10 February 1993
the municipality replied that it did not know why it was registered as the user
of the land because it had not been using it. There seems to have been,
however, some confusion as to which plots of land were concerned as the
municipality’s letter explicitly referred to a plot with a different number,
which did not in fact exist.
. On 7
November 1995 the municipality of Třebíč sent a letter to the
applicant at an address in Slovakia, stating that she was registered as the
owner of the land in the land register but that according to the 1976 transfer
the land had been transferred to the municipality. The municipality therefore
asked the applicant whether she could submit any documentation proving that
ownership of the land had been transferred from her to the State. The letter
was returned undelivered with a note that no such address existed.
. On
7 November 1995 the municipality of Třebíč sent a similar letter to
the Třebíč District Office asking for information concerning the
ownership of the land. On 4 December 1995 the District Office replied that it
had no document proving a transfer of the land to the State.
. On
22 January 1996 a meeting took place between a representative of the
municipality of Třebíč and the applicant’s husband. The record of the
meeting stated that a meeting with the owner of the land, that is, the
applicant, represented by her husband, had taken place and the representatives
of the municipality had asked whether the applicant would be willing to sell
the part of the land that was within the cadastral area of Třebíč. The
applicant refused to sell it but said that she would be willing to exchange it
for a plot of land of equivalent value.
. On 5
March 1996 the municipality of Třebíč informed the applicant that it
had decided to rent that part of the land that was within the cadastral area of
Třebíč. On 25 March 1996 a rental agreement was signed between the
applicant and the municipality, which paid annual rent for it in 1996 and 1997.
. On
12 November 1997 the municipality requested to be entered in the land register
as the sole owner of the part of the land that was within the cadastral area of
Třebíč. The Registry granted that request.
. On 22
December 1997 the municipality informed the applicant that it had found a
document proving that the State had acquired ownership of the land from her,
namely criminal judgments given against the applicant in 1970 and 1971. The
municipality had accordingly asked the Land Registry to register it as the
owner of the part of the land that was within the cadastral area of Třebíč.
As a result, it considered the rental agreement to have been rendered null and
void and asked the applicant to return to it the rent paid for the years 1996
and 1997.
. Subsequently,
the applicant, through her lawyer and her husband, began negotiations with the
municipality to find a solution to the situation.
. In a
letter of 10 August 1999 the municipality stated that it was the lawful owner
of the part of the land that was within the cadastral area of Třebíč
as the applicant had failed to claim it in restitution proceedings. It did not
acknowledge any responsibility for its mistake in wrongly attributing ownership
of the land to the applicant from 1992 to 1996.
. As
there appeared to be no basis for a friendly settlement between the applicant
and the municipality, the former requested the Land Registry to remedy the
mistake and record her as the rightful and sole owner of the land in the
register.
. On 23
July 2002 the Land Registry rejected her request as unfounded.
B. The land within the cadastral area
of Kožichovice
. On 28
September 1992 the Třebíč Building Office invited the applicant to
attend proceedings regarding a request for a building permit in respect of a
piece of land adjoining the part of the land that had remained within the
cadastral area of Kožichovice.
. On 29 January 1993 the applicant sent a letter to the
farming cooperative that was using the part of the land within the cadastral
area of Kožichovice, requesting them to sign a rental agreement with her. There
is no information in the case-file as to whether the farming cooperative
replied.
. The
village of Kožichovice requested the Land Registry to register it as the sole
owner of the part of the land within the cadastral area of Kožichovice on 19
January 1995, 10 May 1996, and 14 August 1998, referring to Law no. 172/1991,
by which municipalities were able to acquire ownership of certain State
property. There is no information in the case-file as to which part of the land
was registered as the property of the village at what time.
C. Court proceedings brought by the
applicant
. On 24
October 2003 the applicant brought an action for the determination of the
ownership of the land, claiming that she was the lawful owner, as the order for
the confiscation of her property had never been executed and had now become time-barred,
and she had been listed as the owner of the land both
in the former land register (evidence
nemovitostí) and the current one (katastr nemovitostí), and that she
had been acknowledged as such by the authorities.
. On 20
October 2006 the Třebíč District Court found that the State had in
practice seized the real property concerned in the 1970s and had subsequently
exercised all the associated property rights even though both the State and the
applicant had been registered as its owners in the land register. Therefore,
the applicant should have claimed the plots of land under the relevant
restitution legislation. Relying on the settled case-law of the Supreme Court,
the court concluded that if a person could have asked for the return of a
property under the restitution legislation he or she could not claim it under a
general civil-law action, as the applicant was trying to do. Consequently, it
dismissed the applicant’s action for lack of an urgent legal interest (naléhavý
právní zájem) on the determination of ownership.
. The
applicant appealed, stressing that at the time when the restitution legislation
had been applicable there had been no one other than herself who could have
been considered the owner of the plots of land. The State had treated her as
the owner of the real property and thus she could not lawfully have had
recourse to the restitution legislation.
. On 16
October 2007 the Brno Regional Court upheld the first-instance judgment,
referring to opinion no. Pl. ÚS - st. 21/05 of the Constitutional Court, adopted on 1 November 2005 (see
paragraph 34 below). It accepted, however, that the land-registering authorities
had not kept their records properly, as both the applicant and the State had
been listed as owners of the same land at the same time. If for that reason
filing a restitution claim, which would have been an appropriate remedy under
normal circumstances, had been outside the time-limits provided by the
restitution legislation, the applicant could have considered claiming
compensation for administrative malpractice on the part of the authorities. In
any event, a civil action was not an appropriate way of raising restitution
claims.
. On 5
March 2008 the Supreme Court dismissed an appeal on points of law by the
applicant, endorsing the conclusions of the lower courts that, given that the
authorities had seized the applicant’s real property by a final judgment as a result
of her conviction, the applicant should have lodged a restitution claim either
against the State, which was listed as the real property owner in the land
register, or, failing that, with the relevant land authority, which would have
made a decision as to ownership. The State had become the owner of the plots
when the criminal judgment had become final, irrespective of the time when its
ownership had been entered in the land register.
. The
applicant lodged a constitutional appeal, complaining under Article 6 of the
Convention and Article 1 of Protocol No. 1 that the courts had not taken into
consideration her submissions regarding the non-execution of the order for the
seizure of her property and the impossibility for her to have recourse to
restitution legislation. In addition, she claimed that she was unable to seek
the protection of her property rights owing to the practice of the Land
Registry and the decisions of the courts.
. On 30
July 2008 the Constitutional Court dismissed the applicant’s constitutional
appeal as manifestly ill-founded, referring to its opinion no. Pl. ÚS - st. 21/05 of 1 November 2005, which stated that
the applicant in that case should not have used a general civil-law action but
should have lodged her claim under the restitution laws. It further found that
the courts had given reasoned and convincing judgments which had observed the
relevant legislation and case-law. Finally, it acknowledged that the decisions
could be seen as disproportionately harsh towards the applicant, who might have
been misled by the incorrect record in the land register. If that was so and
the applicant had suffered damage, she could consider claiming compensation
from the State under the State Liability Act.
II. RELEVANT DOMESTIC LAW AND
PRACTICE
A. The Judicial Rehabilitation
Act (no. 119/1990)
. The relevant provisions read as
follows:
“Section
1
(1) The aim of the Act
is to authorise the quashing of convictions for offences where such convictions
are incompatible with the principles of a democratic society respecting the
political rights and freedoms enshrined in the Constitution and set out in
international instruments, ... [and] to ensure social rehabilitation and adequate
material compensation for the persons [so] convicted ...
(2) Acts which led to the exercise of the
rights and freedoms guaranteed by the Constitution and proclaimed in the
Universal Declaration of Human Rights and subsequent international treaties on
civil and political rights were declared criminal by the Czechoslovak penal
laws in violation of international law, and their criminal prosecution and
punishment was also contrary to international law..”
“Section 23
...
(2) The conditions under
which the provisions of this Act shall apply to claims resulting from the
quashing of confiscation decisions ..., as well as the mode of redress and the
scope of such claims shall be set out in a special law.”
B. Restitution laws
. The relevant domestic law and
practice concerning restitution of property, including the judgments of the Constitutional Court referred
to in paragraphs 54 and 55 below, is set
out in the Court’s decisions in the cases of Gratzinger
and Gratzingerova v. the Czech Republic (dec.),
no. 39794/98, § 19-44, ECHR
2002-VII, and Malhous v. the Czech Republic (dec.) [GC], no.
33071/96, ECHR 2000-XII
respectively. Following judgment
no. 29/1996 of the Constitutional Court of
13 December 1995, the applicant became eligible to apply for restitution
of the plots of land in the period between 9 February and 9 August 1996.
34. The Plenary of the Constitutional Court in its opinion
no. Pl. ÚS - st. 21/05 of 1 November 2005 harmonised the interpretation of
the restitution laws by its Chambers, stating that they covered all the
property that the State had acquired before 1989, even if without legal
justification, and that restitution of such property could be claimed only
through the restitution laws. Therefore persons who could have claimed their
property through restitution laws could not resort to general civil-law actions.
C. Case-law following opinion no. Pl. ÚS - st. 21/05 of the Constitutional Court of 1
November 2005
. In its judgment no. I. ÚS 709/2009 of 20 October
2009, the Constitutional Court quashed decisions of the lower courts by which
claimants’ civil actions for the determination of ownership that had passed to
the State on the basis of an agreement that was null and void had been
dismissed. The Constitutional Court held that its plenary opinion (Pl. ÚS - st. 21/05) did not apply as the claimants had been misled by the
authorities and the Land Registry as to their ownership of the real property in
that they had been accepted as being the de facto owners. The court
concluded that in the specific circumstances of the case it would have been too
formalistic to follow its plenary opinion: the claimants had been unable to
protect their property as both restitution proceedings and a civil action had
been impossible to pursue. In that context, irregularities and negligence on
the part of the totalitarian regime could not be invoked to the detriment of the
claimants.
. The Constitutional Court similarly held in
subsequent cases that the claimants were entitled to use a general civil-law
action to protect their property because they could not have used the
restitution laws within the applicable time limits since they had been misled
by authorities by, inter alia, being registered as owners in the land
register, and they had believed in good faith that they owned the property (see
judgments nos. IV. ÚS 42/09 of 29 December 2009 and I. ÚS 3248/10 of 17 May
2011). The Supreme Court applied this case-law of the Constitutional Court in
its decisions nos. 28 Cdo 4973/2007 of 17 February 2010 and 22 Cdo 2700/2010 of
22 November 2010, among others.
D. Regulations concerning land
register
. After
the communist takeover in Czechoslovakia in 1948 the land registers fell slowly
into disuse. The communist regime was less interested in recording ownership
rights to land than in having reliable information for a planned economy. For
that purpose it was more important to register who was cultivating the land
than who owned it. Consequently, in 1956 a new register was set up (Jednotná
evidence půdy) containing primarily data about users of the land.
Ownership rights were not systematically registered between 1951 and 1964.
. In 1964
a new law on land registers (Law no. 22/1964) was adopted and ownership rights
started again to be systematically recorded (evidence
nemovitostí). Nevertheless, the records of ownership rights were not
kept completely accurately and the emphasis of the register was still on
providing data for planning the economy. For that purpose it continued to
contain entries on who was using the land. The 1956 register provided a basis
for the new register.
. This
Law was superseded in 1992 by a new Cadastral Act (Law no. 344/1992), which,
with some amendments, is still in force. The new land register (katastr
nemovitostí) took again as its basis the old land register. The legislator,
being aware that the data were not always correct, gave the Land Registry also
the task of bringing the data in the register into conformity with the reality
on the ground. Further the Law provided for changes to the data on request.
Under section 8 the Land Registry, acting on a written request from the owner,
can correct any erroneous record in the register which has arisen from an
obvious mistake in the keeping and restoration of the register.
. Under
section 11 of Law no. 265/1992 on the recording of ownership and other rights
regarding real property, whoever acts in accordance with a record made in the
land register after 1 January 1993 acts in good faith unless he or she must
have known that the record was wrong. Under the established case-law of the
domestic courts, however, this good faith cannot prevail over an ownership
right of a real owner. In other words, if a record in the land register is
wrong the reality prevails over the record (see, for example, Constitutional
Court judgments nos. II. ÚS 91/98 and II. ÚS 349/03).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE
1 OF PROTOCOL NO. 1
. The
applicant complained that her right to protection of property had been violated
when possession of the land had been taken away from her in 1997 and the courts
had refused to grant her protection. She relied on Article 1 of Protocol No.1,
which reads as follows:
“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
Government contested that argument.
A. Applicability: whether there was a “possession”
1. Arguments of the parties
. The
Government raised the objection that the complaint was incompatible ratione
materiae with the Convention as the applicant had not had property within
the meaning of Article 1 of Protocol No. 1.
. They
maintained that the applicant had lost ownership of the land by a decision of a
criminal court in 1971. The fact that she had for a certain period of time been
registered incorrectly as the owner of the land alongside the State in the land
register could not constitute possession of a property because a record in the
land register had only a declaratory character.
. The
applicant disagreed, claiming that she had been registered as the owner of the
land continuously from 1960, when she had inherited it, to November 1997, and
that the State and the municipality of Třebíč had considered her the
owner during the 1990s.
. She
further maintained that, in accordance with case-law valid up to 1997, the
quashing of the criminal judgment confiscating her property had had the effect
of restoring ownership to the original owner. In any case, the criminal
judgment from 1971 had never been executed with regard to the land.
2. The Court’s
assessment
(a) General considerations
. The Court reiterates that an applicant can allege a violation of
Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to
her “possessions” within the meaning of that provision. “Possessions” can be
either “existing possessions” or assets, including claims, in respect of which
the applicant can argue that he or she has at least a “legitimate expectation”
of obtaining effective enjoyment of a property right. By way of contrast, the
hope of recognition of the survival of an old property right which it has long
been impossible to exercise effectively cannot be considered a “possession”
within the meaning of Article 1 of Protocol No. 1, nor can a conditional
claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII; Gratzinger and Gratzingerova, cited above, § 69, ECHR 2002-VII; Kopecký
v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX,
and Fabris v. France [GC], no. 16574/08, § 50, ECHR
2013 (extracts)).
. The Court has also pointed out on
numerous occasions that the concept of “possessions” in the first part of
Article 1 has an autonomous meaning which is not limited to ownership of
physical goods and is independent from the formal classification in domestic
law: the issue that needs to be examined is whether the circumstances of the
case, considered as a whole, may be regarded as having conferred on the
applicant title to a substantive interest protected by that provision (see Iatridis v.
Greece [GC], no. 31107/96, § 54, ECHR 1999-II
and Öneryıldız v. Turkey [GC], no. 48939/99, § 124, ECHR 2004-XII). The fact that the domestic laws of a State
do not recognise a particular interest as a “right” or even a “property right”
does not necessarily prevent the interest in question, in some circumstances,
from being regarded as a “possession” within the meaning of Article 1 of
Protocol No. 1 (see Brosset-Triboulet and
Others v. France [GC], no. 34078/02, § 71, 29 March 2010).
. In Öneryıldız the Court concluded
that the applicant had such an interest in a house built illegally on State
land because the authorities had tolerated it for almost five years (§§
127-129).
. In Beyeler
v. Italy [GC], no. 33202/96, § 104, ECHR 2000-I, the Court, in
finding that the applicant had a
proprietary interest in a painting, despite the fact that the agreement by
which he had acquired it had been declared null and void by the domestic
courts, took into account that he had been in
possession of the painting for several years and that on a number of occasions
he had appeared to be considered by the authorities as having a de facto
proprietary interest in the painting, and even to be its real owner.
. In Moskal
v. Poland, no. 10373/05, § 45, 15 September 2009, the Court applied Article
1 of Protocol No. 1 to a welfare entitlement awarded by mistake because the
applicant had been in good faith and the entitlement had been recognised by the
appropriate authority when awarding it.
. Turning
to the present case, the Court first notes that it is disputed between the
parties whether the applicant was registered as the sole owner of the land and
the State only as a user before
the sequential updates of 1995, 1996, 1997 and 1997 (see paragraphs 16 and 24 above), or whether both the State and the
applicant were registered as owners. The Court does not consider that it has to
resolve this issue, as, in any case, it is undisputed between the parties that
the applicant was registered as the owner of the plots of land in the land
register.
. The
Court is aware that before 1993 the land register was
not kept meticulously and it contained many mistakes, including parallel
records concerning the same property. The Court also notes that under the
domestic law a record in the land register does not by itself constitute
ownership. Nevertheless, the applicant continued to be registered as the owner
of the land even after 1993 and as a result she could have reasonably
considered herself to be the owner of the land.
54. The Court does not consider
that the applicant’s reasonable consideration was negated by her knowledge that
the land had been taken from her by a criminal judgment in 1971 or that she
must have known that the quashing of the criminal judgment in 1991 did not have
any direct effect on the situation and she should therefore have claimed the
property back under the restitution laws. It notes that the domestic case-law
on this point was not settled in the early 1990s. In fact, judgment no. 117/93 of the Constitutional Court of 2 February 1995 pointed rather in the opposite direction,
stating that where a conviction and all ancillary
decisions concerning a confiscation of property had been quashed pursuant to
the Judicial Rehabilitation Act, the person thus rehabilitated had not lost his
or her ownership of the property, since confiscation decisions were quashed
with retrospective effect.
55. It was only on 11 March 1997 that the Constitutional Court, in its judgment no.
4/97, made it clear that decisions taken under the Judicial Rehabilitation Act quashing
confiscation decisions did not confer entitlement on anyone thus
rehabilitated to be entered in the land register as the owner. Indeed, such
decisions did not restore previous ownership; that had to be claimed through
restitution laws. Yet, even that judgment cannot be considered to provide a
clear solution to the applicant’s situation, as she considered she had been the
constant owner of the land since 1960 and at time of the Constitutional Court’s
judgment was in possession of at least part of it.
(b) The land
within the cadastral area of Třebíč
. The Court further considers it
material that, in so far as the part of the land that was within the cadastral
area of Třebíč was concerned, the municipality of Třebíč
considered the applicant to be the owner of that land (see, for example,
paragraph 14 above) until 1997, when it requested the Land Registry to change
the ownership of the land in the register and informed the applicant
accordingly. The municipality even signed a rental contract with the applicant
as the owner and paid rent for two years.
. In sum, in 1996 and 1997 the
applicant was registered as the owner of the part of the land that was within
the cadastral area of Třebíč, could have reasonably considered
herself to be the owner of it, and exercised her ownership rights in respect of
it; the authorities also considered her to be the owner. Under these
circumstances, the Court considers that her proprietary interest in the part of
the land that was within the cadastral area of Třebíč was of a
sufficient nature and sufficiently recognised to constitute a substantive
interest and hence a “possession” within the meaning of Article 1 of Protocol
No. 1, which provision is therefore applicable to this aspect of the complaint.
58. Consequently, the actions in November 1997 of the
municipality of Třebíč, when they requested the Land Registry to
change the ownership of that part of the land and ceased to pay the rent, and
those of the Land Registry in acceding to that request, constituted an
interference with the applicant’s existing “possession”. Having regard to the
complexity of the factual and legal position, the Court will review the present
case under the general rule set forth in the first sentence of Article 1 of
Protocol No. 1 (see, mutatis mutandis, Beyeler, cited above, §
106; Broniowski v. Poland [GC], no. 31443/96, § 136, ECHR 2004-V;
and Gladysheva v.
Russia, no. 7097/10, §
71, 6 December 2011).
(c) The land
within the cadastral area of Kožichovice
. The Court reaches a different
conclusion, however, with regard to the part of the land that remained in the
cadastral area of Kožichovice. It observes that the village of Kožichovice
never acknowledged the applicant to be the owner of that part of the land.
Furthermore, the applicant submitted no information to the Court indicating
that she was at any time after 18 March 1992, the date of the entry into force
of the Convention with regard to the Czech Republic, in actual possession of it
or that she was using it or renting it out. Her only claim to that part of the
land is that she was registered as its owner in the land register. The Court
notes, however, the argument of the Government that this was due to a mistake,
which was subsequently remedied by the Land Registry acting in response to the
requests of the village of Kožichovice of 19 January 1995, 10 May 1996 and 14 August 1998.
Furthermore, it notes that under the domestic law a mere record in the land
register does not constitute a title but has only a declaratory value (see also
Hykel v. the Czech Republic (dec.), no. 15400/04,
1 February 2011) .
. Consequently,
the complaint in so far as it concerns the part of the land that remained in
the cadastral area of Kožichovice is incompatible ratione materiae and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Admissibility
. The
Government maintained that the complaint was inadmissible for non-exhaustion of
domestic remedies: the applicant had not asked for the restitution of the land
under the Land Ownership Act. Furthermore, she had not claimed damages against
the State under the State Liability Act (no. 82/1998) on the ground that
either the municipality of Třebíč or the Land Registry had misled
her, even though she must have become aware of the real situation by
10 February 1998 at the latest, when the letter of 22 December 1997
from the municipality was delivered to her. In the Government’s view, the
remedy used by the applicant, namely a civil claim for determination of
property rights, was not an effective remedy in her situation.
. The
applicant submitted that she could not have instituted restitution proceedings
as at the time when she could have done so she was in possession of the plots
of land and acknowledged as their owner. Therefore there had been nobody from
whom she could have claimed the return of the property apart for herself, which
would have been absurd.
. As
regards an action under the State Liability Act, the applicant noted that that
Law had not even existed at the time when, according to the Government, she had
suffered the damage. She added that such an action would have been bound to
fail in view of the reasoning of the Government that it had been through her
own fault that she had not lodged a restitution claim under the Land Ownership
Act.
. The
Court reiterates that under Article 35 § 1 of the Convention it may only deal
with a matter after all domestic remedies have been exhausted. Applicants must
have provided the domestic courts with the opportunity, in principle intended
to be afforded to Contracting States, of preventing or putting right the
violations alleged against them. That rule is based on the assumption,
reflected in Article 13 of the Convention - with which it has close affinity -
that there is an effective remedy available in the domestic system in respect
of the alleged breach. The only remedies which Article 35 § 1 requires to be
exhausted are those that relate to the breach alleged and are available and
sufficient. The existence of such remedies must be sufficiently certain not
only in theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness: it falls to the respondent State to establish
that these conditions are satisfied (see McFarlane v. Ireland [GC], no.
31333/06, § 107, 10 September 2010). Moreover, an applicant who has exhausted a
remedy that is apparently effective and sufficient cannot be required also to
have tried others that were available but probably no more likely to be
successful (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999).
. Turning
to the present case, the Court notes firstly that it concerns an interference
with the applicant’s property rights in November 1997. On 24 October 2003
the applicant, having been prevented since that time from using the property of
which she claimed to be the owner, instituted civil actions for the
determination of her property rights. She unsuccessfully
pursued this remedy all the way up to the Constitutional Court.
. It cannot be said that such a
claim was clearly bound to fail and thus could not
be an effective remedy in the applicant’s situation. First,
in 2003, when she instituted the proceedings, the issue of the primacy of the
restitution laws over general civil actions was far from settled. That question
was settled only in 2005 by a plenary opinion of the Constitutional Court (see
paragraph 34 above). Second, even after that opinion it
was not at all clear that the applicant’s action had no prospect of success.
Several similar actions had been successful (see paragraphs 35-36 above).
The Court notes that there were some factual differences between those cases
and the present case. It does not, however, consider these differences
substantial enough to render the applicant’s action clearly devoid of any
chance of success. What is common to all these cases, including the present
case, is that the claimants were misled by
authorities during the time when
they could have resorted to the restitution laws, believing in good faith that
they were owners of the property in question.
. Accordingly, the Court considers
that the remedy chosen by the applicant was an effective one. If she had been
successful with her claim, her ownership of the land would have been finally
settled. Having used this remedy, she was not required to have tried others
that were either unavailable or probably no more likely to be successful.
. The
restitution laws were clearly unavailable to the applicant at the time of the
interference in 1997, as the period during which she
could have made use of that remedy lasted only from 9 February to 9 August
1996. The present case must be distinguished from the case of Šroub v. the
Czech Republic (dec.), no. 40048/98, 24 September 2002, referred to by the
Government. In that case the applicant’s ownership of the property in question
was not acknowledged by the domestic authorities, except for a mere entry in
the land register, and he was not in possession of it at any time in the 1990s.
Moreover, the applicant in Šroub did in fact institute restitution
proceedings against the holder of the property but later withdrew them. Lastly,
that applicant failed to institute any other proceedings with a view to
acquiring the disputed land.
. Accordingly,
the Court dismisses the Government’s objection of
non-exhaustion of domestic remedies.
. The
Court further notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
1. The parties’ submissions
. The
applicant maintained that she had been registered as the owner of the plots of
land and had been in full possession of them. The municipality of
Třebíč, the purported actual owner of the land, had acknowledged her
as the owner and signed a rental agreement with her. However, at the request of
the municipality in 1997 she had been deprived of the property on the basis of
a criminal judgment given in 1971 which at that time was no longer effective as
it had been quashed with retrospective effect on 27 March 1991. She considered
that such an approach was not only legally wrong but also immoral. She had been
effectively misled by the public authorities into believing that she was the
owner of the land until a point when the time-limits for making a restitution
claim, which she had been advised to do, had expired. She had received no compensation
for the expropriation.
. She
considered that the reasoning behind the suggestion that she should have asked
for the return of the land under the restitution laws was absurd. At the time
when she could have made such a claim, between 8 February 1996 and 8
August 1996, she had been acknowledged as the owner of the land by the Land
Registry and the municipality of Třebíč, and had been in possession
of them. Consequently, there had not even been anybody whom she could have
asked to return the property to her.
. She
further maintained that the State could not have become the owner of the land
because the confiscation decisions had never been executed.
. She
asserted that she had taken an interest in the land since 1990, as confirmed by
her correspondence from 1992 and early 1993. The reason why she had not acted
as the owner before was that she had emigrated from communist Czechoslovakia.
. The
Government argued that the interference had been based on law and pursued
legitimate aims of protecting the property rights of others, namely those of
the municipality of Třebíč, and legal certainty. It had also been
proportionate. The procedural requirements of the national law, for example,
that a person must ask for the restitution of property according to rules set
out in the restitution laws, including certain time limits, could not in
general be considered disproportionate. The requisite “fair
balance” between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental rights had been
observed even in the particular circumstances of the present case.
. According to the Government, the
applicant had not been the only registered owner of the land in the land
register, the State having also been registered as such. The applicant had been
aware of the criminal judgment from 1971 and she had not acted as the owner of
the plots of land between 1971 and 1995, when she had been approached by the
Třebíč municipality. Only then had the applicant demanded the payment
of rent.
. The municipality had been using
the land since 1970s and it considered itself the owner, as could be seen, for
instance, from its letter of 7 November 1995. It
had simply been unable to find a document proving its ownership. When that
document, the 1971 criminal judgment, was found, the municipality had
immediately informed the applicant that it considered itself the owner of the
land.
. It had
also been a mistake on the part of the applicant not to have informed the
municipality in 1996 of the existence of the criminal judgment. If she had done
so, the municipality would never have considered the applicant to be the owner
and she could have resorted to the restitution laws within the available
time-limits.
2. The Court’s assessment
(a) General principles
. The Court
reiterates that in order for an interference to be compatible with Article 1 of
Protocol No. 1 it must be lawful, be in the general interest and be
proportionate, that is, it must
strike a “fair balance” between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights (see, among many other authorities, Beyeler v. Italy, cited above, § 107, and J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United
Kingdom [GC], no. 44302/02, § 75, ECHR 2007-III).
. The assessment of proportionality
requires an overall examination of the various interests in issue, bearing in
mind that the Convention is intended to safeguard rights that are “practical
and effective”. That assessment includes the nature of the interference, the
conduct of the applicant, and that of the State authorities (see Beyeler,
cited above, § 114; Broniowski v. Poland [GC], cited above, § 151; and Perdigăo v. Portugal [GC], no. 24768/06, § 68, 16 November 2010).
81. Further, although Article 1 of
Protocol No. 1 contains no explicit procedural requirements, the proceedings at
issue must also afford the individual a reasonable opportunity to put his or
her case to the responsible authorities for the purpose of effectively challenging
the measures interfering with the rights guaranteed by this provision. In
ascertaining whether this condition has been satisfied, a comprehensive view
must be taken of the applicable procedures (see, among other authorities, Jokela
v. Finland, no. 28856/95, § 45, ECHR 2002-IV).
(b) Application
in the present case of the above-mentioned principles
82. The Court first
observes that this is not a case of restitution of property taken away before
the State’s accession to the Convention. This case concerns an interference
with property rights in 1997, that is, after the date of
the entry into force of the Convention with regard to the Czech Republic (contrast,
for example, Malhous v. the Czech Republic (dec.) [GC], cited above, and Harrach v.
the Czech Republic (dec.), no. 40974/09, 28 June 2011).
i. Lawfulness
of the interference
. The
Court notes that the interference was based on the provision of the Cadastral
Act that allows the Land Registry to change an obvious mistake in the land
register. The municipality supported their claim that the record was erroneous
by reference to the 1971 judgment. Consequently, the interference was also
based on the established judicial interpretation of restitution laws according
to which the quashing of a conviction, which included a confiscation decision,
under the Judicial Rehabilitation Act did not restore the ownership rights of
the original owner. Although this approach does not generally raise any issue
under the Convention (see, for example, Brezny and Brezny v. Slovakia
(dec.), no. 23131/93, 4 March 1996 and Kopecký v. Slovakia [GC], no. 44912/98, §
41, ECHR 2004-IX), the Court notes in the present case that the
interference took place only in 1997 and on the basis of a judgment that was no longer in effect at that time. Nevertheless, in view of its limited power to review the compliance of an interference with domestic law (see Beyeler, cited above, § 108), the Court will proceed on the basis
that the interference complied with the requirement of lawfulness, including
reasonable foreseeability.
ii. Legitimate
aim
. As to the legitimate aim pursued
by the interference, the Court reiterates that the national authorities are in
principle better placed than the international judge to appreciate what is “in
the public interest”. Furthermore, the notion of public interest within the
meaning of Article 1 of Protocol No. 1 is necessarily extensive (see, for
example, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-VI). It therefore accepts that the aims of
protecting the ownership rights of the municipality of Třebíč and
correcting wrong entries in the land register fall within public interest.
iii. Proportionality of the
interference
. First, the Court considers that
the interference was significant. In 1997 the applicant was recognised as the
owner of the part of the land that was within the cadastral area of
Třebíč and was in full possession of it in the sense that she was
able to rent it. By the actions of the municipality of Třebíč and the
Land Registry she was deprived of that possession.
. The
Court must now assess, in the light of the principles set
out in paragraphs 80 to 82 above, whether the interference was
proportionate and whether the applicant did not have to bear an excessive
individual burden (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 59, ECHR 1999-V). The Court considers
it useful to reiterate certain special features of the present case and, in
particular, the historic context, in which it arose.
. In 1968
the applicant emigrated from communist Czechoslovakia. As a result, she was
convicted of the offence of fleeing the Republic and her property, including
the land in question, was confiscated. Accordingly, the Court finds it only
natural that until the 1989 revolution overthrowing the Communist regime, the
applicant did not attempt to exercise her ownership rights over the land since
it was situated in a country under the control of a regime from which she had
fled and by which she had been labelled a criminal.
. After
the revolution the applicant discovered that she was still registered as the
owner of the land in the land register although the municipality of
Třebíč was registered as the user. As she had approached the
municipality in an attempt to exercise her ownership rights in 1992, it cannot
be said that the applicant was totally inactive and did not attempt to exercise
her rights until 1995.
. Furthermore,
the Court has already concluded that at this period the applicant could have
reasonably believed that she was the owner of the land (see paragraphs 52-54 above). In this situation it was rather up to the user of the land
to approach the applicant, as the registered owner, to request permission to
use the land, as eventually happened in 1995 when the municipality of
Třebíč attempted to contact her.
. In 1996
the applicant, acting as the owner of the land, signed a rental agreement with
the municipality of Třebíč. The Court does not share the opinion of
the Government that it was a mistake on the part of the applicant not to have
informed the municipality of the criminal judgments at that time. It suffices
to note that those judgments had been quashed with retrospective effect in
1991. Therefore, at the material time the judgments did not exist in law and,
from this perspective, there was nothing the applicant should have disclosed.
. Overall,
the Court does not consider that there was anything in the behaviour of the
applicant for which she can be reproached.
. With
regard to the behaviour of the authorities, the Court understands that the
municipality of Třebíč had some doubts as to whether the applicant
was the true owner of the land, and in that connection it also sought
information from State authorities, but to no avail (see paragraph 13 above). In 1996 it decided to recognise
the applicant’s ownership of the land. However, only one year later, it began
to consider itself the owner and requested the Land Registry to amend the
register accordingly. The Land Registry changed what, in its view, had been a
mistake in the records and entered the municipality as the sole owner of the
part of the land which was within the cadastral area of Třebíč.
. Thus,
as a result of what was allegedly only an oversight or mistakes by both the
municipality and the Land Registry, the applicant had to suffer interference
with her property rights when the land was transferred to the municipality of
Třebíč. The Court notes that at no time during this period were the
rights of any third private persons affected. In this
connection, the Court reiterates that the risk of any mistake made by a State
authority must be borne by the State and the errors must not be remedied at the
expense of the individual concerned, especially where no other conflicting
private interest is at stake (see Lelas v.
Croatia, no. 55555/08, § 74, 20 May 2010). The applicant, who was in bona fide
possession of the property in 1997 should not be punished for the oversights of
the authorities (see also Gladysheva, cited above, § 69).
. The
Court is further struck by the fact that in 1997 the municipality of
Třebíč was able to take possession of the property on the basis of a
1971 judgment that had been quashed because, in the words of the Judicial
Rehabilitation Act, it was incompatible with the
principles of a democratic society established to safeguard the rights and
freedoms guaranteed by international human rights instruments. In effect, the
interference in 1997 was based on a judgment that, under the domestic laws and
by a judicial decision of the State party, was incompatible with human rights.
. The
Court further notes that the action brought by the applicant was rejected by
all the domestic courts without a decision on the merits, on the ground that the
applicant should have requested the return of the plots of land under the
restitution laws instead of resorting to a civil action. The latter avenue was,
however, as already found above, clearly inaccessible to the applicant at the
time of the interference. At the time when she could have applied for
restitution of the plots of land, she had no reason to do so as she was in full
possession of at least the part of the land that was within the cadastral area
of Třebíč. Such a claim would have been moreover bound to fail
because the applicant was registered as the owner of the property in the land
register at that time and was acknowledged as such by the authorities.
Therefore, the decisions of the domestic courts, in fact, left the applicant
without any possibility of
effectively challenging the measures interfering with her property rights: a
resort to restitution laws did not provide a reasonable opportunity for her in
1997 in that regard because the time-limits for making such a claim had
expired, and at the same time, her civil-law claim was not allowed by the
domestic courts.
. Having regard to all the
foregoing factors, the Court concludes that, as an individual, the applicant
had to bear a disproportionate and excessive burden which cannot be justified
in terms of the legitimate general interest pursued by the authorities.
. There has therefore been a
violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS
. The applicant
further complained under Article 6 of the Convention that the domestic courts
had applied the relevant laws incorrectly and failed to take into consideration
her submissions regarding the non-execution of the order for the seizure of her
property and the impossibility for her to pursue restitution proceedings.
. In the light of all the material
in its possession, and in so far as the matters complained of are within its
competence, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols. They are therefore manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41
OF THE CONVENTION
100. Article 41 of the Convention
provides:
“If the Court
finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
. The applicant claimed 4,393,410 Czech korunas (CZK) in respect
of pecuniary damage and CZK 500,000 in respect of non-pecuniary damage. As
regards costs and expenses, the applicant claimed CZK 339,615, for the expenses
she had incurred both in the course of the domestic proceedings and before the
Court.
. The
Government considered the amounts excessive and asked the Court to reserve the
question of just satisfaction.
. The Court considers that the
question of the application of Article 41 is not ready for decision.
Accordingly, it will be reserved and the subsequent procedure fixed having
regard to any agreement which might be reached between the applicant and the
respondent Government (Rule 75 § 1 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 1 of Protocol No. 1 in
so far as it concerns the part of the plots of land that was situated within
the cadastral area of Třebíč admissible and the remainder of the
application inadmissible;
2. Holds that there has been
a violation of Article 1 of Protocol No. 1;
3. Holds that the question of the application of Article 41 is not ready for
decision;
and accordingly,
(a) reserves
the said question in whole;
(b) invites the
parties to submit, within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, their
written observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing
on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.
Claudia Westerdiek Mark Villiger
Registrar President
