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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Viktor SERWETNICKY & Anor v the Czech Republic - 13157/04 [2008] ECHR 470 (6 May 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/470.html Cite as: [2008] ECHR 470

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13157/04
by Viktor SERWETNICKÝ and Anna SERWETNICKÁ
against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 6 May 2008 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,

Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 5 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Viktor Serwetnický and Mrs Anna Serwetnická, are Czech nationals who were born in 1937 and 1941 respectively and live in Valašská Bystřice. They are represented before the Court by Mr J. Miketa, of the Czech Bar.

A.  The circumstances of the case

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

On 12 May 1972 the applicants executed a deed of sale under which R.D. and M.D., as vendors, agreed to sell them a farmhouse and the adjoining agricultural land which was farmed by a socialist cooperative. According to the applicants, neither the vendors nor their children had any interest in retaining the agricultural land.

On 25 August 1993 the children of the vendors filed a civil action against the applicants seeking rescission under section 8(4) of Law no. 229/1991 (“the Land Act”), of the part of the deed that concerned the sale of the agricultural land. According to the plaintiffs, although the land was formally transferred by a deed of sale, it followed from an estimation drawn up in context of the sale that the purchase price only reflected the value of the farmhouse; the agricultural land had therefore been transferred without consideration. The applicants, however, purported that in reality they had paid approximately 55,500 Czech korunas on top of the purchase price.

On 5 May 1994 the Valašské Meziříčí District Court granted the action but the judgment was quashed by the Ostrava Regional Court on 29 May 1995.

In a judgment of 11 March 1998 the first-instance court dismissed the action but the appellate court again quashed the judgment.

In a judgment of 20 July 2001 the Valašské Meziříčí District Court partly rescinded the relevant provisions of the deed of sale and partly maintained them, but awarded compensation to the plaintiffs, holding:

“Section 8(4) of the Land Act (Law no. 229/1991 as amended) provides that if a landowner has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building and at the date this Act entered into force the land was still in that person’s possession, the court shall, on application by a person with standing, either (a) order rescission of that part of the sale agreement by which the land was donated or transferred without consideration, or (b) order the current owner to reimburse the price of the land. ...

... It is of considerable importance in the drawing of a conclusion from the point of view of the quoted provisions that the agreement, whereby the landowners transferred without consideration the land to the defendants in connection with the execution of an agreement regarding the adjoining farmhouse, was executed during the period in question (i.e. 1948-1989), and that the land is still in possession of the persons to whom it was transferred without consideration. In this instance, this is undoubtedly the case.”

Consequently, the applicants were obliged to surrender a part of the contentious agricultural land and to reimburse the price of the remainder to the plaintiffs.

On 25 February 2002 the Ostrava Regional Court upheld the first -instance judgment, agreeing with the conclusions of facts and law drawn by the first-instance court and regarding them as in compliance with the constant case-law of the Supreme Court. Replying to one of the applicants’ arguments, the court concluded that under section 153(2) of the Code of Civil Procedure in connection with section 8(4) of the Land Act, the first-instance court was not bound by the petitum. Therefore, it was up to the court to conclude which part of the deed would be rescinded according to section 8(4)(a) of the Land Act, and for what land the plaintiffs would be reimbursed under section 8(4)(b).

In a judgment of 23 January 2003 the Supreme Court dismissed the applicants’ (and the plaintiffs’) appeals on points of law, holding that the District and Regional courts had decided correctly and in compliance with the existing constant case-law.

On 4 April 2003 the applicants lodged a constitutional appeal wherein they alleged that the decisions of the ordinary courts had violated their constitutional rights to judicial protection, to a fair trial and to protection of property.

On 9 October 2003 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded, holding that the contested decisions of the ordinary courts had been substantiated in conformity with the constitutional principles and the courts had drawn conclusions which had been based on correctly established facts.

On 11 April 2007, the applicants filed a request for moral damages with the Ministry of Justice under section 14 of Law no. 82/1998 as amended.

On the same grounds, on 30 April 2007, the applicants brought an action to the Ostrava District Court under section 15(2) of the above-mentioned law. On 4 July 2007 that court transferred the case to the Prague 2 District Court.

B.  Relevant domestic law and practice

The relevant domestic law and practice are set out in the Court’s judgment Zvolský and Zvolská v. the Czech Republic (no. 46129/99, § 25, ECHR 2002 IX) and the Court’s decision Vokurka v. the Czech Republic ((dec.) no. 40552/02 §§ 11, 25-33, 16 October 2007).

COMPLAINTS

THE LAW

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

The Court notes that in the case of Vokurka (cited above, § 65) it found the compensatory remedy provided for by Law no. 82/1998 as amended effective for the purposes of Article 35 § 1 of the Convention in respect of complaints about the length of judicial proceedings in the Czech Republic.

In the instant case the applicants decided to resort to this remedy. However, according to the information submitted to the Court both the proceedings before the Ministry of Justice and the domestic courts seem to be pending.

The Court therefore considers that the applicants have not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The complaint must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

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

The Court reiterates that, according to Article 19 of the Convention, its 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 freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is the national authorities, in particular courts and tribunals, that are charged with interpreting the internal law of a contracting party (see Houfová v. Czech Republic (dec.), no. 58177/00, 1 July 2003).

Regarding the instant case, the Court observes that the domestic courts rendered reasoned decisions which were repeatedly reviewed by the higher –instance courts. The applicants were represented by a lawyer for the most part of the domestic proceedings and had the opportunity to present their arguments, to which the courts responded adequately and with reference to the established domestic case-law. The Court can see no reason why the interpretation by the domestic courts of section 8(4) of the Land Act should be challenged. There is nothing in the case file to indicate that the domestic proceedings were unfair or that the national courts proceeded arbitrarily.

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

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints. 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 violation of their property rights under Article 1 of Protocol no. 1;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President