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FIFTH
SECTION
CASE OF PEŠKOVÁ v. THE CZECH REPUBLIC
(Application
no. 22186/03)
JUDGMENT
STRASBOURG
26 November 2009
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 Pešková
v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22186/03) 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 Eva Pešková
(“the applicant”), on 14 July 2003.
- The
Czech Government (“the Government”) were represented by
their Agent, Mr V.A. Schorm, of the Ministry of Justice.
- The
applicant alleged, inter alia, that she had been deprived of her
property in violation of Article 1 of Protocol No. 1 to the
Convention.
- On
8 November 2005 the Court decided to give notice of the application
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
I. Restitution proceedings
- In
1979 the applicant purchased a one-third share in certain real estate
in Neštěnice which had been donated to the State by the
original owners in 1966. The purchase price of 25,326 Czech
korunas (CZK) (950 euros (EUR))
for the whole property was fixed by an expert in September 1978.
-
At the time the application was lodged the property was being
used by the applicant’s daughter and her family.
- On
25 August 1992, after the entry into force of Act no. 229/1991
(“the Land Ownership Act”), a certain M. instituted
restitution proceedings in the Benešov District Court (okresní
soud) against five co-owners, including the applicant, seeking
recovery of the property in issue by virtue of section 8 (1) of the
Land Ownership Act. M. alleged that the acquisition of the property
by the applicant and the other co-owners had been vitiated by a
breach of the regulations in force at the time, that they had enjoyed
an unlawful advantage, and that the price they had been required to
pay had been lower than the real value of the property.
- On
29 September 2000, after the case had been examined by the courts at
three levels of jurisdiction between 1995 and 2000, the District
Court ruled against the applicant and the other co-owners and
transferred the title to the property to P., the daughter of the
original plaintiff who had died in the meantime. In the course of the
proceedings, several expert reports assessing the value of the
disputed property at the time of its acquisition by the applicant had
been produced at the request of the District Court: an expert report
valuating the property at CZK 31,012 (EUR 1,165), an audit report by
a company, S., fixing the price at CZK 29,889 (EUR 1,123) and an
amendment to the audit report setting the price at CZK 69,347 (EUR
2,606). It emerged from this amendment that when valuing the property
the earlier reports had been based on the correct price regulation
but certain interpretative directives (směrnice
a pokyny) issued by the Ministry of Finance had been
disregarded. The court found on the one hand that the defendants had
acquired the property at a lower price than that required by the law
in force at the material time. On the other hand, the plaintiff had
failed to establish that they had enjoyed an unlawful advantage when
acquiring the property, in that the father of one of them was a
member of the communist party.
- On
11 April 2001 the Prague Regional Court (krajský soud)
upheld the judgment of the first-instance court. It accepted the
conclusions set out in the amendment to the audit report, as the
reasons for the difference in prices had been satisfactorily
explained. Thus, it considered a new audit, as suggested by the
applicant, to be superfluous. The Regional Court’s judgment
became final on 8 August 2001.
- On
24 September 2002 the Supreme Court (Nejvyšší
soud), without holding a public hearing, dismissed the
applicant’s appeal on points of law (dovolání)
of 20 August 2001, stating, inter alia, as follows:
“The court of cassation finds well-founded [the
applicant’s] arguments challenging the legal conclusions of the
audit report. ... There was no reason to apply ... the particular
provision of section 12 (2) of the Price Regulations, which only
concerned expropriation and was intended to protect persons from whom
real estate was taken ...
Despite this interpretation ..., the court of cassation
could not grant the applicant’s request to quash as incorrect
the judgment of the appellate court. Even if the wear and tear [to
the property] had not been calculated at 70%, as applied by the
amendment to the audit report, but at 80%, as applied in the previous
expert reports, the price ... fixed under the Price Regulations would
have been higher than the purchase price agreed between the parties
... The difference in the prices is thus not based on the subjective
valuation of the expert or his interpretation of the Price
Regulations, but also on the smaller surface area considered by the
original expert ... [as well as] the wrong classification of the
construction ... In these circumstances, the finding of the appellate
court that the defendants had acquired the disputed property at a
price lower than that established by the Price Regulations is correct
...”.
- On
28 January 2003 the Constitutional Court (Ústavní
soud) dismissed a constitutional appeal by the applicant (ústavní
stíZnost) in which she alleged, in particular, a violation
of Articles 11 (right to property) and 36 § 1 (right to
judicial protection) of the Charter of Fundamental Rights and
Freedoms (Listina základních práv a svobod).
- In
December 2004 the applicant was reimbursed by the Ministry
of Agriculture her share of the purchase price of the property,
corresponding to CZK 6,493 (EUR 244). Moreover, the Ministry proposed
the applicant and the other co-owners a sum of CZK 554,421 (EUR
20,833) in compensation for the costs reasonably incurred for
the upkeep of the property. That sum was fixed by an expert and the
applicant was ready to accept it. However, due to an objection by P.,
the new owner of the property, against whom the Ministry of
Agriculture would have had a counterclaim, that sum was not paid
out. In a letter of 4 November 2005, the Ministry of Justice advised
the applicant to seek that compensation by means of a civil action
against the Ministry. The applicant failed to do so however.
II. Inheritance proceedings
-
In an expert report produced for the purposes of inheritance
proceedings after the applicant’s father (one of the co-owners)
had died on 23 November 2000, the disputed property was valued at CZK
1,779,580 (EUR 66,868). According to a resolution of the Prague 4
District Court of 28 August 2001, the one-third share left
by the deceased was acquired by the applicant. The resolution became
final on 13 October 2001.
III. Proceedings for damages
14. In a letter of 11 December 2006 the Ministry of Justice
informed the applicant that it had found that
her right to a determination of her civil claim within a reasonable
time had been violated and that she had been awarded CZK
67,500 (EUR 2,536) in non-pecuniary damages for the length of the
restitution proceedings. In a letter of 20 February 2007 the
applicant informed the Court that she did not wish to pursue her
claim before the domestic courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in matter of restitution are set
out in the Court’s judgment Zvolský and Zvolská
v. the Czech Republic (no. 46129/99, § 25, ECHR
2002 IX). The relevant domestic law
and practice concerning remedies for excessive length of
judicial proceedings are set out in the Court’s decision in the
case of Vokurka v. the Czech
Republic,
no. 40552/02 (dec.), §§ 11-24, 16 October
2007).
16. Under
section 243a of the Code of Civil Procedure, the court of cassation
decides on an appeal on points of law without holding a hearing. The
court holds a hearing if it considers it appropriate or if it has to
review evidence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that she had been deprived of her possessions on
the basis of a mere interpretative directive, not on the basis of a
law or a price regulation. Relying on the same provision, she alleged
that the purchase price reimbursed by the Ministry of Agriculture was
not sufficient to enable the acquisition of an equivalent dwelling.
Article
1 of Protocol No. 1 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.”
A. Admissibility
- The
Government argued that the arguments submitted by the applicant in
her constitutional appeal had not been aimed at a challenge to the
amount of the reimbursed purchase price, nor to the valuation of the
costs reasonably incurred for the upkeep of the property, in respect
of which the applicant could have been compensated under section 8(3)
of the Land Ownership Act. While the purchase price had been
reimbursed to the applicant by the Ministry of Agriculture, the
former had failed to institute court proceedings against the latter
in so far as the costs reasonably incurred for the upkeep of the
property were concerned. The Government therefore proposed that this
complaint be declared inadmissible for non-exhaustion of available
domestic remedies.
- The
applicant contended that the possibility to seek the costs reasonably
incurred for the upkeep of the property did not represent
compensation for deprivation of property.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention is based on the
assumption that the domestic system provides an effective remedy in
respect of the alleged breach. The burden of proof is on the
Government claiming non-exhaustion to satisfy the Court that an
effective remedy was available in theory and in practice at the
relevant time, that is to say that the remedy was accessible, capable
of providing redress in respect of the applicant’s complaints
and offered reasonable prospects of success (see V. v. the United
Kingdom [GC], no. 24888/94, § 57, ECHR 1999 IX).
- In
the present case, the Court notes that under section 8(3) of the Land
Ownership Act, the applicant could have been reimbursed the purchase
price of the property and the costs reasonably incurred for its
upkeep. This act, however, did not envisage the possibility of taking
into account, for the purposes of compensation, the value of the
property at the time of deprivation.
- Given
the rise of the real estate prices between 1979, when the applicant
acquired the disputed property, and 2001, when she was relieved of
it, the Court considers that the applicant did not have the
opportunity to request adequate compensation for the disputed
property. Should the applicant be required to claim an adequate
amount, she would have to seek higher compensation than that
guaranteed under the legislation in force at the material time
(see Dymáček
and Dymáčková
v. the Czech Republic (dec.),
No. 35098/03, 29 October 2003).
- The
Court therefore considers that the opportunity to initiate
proceedings under section 8(3) of the Land Ownership Act did not
represent an effective remedy in the instant case. However, in the
event that a violation of the applicant’s rights is
found, the applicant’s failure to seek compensation in respect
of the costs reasonably incurred for the upkeep of the property
(see § 12 above) would have to be taken into consideration under
Article 41 of the Convention (see, mutatis mutandis, Velikovi
and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99,
48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, §
227, 15 March 2007).
-
In view of the above, the Government’s objection must be
dismissed.
- The
Court considers that the applicant’s complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and finds no other ground to declare it
inadmissible. It must therefore be declared admissible.
B. Merits
1. The parties’ observations
- The
applicant argued that she had been deprived of her possessions on the
basis of a mere interpretative directive, which had been applied when
the amendment to the audit report had been produced, not on the basis
of a law or a price regulation. The price regulation then in
force significantly increased the valuation of the real estate but
set out that the price established was the maximum price. According
to the applicant, where the Land Ownership Act referred to the price
established according to the price regulations then in force, it
should have been interpreted as referring to the usual price, not to
the maximum established according to the price regulations.
- The
Government maintained that the applicant had been deprived of her
possessions on the basis of the Land Ownership Act and the
interpretative directives applied when the amendment to the audit
report had been drawn up had merely been
used as an instruction on the methodology for the valuation of the
property.
2. The Court’s assessment
- In
the present case the Court finds, and it is not disputed by the
parties, that the applicant suffered an interference with her right
of property which amounted to a “deprivation” of
possessions within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1. The Court must therefore
examine the justification for that interference in the light of the
requirements of Article 1 of Protocol No. 1.
- It
reiterates that the first and most important requirement of Article 1
of Protocol No. 1 is that any interference by a public authority with
the peaceful enjoyment of possessions should be lawful: the second
sentence of the first paragraph authorises a deprivation of
possessions only “subject to the conditions provided for by
law” and the second paragraph recognises that the States have
the right to control the use of property by enforcing “laws”.
Moreover, the rule of law, one of the fundamental principles of a
democratic society, is inherent in all the Articles of the Convention
(see Pincová and Pinc v. the Czech Republic, no.
36548/97, § 45, ECHR 2002-III).
- The
Court observes that the deprivation of the applicant’s
possessions was based on the Land Ownership Act, which made it
possible for persons satisfying the relevant conditions to recover
certain types of property and therefore authorised the
dispossession of the persons in possession of the property concerned.
The price regulation and interpretative directives were applied for
the purpose of the valuation of the property. The Court finds that
the requirement of lawfulness was met.
- The
Court must now ascertain whether this deprivation of possessions
pursued a legitimate aim, that is whether there was a “public
interest” within the meaning of the second rule set forth in
Article 1 of Protocol No. 1. It considers in that connection that,
because of their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to appreciate what is “in the public
interest”. Under the system of protection established by the
Convention, it is thus for the national authorities to make the
initial assessment of the existence of a problem of public concern
warranting measures of deprivation of property. They accordingly
enjoy in this sphere a certain margin of appreciation, as in
other areas to which the Convention guarantees extend (see Pincová
and Pinc, cited above, § 47).
- Furthermore,
the notion of “public interest” is necessarily extensive.
In particular, the decision to enact laws expropriating property will
commonly involve consideration of political, economic and social
issues. The Court, finding it natural that the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one, will respect the legislature’s
judgment as to what is “in the public interest” unless
that judgment be manifestly without reasonable foundation (ibid., §
48).
- The
Court notes that the aim pursued by the Land Ownership Act is to
attenuate the effects of the infringements of property rights that
occurred under the communist regime and understands why the Czech
State should have considered it necessary to resolve this problem,
which it considered damaging to its democratic regime. The general
purpose of that Act is therefore “in the public interest”
(see Pincová and Pinc, cited above, § 51).
- The
Court observes that any measure which interferes with the right to
peaceful enjoyment of possessions 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. The concern to achieve this balance is reflected
in the structure of Article 1 of Protocol No. 1 as a whole,
including therefore the second sentence, which is to be read in the
light of the general principle enunciated in the first sentence. In
particular, there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised by any measure depriving a person of his possessions. Thus,
the balance to be maintained between the demands of the general
interest of the community and the requirements of fundamental rights
is upset if the person concerned has had to bear a “disproportionate
burden” (see Pincová and Pinc, cited above, §§
52-53).
- Consequently,
the Court has held that the person deprived of his property must in
principle obtain compensation “reasonably related to its
value”, even though “legitimate objectives of ‘public
interest’ may call for less than reimbursement of the full
market value” (ibid.). It follows that the balance mentioned
above is generally achieved where the compensation paid to the person
whose property has been taken is reasonably related to its “market”
value, as determined at the time of the expropriation.
- In
the present case, the applicant asserted that while she and other
co-owners had invested more than CZK 1,000,000 (EUR 37,595) in the
upkeep and reconstruction of the property, she had been reimbursed by
the Ministry of Agriculture her share of the original 1979 purchase
price. The Ministry had offered her and other co-owners another CZK
554,421 (EUR 20,844) in compensation for the costs reasonably
incurred for the upkeep of the property (see paragraph 12
above). According to the applicant, such compensation was not
sufficient to buy even a one-room flat. The disputed property was
valuated at about CZK 1,800,000 (EUR 67,672) for the needs of the
inheritance proceedings in 2000 and the new owner put the house on
the market for CZK 2,500,000 (EUR 93,989).
- The
Government asserted that the Land Ownership Act maintained
a reasonably proportionate relationship between the means
employed and the aim pursued, since it required, in addition to
the illegal transfer of the property concerned to the State, a
further element of illegality vitiating the transfer of the same
property from the State to a natural person. At the same time, it
entitled the latter to reimbursement of the purchase price and the
costs reasonably incurred for the upkeep of the property. They
further stated that the applicant had agreed with the amount offered
by the Ministry of Agriculture in compensation of the costs
reasonably incurred for the maintenance of the property. Therefore,
and also taking into consideration the prices of building materials
before 1990, the applicant’s allegations that she and other
co-owners had invested more than CZK 1,000,000 (EUR 37,595) in the
disputed property did not appear to be convincing.
- The
Government further pointed out that that in 2000 the value of the
property had been established within a different set of proceedings
and according to different price regulations from those applied
in the restitution proceedings.
- Finally,
the Government stressed that the disputed property had not been used
by the applicant as her permanent residence. Accordingly, the burden
to be borne by the applicant was not excessive and the balance
between the demands of the general interest and the protection of the
right to peaceful enjoyment of possessions was maintained.
- The
Court observes that the purchase price of the property in issue was
initially fixed by the expert in 1978 at CZK 25,326 (EUR 952). In the
course of the restitution proceedings, the newly appointed experts
fixed the price at CZK 31,012 (EUR 1,166), then at CZK 29,889 (EUR
1,124) and finally at CZK 69,347 (EUR 2,607) (see paragraph 8
above). It is true that the Supreme Court’s judgment of 24
September 2002 explained those differences and stressed that when
producing the first two reports, the experts had wrongly classified
the property and had taken into consideration only smaller surface
area. Nonetheless, given those divergences, in particular the
difference between the last two prices set by the same expert, the
applicant could hardly be aware at the time of the purchase of the
property that the purchase price was lower than that required by the
law then in force.
- The
Court also observes that no unlawful advantage on the part of the
applicant when acquiring the property was either established in the
domestic proceedings, or alleged by the Government.
- It
can be, therefore, concluded that the applicant acquired the property
in good faith and could not influence the purchase price.
- The
Court further notes that the original purchase price reimbursed to
the applicant together with the proposed amount of compensation
for costs reasonably incurred for the upkeep of the property
cannot be regarded as reasonably related to the market value of the
property established in 2000 in the context of inheritance
proceedings. Even assuming that this expert report was based on price
regulations different from those applied in restitution proceedings,
the Government failed to show that it does not reasonably reflect the
value of the property at the time when the applicant was dispossessed
of it. Moreover, the applicant would have had to
institute another set of court
proceedings against the Ministry of Agriculture should she wish to
obtain compensation in
respect of the above-mentioned costs.
- The
Court notes that the property in issue did not constitute the
applicant’s permanent residence, however, it was used by her
daughter and other members of her family.
- The
above suffices, in the Court’s view, to conclude that the
applicant has had to bear an individual and excessive burden which
has upset the fair balance that should be maintained between the
demands of the general interest on the one hand and protection of the
right to the peaceful enjoyment of possessions on the other. There
has therefore been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF THE LENGTH OF THE RESTITUTION PROCEEDINGS
- The
applicant also complained that the length of the restitution
proceedings had been in breach of the “reasonable time”
requirement within the meaning of Article 6 § 1 of the
Convention which provides, in so far as relevant:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal.”
- The
Government objected that the applicant could have resorted to the
compensatory remedy provided for in Act no. 82/1998, as amended.
- The
Court reiterates that an applicant’s status as a “victim”
within the meaning of Article 34 of the Convention depends on whether
the domestic authorities acknowledged, either expressly or in
substance, the alleged infringement of the Convention and, if
necessary, provided appropriate redress (see Cocchiarella
v. Italy [GC], no. 64886/01, § 71,
ECHR 2006-V).
- Bearing
in mind that the Ministry of Justice acknowledged the unreasonable
length of the restitution proceedings in awarding the applicant
non-pecuniary damages on this ground, the Court considers that the
first condition laid down in its case-law has been satisfied.
- As
regards the second condition, that is appropriate redress from the
authorities for the wrong suffered, the Court must determine whether
the sum awarded can be considered sufficient to make good the alleged
damage and breach (see Dubjaková
v. Slovakia (dec.), no. 67299/01,
19 October 2004).
51. In the light of the material in the
case file and having regard to the particular circumstances of the
case, the Court considers that the sum awarded to the applicant in
respect of non-pecuniary damage she might have sustained in the
restitution proceedings can be considered
sufficient and appropriate redress for the violation suffered. The
Court thus considers that the decision of the Ministry of Justice was
consistent with the Court’s case-law. It therefore concludes
that the applicant can no longer claim to be a “victim”
within the meaning of Article 34 of the Convention of the
alleged violation of her right to a hearing within a reasonable
time.
- It
follows that this part of the application must be rejected
in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
ON ACCOUNT OF UNFAIRNESS OF THE RESTITUTION PROCEEDINGS
- The
applicant complained that the Supreme Court, having found errors in
the amendment to the audit report, had reached its own legal
conclusions without holding a public hearing which the parties and
experts could have attended. She also alleged that, although the
amendment to the audit report had increased the purchase price by
230%, the national courts had not accepted her suggestion that a new
expert opinion be drawn up. The relevant part of Article 6 § 1
of the Convention reads as follows:
“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. In particular, 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. Moreover, 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 [GC], no. 30544/96, § 28, ECHR 1999-I).
- In
the present case the Court observes that the Supreme Court limited
itself to reassessment of evidence that had been reviewed by the
lower courts earlier in the proceedings, on the basis of which it
held that the applicant and the other co-owners had acquired the
disputed property at a price lower than that established by the
Price Regulations. It partly endorsed the conclusions of the lower
courts and stated sufficient reasons why it had refrained from
quashing the previous judgments.
- The
Court further notes that in the judgment of 11 April 2001 the Prague
Regional Court addressed the differences in the valuation of the
disputed property and had found that the amendment to the audit
report explained them sufficiently. That court also responded to the
applicant’s request to order another expert report but held
that such a report would have been superfluous. In its judgment of 24
September 2002 the Supreme Court again addressed the issue of
valuation and reached the same conclusion as the lower courts.
- The
Court thus considers that the domestic courts stated sufficient
reasons for their conclusions and did not omit to respond to the
applicant’s request.
-
In the light of these considerations the Court finds that the
applicant was not deprived of a fair hearing within the meaning of
Article 6 § 1 of the Convention.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- In
respect of pecuniary damage the applicant claimed CZK 1,779,580 (EUR
66,904), which sum represented the value of the property fixed by an
expert report in 2000.
- The
Government stated that as of the date on which the ultimate decision
in the restitution proceedings had become final, the applicant had
been a one-third owner of the disputed property. The subsequent
decision in the inheritance proceedings that had granted the
one-third share left by the applicant’s father to the applicant
had not taken into consideration the outcome of the restitution
proceedings.
- They
also submitted that the applicant had been reimbursed her share of
the purchase price and that the domestic legislation had allowed her
to seek reimbursement of the costs reasonably incurred for the upkeep
of the property, which she had failed to do.
- The
Court considers that it is not required to decide whether or not the
applicant became the owner of the one-third share of the property
left by her father according to the Czech legislation. For the
purposes of Article 41 of the Convention, it will consider the
situation which would have existed should the interference with the
applicant’s property rights not have occurred. Accordingly, it
will consider the applicant a two-thirds owner of the disputed
property.
- The
Court must however accept the Government’s argument that the
applicant was reimbursed a part of the purchase price and that she
could have sought reimbursement of the costs reasonably incurred for
the upkeep of the property at domestic level.
- Accordingly,
ruling on an equitable basis and in the light of its case-law, the
Court considers it appropriate to award the applicant EUR 30,000 for
pecuniary damage.
B. Costs and expenses
- The
applicant claimed CZK 12,957 (EUR 487) as translation fees and
submitted an invoice to that end.
- The
Government submitted that it was not clear which translation the
invoice covered and considered a sum of EUR 200 to be sufficient.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria as well as to the fact that the
application has been partly declared inadmissible, the Court
considers it reasonable to award the sum of EUR 240 covering
costs of the proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant’s property rights admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Czech korunas at the rate applicable on
the date of settlement:
(i)
EUR 30,000 (thirty thousand euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii)
EUR 240 (two hundred and forty euros) in respect of the costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
