by Josef SVOBODA
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 24 November 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 24 February 2003,
Having regard to the Government’s unilateral declaration made with a view to resolving the complaint that he had been unlawfully deprived of his possessions, requesting the Court to strike the relevant part of the application out of the list of cases, and the applicant’s acceptance of that declaration,
Having deliberated, decides as follows:
The applicant, Mr Josef Svoboda, is a Czech national who was born in 1938 and lives in Horní Litvínov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
On 28 June 1967 the applicant’s mother purchased a family house from the State which had acquired it from former co-owners who had never been compensated while the law provided for such compensation. It appears from an unsigned document of 7 April 1967 that the sale price was fixed at CZK 3,400 (EUR 1321) which the applicant’s parents paid on 21 June 1967. The former National Committee granted the applicant’s mother the right to make personal use of the plots of land attached to the family house, against a single payment of CZK 962 (EUR 37.33).
In June 1989 the applicant’s mother donated the family house and gardens to the applicant. The value of the property was estimated by an expert at CZK 80,065.70 (EUR 3,107).
2. Restitution proceedings
On 7 April 1992 the wife of one of two former owners made a request to the applicant under the Land Ownership Act for an agreement on the return of the property. On 30 January 1992 the applicant informed her that he would not accede to her request. On 14 September 1992 she instituted administrative proceedings in the Moravany District Land Office (pozemkový úřad), seeking recovery of the property or compensation.
On 26 January 1993 the expert appointed by the Land Office concluded that at the date of the expropriation in 1951, the price of the property including the gardens was CZK 132,913 (EUR 5,158).
On 8 December 1994 the Land Office decided that three daughters of the former owners (the wife of one of the former owners did not appear any more) were not the owners of the property which being owned by a natural person who was excluded from the restitution in natura. The daughters were nevertheless entitled to compensation.
On 6 June 1995 the daughters brought an action in the Pardubice District Court (okresní soud) alleging that the acquisition of the house by the applicant’s mother had been vitiated by a breach of the regulations then in force and that she had enjoyed an unlawful advantage in that the price she had been required to pay had been lower than the property’s real value.
In his defence the applicant submitted in particular that the purchase price had been properly calculated under the then law with regard to the poor state of the property, and that he was the bona fide owner, his mother having had no reason to verify or challenge the purchase price.
The expert’s opinion of 28 December 1996, ordered by the District Court, found that the 1967 valuation had included only the house without the non-residential premises. The price of the whole property was fixed at CZK 7,359.60 (EUR 286). The difference between the valuation made in 1967 and the present one was therefore CZK 3,959.60 (EUR 154).
On 16 September 1998 an inspection of the site was carried out. The expert report of 21 September 1998 evaluated the house at CZK 8,510.90 (EUR 330) and the non-residential premises at CZK 698.20 (EUR 27).
In a judgment of 17 September 1999 the District Court allowed the restitution action of the claimants and decided to transfer the property title to them, finding that the applicant’s mother had acquired the property at a price lower than that fixed under the price regulations then in force.
On 14 December 2000 the Hradec Králové Regional Court (krajský soud) upheld the first instance judgment, stating in particular that, from the point of view of section 8(1) of the Land Ownership Act, it was not decisive that the law then in force, including the Civil Code, allowed a sale of property for a lower price than that calculated under the price regulations, the compliance or difference between the purchase price and that fixed pursuant the price regulation being the crucial element for requirements of the Land Ownership Act.
On 27 August 2002 the Constitutional Court (Ústavní soud) dismissed as unsubstantiated the applicant’s constitutional appeal.
On 22 January 2002 the applicant was reimbursed by the Ministry of Agriculture CZK 4,360 (EUR 169) equivalent to the original purchase price and to the payment for the institution of the right to make personal use of the plot of land paid by his mother upon the purchase of the property from the State. On 12 July 2002 he rendered the property to the new owners.
By a letter of 12 January 2004 he informed the Court that the new owners had sold the property, the sale price being allegedly fixed at CZK 860,000 (EUR 33,372). In his observations of 11 October 2005, he affirmed that the sale price could amount to CZK 940,000 (EUR 36,476).
3. Proceedings on reimbursement of costs reasonably incurred for the upkeep of the disputed property
On 15 May 2003 the applicant brought proceedings in the Prague 1 District Court (obvodní soud) against the Ministry of Agriculture seeking reimbursement of the costs reasonably incurred for the upkeep of the property under section 8(3) of the Land Ownership Act. At the hearing of 6 December 2004 he quantified his claim seeking to have reimbursed CZK 171,794 (EUR 6,666) with 10% of interest from 27 January 2001 until the payment of this sum. The Ministry agreed to pay this amount.
On 15 December 2008 the District Court ordered the Ministry to pay the applicant CZK 171,794 with 2% interest since 26 August 2003 until the payment of this sum. It dismissed the applicant’s action as to the rest. The judgment became final on 24 February 2009.
The Court considers appropriate to examine the present complaint under 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.”
On 5 November 2007 the Court received a declaration from the Government with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“1. The Government acknowledge that in the case which is the subject matter of application no. 7419/03 submitted to the Court by Mr Josef Svoboda (“the applicant”) the Czech Republic has, in the light of the specific circumstances of the case, violated the applicant’s right to the protection of property within the meaning of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”);
2. The Government undertake to pay the applicant an amount of CZK 650,000 in compensation for all pecuniary and non-pecuniary damage that the applicant may have suffered due to the above violation of the Convention, including the legal costs and expenses, within three months of the date on which the Court’s judgment on the striking out of the application of the list of cases under Article 37 § 1 of the Convention becomes final under Article 44 § 2 of the Convention;
3. If the above-mentioned amount is not paid within the designated time then from the expiry date, a simple interest on the amount shall be paid at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points;
4. The above amount, including any interest that may accrue on it, shall not be subject to natural persons’ income tax under Section 3, subsection 4(d) of Act No. 586/1992 on income tax, as amended;
5. If the applicant accepts the above amount the Government shall understand that the applicant has waived any and all further claims against the Czech Republic based on the facts of the proceedings before the Court on the basis of the application; the foregoing shall not be construed as prejudging the outcome of the proceedings conducted by the applicant against the Ministry of Agriculture before the Praha 1 District Court under File Ref. No. 21 C 147/2003.”
The applicant disagreed with the Government’s proposal contending that the Court should continue to examine the case.
In a letter of 13 July 2009 the Government informed the Court that they maintained their declaration of 29 October 2007 which had mentioned in point 5 the then pending proceedings before the Prague 1 District Court which terminated in the meantime, with amendments to point 5 newly providing as follows:
“The Government paid the applicant a total amount of CZK 226,791 for reimbursement of (i) purchase price of the property and the payment for the institution of the right to make personal use the plot of land in 2002 and (ii) usefully spent costs on the property, including interest on late payment, and the costs of the proceedings conducted by the applicant against the Ministry of Agriculture before the Praha 1 District Court under File Ref. No. 21 C 147/2003 in 2009. If the Court accepts the terms of this declaration whereby the Government undertake to pay the applicant the additional amount specified in points 2 and 3 above, and strikes the application out of its list of cases, the Government will understand that this will constitute the final settlement of any and all further applicant’s claims against the Czech Republic based on the facts of the application.”
The applicant, in a written reply dated 29 July 2009, submitted with regard to point 5 as amended that he had been paid CZK 171,794 with 2% of interest in respect of costs reasonably incurred for the upkeep of the property, at total CZK 190,817. He also admitted to have been reimbursed the court expenses of CZK 15,000 and the original purchase price of CZK 4,360. He was, however, not ready to accept the declaration as amended.
In a letter of 16 October 2009 he informed the Court that he accepted the terms of the Government’s unilateral declaration of 29 October 2007, what the Court understands as the acceptance of the declaration as amended on 13 July 2009.
The Court notes that the applicant has expressed his willingness to accept the terms of the Government’s declaration. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike this part of the case out of the list.
Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike out of its list of cases the complaint about the unlawful deprivation of the applicant’s possessions;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
1 1 EUR = 25.83 CZK