CASE OF COLLOREDO MANSFELDOVÁ v. THE CZECH REPUBLIC
(Application no. 51896/12)
11 January 2018
This judgment is final but it may be subject to editorial revision.
In the case of Colloredo Mansfeldová v. the Czech Republic,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Kristina Pardalos, President,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 51896/12) 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 Ms Kristina Colloredo Mansfeldová, Czech national (“the applicant”), who was born in 1940 and lives in Opočno.
2. The applicant was represented by Mr J. Fröhlich, a lawyer practising in Prague.
3. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice.
4. On 4 October 2016 the application was communicated to the Government.
5. The Government agreed to the examination of the application by a Committee.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant had a restitution claim concerning movable property located in Opočno Castle. The movable property was initially confiscated from a predecessor of the applicant during the German occupation of Czechoslovakia in 1942 on the orders of the German Secret State Police, which considered him to be an enemy of the German Reich. After the end of the Second World War, the property was once again confiscated, in 1945, by the Czechoslovak State under the Beneš decrees. That expropriation was quashed on appeal by the National Council in Prague (zemský národní výbor) on 21 January 1947 after it had been established that the applicant’s predecessor was of Czechoslovak nationality and had been loyal to the Czechoslovak State. What happened to the property afterwards is disputed and was discussed in the domestic decisions.
7. Due to the large number of items claimed, the domestic courts consecutively issued three judgments, each concerning one of the three parts of the claim. They upheld the first part of the applicant’s claim but rejected the second and the third, which are the subject of the present applications.
8. In the course of the second proceedings, the courts based their decisions, inter alia, on a decision by the Ministry of Agriculture of 30 April 1947 by which Opočno Castle had been declared State cultural property (hereinafter “the 1947 decision”). The 1947 decision had not been raised with the parties in the course of the hearing and the parties had not received an opportunity to comment on it.
II. RELEVANT DOMESTIC LAW
A. The judicial and extra-judicial rehabilitation legislation
10. The relevant domestic laws and practice concerning the restitution of property are described in Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, §§ 19-44, ECHR 2002-VII.
B. The Code of Civil Procedure (Act no. 99/1963, as amended)
11. The relevant legal provisions are described in Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 27-28, 3 March 2000.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. The applicant complained that her right to a fair hearing had been violated in the proceedings before the domestic courts. She submitted that the Regional Court had based its decision in the second proceedings on a document which was not adduced as evidence and she could not comment on it and that neither the Supreme Court nor the Constitutional Court took appropriate measures to remedy that defect. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
13. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
14. The applicant submitted that the legal conclusion of the courts in the second and third set of proceedings regarding the ownership of the property in question had been based on the 1947 decision. However, that piece of evidence had not been brought to the attention of the parties and they had not been able to comment on whether it even existed or was authentic.
15. The Government left the assessment of the merits of the complaint to the Court’s discretion.
16. The relevant case-law of the Court is summarised in Colloredo Mannsfeld (cited above, §§ 27-29, with further references).
17. In Colloredo Mannsfeld the Court found that the case concerned complex restitution proceedings in which the main issue was the determination of the ownership of movable property on the critical date, that is 25 February 1948 (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 24, ECHR 2002-VII). In this regard, the 1947 decision was relied on by the domestic courts as a key element concerning the relevant facts, even though it was not read out during the hearings or otherwise raised with the parties (see Colloredo Mannsfeld, cited above, §§ 30-32).
18. The Court thus concluded, referring to cases against the Czech Republic raising similar issues, for example Krčmář (cited above, § 42) and Milatová and Others v. the Czech Republic (no. 61811/00, § 65, ECHR 2005-V) that respect for the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, required that the applicant should have been put on notice of the documentary evidence relied on by the courts and be given the opportunity to comment on it (see Colloredo Mannsfeld, cited above, § 33).
19. The Court observes that the present case is identical to Colloredo Mannsfeld (cited above), both in terms of facts and the merits, in which the Court has found a breach of the right to a fair hearing. Having regard to this conclusion, the Court considers that there has been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
20. 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.”
21. The applicant claimed 38,431,975 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.
22. The Government stated that should the Court find a violation of the applicant’s right under the Convention, the applicant may avail herself of the opportunity to request the reopening of her case before the Constitutional Court. Accordingly, finding of a violation would constitute sufficient just satisfaction.
23. The Court does not discern any causal link between the procedural violation found and the pecuniary damage alleged and it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,400 in respect of non-pecuniary damage.
B. Costs and expenses
24. The applicant’s lawyer also claimed “costs and expenses”. However, he failed to specify the amount claimed or to submit any documents to justify his claim.
25. The Government submitted that the applicant’s lawyer had failed to support his claim by relevant documents.
26. 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 fact that no amount has been specified and no documents submitted the Court rejects the claim for costs and expenses.
C. Default interest
27. The Court considers it appropriate that the default interest rate 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,
1. Declares the complaint under Article 6 § 1 of the Convention concerning the right to adversarial proceedings admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 6,400 (six thousand four hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage
(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;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Kristina
Deputy Registrar President