CASE OF ŽÁKOVÁ v. THE CZECH REPUBLIC

FIFTH SECTION

CASE OF ŽÁKOVÁ v. THE CZECH REPUBLIC

(Application no. 2000/09)

JUDGMENT

(Merits)

STRASBOURG

3 October 2013

FINAL

20/01/2014

This judgment has become final under 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,

Having deliberated in private on 10 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. 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.

2. 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.

3. On 20 June 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1938 and lives in Landshut, Germany.

5. 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”).

6. On 31 May 1976 the State transferred the right to the use of the land to the Třebíč municipality.

7. 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.

8. 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.

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. Subsequently, the applicant, through her lawyer and her husband, began negotiations with the municipality to find a solution to the situation.

19. 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.

20. 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.

21. On 23 July 2002 the Land Registry rejected her request as unfounded.

B. The land within the cadastral area of Kožichovice

22. 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.

23.  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.

24. 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

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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)

32. 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

33. 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

35. 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.

36. 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

37. 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.

38. 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.

39. 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.

40. 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

41. 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.”

42. The Government contested that argument.

A. Applicability: whether there was a “possession”

1. Arguments of the parties

43. 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.

44. 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.

45. 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.

46. 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

47. 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)).

48. 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).

49. 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).

50. 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.

51. 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.

52. 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.

53. 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

56. 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.

57. 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

59. 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) .

60. 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

61. 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.

62. 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.

63. 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.

64. 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).

65. 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.

66. 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.

67. 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.

68. 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.

69. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies.

70. 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

71. 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.

72. 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.

73. She further maintained that the State could not have become the owner of the land because the confiscation decisions had never been executed.

74. 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.

75. 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.

76. 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.

77. 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.

78. 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

79. 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).

80. 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 Perdigão 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

83. 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

84. 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

85. 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.

86. 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.

87. 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.

88. 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.

89. 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.

90. 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.

91. Overall, the Court does not consider that there was anything in the behaviour of the applicant for which she can be reproached.

92. 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.

93. 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).

94. 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.

95. 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.

96. 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.

97. There has therefore been a violation of Article 1 of Protocol No. 1.

II. OTHER ALLEGED VIOLATIONS

98. 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.

99. 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.”

101. 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.

102. The Government considered the amounts excessive and asked the Court to reserve the question of just satisfaction.

103. 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 WesterdiekMark Villiger
RegistrarPresident

 

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