AS TO THE ADMISSIBILITY OF
Application No. 29008/95
by Gejza CERVENÁK, Margita CERVENÁKOVÁ, Aranka
HORVÁTOVÁ, Ondrej CERVENÁK, Iveta CERVENÁKOVÁ,
Peter MIRGA and Vojtech FILKO
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 October 1995
by Gejza CERVENÁK, Margita CERVENÁKOVÁ, Aranka HORVÁTOVÁ, Ondrej
CERVENÁK, Iveta CERVENÁKOVÁ, Peter MIRGA and Vojtech FILKO against the
Czech Republic and registered on 31 October 1995 under file
No. 29008/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Czech citizens and reside at Ústí nad Labem
(Czech Republic). Before the Commission, they are represented by Ms.
Klára Veselá-Samková, a lawyer practising in Prague 2.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. The particular circumstances of the case
The applicants are tenants of flats assigned to them in 1990,
1991 and 1992 respectively by the Ústí nad Labem 1 District Office,
which is the owner of the buildings in which the flats are located.
On 24 February 1993 the Ústí nad Labem City Police broke into the
flats concerned and, with the assistance of the Ústí nad Labem 1
District Office, emptied the flats by placing their contents on the
street. The applicants and their families were forced to leave the
flats.
The applicants were informed that their right to use the flats
had been terminated. The applicants were bought train tickets to
Slovakia together with luggage space. They were put on a train under
a continuous police escort.
The applicants had not been informed that the eviction was to be
carried out on that day. They had had no opportunity to secure their
belongings. They had never shown any intention to leave their flats
and depart from the area.
The Ústí nad Labem 1 District Office justified its actions by
claiming that the applicants had indicated their intention to move to
Slovakia, and, for that reason, it had decided to terminate the lease
of the flats.
On 19 May 1993 the applicants instituted civil proceedings before
the Ústí nad Labem 1 District Court in which they asked the court to
find that their leases still subsisted. They also proposed a
preliminary measure regarding access to the flats.
On 11 October 1993 the Ústí nad Labem 1 District Court asked the
applicants to complete their civil action and to clarify
inconsistencies in the documents lodged. On 5 November 1993 the
applicants submitted further information.
On 25 March and 28 June 1994 the applicants complained before the
District Court that the proceedings had not yet started. On
15 July 1994 the President of the District Court noted that the
complaint was justified. The matter was assigned to another judge as
the judge dealing with the case was on maternity leave.
On 18 July 1995 the applicants sent another complaint to the
District Court stating that there had not been any progress in the
proceedings for more than two years. On 21 August 1995 the President
of the District Court replied that the judge dealing with the case was
overloaded with work and, therefore, the proceedings were delayed.
B. Relevant domestic law and practice
Charter of Fundamental Rights and Freedoms
Article 38
[Translation]
"1. Nobody shall be denied his or her statutory judge. (...)
2. Everybody is entitled to have his or her case considered in
public without unnecessary delay and in his or her presence, and
to express his or her opinion on all the evidence submitted.
(...)"
[Original]
1. Nikdo nesmí byt odnat svému zákonnému soudci. (...)
2. Kazdy má právo, aby jeho vec byla projednána verejne, bez
zbytecnych prutahu a v jeho prítomnosti a aby se mohl vyjádrit
ke vsem provádenym dukazum. (...)"
Law No. 182/1993 on the Constitutional Court
Article 72
[Translation]
"1. A constitutional appeal may be introduced by
a) any natural person (...) who claims to be the victim of a
breach by 'a public authority' of the fundamental rights or
freedoms recognised in a constitutional law or an international
treaty (...)"
[Original]
"1. Ústavní stíznost jsou oprávneni podat
a) fyzická (...) osoba (...), jestlize tvrdí, ze zásahem
'orgánu verejné moci' bylo poruseno její základní právo nebo
svoboda zaruCené ústavním zákonem nebo mezinárodní smlouvou
(...)"
Article 82
[Translation]
"1. In its judgment, the Court shall hold that it allows the
constitutional appeal in its entirety, dismisses it in its
entirety, or allows it in part and dismisses it in part.
2. If the Court allows the constitutional appeal, it shall
declare in its judgment:
a) (...), which of the constitutionally guaranteed rights or
freedoms and which provision of a constitutional act or an
international treaty (...) was violated, and which action by a
public authority resulted in the violation;
(...)
3. If it allows the constitutional appeal of a natural or
legal person (...), the Court shall:
a) annul the contested decision of the public authority, or
b) if a constitutionally guaranteed fundamental right or basic
freedom was violated as the result of an action by a public
authority other than a decision, order the authority not to
continue violating this right or freedom and order it, to the
extent possible, to restore the situation that existed prior to
the violation. (...)"
[Original]
"1. Ústavní soud rozhodne nálezem, kterym ústavní stíznosti
zcela vyhoví nebo ústavní stíznost zcela zamítne anebo jí zcásti
vyhoví a zcásti zamítne.
2. Vyhoví-li Ústavní soud ústavní stíznosti, vysloví v nálezu
a) (...) které ústavne zarucené právo nebo svoboda, a jaké
ustanovení ústavního zákona nebo mezinárodní smlouvy (...) bylo
poruseno a jakym zásahem orgánu verejné moci k tomuto porusení
doslo;
(...)
3. Bylo-li vyhoveno ústavní stíznosti fyzické nebo právnické
osoby (...), Ústavní soud
a) zrusí napadené rozhodnutí orgánu verejné moci, nebo
b) jestlize porusení zaruceného základního práva nebo svobody
spocívalo v jiném zásahu orgánu verejné moci, nez je rozhodnutí,
zakáze tomuto orgánu, aby v porusování práva a svobody
pokracoval, a prikáze mu, aby, pokud je to mozné, obnovil stav
pred porusením. (...)"
COMPLAINTS
1. The applicants complain that their eviction from their flats,
organised by public authorities, constituted an unauthorised
interference in their personal and private lives. They also complain
about harassment caused to them by journalists. They invoke, in
substance, Article 8 of the Convention.
2. The applicants also complain under Article 6 para. 1 of the
Convention that their case has not been decided within a reasonable
time, as the Court action has lasted two years and eight months without
any progress in the proceedings.
THE LAW
1. The applicants complain that their eviction from their flats,
organised by public authorities, constituted an unauthorised
interference in their personal and private lives. They invoke, in
substance, Article 8 (Art. 8) of the Convention.
The Commission is not required to examine the question whether
the facts submitted by the applicants disclose any appearance of a
violation of those provisions insofar as, according to Article 26
(Art. 26) of the Convention, it may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law.
The Commission observes that the civil proceedings are still
pending before the Ústí nad Labem 1 District Court and finds that the
domestic remedies have not yet been exhausted.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants also complain under Article 6 para. 1 (Art. 6-1)
of the Convention that their case has not been determined within a
reasonable time, as the court action started two years and eight months
ago and there has been no progress in the proceedings.
The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable
time by a ... tribunal ..."
The Commission is not, however, called upon to decide whether the
facts alleged by the applicants disclose any appearance of a violation
of the above provision. It again recalls that under Article 26
(Art. 26) of the Convention, it may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law. Furthermore, if there exists
mere doubt as to the chances of success of a domestic remedy, it must
be tried (cf. No. 23548/94, Dec. 29.6.94, D.R. 78, p. 146).
The Commission notes that, pursuant to Article 72 para. 1 of Law
No. 182/1993 on the Constitutional Court, it is open to the applicants
to bring the complaints raised before the Constitutional Court in the
context of a constitutional appeal. In such an appeal, the applicants
can raise the complaints relating to the length of the proceedings, by
alleging a violation of Article 38 of the Charter of Fundamental Rights
and Freedoms, which guarantees the right to be heard without
unnecessary delay, or of Article 6 para. 1 (Art. 6-1) of the
Convention, which is directly applicable in Czech law.
The Commission considers, in particular in the light of Article
82 para. 3 of Law No. 182/1993 on the Constitutional Court, that this
remedy could have afforded redress in respect of the situation the
applicants complain of. It cannot therefore be held to be ineffective.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicants,
according to the generally recognised rules of international law, from
the obligation to exhaust the domestic remedies available to them.
It follows that the applicants have not exhausted the remedies
available to them under Czech law and that this part of the application
must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy