FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10280/06
by Jitka ENGELMANNOVÁ
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 22 March 2011 as a Chamber composed of:
Dean Spielmann, President,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Isabelle Berro-Lefèvre,
Ann Power,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 14 March 2006,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Jitka Engelmannová, is a Czech national who was born in 1944 and lives in Prague. She was represented before the Court by Ms J. Dospělová, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
I. First set of privatisation proceedings and proceedings on the obligation to enter into an agreement on the surrender and sale of the privatised property
By resolution no. 452 of 18 August 1993 the Government approved a privatisation project submitted by E.M., the applicant’s mother, for a State enterprise and decided that a restitution claim she was entitled to, as valued in that resolution, would be fully deducted from the price of the privatised property. This possibility was envisaged in section 47(1) of the Privatisation Act (Act no. 92/1991).
By resolution no. 568 of 6 October 1993 the Government adopted Principles of the Procedure for Further Privatisations under the Privatisation Act and Act No. 171/1991. On 13 July 1994 a new paragraph (h) was added which read as follows:
“Where the value of a property being purchased under a purchase agreement exceeds 20 million Czech korunas, the buyer has to submit, at the National Property Fund’s request, a binding letter of assurance that he is able to pay the purchase price. In the case of failure to submit this document the Fund shall be entitled to refuse to enter into the purchase agreement and to proceed under section 10(7) of [the Privatisation Act] ...”.
On 22 February 1995 the property in issue was transferred from the State to the National Property Fund (“the NPF”) (Fond národního majetku) with effect from 1 March 1995. Since E.M. had not furnished any binding letter of assurance of her ability to pay the purchase price by 1 March 1995, the NPF concluded with her an interim agreement on the lease of the privatised property. Later, she submitted a letter of assurance from the Czech Savings Bank Ltd. (Česká spořitelna, a.s.) of 11 December 1995 promising to grant a loan of CZE 22,800,000 (EUR 915,299) but, having consulted the provider, the NPF did not find the letter sufficient.
On 15 February 1996 E.M. brought an action before Rychnov nad Kněžnou District Court (okresní soud) against the NPF, seeking to oblige it to enter into an agreement on the surrender and sale of the property of the State enterprise. On 18 March 1996 the NPF noted that the agreement had not yet been concluded because it had been compelled to postpone it due to E.M.’s insufficient financial means.
On 14 April 1997 E.M. surrendered her claim to the applicant.
Following E.M.’s death on 23 September 1997, the judicial proceedings were stayed.
On 11 December 2002 the net value of the inheritance was determined, the applicant, as a testamentary heir, having acquired all the property included in E.M.’s estate.
In a judgment of 18 September 2003, after resuming the proceedings which the applicant continued pursuing in her late mother’s stead, the court decided against her, finding that she did not have locus standi in the proceedings, as it had been decided that the State enterprise was to be sold only to E.M., and that decision could not be reviewed by a court.
On 30 June 2004 Hradec Králové Regional Court (krajský soud) quashed that judgment and sent the case back to the District Court which, in a judgment of 7 December 2005, again dismissed the applicant’s action.
On 21 March 2007 the Regional Court upheld that judgment noting, inter alia, that the applicant had failed to prove that she satisfied the precondition for the conclusion of the purchase agreement, namely, that she was able to pay the whole purchase price. Thus, even if resolution no. 452 had not been repealed on and the ministerial decision of 25 October 2004 had not been adopted, her action could still not have been granted for that reason. The court had to abide by the Government’s privatisation decision, all privatisation decisions being excluded from judicial review by the law. In fact, the substance of these decisions was that the State, as the owner of the property, decided on its disposal. Furthermore, the applicant’s restitution claim had been settled in the follow-up decision of 25 October 2004.
On 27 February 2008 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law finding that the Regional Court’s judgment was not of fundamental importance as to the law. It noted in particular that the interpretation of section 10(3) of the Privatisation Act on which the Regional Court had mainly based its decision had been addressed by the domestic courts including the Constitutional Court (Ústavní soud) in the past and that the Regional Court had followed that case-law.
On 8 July 2008 the Constitutional Court dismissed the applicant’s constitutional appeal as being manifestly ill-founded.
II. Second set of privatisation proceedings
By resolution no. 1008 of 20 October 2004 the Government quashed the relevant part of resolution no. 452 by which E.M.’s privatisation project had been approved. The resolution was adopted upon the Ministry of Finance’s proposal, which stated, inter alia:
“In the decision on the privatisation of the enterprise’s property, a direct sale of the property together with the settlement of the restitution claim (that is, surrender and purchase of the relevant property) was specified as the privatisation method. The wife of the former co-owner of the nationalised company was the acquirer. In 1995 the property of the enterprise was transferred to the National Property Fund ..., but the acquirer failed to pay the purchase price, and the decision was therefore not executed. Subsequently, the acquirer died, and the inheritance proceedings are pending. ... [T]he quashing of the original decision is a prerequisite for a new decision on the settlement of the restitution claim.”
According to the applicant, that resolution was never notified to her.
On 25 October 2004 the Minister of Finance decided that the applicant was to receive half of the original restitution claim in pecuniary compensation; the other half was to be paid to her relative, J.V.M., whose restitution claim had arisen because of certain legislative changes only after the original privatisation project had been approved.
On the same day, the Ministry informed the NPF about the settlement of the restitution claim and requested it to inform the court dealing with E.M.’s estate that on these grounds the State had an obligation to her heirs, which the NPF did on 18 November 2004.
III. Constitutional proceedings on the review of resolution no. 1008 and the Ministry of Finance’s decision of 25 October 2004
On 3 March 2005 the applicant lodged a constitutional appeal against resolution no. 1008 and against the decision of the Ministry of Finance of 25 October 2004 claiming that the resolution, contrary to section 10(8) of the Privatisation Act, had quashed the privatisation only after the property had been transferred from the State to the NPF. She further submitted that J.V.M.’s restitution claim had lapsed before it had been satisfied.
On 15 September 2005 the Constitutional Court dismissed her appeal as manifestly ill-founded. Regarding the privatisation aspect of the case, the court held that under section 10(3) of the Privatisation Act the decision on privatisation had not been rendered within administrative proceedings and that, therefore, the individuals whose privatisation project was under consideration could not be regarded as a party to the proceedings and any decision rendered was not a decision concerning their subjective rights and obligations. The court also noted that according to its case-law a decision on privatisation was a decision of the State as the owner of the property, and that any disposition of the property was an expression and a consequence of the owner’s will. Thus, the liability of any authority which put into effect any privatisation decision was outside the scope of general liability under domestic legislation.
In respect of the restitution aspect of the case, the court held that by her constitutional appeal the applicant had in fact sought satisfaction of her restitution claim in a certain manner, that is within the privatisation; however, no such right existed. The mere fact that the privatisation – and therefore also the applicant’s restitution claim – had been decided upon did not mean that a subjective right had been established, although the fact could have evoked certain expectations in the applicant. If a new privatisation decision had been rendered, the applicant could have sought protection under section 47 of the Privatisation Act or perhaps could have sought damages from the Government or the Ministry of Finance. In the proceedings before the ordinary courts, she could have asserted her complaints submitted in the constitutional appeal. Only with reference to a court decision could it be considered whether her constitutionally guaranteed rights had been violated.
IV. Administrative proceedings on the review of resolution no. 1008 and the Ministry of Finance’s decision of 25 October 2004
On 7 March 2005 the applicant brought an action before Prague Municipal Court (městský soud) against the Government and the Ministry of Finance, seeking to quash resolution no. 1008 and the ministerial decision of 25 October 2004.
On 11 May 2005 the Municipal Court dismissed her action noting that the review of government resolutions was precluded by section 10(3) of the Privatisation Act. In relation to the ministerial decision, the court noted that the applicant would have to raise her claims in civil court proceedings. It also advised her that she could bring a civil action before a district court with jurisdiction in rem within one month of the date on which its decision became final.
The applicant appealed in cassation and in a judgment of 22 August 2006 the Supreme Administrative Court (Nejvyšší správní soud) rejected her appeal, holding, inter alia, as follows:
“The Municipal Court did not err when it ... found the [applicant’s] action inadmissible. ... The restitution claim, which is still being considered in this case, is a subjective entitlement under private law ... It is therefore evident that the entitled person must claim his subjective entitlement in court rather than a through a review of the lawfulness of the privatisation decision. In such cases the court does not decide within administrative justice but within trial proceedings on the existence or non-existence of the entitled person’s claim and its value, and, if applicable, the manner of settlement.
As regards the manner of settlement of the restitution claim, the case must therefore be considered under private law, because a decision is being made in a private case within the limits of the statutory competence of an administrative authority. As from 1 January 2003 these cases, initiated by [civil] actions, are dealt with and decided by courts in civil proceedings under the new part five of the Code of Civil Procedure (as amended by Act no. 151/2002). Protection of private rights that are subject to proceedings before an administrative authority is not secured by a judicial review within administrative justice but by a procedure under part five of the Code of Civil Procedure, as in force since 1 January 2003. Thus, private rights are granted greater protection, for while within administrative justice the court reviews an administrative decision and if it finds the decision unlawful it can only quash it and return the case to the administrative authority for fresh consideration, in proceedings under the new part five of the Code of Civil Procedure it is empowered to decide on the merits of the case, thus substituting the administrative authority’s decision. Therefore, the legislator stipulated in Article 68(b) [of the Code of Administrative Procedure] that an action within administrative justice is inadmissible if it concerns an administrative authority’s decision in a matter that falls under private law.
The present case concerns ... a decision that altered the manner and form of the settlement of a restitution claim, that is, the applicant’s property claims. Under section 47(3) of the Privatisation Act, the entitled person can raise the claim before the courts within fifteen days of the date on which that person is informed about the manner of settlement of the claim. Therefore, the law provides for a remedy sui generis, to be accessed via a court, but the jurisdiction of the court that is to decide on the case must be deduced from substantive law; in the case under consideration, its private-law nature is beyond any doubt. It is possible to infer from the file, and the comments presented, that the applicant has apparently made use of that remedy. ...”
V. Civil proceedings to challenge resolution no. 1008 and the Ministry of Finance’s decision of 25 October 2004
On 11 July 2005 the applicant brought an action before Prague 1 District Court (obvodní soud) challenging resolution no. 1008 and the ministerial decision of 25 October 2004 and seeking to have them quashed.
The Ministry of Finance submitted that no purchase agreement had been concluded with E.M. on the basis of the privatisation decision, because she had failed to submit a bank guarantee for the purchase price. Her restitution claim could not be settled by the surrender of the property because it was not possible to carry out such surrender without the purchase of the property concerned. The NPF therefore requested that the privatisation decision be quashed so that the privatisation could take place in another way and, at the same time, the restitution claim could be settled. The applicant was entitled to the settlement of the restitution due to her mother, but not to the purchase of the property, according to the privatisation decision. The Ministry thus granted the request and, once the original privatisation had been quashed, it settled the restitution claims.
According to the Government, the Ministry had paid financial compensation of CZK 7,106,000 to J.V.M., who had become entitled to the restitution in 2004. The applicant had not yet received the amount of CZK 7,106,000 in financial compensation for her own restitution claim, the Ministry of Finance having claimed receivables from her which exceeded that amount, and which were the subject of separate proceedings.
At a hearing held on 20 May 2009 the applicant proposed a permissive relief, noting that the enterprise had been sold and, therefore, requesting the Ministry of Finance to modify its restitution decision and to pay her the original restitution claim of CZK 14,212,000.
In a judgment of 20 May 2009 the District Court rejected the applicant’s action, noting that she had only requested the quashing of resolution no. 1008 and the Ministry’s decision of 25 October 2004, on which the court was not competent to decide, and she had not taken account in her action of the need to decide on her restitution claim. Apparently, the judgment is not yet final.
B. Relevant domestic law
At the material time the relevant provisions of the Privatisation Act (Act no. 92/1991) read as follows:
Section 10
“... (3) Privatisation proceedings are not subject to the general rules on administrative proceedings and a privatisation decision is not subject to judicial review.
(7) A privatisation decision can be changed by the authority which issued it provided that new serious circumstances that were not known at the time of issuing the privatisation decision and that would have had a substantial influence on that decision emerge after the decision is issued.
(8) The provision of sub-section 7 can be used only before the privatised property has been transferred to the National Property Fund. ...”
Section 47
“(1) Should the title to the privatised property or to part of it have been transferred in the manner described in section 2(3) of Law no. 87/1991 on extrajudicial rehabilitations, the persons entitled under that law shall have a claim, settlement of which shall be stipulated in a decision on the privatisation of that property; the authority competent to take a decision on the privatisation shall inform the entitled person who has asserted his or her claim according to sub-section 2 in writing without any delay after the decision has been taken on the extent of the claim and the manner in which the claim shall be settled.
(3) ... Should the entitled person not agree with the valuation of his or her [restitution] claim in the privatisation decision, or if the claim is dismissed, that person can assert the claim before the courts within fifteen days of the date on which that person was informed about the manner of the settlement of the claim.”
C. Relevant domestic case-law
Judgment of the Supreme Court no. 28 Odo 1638/99 of 1 February 2001
In this judgment the Supreme Court noted the following:
“The decision-making of the Government ... on privatisation on the basis of privatisation projects under [the Privatisation Act], and on the conditions of transfer of the State’s property to other persons, is decision-making on behalf of the State, as the owner of the property, on the disposal of that property. ...
The Government’s privatisation decision ... is not a decision of an administrative authority delivered in administrative proceedings and nor is it a decision on the rights or obligations of a natural or legal person; therefore the courts are not competent to review the decision within administrative justice. ...”
Judgment of the Supreme Court no. 29 Odo 1239/2006 of 11 January 2007
In this judgment, the Supreme Court dealt, inter alia, with the issue of when, and on the basis of what legal act, a contractual legal relationship upon which a privatisation is carried out comes into existence in the process of the “large-scale privatisation” under the Privatisation Act. The Court held, in particular:
“It is evident that ... a privatisation decision, while adopted by the Government of the Czech Republic, does not create a contractual legal relationship; this only comes into existence upon the transfer of the ownership right to the privatised property, even in the case of a purchase agreement concluded within a public auction ...”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the unlawful quashing of the privatisation by the Government could not be reviewed by the ordinary courts.
2. Further, relying on the same provision, she complained that the proceedings before the Constitutional Court had been unfair in that the court’s review of her constitutional appeal had been purely formal, the court had failed to sufficiently respond to her arguments, and it had referred her to a procedure by which she could not obtain the required outcome. The applicant emphasised in this connection that the Government’s resolution quashing the privatisation had never been notified to her, which had been an additional reason why she could not resort to the above-mentioned procedure.
3. Under Article 1 of Protocol No. 1 the applicant submitted that the decision to quash the privatisation interfered with her property rights and that the quashing was in violation of section 10(8) of the Privatisation Act and the relevant legislation concerning the lapse of J.V.M.’s restitution claim.
4. Under Article 13 of the Convention, she asserted that she had had no effective remedy against the violation of her property rights by the Government.
THE LAW
1. The applicant alleged that the decision to quash the privatisation had interfered with her property rights and that the quashing was in violation of section 10(8) of the Privatisation Act and the relevant legislation concerning the lapse of J.V.M.’s restitution claim. She relied on Article 1 of Protocol No. 1 which provides 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.”
1. The parties’ observations
The Government maintained from the outset that the complaint was incompatible ratione materiae. In their opinion, the applicant did not have an existing possession. As to the question whether she had a “legitimate expectation” that her claim would take the form of an ownership right to the disputed property, the Government admitted that E.M.’s restitution claim had been based on section 2(3) of the Extra-Judicial Rehabilitation Act, which had referred to the Privatisation Act, which, however, did not explicitly prescribe the manner of settlement of restitution claims, leaving that to the Government’s decision on the privatisation of the State property in respect of which a restitution claim was raised. Thus, E.M. had had no right to a specific manner of settlement for her restitution claim.
Together with her restitution claim, E.M. had submitted a privatisation project in which she proposed that the privatisation of the State property that she had claimed in restitution should be carried out by a direct sale whereby the property of the State enterprise would be sold to her and the value of the restitution claim deducted from the purchase price. Her project had been adopted and it had been decided in resolution no. 452 of 18 August 1993 that the State enterprise would be sold directly to her, and the conditions for the sale had also been set, including the purchase price and the method of its payment. According to the Government, E.M.’s entitlement to purchase the property in question had been created on the basis of this resolution, which was not a legal act in the sense of the Court’s case-law concerning legitimate expectation. This was confirmed by the national case-law, and the Government referred, inter alia, to the Supreme Court’s decision no. 29 Odo 1239/2006.
Accordingly, the privatisation decision contained in the resolution had not established E.M.’s legitimate expectation, and no entitlement to the purchase of the property of the State enterprise had come into existence for her on that basis. Moreover, after the transfer on 1 March 1995 of the enterprise property to the NPF, the latter was to carry out a direct sale of that property to E.M. However, she had failed to prove that she was able to pay the purchase price. Thus, the resolution could no longer be executed and E.M.’s restitution claim had been settled subsequently in a separate decision of 25 October 2004. As a result, the Government had adopted a new decision in 2004 which had quashed the original privatisation decision. Accordingly, E.M. and the applicant had had no legitimate expectation based on resolution no. 452 of 18 August 1993 as to the manner of settlement of the restitution claim by a direct sale of the State enterprise, and therefore they had had no entitlement to purchase the enterprise’s property.
The applicant did not submit any observations within the time-limit fixed for that purpose.
2. The Court’s assessment
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation” (which must be of a more concrete nature than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right. No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset. Accordingly, a conditional claim cannot be considered an asset (see Gavella v. Croatia (dec.), no. 33244/02, ECHR 2006-XII, and the references cited therein).
Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution or to choose the conditions under which they agree to restore the property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003). On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX).
Turning to the present case, the Court notes that at the time of the quashing of resolution no. 452 neither E.M. nor the applicant had an existing “possession” within the meaning of the Court’s case-law, but rather a proprietary interest in the form of a claim dependent on the conclusion of a purchase contract. It accordingly remains to be examined whether E.M., and subsequently the applicant, could have had any “legitimate expectation” of realising their claim to the property under Czech law.
The Court observes that E.M. had submitted the privatisation project for the sale of the State enterprise, which had been taken up by resolution no. 452 of 18 August 1993. However, pursuant to point h) of the Principles of the Procedure for Further Privatisations under the Privatisation Act and Act No. 171/1991, as amended on 13 July 1994, the realisation of the project depended on the proof of E.M.’s solvency. She submitted to the NPF the bank’s agreement to grant a loan of CZK 22,800,000 (EUR 915,299) which, however, the NPF did not find sufficient.
The Court further observes that, according to the Regional Court’s judgment of 21 March 2007, the applicant who had replaced E.M. in those proceedings had failed to prove that she had satisfied the precondition for the conclusion of the purchase agreement, that is, the ability to pay the whole purchase price. Accordingly, even if further on in the proceedings resolution no. 452 had not been repealed by the Government on 20 October 2004 and the decision of the Ministry of Finance of 25 October 2004 had not been adopted, the applicant’s action to oblige the NPF to enter into an agreement on the surrender and sale of the State enterprise could in any event not have been granted for that reason.
It follows that E.M., and subsequently the applicant, had only a conditional property claim based on resolution no. 452. This conditional claim lapsed as a result of the applicant’s (E.M.’s) failure to prove her ability to pay the whole purchase price. Furthermore, there is no indication that the application of the relevant provisions by the Regional Court was in any way arbitrary.
In the light of these considerations, the applicant cannot claim to have had a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 of acquiring the property on the basis of resolution no. 452. Hence resolution no. 1008 of 20 October 2004, by which the Government quashed the relevant part of resolution no. 452 approving the privatisation project of E.M., did not interfere with the applicant’s property rights guaranteed by Article 1 of Protocol No. 1.
This part of the application is therefore incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicant further complained that the unlawful quashing of the privatisation by the Government could not be reviewed by the ordinary courts. She argued that the Constitutional Court’s review of her constitutional appeal had been formal only, the court having failed to sufficiently respond to her arguments and having referred her to a procedure by which she could not obtain the required outcome. The applicant emphasised in this connection that the Government’s resolution quashing the privatisation had never been notified to her, which was an additional reason why she could not resort to that procedure. She invoked Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
1. The parties’ observations
The Government maintained that the complaint about the impossibility of challenging resolution no. 1008 before a court was incompatible ratione materiae and that Article 6 § 1 of the Convention was therefore inapplicable to the proceedings before the Constitutional Court in which the applicant had challenged the resolution though her constitutional appeal.
Concerning the merits of the applicant’s complaints, the Government argued that the fact that she could not challenge the resolution at issue before the courts did not mean that she had been denied access to a court when claiming her rights arising from the restitution claims. They referred to the proceedings on the surrender and sale of the property.
The Government further stated that after the privatisation decision had been quashed and the Ministry of Finance had newly decided on the settlement of her restitution claim, the applicant had had an opportunity to seek protection of her rights before the courts pursuant to section 47(3) of the Privatisation Act. Indeed, the courts had advised her of this possibility in the proceedings in which she had requested a review of resolution no. 1008, and also in the Ministry of Finance’s decision of 25 October 2004. The fact that she had brought an action for review which was inadmissible in her case, and subsequently incorrectly raised her claims before Prague 1 District Court did not mean that the applicant, who had been legally represented throughout proceedings, had not had access to a court.
The Government added that the present case differed from the Kilián v. the Czech Republic case (no. 48309/99, 7 December 2004), which concerned the impossibility of a full judicial review of an administrative decision delivered within construction proceedings. Unlike that case, the Government’s resolutions in the present application were not administrative decisions, while the decision of the Ministry of Finance was, but the applicant had not made use of the opportunity provided to her by the new legal regulations.
The applicant did not submit any observations within the time-limit fixed for that purpose.
2. The Court’s assessment
a. Review of resolution no. 1008 of 20 October 2004
The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see, e.g., Cordova v. Italy (no. 1), no. 40877/98, § 48, ECHR 2003-I). Moreover, this provision does not guarantee any particular content for those (civil) “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Roche v. the United Kingdom, [GC], no. 32555/96, § 117, ECHR 2005-X).
Turning to the present case, the Court notes that under Czech law the right of E.M., the applicant’s predecessor, to conclude the purchase contract was conditional on presenting a binding letter of assurance of her ability to pay the whole purchase price. It observes, however, that she did not satisfy this condition and, therefore, the purchase contract could not be concluded.
In these circumstances, resolution no. 452 which approved the privatisation project presented by E.M. did not create any civil “right” which was recognised under the domestic law. Consequently, resolution no. 1008 which quashed the privatisation did not concern the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention. Therefore, the Court cannot conclude that the proceedings before the Constitutional Court, which was called to review the impugned resolution, concerned the determination of the applicant’s civil rights and obligations. Accordingly, Article 6 of the Convention is not applicable to these proceedings.
This part of the application is therefore incompatible ratione materiae and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
b. Review of the Ministry of Finance’s decision of 25 October 2004
i. The Court notes that the parties do not dispute that the applicant’s mother and, subsequently, the applicant herself were entitled to restitution under Czech law.
The Court, like the Government, considers that the applicant had at her disposal at least one legal avenue for challenging the Ministry of Finance’s decision of 25 October 2004, and she made use of it, bringing a civil action before Prague 1 District Court. However, her action was rejected as she had merely requested the quashing of the ministerial decision, on which the court was not competent to decide; it had not addressed the issue of her restitution claim. The Court observes in this connection that it appears from the Government’s observations that the judgment could have been challenged on appeal.
In these circumstances, the Court cannot but conclude that this part of the application must be rejected under Article 35 §§ 3 (a) and 4 of the Convention for non-exhaustion of domestic remedies.
ii. In respect of the applicant’s complaint concerning the formalistic review of her appeal by the Constitutional Court and its failure to sufficiently respond to her arguments, the Court reiterates that, according to its established case-law reflecting the need for the effective administration of justice, courts and tribunals should adequately state the reasons on which they base their decisions. The extent to which this obligation applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. However, it cannot be understood as requiring a detailed answer to every argument (see, e.g., Klemeco Nord AB v. Sweden, no. 73841/01, § 39, 19 December 2006). Moreover, where the highest court in a country refuses to accept a case or where it examines a remedy on its merits and dismisses it on the basis that the legal grounds for amending or quashing a contested judgment are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see Nerva and Others v. the United Kingdom, no. 42295/98, ECHR 2002-VIII).
In the case at hand, the Court notes that the Constitutional Court did consider all arguments put forward by the applicant and explained, albeit somewhat briefly, why her claims against the ministerial decision of 25 October 2004 were manifestly unsubstantiated. It therefore cannot be said that the reasoning provided in the Constitutional Court’s decision fell short of the requirements of Article 6 § 1 of the Convention.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Lastly, the applicant complained that she had lacked domestic remedies for her Convention complaints. She referred to Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its conclusions above concerning Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court does not find that the applicant had an arguable claim for the purposes of Article 13, which therefore does not apply (see Boyle and Rice v. the United Kingdom, § 52, 27 April 1988, Series A no. 131).
This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy