Cervenák, Cervenáková, Horvátová, Cervenák, Cervenáková, Mirga and Filko v. the Czech Republic



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)