FIRST SECTION
\nCASE OF COLLOREDO MANSFELDOV\u00c1 v. THE CZECH REPUBLIC
\n(Application no. 51896\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n11 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of ColloredoMansfeldov\u00e1 v. the Czech Republic,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Kristina Pardalos, President, Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 51896\/12) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by Ms Kristina ColloredoMansfeldov\u00e1, Czech national (\u201cthe applicant\u201d), who was born in 1940 and lives in Opo\u010dno.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr J. Fr\u00f6hlich, a lawyer practising in Prague.<\/p>\n 3.\u00a0\u00a0The Czech Government (\u201cthe Government\u201d) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice.<\/p>\n 4.\u00a0\u00a0On 4 October 2016 the application was communicated to the Government.<\/p>\n 5.\u00a0\u00a0The Government agreed to the examination of the application by a Committee.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant had a restitution claim concerning movable property located in Opo\u010dno Castle. The movable property was initially confiscated from a predecessor of the applicant during the German occupation of Czechoslovakia in 1942 on the orders of the German Secret State Police, which considered him to be an enemy of the German Reich. After the end of the Second World War, the property was once again confiscated, in 1945, by the Czechoslovak State under the Bene\u0161 decrees. That expropriation was quashed on appeal by the National Council in Prague (zemsk\u00fdn\u00e1rodn\u00edv\u00fdbor) on 21 January 1947 after it had been established that the applicant\u2019s predecessor was of Czechoslovak nationality and had been loyal to the Czechoslovak State. What happened to the property afterwards is disputed and was discussed in the domestic decisions.<\/p>\n 7.\u00a0\u00a0Due to the large number of items claimed, the domestic courts consecutively issued three judgments, each concerning one of the three parts of the claim. They upheld the first part of the applicant\u2019s claim but rejected the second and the third, which are the subject of the present applications.<\/p>\n 8.\u00a0\u00a0In the course of the second proceedings, the courts based their decisions, inter alia, on a decision by the Ministry of Agriculture of 30\u00a0April 1947 by which Opo\u010dno Castle had been declared State cultural property (hereinafter \u201cthe 1947 decision\u201d). The 1947 decision had not been raised with the parties in the course of the hearing and the parties had not received an opportunity to comment on it.<\/p>\n 9.\u00a0\u00a0The situation of the applicant is structurally and contextually the same as that in ColloredoMannsfeld v. the Czech Republic (nos. 15275\/11 and\u00a076058\/12, 15 December 2016).<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0The judicial and extra-judicial rehabilitation legislation<\/p>\n 10.\u00a0\u00a0The relevant domestic laws and practice concerning the restitution of property are described in Gratzinger and Gratzingerovav. the Czech Republic (dec.), no. 39794\/98, \u00a7\u00a7 19-44, ECHR 2002-VII.<\/p>\n B.\u00a0\u00a0The Code of Civil Procedure (Act no. 99\/1963, as amended)<\/p>\n 11.\u00a0\u00a0The relevant legal provisions are described in Kr\u010dm\u00e1\u0159 and Others v.\u00a0the Czech Republic, no. 35376\/97, \u00a7\u00a7 27-28, 3 March 2000.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 12.\u00a0\u00a0The applicant complained that her right to a fair hearing had been violated in the proceedings before the domestic courts. She submitted that the Regional Court had based its decision in the second proceedings on a document which was not adduced as evidence and she could not comment on it and that neither the Supreme Court nor the Constitutional Court took appropriate measures to remedy that defect. She relied on Article 6 \u00a7 1 of the Convention, the relevant part of which provides:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 13.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 14.\u00a0\u00a0The applicant submitted that the legal conclusion of the courts in the second and third set of proceedings regarding the ownership of the property in question had been based on the 1947 decision. However, that piece of evidence had not been brought to the attention of the parties and they had not been able to comment on whether it even existed or was authentic.<\/p>\n 15.\u00a0\u00a0The Government left the assessment of the merits of the complaint to the Court\u2019s discretion.<\/p>\n 16.\u00a0\u00a0The relevant case-law of the Court is summarised in ColloredoMannsfeld (cited above, \u00a7\u00a7 27\u201129, with further references).<\/p>\n 17.\u00a0\u00a0In ColloredoMannsfeld the Court found that the case concerned complex restitution proceedings in which the main issue was the determination of the ownership of movable property on the critical date, that is 25 February 1948 (see Gratzinger and Gratzingerovav. the Czech Republic (dec.), no. 39794\/98, \u00a7 24, ECHR 2002\u2011VII). In this regard, the 1947 decision was relied on by the domestic courts as a key element concerning the relevant facts, even though it was not read out during the hearings or otherwise raised with the parties (see ColloredoMannsfeld, cited above, \u00a7\u00a7 30-32).<\/p>\n 18.\u00a0\u00a0The Court thus concluded, referring to cases against the Czech Republic raising similar issues, for exampleKr\u010dm\u00e1\u0159 (cited above, \u00a7 42) and Milatov\u00e1 and Others v. the Czech Republic (no. 61811\/00, \u00a7 65, ECHR\u00a02005-V) that respect for the right to a fair hearing, as guaranteed by Article 6 \u00a7 1 of the Convention, required that the applicant should have been put on notice of the documentary evidence relied on by the courts and be given the opportunity to comment on it (see ColloredoMannsfeld, cited above, \u00a7 33).<\/p>\n 19.\u00a0\u00a0The Court observes that the present case is identical toColloredoMannsfeld(cited above), both in terms of facts and the merits, in which the Court has found a breach of the right to a fair hearing. Having regard to this conclusion, the Court considers that there has been a violation of Article\u00a06\u00a7\u00a01 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 20.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 21.\u00a0\u00a0The applicant claimed 38,431,975 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.<\/p>\n 22.\u00a0\u00a0The Government stated that should the Court find a violation of the applicant\u2019s right under the Convention, the applicant may avail herself of the opportunity to request the reopening of her case before the Constitutional Court. Accordingly, finding of a violation would constitute sufficient just satisfaction.<\/p>\n 23.\u00a0\u00a0The Court does not discern any causal link between the procedural violation found and the pecuniary damage alleged and it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,400 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 24.\u00a0\u00a0The applicant\u2019s lawyer also claimed \u201ccosts and expenses\u201d. However, he failed to specify the amount claimed or to submit any documents to justify his claim.<\/p>\n 25.\u00a0\u00a0The Government submitted that the applicant\u2019s lawyer had failed to support his claim by relevant documents.<\/p>\n 26.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that no amount has been specified and no documents submitted the Court rejects the claim for costs and expenses.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 27.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaintunder Article 6 \u00a7 1 of the Convention concerning the right to adversarial proceedings admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, EUR 6,400 (six thousand four hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 11 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Kristina Pardalos
\nKsenijaTurkovi\u0107,
\nPauliine Koskelo, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n