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FIFTH
SECTION
CASE OF KYSILKOVÁ AND KYSILKA v. THE CZECH REPUBLIC
(Application
no. 17273/03)
JUDGMENT
STRASBOURG
10
February 2011
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Kysilková and Kysilka v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna
Yudkivska,
Julia Laffranque, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17273/03) 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 two Czech nationals, Ms Radmila Kysilková
and Mr Zdeněk Kysilka (“the applicants”), on 23
May 2003.
- The
applicants were represented by Mr J. Mazal, a lawyer practising in
Písek. The Czech Government (“the Government”)
were represented by their Agent, Mr V.A. Schorm, from the Ministry of
Justice.
- The
applicants alleged, in particular, that they had not had a public
hearing by an independent and impartial tribunal during the whole
proceedings and that they had not been able to make comments on the
written observations submitted by the presiding judge at the Regional
Court which had been used in the decision of the Constitutional
Court.
- On
7 February 2006 the President of the former Second Section decided to
give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1927 and 1936 respectively and live in Písek.
- On
16 January 2002 a certain S., the applicants’ neighbour,
received a building permit to build an apartment building.
- The
applicants appealed against the permit, and on 23 April 2002 the
Písek District Office (okresní úřad)
partly modified it. The District Office did not hold a hearing.
- On
29 April 2002 the applicants, through their legal representative,
filed an action against the administrative decision (Zaloba proti
správnímu rozhodnutí) with the České
Budějovice Regional Court (krajský soud),
requesting, at the same time, postponement of the building of the
flats
- In
a decision of 23 May 2002 the Regional Court invited the applicants
to give reasons, within ten days, for their request for the building
permit to be suspended. The court also provided the applicants with
the following notice:
“The court invites the party to the procedure to
clarify whether he agrees to it proceeding without a public hearing
... on the basis of the documents submitted by the parties (Article
250f § 1 (b) of the Code of Civil Procedure). If no reply to
this notice is received within the statutory time-limit, the court
will assume that the party to the procedure does not oppose the court
deciding without a hearing (Article 250f § 2 of the Code of
Civil Procedure).”
-
The applicants were represented in the proceedings by counsel on the
basis of a procedural power of attorney (procesní plná
moc) and the decision was served on him on 24 May 2002.
Apparently, the representative’s son collected the court’s
decision instead of the representative himself. No reply was sent to
the court within the fifteen-day time-limit.
- On
14 June 2002 the Regional Court dismissed the applicants’
action. It did not hold a public hearing, assuming that the
applicants, not having responded to the court’s notice, agreed
to such a procedure.
- On
27 August 2002 the applicants lodged a constitutional appeal (ústavní
stíZnost) alleging, inter alia, a violation of
Articles 6 and 13 of the Convention and Articles 35 and 38 of the
Charter. They further requested that Article 250a of the Code of
Civil Procedure be repealed.
- In
her written observations of 3 October 2002, the presiding judge at
the Regional Court submitted that the court had dealt with the
arguments the applicants had put forward in their action and had
applied Article 250f of the Code of Civil Procedure, having informed
the applicants’ legal representative about their procedural
rights and duties in conformity with that provision.
- On
5 December 2002 the Constitutional Court (Ústavní
soud), without holding a public hearing, rejected the applicants’
appeal as manifestly ill-founded. It included the written
observations of the presiding judge at the Regional Court on the
applicants’ constitutional appeal in its summary of the facts.
The court found that the Regional Court had reviewed the decision of
the District Office of 23 April 2002, had rightly proceeded under
Article 250f § 1b) of the Code of Civil Procedure and had
exhaustively dealt with all the arguments raised by the applicants
after having interpreted and applied the relevant provisions of
national law.
- On
6 September 2007, the Ministry of Justice rejected the applicant’s
request for damages pursuant to Act no. 82/1998.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Code of Civil Procedure (Act no. 99/1963 as in force at the
relevant time)
- Until
31 December 2002, the lawfulness of decisions of the administrative
authorities could be reviewed by the courts in accordance with Part V
of the Code of Civil Procedure (Articles 244-250s). On 27 June 2001
the Constitutional Court declared this part of the Code
unconstitutional (judgment no. 276/2001).
- Article
250a § 1 obliged a claimant who was not a lawyer by profession
to be legally represented before the court.
- Pursuant
to Article 250f § 1f), the court was entitled to deliver
a judgment without an oral hearing at the parties’
suggestion or with their agreement. This provision read as follows:
“1. A court may decide on an action
without holding a hearing by delivering judgment if
a) the impugned decision is non-reviewable
for lack of intelligibility or for lack of grounds, or
b) the parties to the procedure have
concurrently moved for or consented to this.
2. Consent under subsection 1b) shall be
deemed granted also in the event that a party to the procedure does
not, within 15 days of the service of the court’s request,
express an objection to the consideration of the case without a
hearing. The party must be advised on the consequences.”
- The
relevant domestic law concerning the proceedings before the
Constitutional Court is set out in the Court’s judgment
Milatová and Others v. the Czech Republic, no.
61811/00, §§ 39-44, ECHR 2005-V (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE RIGHT TO A PUBLIC HEARING
- The
applicants complained that the national courts had not held a public
hearing and had dealt with their case in their absence. They had not
been informed about the date and place of the hearing held before the
Regional Court and had been, therefore, denied an opportunity to
present their comments on the defendant’s proposal to dismiss
their action. They relied on Article 6 § 1 of the Convention,
the relevant part of which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by an independent and impartial tribunal. ...”
- The
Government admitted that none of the tribunals involved in the
applicants’ case had held a public hearing and that none of the
exceptions laid down in the second sentence of Article 6 § 1 of
the Convention had been applicable. They submitted, however, that the
Regional Court had acted within the ambit of Article 250f § 1 of
the Code of Civil Procedure as in force until 31 December 2002, and
when the applicants had not informed the court in time whether they
would agree to dispensing with a public hearing, it had decided
without holding a hearing in the case. The Government maintained that
the applicants had been duly informed about their rights in the
Regional Court’s decision of 23 May 2002 which had been served
on their representative on 24 May 2002. As the latter had been acting
under a procedural power of attorney dated 26 April 2002, he had been
the only person to whom the court’s decision had had to be
sent. The Government concluded that the applicants had waived their
right to a public hearing.
- Regarding
the proceedings before the Constitutional Court, the Government
maintained that they had been limited to examining questions of
constitutionality and had not constituted a complete and direct
assessment of the appellants’ rights. Moreover, it had not been
necessary for the applicants to express their views orally on the
matter since their case had not been excessively complex.
- The
applicants maintained that they had not waived their right to
a public hearing. Neither a request nor advice within the
meaning of Article 250f of the Code of Civil Procedure had been
served on them. The fact that the letter had been served on their
counsel’s son raised a question as to the date upon which it
had been served. A mere legal fiction could not be an unequivocal
waiver of right, and they had not intended to waive their right to a
public hearing. Moreover, such an assumption could not be made in
this case since the request and the relevant advice had not been
served on the applicants.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The Court reiterates that the entitlement to a “public
hearing” in Article 6 § 1 necessarily implies a right to
an “oral hearing”. However, the obligation under Article
6 § 1 to hold a public hearing is not an absolute one. Thus, a
hearing may be dispensed with if a party unequivocally waives his or
her right thereto and there are no questions of public interest that
would make a hearing necessary. A waiver can be done explicitly or
tacitly, in the latter case for example by refraining from submitting
or maintaining a request for a hearing (see, for example, Håkansson
and Sturesson v. Sweden, judgment of 21 February 1990,
Series A no. 171-A, § 66; and Schuler-Zgraggen v.
Switzerland, judgment of 24 June 1993, Series A no. 263, §
58). Furthermore, a hearing may not be necessary due to the
particular circumstances of the case, for example when it raises no
questions of fact or law which cannot be adequately resolved on the
basis of the case file and the parties’ written observations
(see, Martinie v. France [GC], no. 58675/00, §§
40-41, ECHR 2006-VI).
- The
Court observes that at the material time the Czech Code of Civil
Procedure provided for an oral hearing before the courts dealing with
an administrative action. However, the parties’ attendance was
not mandatory and, if a party did not reply to the court’s
request as to whether he or she agreed that the court proceed without
holding a public hearing (see paragraphs 17-19 above), the court
could decide without a hearing on the assumption that the applicants
had agreed to such a procedure (see paragraph 11 above). The Court
considers that these provisions were not, in themselves, incompatible
with the fair trial guarantees of Article 6 § 1.
- The Court further reiterates that the Convention is
intended to guarantee not rights that are theoretical or illusory but
rights that are practical and effective (see, e.g., Multiplex v.
Croatia, no. 58112/00, § 44, 10 July 2003). It considers
that the right to a public hearing would be devoid of substance if a
party to the case were not apprised of the hearing in such a way so
as to have an opportunity to attend it, should he or she decide to
exercise the right to appear established in the domestic law.
- Turning
to the present case, the Court observes that the applicants were duly
informed about their rights in the proceedings before the Regional
Court in compliance with the relevant provisions of the Code of Civil
Procedure then in force. Referring to the independence of the legal
profession from the State, the Court notes that the fact that the
Regional Court’s notice of 23 May 2002 was collected by the son
of the applicants’ lawyer, who represented them on the basis of
a valid procedural power of attorney, and who then failed to inform
the court about his clients’ position in respect of holding a
public hearing, does not engage the responsibility of the State, the
conduct of the defence being essentially a matter between the client
and his counsel (see, mutatis mutandis, Sejdovic v.
Italy [GC], no. 56581/00, § 95, ECHR 2006-II).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicants unequivocally waived their right to a
hearing before the Regional Court. Moreover, it does not appear that
the dispute in question raised any issues of public importance that
would make a hearing necessary.
- The Court finally observes that the proceedings before
the Constitutional Court were also conducted without a public
hearing. However, these proceedings, limited to the examination of
questions of constitutionality, did not involve a direct and full
determination of the applicants’ civil rights in the
administrative proceedings.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION REGARDING THE FAIRNESS OF THE HEARING
- The
applicants further complained under Article 6 § 1 of the
Convention that they had not been able to make comments on the
written observations submitted by the presiding judge at the Regional
Court, which had been used in the decision of the Constitutional
Court.
- The
Government submitted that the written observations of the Regional
Court had not contained any facts or claims on which the applicants
could have submitted any relevant views, and that the procedural
steps taken by the Constitutional Court, which had not sent those
observations to the applicants, could not have influenced the outcome
of the proceedings on their constitutional appeal. Besides, referring
to the Court’s judgment in the case Milatová and
Others v. the Czech Republic, the Government left the assessment
of the case to the Court’s discretion.
- The
applicants maintained their complaints.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the concept of a fair hearing implies the right
to adversarial proceedings, according to which the parties must have
the opportunity not only to have made known any evidence needed for
their claims to succeed, but also to have knowledge of, and comment
on, all evidence adduced or observations filed, with a view to
influencing the court’s decision (see Nideröst-Huber v.
Switzerland, judgment of 18 February 1997, Reports
1997-I, § 24; Milatová and Others, cited above, §
59 ; Spang v. Switzerland, no. 45228/99, § 32,
11 October 2005; Feliciano Bichão v. Portugal, no.
40225/04, § 36, 20 November 2007; and recently, mutatis
mutandis, Salduz v. Turkey, [GC], no 36391/02,
§ 65, ECHR 2008). In the case of Verdú-Verdú v.
Spain (no. 43432/02, 15 February 2007), adopted after the case of
Milatová and Others, which concerned the lack of
communication, in proceedings before the Constitutional Court, of
pleadings of the public ministry in support of arguments submitted by
the public prosecutor within the framework of the criminal
proceedings brought against the applicant, the Court found that the
pleadings in question could not have had any effect on the outcome of
the proceedings before the Constitutional Court (§ 27).
- The
Court noted in Milatová and Others that, pursuant to
section 42(4) of the Constitutional Court Act, the judge
rapporteur is required to send a constitutional appeal lodged by an
appellant to the other parties and, where appropriate, the joined
parties, inviting them to submit written observations on the appeal,
but that there is no corresponding obligation on the judge rapporteur
to transmit any such observations to the appellant (§ 60).
The Court dismissed the Government’s argument that it was open
to the applicants to consult the case file at the Constitutional
Court and to obtain a copy of any written observations, finding it to
be an insufficient safeguard to secure the applicants’ right to
an adversarial procedure. It stated that as a matter of fairness, it
was incumbent on the Constitutional Court to inform the applicants
that the observations had been filed and that they could, if they so
wished, comment on them in writing (§ 61 with reference to
Göç v. Turkey [GC], no. 36590/97, § 57, ECHR
2002-V).
- The
Court notes that the observations by the Regional Court were
submitted in reply to the applicants’ constitutional appeal and
here, therefore, related directly to the grounds of the appeal,
namely the interpretation of the relevant provisions of the domestic
law by the lower levels of jurisdiction, the examination of the
lawfulness and accuracy of the administrative decision and the
appropriateness of the Regional Court’s decision to proceed
without holding a hearing. The role of the Constitutional Court was
to assess whether these allegations constituted a violation of the
applicants’ rights guaranteed, inter alia, by Articles
35 and 38 of the Charter and Articles 6 and 13 of the Convention
(see paragraph 12 above).
- The
Court notes that the observations in question did not merely refer to
the Regional Court’s judgment, but constituted reasoned
opinions on the merits of the applicants’ constitutional
appeal, manifestly aiming to influence the decision of the
Constitutional Court by calling for the appeal to be dismissed. Thus,
having regard to the nature of the issues to be decided by the
Constitutional Court, it can be assumed that the applicants had a
legitimate interest in receiving a copy of the written observations
of the presiding judge at the Regional Court. The Court does not need
to determine whether the omission to communicate these documents
caused the applicants prejudice; the existence of a violation is
conceivable even in the absence of prejudice. It is for the
applicants to judge whether or not a document calls for their
comments (see Nideröst-Huber, cited above, § 29).
The onus was therefore on the Constitutional Court to afford the
applicants an opportunity to comment on the written observations
prior to its decision.
- Accordingly,
the procedure followed did not enable the applicants to participate
properly in the proceedings before the Constitutional Court and thus
deprived them of a fair hearing within the meaning of Article 6 §
1 of the Convention. There has therefore been a violation of that
provision.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION REGARDING ACCESS TO COURT
- The
applicants also complained that unlike the defendant, they had had to
be legally represented before the courts as provided for in
Article 250a § 1 of the Code of Civil Procedure, which they
found arbitrary.
- The
Court reiterates that the right of access to a court is not absolute
and may be subject to legitimate restrictions which, however, should
not impair the very essence of the right and where it pursued a
legitimate aim and there was a reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (see, e.g., Ashingdane v. the United Kingdom,
judgment of 28 May 1985, Series A no. 93, § 57).
- Turning
to the present case, the Court observes that the requirement of legal
representation before the courts dealing with administrative actions
applied until 31 December 2002. While this requirement was abandoned
in the new Code of Administrative Procedure which entered into force
on 1 January 2003, the Court is satisfied that the aim of that
limitation was at the material time to prevent unqualified
submissions being introduced by litigants, which aim pursued the
legitimate aim of ensuring the proper administration of justice.
Besides, the Court observes that the present applicants filed their
administrative action in time without encountering any difficulty in
finding a lawyer who would represent them in the proceedings before
the Regional Court.
- This
part of the application is therefore manifestly ill-founded and has
to be rejected under Article 35 §§ 3 (a) and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that they had not had any effective
domestic remedies at their disposal as guaranteed by 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.”
- In view of its conclusions on Article 6 § 1 (see
paragraphs 32 and 41), the Court considers that it is not
necessary to examine the case under Article 13 since its requirements
are less strict than, and are here absorbed by, those of Article 6 §
1 (see McGinley and Egan v. the United Kingdom, 9 June 1998, §
106, Reports 1998-III).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants claimed 10,000,000 Czech korunas (CZK) in respect of
non-pecuniary damage.
- The
Government were of the opinion that should the Court find a violation
of Article 6 § 1 of the Convention, that finding would
constitute sufficient just satisfaction in respect of any
non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the applicants’ claim in respect of pecuniary damage.
Further, it agrees with the Government that the finding of a
violation constitutes sufficient just satisfaction for any
non-pecuniary damage the applicants may have sustained in the present
case (see Milatová and Others, quoted above, § 70,
and Vokoun v. the Czech Republic, no. 20728/05, 3 July 2008, §
33).
B. Costs and expenses
- The
applicants also claimed CZE 25,250 for the costs and expenses
incurred before the domestic courts and before the Court.
- The
Government noted that the costs and expenses before the Regional
Court had not been incurred in order to prevent or repair the alleged
breach of the Convention and that the costs and expenses incurred
before the Constitutional Court would be justified in the event of a
finding of a violation of the applicants’ right to a public
hearing. The Government had no objection to the reimbursement of
about CZK 9,500 for costs and expenses incurred in the proceedings
before the Court.
- According
to the Court’s 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 documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of 380 euros (EUR) for
the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the failure to
provide the applicants with the written observations filed by the
Regional Court in the proceedings before the Constitutional Court
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the case
under Article 13 of the Convention;
4. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicants;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 380 (three hundred and
eighty euros), plus any tax that may be chargeable to the applicants,
in respect of costs and expenses, to be converted into Czech korunas
at the rate applicable at the date of settlement;
(b) that
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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
