CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2017 the issue under Article 37 § 1 c) of the Convention which lays down the discretionary power for the Court to strike out an application from its list of cases if it concludes, for any reason, that it is no longer justified to continue the examination of the application. In other words, if the principal judgment has already been handed down and imposed on the parties, the situation is different from that existing at the stage of admissibility and merits. Though such reasoning remains somewhat vague – the Court did not give any compelling reasons for its choice of legal basis – it made a clear choice not to penalise the applicants at an advanced stage of the proceedings. It is worth noting that three judges wrote separate but concurring opinions on that issue, but none of them would accept the Government’s objection. The requests for referral to the Grand Chamber filed by the Government were rejected as well. The value of these judgments also rests in the assessment of the damage sustained by the applicants, although in the case of Žáková , the only contentious issue was that of the moment in time relevant for the evaluation of the plots of land. The Court, however, was not very elaborate in answering the question of the level of compensation for unlawful rent control which existed in the Czech Republic between 2002 and 2006. In the absence of any other unambiguous approach adopted by the national authorities, the Government advocated the administrative formula used by domestic courts, based on the level of rent reached in 2007 when the rent control scheme ceased to lack legal basis and rents generally rose by virtue of the 2006 Act on Unilateral Rent Increase. Consequently, the Court sided with the applicants and ruled that “the determination of the compensation should be based, among other things , 14 on the difference between the rent under free-market conditions and the rent to which the applicants were entitled under the domestic legislation which the Court has found to be unlawful”, 15 without really specifying what these “other things” are. Curiously enough, it referred to the Constitutional Court’s case law on the possibility of landlords to sue their tenants for rent increase, but at the same time completely disregarded the reality in which hardly any landlord had succeeded in obtaining a rent increase or compensation equating to the market value. It is even more curious to note that in spite of the gaps in the Court’s reasoning, national courts proved to be so hungry for a solution to the question of the level of compensation, which they should have answered in a satisfactory manner themselves, that they almost immediately accepted what they had almost categorically refused before. Today, both the Supreme Court and the Constitutional Court concur that compensation should be set at the difference between the market and administrative value of rent. 16 In sum, one may advance that the Court must have found the approach of the Government harsh with regard to both the plea of abuse of the right of petition at the finale of the proceedings and the suggested model of compensation for unlawful rent control, 14 Emphasis added. 15 Čapský and Jeschkeová , judgment on just satisfaction cited above, § 45; Heldenburg , judgment on just satisfaction cited above, § 49. 16 Although the Constitutional Court started by refusing to follow (decision no. I.ÚS 298/17 of 21 March 2017; at that moment the Court’s judgments on just satisfaction were not final), it then radically changed its approach in its judgment no. IV.ÚS 2326/16 of 4 January 2018 when the Supreme Court had already decided to accept without much ado the Court’s legal opinion in a judgment given by the Grand Chamber of its Civil and Commercial Bench no. 31 Cdo 1042/2017 of 13 December 2017.

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