AFFAIRE DRUŽSTEVNÍ ZÁLOŽNA PRIA ET AUTRES ET UNE AUTRE AFFAIRE CONTRE LA RÉPUBLIQUE TCHÈQUE

Rezoluția CM/ResDH(2013)122 Două cauze împotriva Republicii Cehe Executarea hotărârilor Curții Europene a Drepturilor Omului (adoptată de Comitetul de Miniștri la 19 iunie 2013, cu ocazia celei de-a 1174-a ședințe a Delegaților miniștrilor) (Družstevní Záložna Pria și alții, Cerere nr. 72034/01, Hotărârea din 31/07/2008 definitivă la 26/01/2009 și Hotărârea din 21/01/2010, definitivă la 28/06/ 2010 Rodinná záložna,spořitelní a úvěrní družstvo și alții, Cerere nr. 74152/01, Hotărârea din 09/12/2010, definitivă la 09/03/2011 și Hotărârea din 19/01/2012/2012, definitivă la 19/04/2012/2012) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârile definitive care au fost transmise de Curte Comitetului în cauzele de mai sus și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației După ce a examinat bilanțul de acțiune furnizat de guvern indicând măsurile adoptate pentru a executa hotărârile, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013) 329 S Electrolux asigurându-se că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL PE CARE își îndeplinește funcțiile în temeiul art. 46 alin. (2) din Convenția în aceste cazuri și DECIDE d'en . Execution of the judgments of the European Court of Human Rights in cases no. 72034/01 Družstevní záložna PRIA v. the Czech Republic and No. 74152/01 Rodinná záložna,spořitelní a úvěrní družstvo, v. the Czech Republic and No. 74152/01 Acțiune Report submitted in its consolidated version by the Czech Government on 14 March 2013 (numai în limba engleză) In the case of Družstevní záložna PRIA, the Court, in its judgment on the Merits of 31 July 2008 which became final on 26 January 2009, fond procedural viols of Article 6 § 1 of the Convention aswell as of Article 1 of Protocol No. 1 to the Convention in conection with the insertion of the aplicant credit union in receivership, while it reserved the question of just satisfaction for later decision. on 21 January 2010, the Court pronounced a judgment on just satisfaction whereby it made an award for costs and expenses and rejected the remainder of the claims. The al doilea judgment became final on 28 June 2010. In the case of Rodinná záložna,spořitelní a úvěrní družstvo, the Court delivered its judgment on the merits on 9 decembrie 2010 which became final on 9 March 2011, and its judgment on justition on 19 January 2012 which became final on 19 April 2012. The outcome of the case was similar to that in Družstevní záložna PRIA. The present report is intendented to information the Committee of Ministers of individual and general measures of execution of the judgments. INDIVIDUAL MEASSURI The government understands that the above judgments do not require them to introduce any other individual measures beside payment to the aplicant credit unions of just satisfaction awarded by the Court as reimbursement of costs and expenses. This is suplemented by thefact that the Court did not find any damage which would have emerged in caustal connection with the established insociention. Still, the government should add that Družstevní záložna PRIA conducted procesing before the Praga 1 District Court on damage allegedly amounting to CZK 1,22000,000. The aplicant decided to withdraw the lawsuit due to its inability to submit evidence and lack of financial resources. Consequently, the district scurt discontinued the procededings by its decision of 26 October 2010, which, in this punct, became final. The aplicant has prin urmare voluntarily decided not to pure one of the domestic avenues available to it in order to claim posibil damages. Rodinná záložna,spořitelní a úvěrní družstvo, has been free to put forward its claims at the domestic level, in particular in the procesedings on damages, and thus to follow the way taken in the past by the aplicant in the other case mentioned in this report. Still, the government is not aware that the aplicant would have initiated such steps. II. GENERAL MEASURIS A) AS TO THE VIOLATION OF Article 6 § 1 OF THE CONVENTION As of 1 January 2003, following the repulsion of Part V of the Code of Civil Procedure by the Constitutional Court and the enactment of a new Code of Administrative Court Procedure, the Administrative Court charges have been entitled to review administrative acts in full juridiction and prin urmare no further general measure appears necessary. The government is of the opinie that after the said changes on administrative justice, there is no major risk of repetition of the violation of Article 6 § 1 of the Convention similar to that identified by the Court in its judgments on the merits. B) AS TO THE VIOLATION OF ARTICOLUL 1 OF PROTOCOL NO. 1 TO THE CONVENTION (i) Identification of problematic issues The government realls that problems identified by the Court in its judgments on the merits under Article 1 of Protocol No. 1 were fundamentally as folows: După impozitare, aplicant creditat unions were prevânded from access to their esential business and accounting documents, which were in sole dispozition of the recepiver, and thus prevânzed from efectivly challenging information referent their economic situation or impozitation of recepivershid respectively. After the amendment of the Credit Unions Act by Act No. 280/2004, the applicant credit unions completely lost the oportunity to challenge the decision on insertion in receivership as its supervisory board ceased to be entitled to lodge the particular procedural motion. (ii) Evaluation of pased changes of law The government is conclinced that, since the time of this assessment, these identificed problems have been remedied due to semnificant legislative amendments and case law evolution. First of all, Act No. 57/2006, efectiv as from 1 April 2006, amended the Credit Unions Act and, interalia , removed sections reconversion. As a result, a insertion of a credit union in receiversship is no longer posibil under any circumstances. It follows that at present, there is obiectivly no risk of a new violation of rights guaranteed by Article 1 of Protocol No. 1 cauză by o situation when a credit union would be placed in receiversship. Therefore, the government believes that this crucial change of legislation alone has been suficient and no further systemic measures to prevent viitoare încălcări of similar kind of Article 1 of Protocol No. 1 to the Convention are required. (iii) Related legal regulation The government would further note that the possibility of into recepversship still exist for subjects active on the financial market other than credit unions, such as banks, investment companies (investiční společnosti), investment funds (investitioniční fondy), insurance companies (pojišśovny), etc. Natura acestor subiecți este fundamentally diferită de crezul unit în many aspects and so the government is of the opinie that the assessment of their pozition fals outside the scop of execution of the judgment of 31 July 2008. Still, the government would point to the features and rent developments of legal regulation referent these entities in order to ilustrate the complex approach of the national authorities to the issues identified by the Court. In relation to the question of procedural entitlement to lodge a remedy, Act No. 126/2002, efectiv as from 1 May 2002, amended the Banks Act so that it explicitly inserted a rule that statutory bodies are no longer restricted from lodging appeals against impozit of recepivership, which is an exception from the standard rule that statutory bodies Provizioane similare: Providing for continuuity of the right to lodge appeals against recepivershi are included in legislation regulating other subjects on the financial market, e.g. Article 109 § 5 of Act No. 189/2004 [Colective Investment Act], art. 139 § 5 letter (a) of Act No. 256/2004 [Enterance on Capital Market Act], or Article § 5 letter (a) of Act No. 363/99 [Indemnance Act], la art. 99 alineatul (4) letter (a) of Act No. 277/2009 [new Insurance Act]. This legislative regulation also reflects the decision of the Supreme Administrative Court of 12 October 2004 No. 5 A 131/2001-69, which reinterpreted the formation law Reference credit in the sense that a supervisory board is entitled to lodge an appeal during recepiversship. Conferning the question of right to access to documentation, the government note that at present this right be inferred from general principles of Administrative Code [Act No. 500/2004]. Moreover, in case a certa administrative decision is based on such a documentation, the documentation then becomes part of the particularar administrativ procedeedings file and subsequently, the access to the documentation in the file is lplicity provided for by Article 17 in connection with Article 38 § 1 and 2 of the Administrator Code [for any person who is party to the procesedings or has legal interest on the proceseedings]. (iv) Publication of the judgments of the Court Finally, the government notes that the Court judgments have been translated and disseminated in acordance with the established Practice, in particular to the Constitutional Court, the Supreme Administrative Court, the Czech National Bank and the Ministry of Finance. III. CONCLUZION The Government of the Czech Republic conclusions that all the necessary measures to execut the judgments have been taken.

Résolution CM/ResDH(2013)122

Deux affaires contre République tchèque

Exécution des arrêts de la Cour européenne des droits de l’homme

(adoptée par le Comité des Ministres le 19 juin 2013,

lors de la 1174e réunion des Délégués des Ministres)

(Družstevní Záložna Pria et autres, Requête n

o

72034/01, arrêt du 31/07/2008, définitif le 26/01/2009 et arrêt du 21/01/2010, définitif le 28/06/ 2010

Rodinná záložna, spořitelní a úvěrní družstvo et autres, Requête n

o

74152/01, arrêt du 09/12/2010, définitif le 09/03/2011, et arrêt du 19/01/2012, définitif le 19/04/2012)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu les arrêts définitifs qui ont été transmis par la Cour au Comité dans les affaires ci-dessus et les violations constatées

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

;

et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée

;

Ayant examiné le bilan d’action fournis par le gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2013)329

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et

DECIDE d’en clore l’examen.

Execution of the judgments of the European Court of Human Rights

in cases nos in cases No. 72034/01 – Družstevní záložna PRIA v. the Czech Republic

and No. 74152/01 – Rodinná záložna, spořitelní a úvěrní družstvo, v. the Czech Republic

Action Report submitted in its consolidated version

by the Czech Government on 14 March 2013

(Anglais seulement)

In the case of Družstevní záložna PRIA, the Court, in its judgment on the merits of 31 July 2008 which became final on 26 January 2009, found procedural violations of Article 6 § 1 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention in connection with the placement of the applicant credit union in receivership, while it reserved the question of just satisfaction for later decision. On 21 January 2010, the Court pronounced a judgment on just satisfaction whereby it made an award for costs and expenses and rejected the remainder of the claims. The second judgment became final on 28 June 2010.

In the case of Rodinná záložna, spořitelní a úvěrní družstvo, the Court delivered its judgment on the merits on 9 December 2010 which became final on 9 March 2011, and its judgment on just satisfaction on 19 January 2012 which became final on 19 April 2012. The outcome of the case was similar to that in Družstevní záložna PRIA.

The present report is intended to inform the Committee of Ministers of individual and general measures of execution of the judgments.

I.

INDIVIDUAL MEASURES

The government understands that the above judgments do not require them to introduce any other individual measures beside payment to the applicant credit unions of just satisfaction awarded by the Court as reimbursement of costs and expenses. This is supplemented by the fact that the Court did not find any damage which would have emerged in causal connection with the established violations.

Still, the government should add that Družstevní záložna PRIA conducted proceedings before the Prague 1 District Court on damages allegedly amounting to CZK 1,220,000,000. The applicant decided to withdraw the lawsuit due to its inability to submit evidence and lack of financial resources. Consequently, the district court discontinued the proceedings by its decision of 26 October 2010, which, in this point, became final. The applicant has therefore voluntarily decided not to pursue one of the domestic avenues available to it in order to claim possible damages.

Rodinná záložna, spořitelní a úvěrní družstvo, has been free to put forward its claims at the domestic level, in particular in the proceedings on damages, and thus to follow the way taken in the past by the applicant in the other case mentioned in this report. Still, the government is not aware that the applicant would have initiated such steps.

II.

GENERAL MEASURES

A) AS TO THE VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

As of 1 January 2003, following the repulsion of Part V of the Code of Civil Procedure by the Constitutional Court and the enactment of a new Code of Administrative Court Procedure, the administrative courts have been entitled to review administrative acts in full jurisdiction and therefore no further general measure appears necessary. The government is of the opinion that after the said changes concerning administrative justice, there is no major risk of repetition of the violation of Article 6 § 1 of the Convention similar to that identified by the Court in its judgments on the merits.

B) AS TO THE VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

(i) Identification of problematic issues

The government recalls that problems identified by the Court in its judgments on the merits under Article 1 of Protocol No. 1 were fundamentally as follows:

After the imposition of receivership, the applicant credit unions were prevented from access to their essential business and accounting documents, which were in sole disposition of the receiver, and thus prevented from effectively challenging information concerning their economic situation or imposition of receivership respectively.

After the amendment of the Credit Unions Act by Act No. 280/2004, the applicant credit unions completely lost the opportunity to challenge the decision on placement in receivership as its supervisory board ceased to be entitled to lodge the particular procedural motion.

(ii) Evaluation of passed changes of law

The government is convinced that, since the time of this assessment, these identified problems have been remedied due to significant legislative amendments and case law evolution.

First of all, Act No. 57/2006, effective as from 1 April 2006, amended the Credit Unions Act and,

inter alia

, removed sections concerning receivership. As a result, a placement of a credit union in receivership is no longer possible under any circumstances. It follows that at present, there is objectively no risk of a new violation of rights guaranteed by Article 1 of Protocol No. 1 caused by a situation when a credit union would be placed in receivership. Therefore, the government believes that this crucial change of legislation alone has been sufficient and no further systemic measures to prevent future violations of similar kind of Article 1 of Protocol No. 1 to the Convention are required.

(iii) Related legal regulation

The government would further note that the possibility of placement into receivership still exist for subjects active on the financial market other than credit unions, such as banks, investment companies (investiční společnosti), investment funds (investiční fondy), insurance companies (pojišťovny), etc. The nature of these subjects is fundamentally different from credit unions in many aspects and so the government is of the opinion that the assessment of their position falls outside the scope of execution of the judgment of 31 July 2008. Still, the government would point to the features and recent developments of legal regulation concerning these entities in order to illustrate the complex approach of the national authorities to the issues identified by the Court.

In relation to the question of procedural entitlement to lodge a remedy, Act No. 126/2002, effective as from 1

May 2002, amended the Banks Act so that it explicitly inserted a rule that statutory bodies are no longer restricted from lodging appeals against imposition of receivership, which is an exception from the standard rule that statutory bodies’ authority is suspended following placement of a subject in receivership. Similar provisions providing for continuity of the right to lodge appeals against receivership are included in legislation regulating other subjects on the financial market, e.g. Article 109 § 5 of Act No. 189/2004 [Collective Investment Act], Article 139 § 5 letter a) of Act No. 256/2004 [Enterprise on Capital Market Act], or Article

30

Concerning the question of right to access to documentation, the government notes that at present this right can be inferred from general principles of Administrative Code [Act No. 500/2004]. Moreover, in case a certain administrative decision is based on such a documentation, the documentation then becomes part of the particular administrative proceedings file and subsequently, the access to the documents in the file is explicitly provided for by Article 17 in connection with Article 38 § 1 and 2 of the Administrative Code [for any person who is party to the proceedings or has legal interest on the proceedings].

(iv) Publication of the judgments of the Court

Finally, the government notes that the Court’s judgments have been translated and disseminated in accordance with the established practice, in particular to the Constitutional Court, the Supreme Administrative Court, the Czech National Bank and the Ministry of Finance.

III.

CONCLUSION

The Government of the Czech Republic concludes that all the necessary measures to execute the judgments have been taken.