BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
KINSKÝ v. THE CZECH REPUBLIC
(Application
no. 42856/06)
JUDGMENT
STRASBOURG
9 February
2012
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 Kinský v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42856/06) 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 an Austrian national, Mr František
Oldřich Kinský (“the applicant”), on 18
October 2006.
- The
applicant was represented by Mr J. Čapek, a lawyer practising in
Hradec Králové. The Czech Government (“the
Government”) were represented by their Agent, Mr Vít A.
Schorm, of the Ministry of Justice.
- The
applicant alleged, in particular, that he had not had a fair trial
and that his property rights had thereby been breached
- On
19 May 2009 the President of the Fifth Section decided to give notice
of the application to the Czech Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1). The Government of Austria were
invited to state whether they wished to submit written comments on
the case (Article 36 of the Rules of Court). They did not avail
themselves of that possibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and died on 2 April 2009. On 30 April
2009 the applicant’s son and heir, Mr Carlos Kinský,
informed the Court that he wished to pursue the application
originally introduced by his father.
-
Through more than one hundred civil actions for determination of
ownership lodged with Czech courts against the State, local
municipalities and third persons, the applicant sought to recover
property seized by Czechoslovakia after the Second World War. At that
time, the applicant, an eight-year-old child, had allegedly been the
owner of the property. During the confiscation his interests had
allegedly not been protected by any representative despite the
requirements of the law applicable at the time.
- According
to the Government, the total value of the property claimed by the
applicant was estimated by the police at approximately 50-60 billion
Czech korunas (approximately 2-2.4 billion euros).
A. Proceedings instituted before the Děčín
District Court
- On
9 October 2003 the Děčín District Court (okresní
soud) dismissed the applicant’s action against the State,
represented by the Ministry of the Interior, to determine ownership
of certain real estate, finding that the property had been duly
confiscated in 1945 pursuant to Presidential Decree No. 12/1945. A
large volume of archive documents was taken as evidence during the
proceedings.
- The
applicant appealed, asserting, inter alia, that the District
Court had omitted to take certain evidence.
- On
27 January 2005 the Ústí nad Labem Regional Court
(krajský soud) upheld the judgment of the court of
first instance.
- On
23 November 2005 Section no. 28 of the Supreme Court (Nejvyšší
soud), which is responsible for restitution matters, rent cases
and litigations concerning recognition of foreign decisions,
dismissed as inadmissible the applicant’s appeal on points of
law (dovolání). It found that it had not been
conclusively established that the applicant’s property had been
duly confiscated, but that in any case the property had been
transferred to the State, which had used it since then. Applying its
previous case-law, the court held that a property taken by a State
before 1990 could not be claimed in civil proceedings but only under
the restitution laws.
- On
18 April 2006 the Constitutional Court (Ústavní
soud) dismissed the applicant’s constitutional appeal
whereby it was contended that he had not had a fair trial and had
been discriminated against. The court relied on its stance, enshrined
particularly in its opinion no. Pl. ÚS-st. 21/05, according to
which a civil action for determination of ownership could not be used
to circumvent the restitution legislation, and consequently found
that the detailed arguments challenging the merits of the decisions
were irrelevant.
-
On 13 November 2007 the District Court dismissed the applicant’s
nullity action (Zaloba pro zmatečnost) asserting bias on
the part of the District Court judge who had dealt with the civil
proceedings. Referring to decision no. II. ÚS 71/06 of the
Constitutional Court of 28 February 2006, it held that the activities
of certain politicians in creating a negative atmosphere around the
applicant’s actions had been unacceptable in a system based on
the rule of law. Similarly, it held that the obligation imposed on
courts by the Ministry of Justice to report to it on the applicant’s
proceedings had been incompatible with the principle of separation of
powers between the judicial and executive branches of government.
Nevertheless, it did not find that these activities had compromised
the impartiality of the particular judge at the Děčín
District Court challenged by the applicant.
B. Statements of politicians regarding the cases
brought by the applicant
- At
the relevant time various members of the Government and Parliament
made public statements commenting on the proceedings instituted by
the applicant. The media reported, inter alia, on the
following statements.
- The
daily newspaper Právo published an article on 26 June
2003 entitled “Dostál [the Minister of Culture] wants to
convene a meeting regarding restitutions” about the reaction of
politicians to a court decision upholding one of the applicant’s
claims. The article quoted Mr Nečas, then an M.P. and
vice-president of the second largest party in the Parliament, as
saying:
“I do not know how we as legislators can do
anything about the absolutely insane rulings of judges that suggest
that they are independent, but in this instance independent of common
sense. Questioning the seizure of property of persons who were
demonstrably Nazis simply on the basis of completely formal
administrative details, such as that a document from 1946 lacks a
stamp or that the stamp is square instead of round, gives rise to
misgivings about the train of thought of the judge involved.”
- On
30 June 2003 the weekly newspaper Týden published an
interview with the Minister of Culture, Mr Dostál, in which he
said, inter alia:
“I oppose attempts to return property to active
Nazis or their children, as happened in the case of Mr Oldřich
Kinský.”
- On
2 July 2003 the website novinky.cz published comments by
several politicians regarding another of the applicant’s cases
where a court had ruled in his favour. Mr Nečas opined as
follows:
“I cannot understand what mental processes members
of our judicial system could have gone through to reach such
conclusions.”
- On 3 July 2003 Právo published another
interview with the Minister of Culture, in which he disagreed with
the courts’ decisions upholding one of the applicant’s
claims:
“[I]f other judges decide similarly, then they
will have to bear full responsibility for the fact that the State
will be obliged to surrender property acquired under the
[Presidential] Decrees.”
The
minister also mentioned a meeting of politicians and lawyers
regarding protection of the Presidential Decrees.
- Several
politicians, including the President and the Prime Minister, convened
a series of meetings between themselves and lawyers on the issue of
civil proceedings for the restitution of property acquired before
1948 in civil proceedings, like those brought by the applicant.
According to media reports, the meetings resulted in several options
for avoiding such decisions by courts, including requesting the
Supreme Court to unify the divergent case-law, issuing new and
perfect confiscation orders, adding an amendment to the Civil Code to
prohibit actions for the determination of ownership of property
acquired by the State before 1990, or amending the Constitution to
the same effect.
- On
25 September 2003 Právo reported on a hearing before
Děčín District Court in the proceedings that are the
subject of the present application. The hearing was also attended by
the vice-governor of the Ústí nad Labem Region
(místohejtman Ústeckého kraje) and a
member of the governing party who said: “I am not here as a
politician, but as the son of parents that Nazis deported to a camp.
Today a counsel defends a descendant of the Nazis. I will do anything
within my power so that these people do not achieve what they want”.
- On
14 December 2003 the weekly newspaper Respekt published an
interview with a Member of Parliament and a member of the Committee
on Constitutional and Legal Affairs who said that the applicant had
no right to restitution of any property. When asked whether the
resolution of these questions should not be left to independent
courts she replied that in her view they had not influenced the
courts but that some court decisions had been wrong and that the
courts were so independent as to be independent of laws.
C. Ministry of Justice’s requests for reports on
the applicant’s proceedings
- On
12 January 2004 the Ministry of Justice sent letters to the
presidents of regional courts asking them to provide it with
information on a monthly basis on the developments in the proceedings
brought by the applicant. It reasoned that it was requesting the
information because of heightened interest of the media in these
proceedings.
- The
Ústí nad Labem Regional Court, like the other regional
courts, complied with this request and regularly forwarded to the
Ministry information on the applicant’s proceedings within its
region, including reports from the Děčín District
Court drawn up by the judge dealing with the actions brought by the
applicant. The reports included information about the proceedings
which are the subject matter of this application, in which, at that
time, appellate proceedings were pending.
- The
reports from all the regional courts where proceedings brought by the
applicant were being conducted included procedural steps taken in the
proceedings, the names of the defendants, the subject matter of the
proceedings and the name of the judges dealing with the cases.
- On
8 July 2004 the Ministry informed the Regional Court that it no
longer wished to receive the information on a monthly basis, but only
once every three months.
- On
7 November 2006 the Ministry informed the regional courts that it was
no longer necessary to provide this information.
D. Police investigation of the applicant and his
counsel
- In
2004, by order of a deputy of the Police President, the police set up
a special investigative team code-named “Property” for
the purpose of carrying out tasks relating to the examination of a
suspicion of unlawful surrender of the Czech Republic’s
property to natural or legal persons. The team’s activities
consisted of a comprehensive examination of the suspicion that such
criminal acts (which in their view could lead to pecuniary loss
amounting to tens of billions of Czech crowns) had been committed.
- On
10 March 2004 the police started investigating the applicant and his
counsel on suspicion of fraud. The police contended that the
investigation was justified by the applicant’s attempts to
fraudulently claim in civil proceedings assets confiscated in 1945
under the Presidential Decrees as enemy property. They suspected that
in the course of the civil proceedings the applicant had
intentionally withheld relevant facts in order to support his action.
- On
an unspecified date in the course of the investigation, the police
sent requests to the Děčín District Court and the
competent department of the Ministry of the Interior for the purpose
of quantifying the total value of the property claimed by the
applicant and obtaining the applicant’s submissions and
decisions of the court in his case. Both authorities complied with
the requests.
- On
27 April 2004 the Praha-východ District Court, at the request
of the police, ordered the production of the records of two phone
lines belonging to the applicant’s counsel from 26 January 2004
to 26 April 2004. According to the Government, only information on
the telecommunications activity, namely, the times of calls, the
numbers of incoming and outgoing calls, and approximate mobile phone
locations was produced; the content of the telephone conversations
was neither recorded nor intercepted.
- In
a letter of 26 July 2004 the Deputy Director of the Office for
Foreign Relations and Information (Úřad pro zahraniční
styky a informace), a Czech intelligence service, in reply to a
request for cooperation, informed the police unit in charge of the
investigation about the system of administration of church registers
in Austria and ways of accessing them in order to locate the
applicant’s birth certificate. Having found that access to the
registers was restricted, the Deputy Director considered and rejected
the possibility of using secret agents to acquire the documents in
question and advised the police unit on how the State should proceed
in the civil proceedings against the applicant, recommending that
they manoeuvre the applicant into a situation where he would himself
be obliged to establish his Czech citizenship.
- On
28 April 2006 the police suspended the investigation, stating that in
civil proceedings the applicant was not obliged by the Code of Civil
Procedure to disclose all relevant facts, but only those supporting
his claims. They also stated that the applicant’s counsel had
not breached his duty under Article 101 § 1 of the Code to
assert all important facts, because he was not obliged to assert
facts favouring the opposing party. Thus, according to that decision,
the applicant could not be regarded as having intentionally withheld
certain information in a fraudulent attempt to recover the property
by misleading the courts.
- It
appears from the decision that during their investigation the police
tracked down enquiries the applicant’s counsel had made with a
number of archives and state institutions in order to find documents
relevant for the civil proceedings. When questioning employees of
those institutions, the police also noted the areas of interest of
the applicant’s counsel and the documents to which he had had
access and had studied. The decision further shows that the
investigation enabled the police to make a qualified assessment of
the evidence which the applicant might use as the plaintiff in the
civil proceedings against the State.
- On
8 June 2006 the applicant and his counsel found out by chance that
they had been under police investigation. Neither of them had ever
been questioned during the investigation.
- On 5 December 2006 the applicant’s counsel
lodged a constitutional appeal with the Constitutional Court.
Invoking the right to confidentiality of communications with his
client, he challenged the production of the records of his telephone
communications as contrary to his right to respect for the
confidentiality of telephone communications under Article 13 of the
Czech Charter of Fundamental Rights and Freedoms. He requested that
the order of the Praha-východ District Court of 27 April 2004
be quashed, the police case file disclosed and the records destroyed.
- On 27 September 2007 the Constitutional Court allowed
the appeal and quashed the order as unlawful, ordering the police to
destroy all the records of the telephone communications. The court
found:
“... the State has the standing of defendant in a
set of civil proceedings initiated by a client of the complainant
[that is, the applicant]. It litigates with the claimant on an equal
footing in such proceedings. To defend its interests there, it is
equipped with staff and finances from the State budget. If criminal
proceedings are brought simultaneously with these [civil] proceedings
... despite the fact that a reasonable suspicion of a crime, which is
one of the legal requirements for the initiation of any criminal
proceedings, does not exist, there is a logical presumption that the
State may at least attempt to improve its legal position in the civil
proceedings by acquiring information through the prosecuting
authorities and its other security agencies, or even attempt to deter
the other litigant. Such conduct by the State is absolutely
unacceptable in a democratic society and deserves to be condemned ...
Although the criminal proceedings were finally rightfully suspended
in the instant case, it remains alarming for the democratic
development of the country that the suspension took place only after
massive, and probably extremely expensive and entirely superfluous,
criminal proceedings which should have never been initiated.
...
... the police decision to suspend the investigation was
based on a purely legal conclusion that could have been arrived at
without evidence consisting of 4,384 pages ... including materials
procured by means of legal assistance provided by third countries and
information supplied by the intelligence service ... The police ...
and the supervising prosecutor ... could have arrived at the same
conclusion at the outset [of the investigation].”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Presidential Decrees
- The
relevant domestic law and practice regarding confiscation of property
under the Presidential Decrees and its restitution are set out in the
Court’s decision Des Fours Walderode v. the Czech Republic
(dec.), no. 40057/98, 4 March 2003.
B. Code of Civil Procedure (Act no. 99/1963)
- Article
101 § 1 stipulates that in order to achieve the aim of
proceedings, parties are obliged, inter alia, to assert all
facts relevant to the case.
- Article
119a provides for the principle of proceedings concentration; it
stipulates that parties to proceedings must disclose all material
facts and specify evidence prior to the court of first instance
pronouncing its decision in the case, because facts and evidence
claimed after that time can only constitute a reason for lodging an
appeal under the conditions exhaustively listed in Article 205a (for
example, in the case of defects in the proceedings, in order to
undermine the credibility of evidence forming a ground for the ruling
of the court of first instance, or if the facts to be proved occurred
only after the first-instance decision).
C. Act no. 201/2002 establishing the Office for the
Representation of the State in Property Matters
- Section
1(2) provides that the Office for the Representation of the State in
Property Matters represents the State, inter alia, in
proceedings before courts. Section 15(1) provides that the Office is
supervised by the Ministry of Finance.
- In
March 2004 Parliament adopted Act no. 120/2004 amending this law.
Under the newly added section 13a the Office may represent a
municipality responding in civil proceedings to an action that seeks
to determine the ownership of real estate, and/or its appurtenances,
acquired from the State, or to an action for such real estate to be
vacated. Such legal services are provided free of charge. According
to section 13d the Office may intervene on behalf of and in the name
of the State and alongside a municipality in such civil proceedings
if the State has a legal interest in the outcome of the proceedings.
- The
Explanatory report to Act no. 120/2004 stated that it was in the
State’s interest that the assets of municipalities were not
diminished. It noted that municipalities often faced complicated
judicial proceedings, for example under the Presidential Decrees, but
that they did not have the necessary expert capacity to conduct such
proceedings. Consequently, using the services of the Office would be
the only way for many municipalities to defend their property
acquired from the State.
D. Code of Criminal Procedure (Act no. 141/1961)
43. Article
158 provides that at the stage prior to the initiation of a criminal
prosecution the police are obliged, on the basis of their own
findings, criminal complaints, or suggestions from other persons and
authorities which may lead to the conclusion that there exists
suspicion that a criminal offence has been committed, to carry out
all the necessary examinations and take the required measures to
detect the facts that indicate the commission of a criminal offence
and to find the offender; they are also obliged to take the necessary
measures to prevent criminal activities.
E. The Constitutional Court Act (Act no. 182/1993)
- Section
72(1)(a) stipulates that a constitutional appeal may be submitted: a)
under Article 87 § l (d) of the Constitution by a natural or
legal person if he or she alleges that his or her fundamental rights
and basic freedoms guaranteed in the constitutional order have been
infringed as the result of a final decision in proceedings to which
he or she was a party, or of a measure or some other encroachment by
a public authority.
- Under
section 72(3) a constitutional appeal must be lodged within sixty
days of the date on which a final decision on a last remedy is served
on an applicant. If the law does not provide for any legal remedy,
the time limit is triggered by the date on which the applicant
learns about an infringement. In such a case, a constitutional appeal
may not be lodged later than one year from the date when the
infringement occurred.
F. Act no. 6/2002 on Courts and Judges
- Section
118 stipulates that the task of the State administration of courts,
carried out by the Ministry of Justice, is to create conditions for
the proper conduct of justice, especially in terms of personnel,
organisational, economic, financial and educational affairs, and to
supervise, in the manner and within the limits set by this law, the
tasks entrusted to the courts in order to ensure that they are
carried out properly. The State administration of courts cannot
interfere with the independence of the courts.
- Under
section 123(2) the Ministry of Justice monitors and evaluates the
conduct of proceedings by and decisions of high, regional and
district courts solely in terms of the principles of the dignity of
judicial conduct and ethics and whether the proceedings have suffered
from unnecessary delays.
G. Opinion of the Constitutional Court no. Pl. ÚS
– st. 21/05
- The
plenary of the Constitutional Court found that the restitution laws
could not be circumvented by civil actions for determination of
ownership. Nor could the protection of ownership rights extinguished
before 25 February 1948 be triggered unless the restitution laws
provided for redress in that respect.
H. Decision of the Constitutional Court no. II. ÚS
71/06 of 28 February 2006
- In
this decision the Constitutional Court dismissed the applicant’s
constitutional appeal contesting the dismissal of his objection of
bias in respect of a judge who had heard one of his civil actions. In
his appeal the applicant alleged a violation of the right to a fair
trial as a result of political pressure reflected, inter alia,
by amendments to legislation, such as Act no. 120/2004, the
revisiting of case-law by the domestic courts, public statements by
politicians to the applicant’s detriment, and the reporting
duties imposed on courts by the Ministry of Justice.
“The Constitutional Court has already held in
several decisions on constitutional appeals by the same applicant
(for example ...) that the activities of some politicians referred to
by the applicant, be they verbal expressions to the media or other,
aimed at creating a negative atmosphere around the legal actions of
the applicant, or constituting direct attempts to interfere in these
proceedings, were unacceptable in a system based on the rule of law.
This is even more valid for the activities of the
Ministry of Justice that the Constitutional Court has had an
opportunity to acquaint itself with from documents presented by the
applicant ... The documents show that the Ministry of Justice imposed
on the ordinary courts an obligation to provide information to such
an extent that it was incompatible with the principle of separation
of powers between the judicial and executive branches of government
(from the documents adduced it does not appear that the Ministry
pursued the aim of securing the proper administration of justice,
especially in the personal, organisational, economic, financial and
educational domains, or that it was motivated by efforts to prevent
or eliminate delays in the proceedings or to ensure that these were
conducted in a dignified manner and in accordance with judicial
ethics – see section 118 in conjunction with section 123 of the
Act on Courts and Judges).”
- Nevertheless,
it held that these activities alone could not cast doubts on the
impartiality of individual judges. It found that the applicant had
failed to substantiate his allegation that the particular judge whose
partiality he challenged had not been impartial.
I. Decision of the Constitutional Court no. II.ÚS
99/09 of 21 January 2009
- The Constitutional Court dismissed as manifestly
ill-founded a constitutional appeal by the applicant arising from
another set of civil proceedings for determination of ownership,
referring only to its Opinion no. Pl. ÚS – st. 21/05. It
did not consider in detail the arguments of the applicant, which
concerned the criminal investigation against him and his counsel,
stating that, in view of the Opinion, that would have been
superfluous.
THE LAW
I. THE APPLICANT’S DEATH
- The
applicant died on 2 April 2009. On 30 April 2009 his son and only
heir, Mr Carlos Kinský, informed the Court that he wished to
pursue the application.
- The Court reiterates that where an applicant dies
during the examination of a case his heirs or next of kin may in
principle pursue the application on his behalf. It considers that the
applicant’s son and only heir has a legitimate interest in
pursuing the application in his stead (see Ječius v.
Lithuania, no. 34578/97, § 41, ECHR 2000 IX). The Court
therefore accepts Mr Carlos Kinský as the person entitled to
pursue the application.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the civil proceedings for recovery of
property had been conducted contrary to Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government disagreed.
A. Admissibility
- The
Government maintained that the applicant had failed to raise his
complaint regarding the criminal proceedings against him before the
Constitutional Court. They argued that he could have lodged a new
constitutional appeal after he became aware of the criminal
investigation. They contended that the successful constitutional
appeal lodged by his counsel (see § 35 above) showed the
effectiveness of that legal avenue.
The
Government further asserted that the applicant had not availed
himself of the remedy provided for by the State Liability Act. That
legal avenue constituted a means of claiming compensation for damage
sustained by the order of the Praha-východ District Court of
27 April 2004 ordering the production of records of telephone
communications, which had been quashed upon the constitutional appeal
by the applicant’s counsel.
- The
applicant disagreed.
- The
Court firstly notes that the applicant contested the fairness of the
proceedings as a whole and not only the fact the he had been the
subject of a criminal investigation. It observes that on 18 April
2006 the Constitutional Court dismissed the constitutional appeal in
which he had complained of unfairness in the proceedings, raising all
the arguments contained in this application except for the criminal
investigation against him. It was not disputed that the applicant had
not found out about the police investigation until 8 June 2006. He
could therefore not have included this complaint in his
constitutional appeal lodged on 8 February 2006.
- Yet,
it is true, as contended by the Government, that the applicant could
have lodged a new constitutional appeal under section 72(5) of the
Constitutional Court Act, arguing that he found out about the
criminal proceedings only in June 2006.
- The
Court, however, reiterates that applicants are required to exhaust
only remedies that are sufficiently certain not only in theory but
also in practice (see T.W. v. Malta [GC], no. 25644/94, §
34, 29 April 1999). It notes in this context that in its decision
dismissing the present applicant’s appeal the Constitutional
Court relied to a considerable extent on its opinion no. Pl. ÚS-st.
21/05, according to which a civil action for determination of
ownership could not be used to circumvent the restitution
legislation, holding that the detailed arguments of the applicant
challenging the merits of the decisions were thus irrelevant.
- The
Court does not consider, in view of the reasoning of the
Constitutional Court, that a new constitutional appeal would have had
the requisite effectiveness. This conclusion is further supported by
the dismissal of a subsequent constitutional appeal by the applicant
in which he did raise the issue of the criminal proceedings against
him (see decision no. II.ÚS 99/09 at paragraph 51
above).
- Regarding
the reference by the Government to the judgment of the Constitutional
Court of 27 September 2007, the Court observes that that case dealt
not with the fairness of the trial but with a violation of the right
to respect for the private life and correspondence of the applicant’s
counsel. The Court thus does not see any connection between this
judgment and the applicant’s constitutional appeal and the
present complaint alleging violations of the right to a fair trial.
The Constitutional Court seems to be of the same opinion, as
demonstrated by its decision no. II.ÚS 99/09 (see paragraph 51
above).
- As
to the second limb of the Government’s objection, regarding the
claim for damages, the Court reiterates that an applicant who has
exhausted a remedy that is apparently effective and sufficient cannot
be required also to have tried others that were available but
probably no more likely to be successful (see T.W. v. Malta
[GC], cited above, § 34).
- It
observes that the applicant lodged a constitutional appeal alleging a
violation of his right to a fair trial, which if successful would
have remedied the alleged deficiencies in the proceedings that the
applicant complained of. Consequently, the Court does not consider
that the applicant was obliged to exhaust any other remedy.
- In
view of the above considerations, the Court dismisses the
Government’s preliminary objection.
- The
Court notes that this part of the application is neither manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The applicant
- The
applicant contended that he had not had a fair trial as the State,
the defendant in the civil proceedings, had subjected him and his
counsel to a police investigation, including phone-tapping. In this
way the police had been able to obtain a complete overview of his
counsel’s contacts and the content of his consultations with
his clients and other experts in the field. They had also obtained an
overview of his argumentation, which the State could have made use of
in the civil proceedings. The police had never informed the applicant
or his counsel about the investigation.
- The
applicant further alleged that in 2004 the respondent State had set
up a special police task force code-named “Property” for
the purpose of incriminating him, his counsel and other individuals
of aristocratic origin in order to prevent them from succeeding in
attempts to recover property they had previously owned. The police
had also been assisted in its task by the Office for Foreign
Relations and Information, a Czech intelligence service.
- He
further maintained that the State had enacted a law under which the
Office for the Representation of the State in Property Matters had
been entitled to intervene in the proceedings brought by the
applicant against local municipalities.
- The
applicant further complained that none of the domestic courts had
been independent and impartial on account of unacceptable
interventions by the executive and legislative branches of the
Government in the proceedings. Moreover, the Supreme Court had
violated his right to a lawful judge as his cases had been allocated
to a section of the Supreme Court other than the one competent under
that court’s rules. According to the applicant, the competent
section would have been presided over or attended by a judge who had
publicly disagreed with a leading Constitutional Court judgment
according to which restitution law precluded the right to seek
restitution of property through civil proceedings.
2. The Government
- The
Government firstly noted that the properties – valued at about
two billion euros – claimed by the applicant in all his civil
proceedings for determination of ownership rights, were mostly owned
by the State and municipalities, and included historical properties
that formed part of the Czech Republic’s cultural heritage.
There was popular concern in the country that the reversal of the
Presidential Decrees would have immense implications resulting in the
complete disruption of the system of ownership rights and involving
dozens, if not hundreds, of thousands of people who had acquired
property in good faith, as well as unbearable costs for the State
budget. In the present case, the situation was even more delicate
because the applicant’s father had been an apparent sympathiser
of the Nazi regime.
- Therefore
in their view it was only natural that the applicant’s actions
had prompted increased media attention and comments from politicians
and public officials. They stressed, however, that the reactions of
politicians had not reached an intensity that would really have been
capable of negatively influencing the independence of the courts and
judges and the fairness of the proceedings. Regarding the statement
of the Minister of Culture of 3 July 2003 (see paragraph 18 above),
the Government stressed that it must be understood at most as an
appeal concerning the political or moral responsibility of the
judiciary for the consequences for Czech society, and in no way as an
assertion of, for example, any judge’s liability for damages or
to disciplinary or administrative sanctions.
- Regarding
the reporting request by the Ministry of Justice, the Government
maintained that it had been prompted by the extent of the applicant’s
claims, which had led to substantive media and public attention and
therefore the Ministry had considered it appropriate to keep itself
informed about procedural developments in those cases. They held that
the Ministry had only collected information such as the current phase
of the proceedings, the list of submissions lodged by the parties,
the list of judicial decisions and their content, and information on
the movement of the case files between the courts. The supervisory
role of the Ministry had thus not resulted in the collection of data
that could have been, even potentially, misused against the
applicant, and there was no indication that the Ministry would have
tried to influence the judges in any way.
- Regarding
the criminal investigation, the Government argued that even though it
could hypothetically have compromised the principles of equality of
arms, adversarial proceedings, impartiality and independence, none of
those situations had come into being in the instant case. They
stressed that no information gathered in the criminal proceedings had
ever been used in the civil proceedings concerning the applicant and
they could therefore have had no effect on them.
- In
respect of the alleged phone-tapping, the Government emphasised that
only the data relating to the telephone calls had been intercepted,
not the content, maintaining that that would have been impossible
because the warrant had been given for a period of three months
preceding it .
- As
to the Constitutional Court’s finding on the criminal
proceedings, embodied in its judgment delivered following the appeal
by the applicant’s counsel, the Government considered that it
had been rather marginal and based only on a general analysis without
taking into consideration the details of the criminal proceedings.
Moreover, the Constitutional Court had not found that the fairness of
the civil proceedings had been compromised thereby. Moreover, the
judgment itself showed that all errors committed during the criminal
proceedings had been remedied by the Constitutional Court.
- Furthermore,
the criminal proceedings had been justified by the obligation of the
prosecuting authorities to investigate suspected serious crimes and
by the complexity of the case in terms of facts and law. They pointed
out in this regard that even high-ranking prosecutors could not agree
whether the applicant had committed fraud by misleading the courts.
- The
Government further contended that the criminal proceedings had never
progressed further than the initial stage, as neither the applicant
nor his counsel had been charged. Whilst the prosecution had allowed
for more severe measures of investigation to be taken, the initial
stage of investigation had consisted merely of the gathering of
information, a preliminary examination and clarification. Mainly
official documents issued by State authorities dozens of years
earlier had been gathered. The majority of these documents had been
known to the parties to the civil proceedings conducted by the
applicant and to the courts, as many of the documents had been
retrieved from publicly accessible archives. It was therefore evident
that the information in the police file had not been of a nature
capable of altering the courts’ opinions.
- The
Government further maintained that the activities of the Office for
Foreign Relations and Information, justified by the gravity of the
suspected crime, could not have had any influence on the outcome of
the civil proceedings because it had provided the police merely with
information from public sources and that information had not been
used in the civil proceedings. The birth certificate of the applicant
had been submitted to the civil court by the applicant himself. The
recommendations by the Office for Foreign Relations and Information
concerning the tactics the State should use in the civil proceedings
against the applicant had been an initiative of that intelligence
service to which the police had not responded.
- The
Government further alleged that, although there had been challenges
to the assessment of the facts throughout the civil proceedings, only
the court of first instance had taken evidence relevant to the
merits. Importantly, it had done so before the criminal investigation
had commenced and the State had, therefore, had no occasion to
influence the outcome of the civil litigation. The taking of evidence
after the delivery of the judgment by the court of first instance had
been reduced to a considerable extent by Article 119a of the Code of
Civil Procedure, which enshrined the principle of concentration of
proceedings.
- Moreover,
neither the applicant nor the District Court, the Supreme Court or
the Constitutional Court had been aware of the criminal proceedings
when these courts had been deciding on the case and, therefore, they
could not have been intimidated, manipulated or discouraged. Finally,
the applicant had had no prospect of success with his claims as he
had relied on a civil action in matters covered by the restitution
law, and this was a legal avenue that was impermissible under the
Czech law.
3. The Court’s assessment
- The
Court firstly reiterates that the right to a fair trial holds so
prominent a place in a democratic society that there can be no
justification for interpreting Article 6 § 1 restrictively (see
Perez v. France [GC], no. 47287/99, § 64, ECHR
2004 I).
- In
cases under Article 6 of the Convention the Court often examines
individual aspects of a fair trial that the applicant complains of,
and a breach of such a specific right may result in a breach of the
right to a fair trial. Nevertheless, in many instances it takes into
account the “proceedings as a whole”. Thus the Court may
find a breach of Article 6 § 1 of the Convention if the
proceedings taken as a whole did not satisfy the requirements of a
fair hearing even if each procedural defect, taken alone, would not
have convinced the Court that the proceedings were “unfair”
(see Barberà, Messegué and Jabardo v.
Spain, 6 December 1988, § 89, Series A no. 146, and
Mirilashvili v. Russia, no. 6293/04, § 165, 11 December
2008).
- The
Court considers that this is an appropriate approach to be taken in
the present case, where the applicant complains that he did not have
a fair trial before the domestic courts and supports his allegations
by several mutually reinforcing arguments touching on various aspects
of the right to a fair trial.
- Therefore,
in order to determine whether there has been a breach of Article 6 §
1 of the Convention, the Court must examine separately each limb of
the applicant’s complaints and then make an overall assessment
(see Mirilashvili v. Russia, cited above, § 165).
(a) Statements of Politicians and
Supervision by the Ministry of Justice
- The
Court reiterates that Article 6 of the Convention requires courts to
be independent and impartial. The existence of impartiality for the
purposes of Article 6 § 1 must be determined according to a
subjective test, that is, on the basis of the personal conviction of
a particular judge in a given case, and also according to an
objective test, that is, ascertaining whether the tribunal offered
guarantees sufficient to exclude any legitimate doubt in this respect
(see Hauschildt v. Denmark, 24 May 1989, § 46, Series A
no. 154). In the present case the objective test is at issue as the
applicant did not complain of personal bias against him on the part
of the judges.
- As
to the objective test, it must be determined whether, quite apart
from the judges’ conduct, there are ascertainable facts which
may raise doubts as to their impartiality. This implies that, in
deciding whether in a given case there is a legitimate reason to fear
that a particular judge or a body sitting as a bench lacks
impartiality, the standpoint of the person concerned is important but
not decisive. What is decisive is whether this fear can be held to be
objectively justified. In this respect even appearances may be of a
certain importance or, in other words, “justice must not only
be done, it must also be seen to be done”. What is at stake is
the confidence which the courts in a democratic society must inspire
in the public (see Micallef v. Malta [GC], no. 17056/06, §§
96-98, ECHR 2009 ...).
- In
Sovtransavto Holding v. Ukraine, no. 48553/99, ECHR 2002 VII,
several politicians, including the President of Ukraine, urged the
courts to “defend the interests of Ukrainian nationals”.
The Court found a violation of the right of the applicant company to
have a fair and public hearing of its case by an independent and
impartial tribunal, having regard, inter alia, to
interventions by the executive branch of the State in the court
proceedings. It stated as follows:
“... the Ukrainian authorities acting at the
highest level intervened in the proceedings on a number of occasions.
Whatever the reasons advanced by the Government to justify such
interventions, the Court considers that, in view of their content and
the manner in which they were made ..., they were ipso facto
incompatible with the notion of an ‘independent and impartial
tribunal’ within the meaning of Article 6 § 1 of the
Convention.” (§ 80).
- Turning
to the present case, it is clear from the applicant’s
submissions that in his mind the impartiality of the judges was
compromised. However, it needs to be decided whether these doubts
were objectively justified.
- The
Court understands that the media and politicians were interested in
the issue of returning property confiscated before 1990 through
general actions for determination of ownership. Success of these
actions could have resulted in the returning of property worth
billions not only to the applicant but also to many other people who
had lost property before 1990 and to whom the restitution laws did
not apply. Consequently, the Court agrees with the Government that
the interest of politicians in the issue and their meetings to find
solutions to the situation was legitimate and can as such raise no
issue under the Convention.
- On
the other hand, several politicians made strong negative statements
regarding decisions in the type of cases brought by the applicant,
including the applicant’s own cases, and also about the judges
deciding them. They unequivocally expressed the opinion that the
courts’ decisions upholding the applicant’s claims were
wrong and undesirable.
- The
Court is prepared to accept the Government’s contention that
the statement of the Minister of Culture regarding the responsibility
of judges (see § 18 above) did not refer to their disciplinary
responsibility. Yet it still clearly showed his stance in respect of
decisions in these types of cases. The Court is particularly worried
by the fact that a high-ranking politician attended the District
Court’s hearing in the present case and made a public statement
afterwards linking the applicant to Nazis and stating that he would
do “anything within [his] power” in order that the action
of the applicant and those in a similar position should not succeed.
- The
Court further notes that these statements were directly aimed at the
judges (contrast Mosteanu and Others v. Romania, no. 33176/96,
§ 42, 26 November 2002, where the President’s public
statement that restitution judgments should not be enforced was
considered by the Court to be directed primarily at the
administration charged with enforcing the decisions).
- The
Government stressed that the remarks had no influence on the judges
in the proceedings in the present case. The Court, however, sees no
reason to speculate on what effect such interventions may have had on
the course of the proceedings in issue (see Sovtransavto Holding
v. Ukraine, cited above, § 80). It nevertheless observes
that these statements were made before the first-instance decision in
the present case and also that after 2003 none of the applicant’s
actions was successful. It considers that in the circumstances of the
present case the applicant’s concerns as to the independence
and impartiality of the tribunals were not unreasonable
- Moreover,
the Court cannot but agree with the Constitutional Court that “the
activities of certain politicians referred to by the applicant, be
they verbal expressions to the media or other, aimed at creating a
negative atmosphere around the legal actions of the applicant or
constituting direct attempts to interfere in these proceedings,
[were] unacceptable in a system based on the rule of law.” The
Constitutional Court expressed a similar opinion regarding the
activities of the Ministry of Justice in imposing on the ordinary
courts an obligation to provide information on the proceedings
regarding the applicant.
- The
Court observes that under the domestic law the Ministry of Justice is
entitled to collect information necessary for the State
administration of courts but only in order to monitor and evaluate
the conduct of proceedings in terms of the principles of the dignity
of judicial conduct and ethics and whether the proceedings suffer
from unnecessary delays. Yet, the Ministry itself reasoned that it
required the information because of heightened interest of the media
in these proceedings. In any case the Court observes that the
Constitutional Court found that the extent of the information
requested went beyond these powers of the Ministry.
- As
a consequence, the Ministry regularly received information on the
development of the proceedings instituted by the applicant, including
the names of the judges, for a period of over two years. In this
context, the Court cannot overlook the fact that the Minister of
Justice has a right to institute disciplinary proceedings against
judges.
- The
Court notes the assertion of the Government that the Ministry only
received general administrative information that could be obtained
from any case-file summary and that there is no indication that it
misused the information in any way or even intended to do so.
Nevertheless, the Court reiterates that what is at stake here is not
actual proof of influence or pressure on judges but the importance of
the appearance of impartiality. It considers that these activities
undoubtedly alerted the judges that their steps in the applicant’s
proceedings were being closely monitored. This is particularly
worrying when considered in connection with some of the statements by
politicians about the responsibilities of judges and their mental
processes, and their assertions that they would do anything within
their power to prevent the success of the applicant in the
proceedings.
- The
Court accordingly finds that the doubts of the applicant about the
impartiality of the judges were not simply subjective and
unjustified.
(b) Criminal Investigation
- The
Court reiterates that a trial would not be regarded as fair if a
“fair balance” between the parties was not observed
(Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §
33, Series A no. 274) or if it took place in circumstances that
placed one party at a substantial disadvantage vis-à-vis the
other. This rudimentary maxim of the principle of equality of arms
also covers the aspects of a fair trial which provide a litigant with
an advantageous standing in comparison with the procedural position
of his opponent (see Stran Greek Refineries and Stratis Andreadis
v. Greece, 9 December 1994, § 46, Series A no. 301 B,
where the Court found a violation of Article 6 of the Convention on
the ground that the State had interfered by legislation with pending
proceedings to which it was a party).
- Turning
to the present case, the Court notes that a special police task force
code-named “Property” was set up in 2004 for the purpose
of investigating the question of returning of property to persons
like the applicant. A criminal investigation of the applicant and his
counsel was instituted on the basis of the suspicion that they had
tried to commit fraud by intentionally withholding certain facts and
information in the civil proceedings in order to prevail in the
dispute. According to the findings of the Constitutional Court’s
judgment which allowed the applicant’s counsel’s
constitutional appeal, the police case file consisted of more than
4,300 pages of material gathered over more than two years by means of
various investigation techniques including phone monitoring or the
commissioning of the cooperation of an intelligence service.
- In
the course of the criminal proceedings, the police examined the
research activities conducted by the applicant’s counsel in the
national archives and other institutions where he had looked for
evidence in support of the applicant’s civil action. The police
also, on its own initiative, gathered data and information to verify
information found by the applicant. These facts show that the
investigation enabled the police to find out what evidence and
information was at the applicant’s disposal for the purposes of
the civil proceedings. Moreover, the police took steps to find other
evidence that could be used against the applicant in the civil
litigation, as is shown by the request to find the applicant’s
birth certificate addressed to the Office for Foreign Relations and
Information.
- The
Court considers that as a result of these activities the police
possessed information as to what evidence was in the applicant’s
hands. This permitted the police to analyse the applicant’s
position in the litigation and to anticipate the applicant’s
course of action, including possible options of legal argumentation
and procedural motions, with a degree of accuracy that would have
otherwise been unattainable.
- In
the Court’s view, the way the criminal proceedings were brought
and conducted was manifestly abusive. This is so since a claimant in
a civil litigation is not obliged under Czech law to adduce to a
court all the evidence in his possession, or to provide it with all
the information at his disposal. As the Constitutional Court held
(see paragraph 36 above), this fundamental principle of Czech civil
procedure must have been known to the police officials carrying out
the criminal proceedings and to the supervising prosecutors. There
was no need for the criminal proceedings to have expanded to the
extent indicated above. The Court considers that any attempts to
criminalise the exercise of the rights of a litigant in civil law
disputes, especially in proceedings where the State acts as the
adverse party, run counter to the right to a fair trial, which is the
paramount pillar of any State based on the principle of the rule of
law.
- As
regards the Government’s argument that there was no causal link
between the criminal proceedings and the civil litigation, the Court
concedes that the stage of the litigation carried out prior to the
criminal proceedings could not have been affected by the police
investigation. However, although no evidence was taken after the
first-instance judgment, the Court is unable, unlike the Government,
to conclude that the fairness of the proceedings could not have been
compromised. Even though limited by Article 205a of the Code of Civil
Procedure, parties may still propose evidence to the appellate court,
for instance, in order to undermine the credibility of evidence
forming a ground for the ruling of the court of first instance. It
follows that the taking of evidence could not have been excluded a
priori in the subsequent course of the civil proceedings.
- The
Court has found above that the information gathered during the
criminal proceedings could have been of assistance not only in
respect of the evidence taken during the litigation but also for
other important issues such as questions of law, procedural tactics
and so on.
- Moreover,
the Court is not convinced by the Government’s argument that
the investigation could not have had any effect at all on the
proceedings that are the subject of the present application. During
the investigation, the police also requested information directly
from the Děčín District Court, which had dealt with
the applicant’s case. Even though, admittedly, this must have
happened after the District Court’s decisions in the
applicant’s case, which preceded the opening of the
investigation, the fact remains that the appellate proceedings were
still pending.
- Consequently,
even though from the documents in its possession the Court cannot
conclude that the police investigation had any effect on the current
proceedings, it cannot lose sight of the fact that importance in this
case is attached to appearances as well as to the increased
sensitivity to the fair administration of justice (see Bulut v.
Austria, 22 February 1996, § 47, Reports of Judgments and
Decisions 1996 II). The Court is asked to decide on a
two-year police investigation carried out on a considerable scale,
employing particularly intense investigative techniques, and brought
against the applicant on spurious grounds merely because he exercised
his right of access to a court. Nor can it overlook the decision of
the Constitutional Court that expressed concern about the effect of
the investigation on the fairness of the trial and found that “[s]uch
conduct by the State is absolutely inacceptable in a democratic
society”.
- Accordingly,
the Court considers that the police investigation gives rise to
concerns about the fairness of the proceedings brought by the
applicant.
(c) Conclusion
- The
Court reiterates that States have freedom to determine the scope of
property restitution and to choose the conditions under which they
agree to restore the property rights of former owners. In particular,
the Contracting States enjoy a wide margin of appreciation with
regard to the exclusion of certain categories of former owners from
such entitlement (see, for example, Kopecký v. Slovakia
[GC], no. 44912/98, § 35, ECHR 2004 IX).
- Admittedly,
the extent and value of the property claimed by the applicant through
civil actions was substantial and therefore it attracted the
attention of politicians, state authorities and the general public.
Nevertheless, even though in certain circumstances the guarantees of
Article 6 of the Convention might apply differently based on the
nature of the proceedings (see, for example, Vilho Eskelinen and
Others v. Finland [GC], no. 63235/00, § 64, ECHR 2007 II,
and Micallef v. Malta [GC], no. 17056/06, § 86, 15
October 2009), the Court does not consider that any such distinction
can be made in the present case. In particular, lower standards of
guarantees cannot apply simply because the proceedings concern
restitution or a high-value claim.
- The
Court notes that the Government stressed throughout their submissions
that the applicant had failed to prove any causal link between the
alleged activities at the political and administrative level on the
one hand and the decision in his case on the other. Yet, Article 6 is
not concerned with the outcome of proceedings but guarantees fairness
in the proceedings themselves. The Court also observes that the
applicant’s action was in fact dismissed by the domestic
courts. It is not for the Court to speculate whether the applicant’s
lack of success before the domestic courts was a direct consequence
of the deficiencies complained of.
- Having regard to the above considerations, namely,
the statements of the politicians, the activities of the Ministry of
Justice, and the criminal investigation brought against the
applicant, and without expressing any opinion on the outcome of the
proceedings, the Court concludes that the proceedings in question,
taken as a whole, did not satisfy the requirements of a fair hearing.
- It
follows that there has been a violation of Article 6 § 1 in the
present case.
- Consequently,
the Court finds it unnecessary to consider the other complaints of
the applicant under this provision.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the domestic law had been applied wrongly
and that as a result he had been unable to recover property of which
he was the rightful owner. He relied on Article 1 of Protocol No. 1,
which reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Court observes that the applicant failed to raise this complaint
before the Constitutional Court, which thus did not examine it.
Accordingly, it must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant further complained that he had been discriminated against
on the basis of his origins because the Constitutional Court had
dismissed his constitutional appeal without considering its merits
with a simple reference to its Opinion no. Pl. ÚS-st.
21/05. He relied on Article 14 of the Convention in conjunction with
Article 6 of the Convention and Article 1 of Protocol No. 1.
- The
Court considers that the applicant’s complaint is in essence a
disagreement with the decision of the Constitutional Court. The
Court, however, reiterates that it is not its function to deal with
errors of fact or law allegedly committed by a national court unless
and in so far as they may have infringed rights and freedoms
protected by the Convention (see García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999 I).
- The
Court considers that there is no appearance of discrimination against
the applicant by the Constitutional Court. The Constitutional Court
has consistently applied Opinion no. Pl. ÚS-st. 21/05 in all
cases raising the same issue as that of the applicant. The decision
in the present case followed this case-law. There is thus no
appearance of arbitrariness, manifest unreasonableness or different
treatment.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
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
applicant claimed 204,899 euros (EUR) in respect of pecuniary damage,
consisting of the value of the property claimed in the domestic
proceedings. He also claimed EUR 38,880 in respect of non-pecuniary
damage.
- The
Government argued that there was no causal link between the alleged
violation of Article 6 of the Convention and the pecuniary damage
claimed. Regarding the non-pecuniary damage, the Government
considered that an eventual finding of a violation of the Convention
itself would represent sufficient redress.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see paragraphs 112 and 113 above);
it therefore rejects this claim. On the other hand, it considers that
the applicant undoubtedly suffered feelings of frustration and
anxiety, which cannot be compensated solely by the finding of a
violation. Having regard to the circumstances of the case, and ruling
on an equitable basis, as required by Article 41, it awards him EUR
10,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,806 for the costs and expenses incurred
before the domestic courts and EUR 3,078 for those incurred before
the Court.
- The
Government opined that reimbursement of cost and expenses should be
granted in a reasonable amount and in accordance with the Court’s
case-law.
- 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. Furthermore, legal costs are only
recoverable in so far as they relate to the violation found (see, for
example, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 283, ECHR 2006 V). Also, to be awarded costs and expenses
for proceedings before domestic courts an applicant must have
incurred them in order to seek to prevent or rectify a violation of
the Convention which has been established by the Court (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 52, 3
March 2000).
- In
the present case, the Court notes that only in his constitutional
appeal did the applicant complain that his right to a fair trial had
been violated. Accordingly, only in this part of the domestic
proceedings was the applicant trying to prevent the violation found
in this application from occurring.
- Consequently,
regard being had to the information in its possession, the Court
considers it reasonable to award the sum of EUR 830 to cover the
costs and expenses incurred before the Constitutional Court.
- Regarding
the costs and expenses before the Court, the Court does not consider
that the amount corresponding to the expert evaluation of the value
of the property claimed in the domestic proceedings was necessarily
incurred since the Court did not communicate any issue under Article
1 of Protocol No. 1 to the parties and it is its established case-law
that finding a violation of Article 6 does not normally establish any
causal link to the loss of property in such proceedings (see, for
example, Milatová and Others v. the Czech Republic,
no. 61811/00, § 70, ECHR 2005 V).
- At
the same time, the Court recognises that the applicant incurred
further costs before the Court after 20 October 2009, when he made
his just satisfaction claim, because on 3 December 2010 the Court
communicated an additional question to the parties (see BENet
Praha, spol. s r.o. v. the Czech Republic,
no. 33908/04, § 154, 24 February 2011).
- Regard
being had to the above criteria and the information in its
possession, the Court considers it reasonable to award the applicant
EUR 3,000 for costs and expenses before the Court
- Overall,
the Court awards the applicant EUR 3,830 under this head.
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
- Holds that the applicant’s son has
standing to continue the present proceedings in his stead;
- Declares the complaint concerning Article 6 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention;
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
3,830 (three thousand eight hundred and thirty euros), plus any tax
that may be chargeable to the applicant, for 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
