CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 février 2012

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margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA68D9128 { width:171.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIFTH SECTION           CASE OF KINSKÝ v. THE CZECH REPUBLIC   (Application no. 42856/06)                 JUDGMENT       STRASBOURG   9 February 2012   FINAL   09/05/2012   This judgment has become final under 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 1.     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. 2.     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. 3.     The applicant alleged, in particular, that he had not had a fair trial and that his property rights had thereby been breached 4.     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 5.     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. 6. 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. 7.     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 8.     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. 9.     The applicant appealed, asserting, inter alia , that the District Court had omitted to take certain evidence. 10.     On 27 January 2005 the Ústí nad Labem Regional Court ( krajský soud ) upheld the judgment of the court of first instance. 11.     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. 12.     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. 13. On 13 November 2007 the District Court dismissed the applicant’s nullity action (žaloba 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 14.     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. 15.     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.” 16.     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.” 17.     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.” 18 .     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. 19.     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. 20.     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”. 21.     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 22.     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. 23.     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. 24.     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. 25.     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. 26.     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 27.     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. 28.     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. 29.     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. 30.     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. 31.     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. 32.     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. 33.     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. 34.     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. 35 .     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. 36 .     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 37.     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) 38.     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. 39.     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 40.     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. 41.     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. 42.     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) 44.     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. 45.     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 46.     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. 47.     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 48.     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 49.     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).” 50.     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 51 .     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 52.     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. 53.     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 Je čius 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 54.     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 ...” 55.     The Government disagreed. A.     Admissibility 56.     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. 57.     The applicant disagreed. 58.     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. 59.     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. 60.     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. 61.     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). 62.     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). 63.     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). 64.     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. 65.     In view of the above considerations, the Court dismisses the Government’s preliminary objection. 66.     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 67.     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. 68.     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. 69.     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. 70.     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 71.     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. 72.     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. 73.     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. 74.     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. 75.     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 . 76.     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. 77.     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. 78.     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. 79.     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. 80.     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. 81.     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 82.     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). 83.     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). 84.     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. 85.     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 86.     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