In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
Earlier this month in the Kinský v. the Czech Republic decision, the European Court of Human Rights unanimously expressed its disapproval of governmental attempts to influence domestic judicial proceedings, as incompatible with fair trial standards set out in the European Convention on Human Rights.
The case was one of over a hundred mainly unsuccessful law suits brought by a member of the former Czech nobility, seeking the restoration of property confiscated after World War II. The property in question is now worth around €2bn, while a successful claim could lead to further cases being launched by others in the Czech Republic. While the proceedings were still pending, a number of statements were made by public officials suggesting that for people like Mr. Kinský and his family, who had “demonstrably” been Nazis, no restitution should be available. The claim was eventually dismissed by the district court as well as by the Czech Supreme Court.
Subsequently, the Justice Ministry officially requested the regional courts handling Mr. Kinský's applications to regularly report on these proceedings—and the courts did just that. In the same year, a special police task force was set up on property restitutions, which placed Kinský under criminal investigation on suspicion of withholding evidence in his civil law suit against the state. During the investigation his lawyer’s phone was tapped and his legal research was secretly examined. When finding out about the surveillance by chance, Kinský lodged a constitutional complaint, which resulted in a decision quashing the telephone monitoring order and requesting the destruction of all records. The Czech Constitutional Court specifically stated that “the State had attempted to improve its position in the civil proceeding by acquiring information through the police investigation.”
When a court upheld one of Mr. Kinský’s claims in another case, the Minister of Culture went as far as stating that “judges deciding in a similar way would have to ‘bear full responsibility’ for the State being obliged to surrender property.” Since then, none of Mr. Kinský‘s actions have been successful.
The European Court found that these statements from the highest political circles— and the applicant's subsequenl lack of success at court—called into question the tribunal’s independence and impartiality.
The court also criticised the Justice Ministry for requiring presiding judges to report on cases in which the state was an adverse party, saying this jeopardized the “appearance of impartiality”, given that the ministry has the power to bring disciplinary action against judges.
Lastly, the way in which the criminal investigation had been brought and conducted was found to be “manifestly abusive.” There had been no legal obligations requiring Kinský to present all evidence in a civil case; therefore, the investigation to that end lacked any legal ground and instead merely aimed at enabling the state to anticipate Kinský‘s legal arguments. The court underlined that any attempt to criminalize the exercise of a litigant’s rights, especially if the adverse party is the state, “ran counter to the right to a fair trial.”
In light of the above, the Czech domestic proceedings as a whole were found to be in violation of article 6 (1) of the European Convention on Human Rights, which guarantees fair trial rights. The decision is not final. The Czech government has three months to request the referral of the case to the Grand Chamber.
The case demonstrates the critical importance the court continues to attach to the impartiality of domestic judicial systems. Hence the “right decision” can only be based on the lawful functioning of the judiciary and not, even to the smallest extent, on value judgments of the executive. The latter constitutes such a threat to judicial independence that it taints the legal proceedings as a whole.