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HEADNOTES
In
applying the restitution acts, a too restrictive, or formalistic,
approach must not be taken, on the contrary, they must be applied in a
very sensitive manner, always with the circumstances of the particular
case in mind, and above all the cited purpose and significance of the
act. As far as concerns the above-stated central question relating to
the necessity of the precise individualization or specification of the
items demanded, under the sanction that the claim would otherwise be
extinguished, it would perhaps be possible to agree with the ordinary
courts’ conclusions if this matter had not concerned an enormous extent
of moveable property, but about several items where it would be entirely
and without any doubt evident that it was within the restituent’s power
to specify in detail the property in question within the time period
allowed by the statute.
If
there exists several possible interpretations of a particular legal
enactment or of certain of its provisions, consideration must be given
to the intent of the legal rule. In the case of Act No. 87/1991 Coll.
that intent is doubtless the effort to mitigate the consequences of
certain property injustices committed by the totalitarian state in the
decisive period. If two equally valid interpretations are possible, one
of which is broad and the other narrow, between them the court must
select that which corresponds to further interpretive methods, in
particular teleological reasoning. The ratio legis of the restitution
acts is to redress, at least to a certain degree, the consequences of
the infringement of the fundamental rights of natural and legal persons
in the totalitarian era. Thus, a constitutionally conforming
interpretation is generally a broad one: a statute and its individual
provisions must be interpreted in such a way that, by applying them, it
is possible to attain the aim pursued by the legislature.
When
interpreting the relevant provisions of the restitution acts, it also
cannot be overlooked that it was a totalitarian state which illegally
stripped its citizens of their property and that subsequently state
bodies dealt with that property in an arbitrary fashion for a period of
nearly 40 years, in the course of which movable property was
appropriated and in fact relocated to various places; therefore, the
Constitutional Court is convinced that the consequences of these or
similar transactions cannot now be interpreted, in principle, solely to
the detriment of the entitled persons. It is necessary always to
proceed on the basis of the circumstances of the particular, concrete
case.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
On this day the Constitutional Court decided in a panel in the matter of the constitutional complaint of the complainant I.T., represented by JUDr. D. T., an attorney, against the 25 October 2001 judgment of the Regional Court in Brno, No. 13 Co 249/99, and against the 7 December 1998 judgment of the Municipal Court in Brno, No. 15 C 165/92, as follows:
I. The 25 October 2001 judgment of the Regional Court in Brno, No. 13 Co 249/99, is hereby quashed.
II. The remainder of the constitutional complaint is rejected on the merits.
II. The remainder of the constitutional complaint is rejected on the merits.
REASONING
I.
With
reference to an alleged infringement of Art. 36 para. 1 of the Charter
of Fundamental Rights and Basic Freedoms and of Art. 90 of the
Constitution, the complainant requests in her constitutional complaint
that the 25 October 2001 judgment of the Regional Court in Brno, file
no. 13 Co 249/99 and the 7 December 1998 judgment of the Municipal Court
in Brno, file no. 15 C 165/92, be quashed. In the complainant’s legal
matter against her opponents, the Institute of Monuments in Brno, the
Regional Institute of Monuments in Pardubice and the Historical Museum
of Slavkov by Brno the Municipal Court in the last-cited decision
rejected her proposals that the opponents be obliged to enter with her
into an agreement to turn over moveable items from the state castles
Boskovice, Lysice, Milotice, Rájec Jestřebí, Lednice, Slatiňany and from
the Museum of the City of Slavkov.
As
the daughter of the original owner, A. S., the complainant claimed
these moveable items in a proceeding initiated pursuant to Act No.
87/1991 Coll., on Extrajudicial Rehabilitation, as subsequently amended
(hereinafter only “Act No. 87/1991 Coll.”). In relation to the
defendant, the Institute of Monuments in Brno, the claim was rejected on
the merits, in part due to the fact that the items which the
complainant requested passed to the State, as a part of the property of
the complainant’s father, by confiscation in accordance with the 21 June
1945 Decree of the President of the Republic, No. 12/1945 Coll.,
allegedly prior to the decisive period as laid down in § 1 para. 1 of
Act No. 87/1991 Sb, and in part, and this above all, due to the fact
that the request to turn over items, addressed to a subject designated
imprecisely as “the Administration of Monuments in Brno”, allegedly did
not meet the requirements laid down in § 5 para. 1, as it failed to duly
specify the property to which the request relates and further
designated solely items in the records of the Lomnice u Tišnova State
Castle, and thus did not concern items from the Luhačovice Castle. The
claim against the other defendants, the Regional Institute of Monuments
in Pardubice and the Historic Museum of Slavkov by Brno, was rejected on
the merits since a request to turn over items was not submitted as
against these subjects, nor was it duly asserted before a court within
the time period laid down in § 5 para. 2 of Act No. 87/1991 Coll.
Acting
as the appellate court in this matter, the Regional Court in Brno
declared in the reasoning of its decision, by which it affirmed the
judgment of the first instance court, that an entitled person under Act
No. 87/1991 Coll. must designate, already in the requests, items of
moveable property in such a manner that it is evident that the claim
concerns original items, taken over by the State. The requirement that
requested items be individualized cannot be waived, so that if the
moveable items are not already identified in the request, the request
that they turned over cannot be successful. In her request that
moveable property be turned over, served upon the Institute of Monuments
in Brno, the complainant stated that the request related “to paintings,
furniture and other valuable objects, which are located in various
castles falling under your administration” (that is, of the Institute of
Monuments in Brno). In the court’s view such request was entirely
non-concrete and did not enable the requested items to be matched with
the original items which the State took. Therefore, the complainant’s
claim expired in accordance with § 5 para. 2 of Act No. 87/1991 Coll.
In
its 28 January 2003 ruling, file no. 28 Cdo 262/2002, the Supreme Court
of the Czech Republic rejected as inadmissible the complainant’s
extraordinary appeal against the mentioned Regional Court judgment, as
it did not fulfill the requirements for admissibility as laid down in §
239 para. 2 of the Civil Procedure Code, in the version prior to the
amendment to it introduced by Act No. 30/2000 Coll.
In
the complainant’s view, the interpretation of § 5 para. 1 of Act No.
87/1991 Coll., employed by the Regional Court in Brno, was “made to her
extreme detriment”, against the sense and purpose of that provision.
She asserts that it cannot be deduced from the wording of that provision
that an entitled person is obliged to meet the burden of producing
evidence in relation to moveable items already in the written request
and within a period of 6 months, under the sanction that the claim will
otherwise be extinguished. In view of the extent and character of the
property claimed by the complainant, in order for her to duly assert her
claim, it was sufficient if, in conjunction with giving the reason for
the demand, she stated in it the obliged and entitled persons and
designated approximately the demanded items with a request they be
turned over; the complainant’s request, delivered to the Institute of
Monuments in Brno on 30 September 1991, contained all of this
information. To the extent that more concrete detail was given
concerning individual items only afterwards in the courts of the
judicial proceeding, as soon as she succeeded in obtaining the relevant
list of inventory of moveable property from the Lomnice u Tišnova
Castle, the complainant is convinced that her claim to have the items
turned over could have expired. The complainant acknowledges that, if
in the request for the surrender she were to have requested “entirely
abstractly designated items, such that it would not be possible to
deduce to what the request relates, the (judicial) decision would
evidently have been correct.” That was not the case in the adjudged
matter, however. It allegedly appears from the 24 March 1992 letter of
the Institute of Monuments in Brno, addressed to the complainant, that
it was entirely clear to that organ which specific property was being
demanded, no doubts in this respect were cited, and this institute
merely raised an objection concerning “the impossibility of proceeding
in according with Act No. 87/1991 Sb”. It can also be seen from
expression of views on the complaint, submitted on 30 May 1994 by the
Regional Institute of Monuments in Pardubice, that it was uncontested
that the items listed in the complainant’s request are in the Slatiňany
State Castle and that that institute has the right of management in
relation to them.
In its
statement of views on the constitutional complaint, the Regional Court
in Brno repeated that it could not waive the requirement that moveable
items be designated individually in the request made within the required
period under § 5 para. 1 of Act No. 87/1991 Coll. In the view of the
party to the proceeding, that request had to contain an
individualization of the particular requested items as such is a
requirement to preserve the claim that they be turned over. The
Regional Court agreed that oral hearing in the matter be dispensed with.
In
its statement of views on the constitutional complaint, the Municipal
Court in Brno, referred to the content of its case file and stated that
it agrees to dispensing with an oral hearing.
The
National Monument Institute (territorial expert workplace in Pardubice)
informed the Constitutional Court that, as a result of the 1 January
2003 decision of the Ministry of Culture, file no. 11.617/2002, the
state allowance organizations established by the Minister of Culture in
the area of the care of monuments were merged into the National Monument
Institute with its seat in Prague. In its statement of views on the
constitutional complaints, the National Monument Institute itself then
entirely concurred with the legal views expressed by the party to the
proceedings, namely that the item whose surrender is demanded must,
already in the restitution request for the surrender of property, in the
sense of § 5 para. 1 of Act No. 87/1991 Coll., be identical with the
item originally taken away, that is, described (individualized) in such
as to make it impossible for the item to be confused with another; the
term employed, “item”, cannot be otherwise interpreted than as
concerning an individually designated item – not a category, but an item
that cannot be confused with some other. The Act places upon entitled
persons a duty, failure to fulfill by the deadline results in loss of
the claim. In the view of the secondary party to the proceeding, the 6
month time period allowed for the submission of the request was
sufficiently long, and it was allegedly possible, within the given
period, to obtain even a precise specification of the items at the then
State Institute for the Care of Monuments. The complainant’s
restitution request did not individualize a single concrete item, and in
consequence of its entirely (according to the statement of views)
uncertain designation of items, the surrender of which was requested, it
did not meet the condition of concretization of the claim in relation
to individually designated items. Thus, the secondary party to the
proceeding entirely concurred with the ordinary courts’ interpretation
in this case. The secondary party agreed that an oral hearing before
the Constitutional Court could be dispensed with.
II.
The
Constitutional Court has many times stated that it is not competent to
review the overall legality of decision-making by ordinary courts,
neither to substitute its evidence taking and evaluation of the admitted
evidence. As the judicial body for the protection of
constitutionalism, it is however authorized, or obliged, to adjudge
whether there has been, in the earlier proceeding, a violation of
constitutionally-guaranteed basic rights, among which is included the
right to judicial and other legal protection and to fair process,.
After
acquainting itself with the materials in the file and after evaluating
the essential circumstances of the case, the Constitutional Court has
come to the conclusion that the constitutional complaint is well-founded
in part.
In that matter
under consideration, it is of basic significance to assess the issue
whether the request to turn over property, delivered on 30 September
1991 to the Institute of Monuments in Brno, can be considered a proper
request in the sense of Act No. 87/1991 Coll., and whether the requested
items of movable property were precisely individualized in this
request. As is evident from the reasoning of the decision contested in
the constitutional complaint, the ordinary courts, primarily the
appellate court, considered this to be the crucial issue and the
complainant’s arguments contained in the constitutional complaint are
directed against the conclusions adopted by them on it.
In
the case under review, the Constitutional Court learned, both from the
contested decisions of the ordinary courts and from the relevant file
material (the file of the Municipal Court in Brno, No. 15 C 165/92),
that in the request received by the Institute of Monuments in Brno, the
complainant requested “the surrender of the items of movable property
which, on 25 February 1948, where contained in the register of the state
castle Lommice u Tišnova”; she further stated that “it concerns
paintings, furniture and valuable objects which are located in various
castles which you are administering”. The complainant added that she
herself could not determine precisely where particular items could be
found at present but that she was convinced that the said organization
must have a precise record detailing to where particular items had been
transferred. By way of conclusion she offered to cooperate in
identifying those items and gave as an example that when visiting the
castle in Milotice with her sister, they recognized paintings that were
originally their property. In the course of the court proceeding, it
was ascertained from, among others, archival material of the State
Administration of Monuments (No.l. 13 of the file) that from the castle
Lomnice u Tišnova alone items were distributed to the buildings of
Jemniště in Central Bohemia, Lysice and Rájec nad Svitavou in Southern
Moravia and Kratochvíle in Southern Bohemia; according to contemporary
materials (the 10 September 1992 statement of the State Institute for
the Care of Monuments), these movable asserts are located in Slatiňany,
Kratochvíle, Lysice, Rájec nad Svitavou and Náměšti nad Oslavou. In
reasoning its decision, the first instance court merely stated briefly
of the inventories of movable items, sent by the State Institute for the
Care of Monuments, that “the complainant could have obtained them in
the archives”; in the court’s view the petition was properly
particularized only after the deadline in § 5 para. 4 of Act No. 87/1991
Coll. (within one year of its entry into force, that is, from 1 April
1991). Thereafter the appellate court considered the mentioned request –
as is analyzed in more detail above - “as entirely unspecific” and
declared that, in conformity with § 5 para. 2 of the restitution act the
complainant’s claim lapsed.
The
Constitutional Court, which in its decision-making gives preference to
the substantive conception of the law-based state and the interpretation
of legal enactments from the perspective of their purpose and
significance, and recalls that, by means of the restitution acts, the
democratic society is endeavoring at least to mitigate the consequences
of past property and other injustices, and the State and its bodies are
obliged to proceed in accordance with the restitution acts in harmony
with the statutory interests of the persons whose injury should be at
least partially compensated. In applying the restitution acts, a too
restrictive, or formalistic, approach must not be taken, on the
contrary, they must be applied in a very sensitive manner, always with
the circumstances of the particular case in mind, and above all the
cited purpose and significance of the act. As far as concerns the
above-stated central question relating to the necessity of the precise
individualization or specification of the items demanded, under the
sanction that the claim would otherwise be extinguished, it would
perhaps be possible to agree with the ordinary courts’ conclusions if
this matter had not concerned an enormous extent of moveable property
(compare No. 1. 13 of the file), but about several items where it would
be entirely and without any doubt evident that it was within the
restituent’s power to specify in detail the property in question within
the time period allowed by the statute. It is appropriate to recall the
age-old general principle that nobody may be obliged to do the
impossible (nemo tenetur ad impossibile). It cannot categorically be
stated that, in the given case, it was entirely out of the question for
the complainant to be able, in the original request, to individualize
the items, in the Constitutional Court’s view, this fact was not
demonstrated in the proceeding in a sufficiently persuasive manner. If
such factual findings as would be in harmony with the ordinary courts’
conclusions could not safely be drawn from the evidence admitted, than
it can be concluded that this constituted a violation of the principles
of fair process. In essence it does not suffice to make a mere
reference to the content of the file and to the views expressed by the
State Institute for the Care of Monuments (compare the contested
judgment of the Municipal Court, No.1 176 of the file), or to the
opinions of the obligated persons.
If
there exists several possible interpretations of a particular legal
enactment or of certain of its provisions, consideration must be given
to the intent of the legal rule. In the case of Act No. 87/1991 Coll.
that intent is doubtless the effort to mitigate the consequences of
certain property injustices committed by the totalitarian state in the
decisive period. If two equally valid interpretations are possible, one
of which is broad and the other narrow, between them the court must
select that which corresponds to further interpretive methods, in
particular teleological reasoning. The ratio legis of the restitution
acts is to redress, at least to a certain degree, the consequences of
the infringement of the fundamental rights of natural and legal persons
in the totalitarian era. Thus, a constitutionally conforming
interpretation is generally a broad one: a statute and its individual
provisions must be interpreted in such a way that, by applying them, it
is possible to attain the aim pursued by the legislature.
When
interpreting the relevant provisions of the restitution acts, it also
cannot be overlooked that it was a totalitarian state which illegally
stripped its citizens of their property and that subsequently state
bodies dealt with that property in an arbitrary fashion for a period of
nearly 40 years, in the course of which movable property was
appropriated and in fact relocated to various places; therefore, the
Constitutional Court is convinced that the consequences of these or
similar transactions cannot now be interpreted, in principle, solely to
the detriment of the entitled persons. It is necessary always to
proceed on the basis of the circumstances of the particular, concrete
case. If in view of the above-described situation, the complainant
drafted her original request in a not entirely specific fashion,
precisely with regard to the unusual nature of the given case this can
be accepted, unless it has been proven without any doubt that it was
within her power by the end of the statutory period to learn precisely
which specific items were concerned and where these items could be
found. A notion that is not at all unmeritorious is possible as well:
were the complainant, due to time pressures, to designate certain items
imprecisely then she could scarcely later claim items specified in a
different fashion, as an objection in that respect would obviously be
forthcoming. On the contrary, the complainant has from the beginning
presumed and stated that the property she is demanding would be
specified during the course of the proceeding as soon as there would no
longer be doubts as to where the items were actually located, and that
occurred by her 26 April 1994 supplement to the “proposal of the
complaint”. Otherwise, even the manner in which the obligated persons
have conducted themselves and the very course of the proceeding itself
have confirmed the complainant in her view that further legal
transactions were not needed and that it was obviously entirely evident
to the obligated persons which items she was claiming be turned over
(compare, for example, the record of the 22 July 1992 hearing, No. 1. 5
of the file).
If then the
appellate court, in relation to the defendant Institute of Monuments in
Brno, proceeded on the basis of the above-described conclusions (that
is, that the complainant did not serve a proper request upon the obliged
person) and affirmed the negative judgment of the first instance court,
and if, in addition, it literally stated that it did not find it
necessary to concern itself with further objections contained in the
complainant’s appeal, or to give its views on the other grounds which
led the first instance court to reject the action on the merits, then
the Constitutional Court is persuaded that this constitutes a violation
of the right to fair process which the complainant claims.
As
far as concerns the contested judgment of the first instance court, the
Constitutional Court did not ascertain from the constitutional law
perspective any error of such a character, or intensity, that it would
be imperative to react by quashing this decision as well. While it
might be admitted that the reasoning of the given judgment, despite
being extensive, could have been more persuasive and even more
comprehensible for a layman, nonetheless that court addressed the matter
in detail and, in the written version of its decision, captured the
main points in a sufficient manner; it appears from the reasoning of
this judgment the relations between, on the one hand, the factual
findings and the considerations when weighing the evidence and, on the
other hand, the Municipal Court’s legal conclusions. The Constitutional
Court is proceeding here primarily on the principle of the
minimalization of intrusion into the jurisdiction of other public
authorities; by annulling even the first instance decision, it would be
placing itself into the role of an appellate court and would scrutinize
this decision from the perspective both of process and substance.
In
conclusion then, the Constitutional Court emphasizes that it did not
concern itself with other grounds upon which the complainant’s
restitution claim was rejected on the merits by the first instance
court. Since in the proceeding the courts and the complainant
considered as the fundamental question, whether the request to turn over
the items of movable property; the appellate court itself explicitly
stated that it did not consider it necessary to concern itself with
others of the complainant’s objections nor to give its views also on
other grounds which led to the rejection of the action on the merits.
If they observe the principles of fair process, the adjudication of
these grounds falls within the exclusive jurisdiction of ordinary
courts, and the Constitutional Court is in no way anticipating, nor may
it anticipate, their final resolution. It will be up to the appellate
court to hear this matter again and, in the reasoning of its decision,
persuasively to respond to all of the relevant objections made by the
complainant in the matter. Merely as obiter dictum, the Constitutional
Court would recall that naturally the appellate court might even annul
the decision of the first instance court, if in further proceedings it
comes to the conclusion, for example, precisely on the basis of a
careful review of the complainant’s objections, that such is necessary
in order to reach a just resolution of the matter.
Since
the Constitutional Court ascertained, on the basis of the above-stated
grounds, that in the given case there was a violation of Art. 36 para. 1
of the Charter of Fundamental Rights and Basic Freedoms, it granted the
complainants in relation to the contested decision of the Regional
Court in Brno and quashed that court’s contested decision [§ 82 para. 3
lit. a) of Act No. 182/1993 Sb, on the Constitutional Court, as
subsequently amended].
As
for the remainder, that is as far as concerns the first instance
decision, on the above-stated grounds the petition was rejected on the
merits.
Notice: A Constitutional Court decision can not be appealed.
Brno, 24. March 2004
Notice: A Constitutional Court decision can not be appealed.
Brno, 24. March 2004