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HEADNOTES
It
may be stated that family and family life represent a community of
persons connected with biological and emotional links, and, as an
implication, also with property connections. It is a set of these links
and connections maintained not only between living individuals, but also
links and connections which, by contrast, transcend human life. They
represent a line which connects individuals alive today with their
predecessors as well as descendants.
An
indisputable part of the right to family life is formed by a
relationship of a living family member to their late predecessors, a
typical and socially provable content of which consists of a respect for
the memory of predecessors, or a requirement for reverent attendance of
predecessors.
In
this, it is true that the way of handling the dead, and the form and
location of placing their mortal remains are to be decided on by the
individuals themselves. A special bond of an individual is thus bound
not only to dead predecessors, but also to their place of eternal rest
which they selected and built with their own means. Therefore, such
reverence relates not only to the dead alone, but also to the place of
reverence. Reverent and emotional relationship to such a site may be, in
such a case, even stronger than ownership relations to this place
For
human dignity, it is essential that also the death of an individual is
viewed with respect related (at the least) to noting that the person has
died and announcing it to close individuals, and, furthermore, it
involves the considerate handling of the remains and designation of the
grave, this being a traditional interest of an individual or their
relatives. (…) Such rights originate from the respect for general human
nature, in both ways, meaning in relationship to deceased persons and
survivors.”
Naturally,
it holds that the right to respect for private and family life, as well
as other fundamental rights, may be subject to certain limitations
which are constitutionally approved, determined by law, pursue a
legitimate objective and are proportionate to such a right. In the case
of the right to the respect for family life, reasons for limitations
result from Art. 8 para. 2 of the Convention
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
A
Panel of the Constitutional Court, consisting of Chairman Vojen Güttler
and Justices František Duchoň and Eliška Wagnerová (Justice
Rapporteur), adjudicated on 7 January 2009 the matter of a
constitutional complaint filed by A. P., represented by Mgr. Jan Dáňa,
an attorney at law with a registered office at Na Ořechovce 4, 162 00
Prague 6, against a resolution by the Supreme Court dated 1 July 2008,
file No. 28 Cdo 1743/2008, a judgment of the Regional Court in České
Budějovice dated 12 December 2007, file No. 7 Co 2573/2007, and a
judgment of the District Court in Jindřichův Hradec dated 25 July 2007,
file No. 9 C 401/2006; connected with the petition for annulment, or
declaration of ineffectiveness, of Act No. 143/1947 Coll. on Transfer of
Ownership of Property of the Hluboká Branch of the Schwarzenberg Family
to the Province of Bohemia; with participation by the Supreme Court,
the Regional Court in České Budějovice and the District Court in
Jindřichův Hradec as parties to the proceedings, as well as the National
Monument Institution represented by JUDr. Irena Chmelíková, an attorney
at law with a registered office at Nám. Přemysla Otakara II. 34, 370 01
České Budějovice, and the Czech Republic represented by the Office of
the Government Representation in Property Affairs, as secondary parties
to the proceedings, as follows:
I.
By a resolution of the Supreme Court dated 1 July 2008, file No. 28 Cdo
1743/2008, by a judgment of the Regional Court in České Budějovice
dated 12 December 2007, file No. 7 Co 2573/2007, and by a judgment of
the District Court in Jindřichův Hradec dated 25 July 2007, file No. 9 C
401/2006, the fundamental right of the petitioner to be protected from
any unauthorised intrusion into private and family life in accordance
with Art. 10 para. 2 of the Charter of Fundamental Rights and Basic
Freedoms, and the right to respect for private and family life in
accordance with Art. 8 para. 1 of the Convention for the Protection of
Human Rights and Fundamental Freedoms were violated.
II. Therefore, the above-specified decisions shall be annulled.
III.
The petition for annulment, or declaration of ineffectiveness, of Act
No. 143/1947 Coll. on Transfer of Ownership of Property of the Hluboká
Branch of the Schwarzenberg Family to the Province of Bohemia shall be
denied.
REASONING
I.
1.
By a constitutional complaint filed in due time and properly as for
other preconditions, the petitioner contested the decisions of the
ordinary courts designated in the heading hereof. The judgment of the
District Court in Jindřichův Hradec dismissed the action by the
petitioner requesting that the court establish that the “Schwarzenberg
vault”, located on parcels of land Nos. 72, 73, 487/1, 488/1, 498/1,
498/2, 498/4, 498/5, 498/6, 498/7, 498/9, 498/10, 498/11, 498/12, 498/13
and 498/14 in the cadastral area of Domanín u Třeboně, all registered
in Property Deed No. 37 with the Cadastral Office for the Region of
South Bohemia, Cadastral Workplace in Třeboň, is part of the inheritance
left by the late Dr. Adolf Schwarzenberg. The contested judgment by the
Regional Court in České Budějovice subsequently confirmed the judgment
of the court of first instance, and the contested resolution of the
Supreme Court then dismissed as impermissible the appeal on a point of
law by the petitioner.
2.
The petitioner, within her constitutional complaint, objected that the
contested decisions violated her constitutionally guaranteed right to a
fair trial in accordance with Art. 36 of the Charter of Fundamental
Rights and Basic Freedoms and Art. 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, in connection with
Art. 13 of the Convention. This was based on the reason that the
petitioner has long been prevented from accessing relevant documents
which relate to the loss of property of the petitioner’s legal
predecessor, Dr. Adolf Schwarzenberg, this in spite of the fact that the
state bodies were aware of a number of relevant facts, particularly in
respect of whether the property of Dr. Schwarzenberg was confiscated on
the basis of the “Beneš Decrees” (Decrees No. 12/1945 Coll. and No.
108/1945 Coll. ), or later on the basis of Act No. 143/1947 Coll. on
Transfer of Ownership of Property of the Hluboká Branch of the
Schwarzenberg Family to the Province of Bohemia. In this manner, the
petitioner’s restitution claim was negated in the past, and at present
her pressing legal interest in ascertaining ownership rights, which she
claimed following her failure in the matter of restitutions, is
paradoxically negated in the same way. Furthermore, the petitioner
believes that Art. 2 para. 2 of the Charter in connection with Art. 2
para. 3 of the Constitution, pursuant to which the objective and task of
state power is to serve citizens, were violated. In addition, Art. 11
of the Charter was allegedly violated, since the Opinion of the
Constitutional Court Plenum, file No. Pl. ÚS - st. 21/05, dated 1
November 2005, was applied by the ordinary courts to the case of the
petitioner, but the conditions reflected by the Opinion are not met in
this case. The ordinary courts thus retroactively interfered with the
ownership rights of the petitioner by negating the existence of the
legal interest. At the same time, Art. 3 para. 1 of the Charter was also
allegedly violated, this Article guaranteeing equality of individuals
without regard to gender, race, colour of skin, language, faith and
religion, political or other conviction, national or social origin,
property, birth, or other status. The petitioner objected that in cases
of other persons who were affected by illegal confiscation of property
without compensation, restitution of property rights eventually took
place (e.g. in the case of the Walderode family). To this the petitioner
added that Dr. Adolf Schwarzenberg made a considerable contribution to
the integrity of the Czechoslovakian state by no small financial
investment into the defence of the country in 1937, and by further
support of the struggle for liberation of the country when in exile in
the USA.
3.
The petitioner further elaborated this basic framework of argumentation
in her constitutional complaint by raising several objections. The
petitioner stated that possession of all property was taken by the
Czechoslovakian state in May 1945 from the German Gestapo. In June,
national administration was unreasonably and unlawfully imposed on the
property and, in October 1945, agricultural property was confiscated by a
Notice by the District National Committee issued on the basis of “Beneš
Decrees”. By the issue of Act No. 143/1947 Coll., confiscation was
extended to cover all business and commercial property which, following
the termination of national administration as of 31 May 1948, passed to a
newly established unit under the ownership of the Province of Bohemia.
Extensive personal effects belonging to Dr. Adolf Schwarzenberg were
consequently handed over to this unit, without any legal cause, insofar
as the same were not retained, in a similarly unlawful manner, by the
Czechoslovakian Republic.
4.
Following the issue of Act No. 143/1947 Coll., the District National
Committee issued, on 12 February 1948, an assessment whereby they
annulled the confiscation in accordance with Decree No. 12/1945 Coll. In
the petitioner’s opinion, this was done ineffectively and in
contravention of the Decree itself, as the Decree did not imply that it
would be at all possible to annul or discontinue an expropriation which
had already been administered. In connection with this, the petitioner
referred to a document which was delivered to her by the Ministry of
Finance on 6 September 2007, implying a legal opinion of the state
bodies dated 7 September 1981, specifying that the property of Dr.
Schwarzenberg was confiscated in accordance with Decrees of the
President of the Republic No. 12/1945 Coll. and No. 108/1945 Coll., and
that Act No. 143/1947 Coll. was merely confirmation of the confiscation,
not a confiscatory measure.
5.
The petitioner stated and objected that if the property had conceivably
been confiscated on the grounds of Act No. 143/1947 Coll., then such
confiscation could not have been achieved upon such an Act becoming
effective, but only upon intabulation of the right of ownership.
According to the petitioner, historical records in the land register
show that the state administration bodies construed the condition of
intabulation in connection with Act No. 143/1947 Coll. as a precondition
necessary for the transfer of the given property. All records of
ownership rights were made only after 25 February 1948, i.e. within “the
qualifying period” for the origination of a claim pursuant to
restitution regulations. According to the petitioner, in this context it
is irrelevant that the petitioner in the past did not submit a
restitution petition in accordance with Act No. 87/1991 Coll. Such a
non-submission was due to the fact that until the expiry of the term for
filing the restitution petition, the existence of relevant files was
concealed from the petitioner, and instructions which were given to her
by the state bodies were incorrect. By not accepting the claims now
being exercised in accordance with § 126 and § 451 of the Civil Code
with reference to the opinion of the Constitutional Court adopted in the
case of Kinský, the fundamental rights of the petitioner are again
violated. The petitioner deems such conduct to be in contravention of
good morals, as the state acts mala fide when the same refers to its own
unconstitutional conduct in order to be able to again repudiate
existing claims.
6.
In this given specific case, the petitioner is of the opinion that
whether the majority of property of Dr. Adolf Schwarzenberg was
confiscated in accordance with Beneš Decrees or on the basis of Act No.
143/1947 Coll., the Schwarzenberg family vault has never been governed
by either of these regulations.
7.
Ownership over the vault and adjacent land could not be affected by
confiscation in accordance with Decree No. 12/1945 Coll. since the same
was not agricultural property, but immovable property of a personal
nature important only to the members of the Schwarzenberg family and
their descendents. In addition, the confiscation notice does not imply
that the vault is part of the confiscation in accordance with the
above-mentioned regulation. Moreover, the vault was not confiscated on
the basis of Decree No. 108/1945 Coll. This was due to the fact that in
the case of the Schwarzenberg vault, no decision on confiscation was
issued in accordance with such a Decree. Finally, the vault could not be
assigned to the Province of Bohemia on the basis of Act No. 143/1947
Coll. since the wording of § 1 para. 2 of the Act implies that
confiscation is to affect immovable property relating to agriculture,
forestry, ponds and lakes, industry, commerce and trade, including all
buildings and chateaux and furnishings therein. However, the Act did not
and could not include articles and immovable property of a personal
nature of representatives of the Hluboká branch of the Schwarzenberg
family, such as, according to the petitioner, the very vault in
question, i.e. immovable property of a highly personal nature, which is
of significance to the members of the Schwarzenberg family and their
descendents.
8.
In addition, the petitioner stated that she herself evidenced before
the ordinary courts that the Czechoslovakian state administration bodies
acknowledged the inviolability of the vault in terms of ownership, as
the same was not deregistered from the property of JUDr. Schwarzenberg
from the land register before 1950; and the vault with adjacent land was
assigned to the ownership of the Czechoslovakian state – probably for
purely administrative reasons – as late as the 1960s.
9.
The petitioner emphasised that the vault and particularly the mortal
remains of her predecessors could not be confiscated by any of the
regulations, since the same would be in conflict with the Czech ordre
public. A vault is a rei extra commercium, to which conclusions
resulting from Opinion of the Constitutional Court Pl. ÚS -st. 21/05
cannot apply, since the same is not affected by the interests pursued in
such an Opinion. To this the petitioner added that the legislature
surely did not intend to enact a global legalisation of theft when
adopting restitution regulations. Such approval, which would turn
restitution legislation into that serving as justification of any
injustice, would have to be at least intentional on the part of the
legislature, and would have to be objectively formulated, which in fact
did not take place. The issue whether or not there is a legitimate
precondition for further continuance of possession of illegitimately
confiscated property is, according to the petitioner, governed by
circumstances of any given case. However, in this one, specific
circumstances were not examined by the courts.
10.
According to the petitioner, ownership is, according to its very
nature, non-prescriptible and in civilised countries exists permanently.
A law-based state with a democratic legal order is characterised by the
fact that the property of a citizen is not subject to state
arbitrariness, but is protected by the Constitution. In a corresponding
manner, it is necessary to proceed from the fact that in the
Czechoslovakian Republic where the Constitution from 1920 was valid, a
proven owner has a legitimate expectation that their right of ownership
will be acknowledged, irrespective of the period of time expired. Only
special circumstances, such as cessation of the state, which interrupts
constitutional and legal continuity, may abort such a legitimate
expectation. The petitioner stated that her legitimate expectations
were, in addition, strengthened by the Czechoslovakian state and later
Czech state. In June 1945, a note by the Czechoslovakian Republic was
produced and addressed to the Soviet Union, in which Dr. Schwarzenberg
was described as a well-known anti-Fascist against whom reparations
cannot be enforced; the reasoning to the decision by the Provincial
National Committee in Prague dated 5 March 1946 stated that Adolf
Schwarzenberg was of Czech nationality, always acting as a Czech, and
due to imminent persecution had had to flee from the Germans, and it was
not possible to treat him as a German or traitor; and thus his property
was not subject to confiscation, and suchlike.
11.
Therefore, the petitioner objected that she did not agree with the
opinion of the court of appeal on a point of law, according to which,
with reference to the opinion of the Constitutional Court, it is true
that legitimate expectation of restitution of alienated property is not
established. Throughout the 1990s, the Czech Republic via its bodies
obstructed the objective handling of restitution petitions by the
petitioner, through concealing the existence of confiscation files and
providing untrue information to land registration offices. An analogous
application of Opinion of the Constitutional Court Plenum Pl. ÚS -st.
21/05 would mean nothing but the fact that the Czech Republic continues
to violate fundamental rights and basic freedoms, which violation
started during the times of non-liberty.
12.
With respect to the circumstances above, the petitioner proposed that
the Constitutional Court by their Judgment annul all contested decisions
of the ordinary courts and return the case to the District Court in
Jindřichův Hradec to be re-heard.
13.
At the same time, the petitioner filed a petition for annulment of Act
No. 143/1947 Coll., as the same has fundamentally violated the generally
acknowledged fundamental rights and basic freedoms of the legal
predecessor of the petitioner, and the purpose of the same consisted
solely of political persecution. With respect to this, the petitioner
believes that this legal regulation is in conflict with constitutional
statute No. 23/1991 Coll., whereby the Charter of Fundamental Rights and
Basic Freedoms was proclaimed, and according to which legal regulations
in conflict with the Charter became legally ineffective as of 31
December 1991; this Act was also in contravention of the then valid
Constitution of 1920.
14.
On the basis of a request from the Constitutional Court, parties and
secondary parties to the proceedings submitted their statements
concerning the constitutional complaint.
15.
In his statement, the President of a Chamber of the Supreme Court
stated that he did not share the opinion of the petitioner declared in
the constitutional complaint as regards the violation of
constitutionally guaranteed fundamental rights. Furthermore, he stated
his agreement with the conclusions of basic level courts, i.e. that the
transfer of property “of the Hluboká Branch of the Schwarzenberg Family
to the Province of Bohemia” took place on the basis of Act No. 143/1947
Coll., and this prior to 25 February 1948. According to the Supreme
Court, the evaluation of this legal matter is covered by the fundamental
interpretative legal conclusions contained in Opinion of the
Constitutional Court Plenum dated 1 November 2005, file No. Pl. ÚS -st.
21/05 (published as Notice No. 477/2005 Coll.). The ordinary courts
proceeded in this legal matter on the basis of the same. Therefore, the
Supreme Court stated that they do not consider the constitutional
complaint as justified.
16.
The President of a Chamber of the Regional Court in České Budějovice
stated that she based her decision on the conclusion that the court of
the first instance correctly inferred that property of JUDr. Adolf
Schwarzenberg was not confiscated by Decree of the President of the
Republic No. 12/1945 Coll. but that the transfer was implemented by Act
No. 143/1947 Coll. This Act has been valid ever since and the case
cannot be assessed otherwise. The Regional Court in its decision making
allegedly also proceeded from the fact that the petitioner claimed by
action that the legality of process in accordance with Act No. 143/1947
Coll. should be reviewed, or that she stated that this Act could not
serve as the basis for transfer of the right of ownership. However,
according to the Regional Court, the powers to review this Act do not
pertain to ordinary courts; through an action requiring that ownership
rights be ascertained by the court (“declaratory action”), it is not
possible to demand that an act be declared invalid. It is also not
possible to evaluate whether such an Act was or was not in accordance
with the law, or to decide whether property could have passed to the
state when the confiscation of the same property had already been
decided upon in accordance with the Decree of the President of the
Republic. The Regional Court, therefore, concluded that since Act No.
143/1947 Coll. is even today a part of the legal order of the Czech
Republic, the petitioner may not, by filing the action, circumvent
restitution regulations and claim that such an Act should not have been
used as the basis for procedure. In connection with this, the Regional
Court referred to the fact that even the Constitutional Court, by
Resolution dated 16 October 2008, file No. II. ÚS 2491/08, denied the
petition for annulment, or declaration of ineffectiveness, of Act No.
143/1947 Coll. As for details, the Regional Court referred to their
judgment and the judgment of the court of first instance.
17.
In her statement, the President of a Chamber of the District Court in
Jindřichův Hradec referred to her judgment which – as was pointed out by
the court – has not been changed by any decision of the higher level
courts; furthermore, she stated that she leaves the decision on the
constitutional complaint to the Constitutional Court to consider.
18.
In their statement, the Office of the Government Representation in
Property Affairs stated that the constitutional complaint is completely
unsubstantiated, since both the ordinary courts and the Constitutional
Court in several cases have made decisions in similar matters, i.e. in
restitution cases of the petitioner, and also with respect to her
petitions for ascertaining ownership to the property of the Hluboká
branch of the Schwarzenberg family, and it has always been concluded
that, on the basis of Act No. 143/1947 Coll., a change took place in the
identity of the owner of the property and that the above-specified Act
dispossessed ownership in one step from the owners named in the Act. The
property specified in the Act was transferred to the state in one step
ex lege to the date of effectiveness of the Act, i.e. 13 August 1947,
whereby the transfer was accomplished once and forever. Therefore, the
petition by the petitioner for declaration of ineffectiveness of such an
Act as at 31 December 1992 is completely irrelevant. The Office of the
Government Representation in Property Affairs further denied the
statement of the petitioner that the courts had not dealt with the fact
that the vault is property of a personal nature; the Office stated that,
to the contrary, a conclusion was pronounced within the proceedings
that the vault, including the adjacent immovable property, formed part
of an agricultural property called “The Třeboň Estate”. With respect to
this, the Office of the Government Representation in Property Affairs
proposed that the constitutional complaint be denied.
19.
Another secondary party, the National Monument Institution, firstly
doubted the active standing of the petitioner for filing the action
before the ordinary courts, this for the reason that she was declared,
within inheritance proceedings, to be merely one of the legal successors
of Dr. Jindřich (Heinrich) Schwarzenberg, who was an heir of JUDr.
Adolf Schwarzenberg, and, therefore, according to the secondary party,
she cannot exercise exclusive right of ownership to the entire possible
subject of the inheritance. At the same time, the National Monument
Institution pointed out a discrepancy resulting from the constitutional
complaint, in which the petitioner incorrectly stated that JUDr. Adolf
Schwarzenberg was her grandfather. The National Monument Institution
further stated that the property was seized as early on as during the
life of JUDr. Adolf Schwarzenberg, and thus he, as the testator, on the
date of his death on 27 May 1950, did not actually own the immovable
property in question, and thus such property cannot form part of his
inheritance. In addition, the immovable property in question was
transferred to the state prior to the “qualifying period”. In connection
to this, the secondary party pointed out the case law of the Supreme
Court relating to other property of the Hluboká branch of the
Schwarzenberg family, according to which their property was affected by
Act No. 143/1947 Coll., prior to which no confiscation on the basis of
Decree No. 12/1945 Coll. occurred.
20.
The National Monument Institution further denied the allegedly biased
statement of the petitioner that the vault was actually “purely private
property and the vault did not fall under the wording of Act No.
143/1947 Coll.” The Institution pointed out that, in 1995, the opinion
of the petitioner was completely different since she, in her request
delivered to the Monument Institution in České Budějovice concerning the
release of immovable property, stated this immovable property is
predominantly property of an agricultural nature, and the family vault
is always an indivisible part of the manor, whether the nature of the
same is agricultural or not. To this the National Monument Institution
added that it was proven before the court of first instance, by a
statement from Land Tables, Entry No. 1540 “The Třeboň Estate”, a
statement from Land Registers, Entries No. 34, 47, 1182 and 1307 for the
cadastral area of Třeboň, that the immovable property in question was
owned (before the ownership rights were registered in the name of the
Province of Bohemia) by JUDr. Adolf Schwarzenberg. Ownership rights in
the name of the Province of Bohemia were recorded on the basis of Act
No. 143/1947 Coll. with effectiveness as of 13 August 1947. The court of
appeal then in their judgment did not share the petitioner’s opinion
that the vault and the adjacent land is property of a personal nature to
which the above-specified Act could not apply, and the court of appeal
explicated their opinion in the reasoning. According to the National
Monument Institution, two buildings and 16 parcels of land are involved,
and, therefore, it is hardly possible to speak of immovably property of
a highly personal nature and status, as is claimed by the petitioner.
21.
In the case of the Schwarzenberg vault, it is not a vault which served
only to entomb the mortal remains of members of the Schwarzenberg
family. This structure, from the very time it was erected, has not been a
funereal building of single purpose, as is the case with other vaults
of important or wealthy persons. Typologically, this is an
ecclesiastical building, the interior layout of which features all the
sections inherent to a church or chapel (presbytery, nave, choir and
sacristy), which were also used for such purposes following the
completion of construction work. Services were regularly held and mostly
attended by religious parishioners; when important anniversaries were
celebrated, also by Schwarzenberg family members when they were staying
at Třeboň. In order to secure public services, a nearby former gatehouse
in the park was adapted and became a rectory. Similarly, the external
architectural form of the building is in the shape of a sanctuary, as it
primarily and regularly served such a purpose. A monumental
double-flight stairs converges at the landing of the porch of the
chapel; the building features a typical belfry, and is dominated by a
centrally arched nave with external and internal sculptures. The vault
itself forms a partially buried basement section of the building as a
crypt. This concept is a standard one for all ecclesiastical buildings
which were used, in addition to liturgical purposes, as a place of
burial. The clear majority of urban and convent churches and chapels may
serve as examples.
22.
As for the adjacent land, the National Monument Institution believes it
must be stated that the park in Domanín has been – since its
establishment by the landscape architect Wácha in 1875, which was one
year after the commencement of building the chapel – conceived as a
natural landscape park of Romantic style, and was also associated with
economic usage. It has never been enclosed by a wall or separated in any
manner from neighbouring land, as was common for cemeteries or
spiritual places. A number of public roads led through the park, one of
them being the main central route leading directly to the church of St.
Jiljí and its cemetery. The park was farmed, in terms of agriculture and
forestry, which was also made possible by its uninhibited connections
to the surrounding landscape, including commercial access to the Svět
Lake.
23.
The National Monument Institution concluded that the person who claims a
right after many dozens of years cannot legitimately expect to be
successful with a proposed judgment which only abuses the institute of
declaratory action in order to evade special acts. Property, the
restitution of which the state intended to make possible, was included
in special restitution acts. In other cases, it is not possible to
misuse general legal instruments to make long-term ownership
relationships insecure. With respect to this, the National Monument
Institution proposed that the constitutional complaint be denied as
clearly unsubstantiated.
II.
24.
Furthermore, the Constitutional Court, in order to evaluate the
constitutional complaint, has requested the file from the District Court
in Jindřichův Hradec, file No. 9 C 401/2006. From this, the
Constitutional Court ascertained that the petitioner claimed, before the
ordinary courts, that it be determined the Schwarzenberg vault, located
on parcels of land Nos. 72, 73, 487/1, 488/1, 498/1, 498/2, 498/4,
498/5, 498/6, 498/7, 498/9, 498/10, 498/11, 498/12, 498/13 and 498/14 in
the cadastral area of Domanín u Třeboně, all registered in Property
Deed No. 37 with the Cadastral Office for the Region of South Bohemia,
Cadastral Workplace in Třeboň, pertains to the inheritance of Dr. Adolf
Schwarzenberg. She supported her pressing legal interest with the fact
that she is a rightful heir of JUDr. Adolf Schwarzenberg, more
specifically his adopted son Dr. Jindřich (Heinrich) Schwarzenberg, and
the immovable property forms “hereditas iacens”. She further stated that
the vault is incorrectly registered in the Cadastre of Real Estate in
the name of the Czech Republic. The individual parcels of land were
re-registered to the Czechoslovakian state during 1961, on the basis of a
Notification of the Ministry of the Interior dated 20 May 1957, file
No. 132897/1957-232-VI; according to the petitioner, this was an
arbitrary assignment of the property made after more than ten years from
the death of Dr. Adolf Schwarzenberg. Furthermore, the petitioner
raised objections in her action which are contentually identical to
those the petitioner stated in the constitutional complaint. A part of
the file is formed by copies of statements from the Land Register, Entry
No. 154, cadastral area of Domanín, the statement being entitled
“Family vault – confiscation”. This statement includes, in addition to
immovable property listed in the action, also other items of immovable
property, for example, the Church of St. Jiljí and its cemetery.
Immovable property to which the action relates is designated as a chapel
with a vault, park and garden. At the very end, it contains an entry
saying “Filed on 22 November 1961 No. 1078. In accordance with § 1 para.
1 and 2 of Act dated 10 July 1947 No. 143/47 Coll. on Transfer of
Ownership of Property of the Hluboká Branch of the Schwarzenberg Family,
and in accordance with this petition: a) a note on confiscation to the
benefit of the German Reich, item B7 appurtenant, shall be deleted, b) a
note on national administration under item B-10 appurtenant, shall be
deleted. Right of ownership shall be registered for: to be continued on
page 21." Page 21 contains a conclusion of the preceding text as
follows: the Czechoslovakian state – District National Committee in
Jindřichův Hradec.”
25.
From the file, the Constitutional Court further familiarised itself
with the reasonings of the individual contested decisions by the
ordinary courts. The reasoning of the judgment of the District Court in
Jindřichův Hradec implies that they deemed the petitioner to be a legal
successor of JUDr. Adolf Schwarzenberg, who was the owner of the
property covered by the action filed. The court of first instance also
concluded that the petitioner has a pressing legal interest in the
required determination of legal relationships. Substantively, however,
the court concluded that ownership of this property passed to the
Province of Bohemia upon Act No. 143/1947 Coll. coming into effect, that
is as of 13 August 1947. According to the court of first instance, the
assignment took place ex lege, since such an Act did not specify that
the assignment would take place by entering the same into the Land
Register. The court of first instance further stated that in accordance
with § 1 para. 2 of the Act, the property in question means immovable
property relating to agriculture, forestry, ponds and lakes, industry,
commerce and trade, registered in books in the name of Josef (Joseph)
Adolf, the Prince of Schwarzenberg, Jan (Johann), the Prince of
Schwarzenberg, and Dr. Adolf Schwarzenberg, this including all buildings
and chateaux and furnishings therein, together with all rights and
obligations, plus livestock and deadstock, along with all supplies and
all working capital. For assessing which items of property pass to the
Province of Bohemia, their status as on 9 May 1945 was decisive. The
court of first instance concluded that the immovable property – the
subject of the proceedings – passed, on 13 August 1947, to the ownership
of the Province of Bohemia, this during the lifetime of the legal
predecessor of the petitioner. Therefore, at the date of his death, 27
February 1950, such real estate was not his property.
26.
The reasoning of the contested judgment of the Regional Court implies
that the judgment of the court of first instance was confirmed as
correct in terms of the matter itself. However, the court of appeal did
not identify itself with the conclusion of the court of first instance
that the petitioner has a pressing legal interest in the declaration. On
the contrary, they referred to the Opinion of the Constitutional Court
Plenum, published as a Constitutional Court Notice under No. 477/2005
Coll., which states that by declaration of right of ownership, in
particular such a right which requires entry in the Cadastre of Real
Estate, in the case of absence of legitimate expectation on the part of
the petitioner, the preventive function of action pursuant to § 80
clause c) of the Civil Procedure Code is not fulfilled, and thus the
pressing nature of the legal interest is not given; and that the action
for declaration of ownership rights may not be used to evade the meaning
and purpose of restitution legislation. The court of appeal paraphrased
the contents of the Opinion of the Constitutional Court Plenum, i.e.
that outside the scope of restitution regulations, it is impossible to
claim the release of property (and according to the court of appeal, it
is also impossible to claim that it be declared that such property is
included in inheritance after a person who died in the interim), when
the property was taken over by the state prior to the qualifying period,
that is prior to 25 February 1948.
27.
Within its reasoning, the court of appeal further dealt with the
objection by the petitioner that the vault is property of a personal
nature to which Act No. 143/1947 Coll. did not apply. They stated that
this vault was not one that served only for entombing the mortal remains
of persons from the Schwarzenberg family, but it was a building serving
for the administration of public church services for parishioners from
the Třeboň Estate. The fact that this was not only a building serving as
a burial place is, according to the Regional Court, also derivable from
the fact that the petitioner calls for not only this structure to be
released, but also a number of parcels of land of an agricultural and
forestry nature, which were in the past utilised for such purposes.
28.
The Supreme Court, within the contested resolution, concluded that the
issue dealt with in the judgment of the court of appeal is not an issue
of a material legal importance, since vital interpretation was provided
earlier by the judgment of the Grand Panel of the Civil Committee dated
11 September 2003, and in the Opinion of the Constitutional Court Plenum
dated 1 November 2005, file No. Pl. ÚS -st. 21/05, whereby ordinary
courts are bound.
29.
The Constitutional Court further administered evidence via publicly
accessible text found on the Regional Information Server of the Třeboň
Area (http://www.trebon.cz/hrobka.html; verified on 20 November 2008).
From this it is implied that “since 1784, members of the main branch of
the Schwarzenberg family were buried in the nearby cemetery of the
Church of St. Jiljí, first mentioned in 1515. However, in the second
half of the 19th century, this church was full and also did not meet
relatively strict hygiene regulations, which required that the rooms of
the vault be separately ventilated and bodies be embalmed prior to being
placed in a two-shell coffin.” The contents of this text is basically
equal to another publicly accessible text (http://cs.wikipedia.org;
verified on 20 November 2008): “Prior to the building of the vault,
members of the main branch of the Schwarzenberg family were buried –
following 1784 – at the St. Jiljí Church in Třeboň; this church,
however, no longer met, in terms of dimensions and hygiene, new
regulations stating that it is obligatory to bury in the ground unless
the vault is consistently separated from the sacred areas of the church,
and also that it is necessary to embalm the bodies prior to their
resting in two-shell coffins […] Works on the building started on 14
July 1874. A complex draining system for the vault was built, buried
under the level of the surface […] The vault was consecrated on 29 July
1877 by Bedřich (Friedrich) Schwarzenberg, the Archbishop of Prague,
brother of Prince Jan (Johann) Adolf II. […]. In 1888, a rectory was
built in the vicinity, and the adjacent areas landscaped as an English
park […] The vault itself […] has, according to the regulations then
valid, a separate entrance, small non-transparent windows, and internal
air circulation […] Even though bodies of the Schwarzenbergs are resting
in the vault, their hearts are located in special receptacles in Český
Krumlov, with the exception of the heart of the daughter of Princess
Eleonora.”
30.
Furthermore, the Constitutional Court, in accordance with the
provisions of § 44 para. 2 of Act No. 182/1993 Coll. on the
Constitutional Court as amended by later regulations, asked the parties
to the proceedings for approval of dispensing with an oral hearing. The
petitioner, by a note dated 19 November 2008, informed the
Constitutional Court of her disapproval. Therefore, the Constitutional
Court ordered that an oral hearing be held on 7 January 2009, and
summoned all parties to the proceedings to the same.
31.
In the course of the oral hearing held on 7 January 2009, the legal
representative of the petitioner referred to facts resulting from the
contents of the constitutional complaint, and only in relation to the
petition for annulment, or declaration of ineffectiveness, of Act No.
143/1947 Coll. appended the arguments included in the constitutional
complaint with a statement that the Act referred to cannot be considered
valid, since the same lacks generality and the only purpose of the same
was to confiscate property of the petitioner’s predecessor. Legal
representatives of the secondary parties in accord referred to the
contents of their statements concerning the constitutional complaint,
which they considered unsubstantiated, since the fundamental rights of
the petitioner were not affected.
III.
32.
Following the proceedings administered, the Constitutional Court
concluded that the contested decisions violated the constitutionally
guaranteed fundamental rights of the petitioner, however, not those
which the petitioner designated in her constitutional complaint. The
settled case law of the Constitutional Court specifies that the
Constitutional Court is, in its decision making, bound by the proposed
verdict of the petition, not by its reasoning, and is entitled to
examine whether constitutionally guaranteed fundamental rights other
than those referred to by the petitioner within the constitutional
complaint were violated.
33.
Therefore, in spite of the fact that the petitioner within her
constitutional complaint objected that her right of ownership and the
right to a fair trial were violated, the Constitutional Court concluded
that the fundamental right which was violated by ordinary courts
consists of the right to respect for private and family life in
accordance with Art. 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, and Art. 10 para. 2 of the Charter of
Fundamental Rights and Basic Freedoms.
III.A
34.
In Judgment file No. II. ÚS 568/08, the Constitutional Court stated, in
relation to the right to respect for private and family life, that
provisions of Art. 10 para. 2 of the Charter as well as provisions of
Art. 8 of the Convention speak, at a general level, of protection of
family life, or respect for family life, however, without defining – in
legal terms – the meaning of the term “family life”. When interpreting
such provisions it is therefore necessary to commence from the fact that
a family primarily represents a factual biological link and a social
institute which is only subsequently anticipated by legal regulation.
35.
The scope of the interpretation of the term “family life” is thus
determined, in particular, by social experience which may change in the
course of social development. It may be definitely stated that family
and family life represent a community of persons connected with
biological and emotional links, and, as an implication, also with
property connections. It is a set of these links and connections
maintained not only between living individuals, but also links and
connections which, by contrast, transcend human life. They represent a
line which connects individuals alive today with their predecessors as
well as descendants, even though it is expectable that intensities of
such links differ when it comes to relationships among living members of
the family and relationships with long-deceased predecessors. In such a
sense, family represents a spiritual home, one’s roots and a sense of
shared identity (Peschke, K.-H.: Křesťanská etika /Christian Ethic/.
Vyšehrad, Prague 2004, p. 479).
36.
An indisputable part of the right to family life is formed by a
relationship of a living family member to their late predecessors, a
typical and socially provable content of which consists of a respect for
the memory of predecessors, or a requirement for reverent attendance of
predecessors. The same conclusion is also held by the case law of the
European Court of Human Rights, according to which the methods of
burying and handling buried remains fall under the scope of Art. 8 of
the Convention, and this right may be claimed by survivors (cf. judgment
dated 17 January 2006 in the case of Elli Poluhas Dödsbo v. Sweden).
37.
In other words, a part of family life is also indubitably formed by the
manner of treating deceased predecessors, by the form of reposing their
mortal remains, and the place where such remains are located. This is a
right to protection of reverence of personality, which, for that
matter, is not only an accomplishment of a liberal or a law-based state,
but has its historical archetype in Christian morals or theological
teachings (cf. Kotrlý, T.: Pohřbívání v kostele /Burial in Church/.
Revue církevního práva /Church Law Review/, No. 3/2007, pp. 233 - 235).
In this, it is true that the way of handling the dead, and the form and
location of placing their mortal remains are to be decided on by the
individuals themselves. A special bond of an individual is thus bound
not only to dead predecessors, but also to their place of eternal rest
which they selected and built with their own means. Therefore, such
reverence relates not only to the dead alone, but also to the place of
reverence. Reverent and emotional relationship to such a site may be, in
such a case, even stronger than ownership relations to this place, or
the feeling of “absolute legal rule” over the property – a place of
eternal rest of predecessors.
38.
Also, the European doctrine of human rights accentuates a specific
relationship to dead predecessors. “The death of a human being is a
private matter. Like birth, death is an existential change, through
which an individual cannot be accompanied by another. Yet death holds a
central position in interpersonal relationships. All civilizations hold
funeral rites by which an individual is mourned. Death as well as life
are related to human existence in its individual dimension, and as such
must be acknowledged in relation to any person. However, human beings do
not live and die only for themselves. Both human nature and the
environment in which a man lives are social categories, since we all
number among a small or large group of friends, family or community. For
human dignity, it is essential that also the death of an individual is
viewed with respect related (at the least) to noting that the person has
died and announcing it to close individuals, and, furthermore, it
involves the considerate handling of the remains and designation of the
grave, this being a traditional interest of an individual or their
relatives. (…) Such rights originate from the respect for general human
nature, in both ways, meaning in relationship to deceased persons and
survivors.” (Greve, H. S.: “What’s in a Name?” - The Human Right to a
Recognized Individual Identity. In Human Rights, Democracy and the Rule
of Law. Liber Amicorum Luzius Wildhaber. Dike Verlag, Nomos
Verlagsgesellschaft, Zürich, Baden-Baden 2007, p. 310).
39.
Naturally, it holds that the right to respect for private and family
life, as well as other fundamental rights, may be subject to certain
limitations which are constitutionally approved, determined by law,
pursue a legitimate objective and are proportionate to such a right. In
the case of the right to the respect for family life, reasons for
limitations result from Art. 8 para. 2 of the Convention, according to
which legitimate reasons for limitations of such a fundamental right
consist of measures in the interests of national security, public safety
or the economic well being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others. Only the existence of
such reasons may legitimate restriction of a fundamental right, in the
given case, the above-specified reverence for mortal remains of
predecessors and a place where they rest. Typically, such measures may
consist of the existence of hygiene or building and technical
restrictions, possibly also right of ownership of a private person to a
place (land, structure) where the mortal remains are placed.
Nevertheless, priority of an emotional bond to the place of rest of
predecessors (family life) over absolute legal rule (ownership) over
such place is not given once and forever. In the specific case, the
competition of fundamental rights is subject to the test of
proportionality.
40.
The state is not endowed with fundamental rights and, therefore, its
ownership may not be subsumed under limitations specified under Art. 8
para. 2 of the Convention, or under the cause of “the protection of the
rights and freedoms of others”. Not even the present legal regulation of
funeral services in the Czech Republic, in accordance with Act No.
256/2001 Coll. on Funeral Services and on Alterations to Some Acts,
requires that graves are owned by the state (or public law
corporations); it allows for the existence of private or non-public
burial sites, including existing family vaults (§ 3 para. 1 of the Act)
(cf. Kotrlý, T.: Pohřbívání v kostele /Burial in Church/. Revue
církevního práva /Church Law Review/, No. 3/2007, pp. 233 - 243 et
seq.).
41.
The condition that the grave, vault and land on which the same are
located would have to be necessarily owned by the state cannot be
subsumed, in accordance with the conviction of the Constitutional Court,
under the provision of the economic well being of the country pursuant
to the above-quoted Art. 8 para. 2 of the Convention; the Constitutional
Court cannot see in which aspect ownership of the vault would bring
about such a benefit to the state, upon which the well being of the
country would depend.
III.B
42.
In one of its first Judgments (file No. Pl. ÚS 19/93), the
Constitutional Court set up limits which must be respected when
interpreting legal standards, no matter how old these legal norms may
be. Even though the present democratic law-based state is built on the
basis of a formal legal continuity with preceding legal and political
systems, the interpretation of law, which has its historical origin,
cannot neglect the present principles of a material law-based state. The
Constitutional Court further developed these ideas in its Judgment file
No. Pl. ÚS 42/02, in which they stated that the interpretation of
criminal law norms, however ancient they may be, if the same is
performed by a court today (due to usable procedural means) with impacts
on evaluating criminal sanction over a person, that is with effects
interfering with the personal domain of such a person, cannot be
administered regardless of today’s valid constitutive values and
principles of a democratic law-based state as they are expressed in the
constitutional order of the Czech Republic. Continuity with the “old
law”, the application (lawfulness) of which is the subject of
contemporary proceedings, may be understood only in such a limited way,
discontinual in terms of values.
43.
In Judgment file No. I. ÚS 137/03, the Constitutional Court related
these conclusions not only to the field of criminal law and private
freedom of an individual, but also to other domains of public law
regulation and infringement of other fundamental rights of an
individual. In other words, it is indubitable that the conclusions
firstly declared by the Constitutional Court in Judgment file No. Pl. ÚS
19/93 are universal postulates which apply to interpretation and
application of any legal standards, should they be implemented at the
present time with current consequences on the legal standing of an
individual.
III.C
44.
The First Panel of the Constitutional Court is aware of the fact that
the Constitutional Court dealt with the issues of the confiscation of
the property of the Hluboká branch of the Schwarzenberg family in its
case law repeatedly, most recently in its Resolution dated 16 October
2008, file No. II. ÚS 2491/08, which was presented to the Second Panel
by the Justice Rapporteur, who is a Rapporteur also in this case. In
such case law, the Constitutional Court reached the same conclusion as
the ordinary courts in the case being at present assessed, i.e. that the
case of the petitioner is covered by considerations treated in the
Opinion of the Constitutional Court Plenum dated 1 November 2005, file
No. Pl. ÚS - st. 21/05 (published under No. 477/2005 Coll.). According
to this Opinion, “restitution acts in fact legalised ownership by the
state over the property which the state acquired through confiscation,
nationalisation and other property measures, irrespective of the fact
that without existence of the same, it would have been possible, in some
cases, to apply ownership rights over such property in accordance with
general regulations. Thus, they at the same time excluded the
possibility of applying such rights in any other way, that is in
accordance with general norms, since such legal regulation represents
special arrangements specifying the general regulations. […] Even though
the property injustice which the [legislature] meant to mitigate (not
to rectify completely) occurred essentially in conflict with principles
of a law-based state in the past, neither the Constitution nor any other
legal regulation requires that this property be returned or
compensation for the same provided, or that any alterations in the legal
order be made for such purpose. It was free will of the state whether
or not to allow former owners of the property in question to make
endeavours for return of the same […] The very establishment of
restitution claims was then a beneficium of the state – specifically
defined from the viewpoint of time and material aspect. Any questioning
of such a definition effectively results in disputing the act of the
state as such.” Therefore, the Constitutional Court in such previous
resolutions stated that the conclusions of the Opinion make it
impossible for the petitioner successfully to claim protection of her
alleged right of ownership to the property which was allegedly
confiscated outside the qualifying period, and which the state did not
restitute by way of special restitution acts.
45.
The First Panel of the Constitutional Court does not intend at all to
deviate from such conclusions, since the Opinion of the Constitutional
Court Plenum pursuant to § 23 of the Act on the Constitutional Court is
binding for all its Panels. However, it cannot be overlooked that the
Opinion of the Plenum was dealing with the consequences of the fact that
some categories of property were not included within restitution
regulations, this in relation to ownership rights of individuals. The
Opinion did not deal with issues of respect or protection of the right
to family life, even when the same is in the specific case expressed
through property. In other words, the right to private and family life
may be only mediated through ownership right to property. Therefore, the
Opinion of the Plenum will not be applied in such a situation.
IV.
46.
The Constitutional Court, guided by the deliberations mentioned above,
evaluated the specific circumstances of the petitioner in the case
presently under consideration, and reached the following conclusions.
47.
The Constitutional Court does not identify itself with the assessment
of the court of appeal, this being that the structure of the vault is
not a matter of a purely personal or family nature. To the contrary,
from the evidence examined, it was shown that the motive for the
petitioner’s ancestors or legal predecessor to build the vault was a
lack of burial sites in the adjacent Church of St. Jiljí, where the
members of the Schwarzenberg family had previously been buried, as well
as the adoption of new hygiene regulations which required separation of
the vault from the area of the church. Therefore, it is not possible to
accept the opinion that the vault is not a funeral building, but it is,
in principle, an ecclesiastical building. On the contrary, the primary
purpose of this structure was to create a new location, approved by the
public law regulation then valid, for entombing the mortal remains of
family members; its ecclesiastical role was only secondary (originally
for the purposes of the burial rite, and later for rites for a larger
range of local parishioners), which is, from a historical point of view,
completely logical. According to the Constitutional Court, the building
of the vault is thus a place to which protection of reverence applies,
such protection – as was explained above – being part of the right to
family life of the petitioner.
48.
The Constitutional Court, therefore, believes that the nature of this
structure does not make it possible that the same be included in the
categories of property in accordance with § 1 para. 2 of Act No.
143/1947 Coll., as was, in accordance with § 1 para. 1, subject to the
transfer to the Province of Bohemia.
49.
Interpretation according to which this provision applied generally to
the property of the Hluboká branch of the Schwarzenberg family, does not
preserve, in the case of the vault including the mortal remains placed
therein, the nature of protection of family life. The purpose of this
Act was not to deprive the family members of purely personal property,
which is particularly of importance to the members of the family. The
purpose of the Act was to sequester from the predecessors of the
petitioner objects serving economic activities (revenue for such
operations was to be replaced with a pension in accordance with § 5
para. 2 of the Act). In this respect, the ordinary courts did not take
into account the proven fact that the alteration in the record in the
land registers took place as late as 1961, that is under the
totalitarian regime, when the ownership rights were registered to the
Czechoslovakian state. From this it may be deduced that the
Czechoslovakian state, until the Communist coup d'état in 1948, had not
striven after such property, and such property was arbitrarily alienated
as late on as during the period of the totalitarian state.
50.
If the subsequent Communist state truly promoted the interpretation now
held by the ordinary courts, and on the basis of the same the state
“misappropriated” right of ownership additionally to this property
through which the right of the petitioner to family life is exercised,
then it may be considered that such an act was only proof of a policy
aimed against certain “hostile” groups of inhabitants (in this case,
aristocratic dynasties), the objective of which was not only
confiscation of property of such inhabitants, but basically their
absolute liquidation, including depriving them of their family identity,
i.e. the above-mentioned transcendental bonds between predecessors,
contemporaries and descendants, forming the fundaments of life of a
family and dynasty. Such measures, the nature of which exceeds simple
infringements of the property domain of an individual, are naturally
unacceptable under the conditions of a democratic law-based state, and
cannot be provided with protection by the judicial power at the present
time.
51.
As specified above, the Opinion of the Constitutional Court Plenum file
No. Pl. ÚS - st. 21/05 did express a conclusion according to which the
restitution regulations had the consequence of legalisation of ownership
right of the state over the property which the state seized, be it
through simple physical occupation, but the Opinion cannot be used to
infer that the same would apply to usurpation of property of a purely
personal nature, such as a family vault with mortal remains of family
predecessors, when such an act affects, also through infringement of
right of ownership, the fundamental right to family life. Therefore, in
the given case, the Constitutional Court considers the reference by the
ordinary courts to such an Opinion to be inappropriate. This is also
based on the fact that the petitioner before the ordinary courts did not
bring an action for declaration of her right of ownership or an action
for release (eviction), but action for declaration that the vault and
the adjacent land form part of the inheritance left by Dr. Adolf
Schwarzenberg. Therefore, the decisions of the ordinary courts in
themselves would not pronounce and declare the ownership rights of the
petitioner, nor would they impose on the state the obligation to evict
the immovable property, they would only declare which immovable property
forms part of the inheritance left by the legal predecessor of the
petitioner. On the contrary, the Constitutional Court, therefore,
identifies itself with the conclusion of the court of first instance
concerning the fact that the petitioner has a pressing legal interest in
such a declaration, since decisions of the ordinary courts are a
precondition for continuing inheritance proceedings, in which the
ownership rights of the petitioner are to be proven.
52.
At the same time, the Constitutional Court is of the opinion that the
conclusion on violation of the right to family life may affect only the
place of eternal rest of the members of the Schwarzenberg family, that
is the vault, including all its parts and appurtenances and the land
beneath it. Protection of reverence is only related to such places, as
are the above family ties of special importance solely for family
members. It is possible to agree with the ordinary courts that the
adjacent lands were historically always registered as parks or gardens,
and this designation did not change even following the erection of the
vault.
53.
Therefore, for reasons specified above, due to violation of Art. 8
para. 1 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, and Art. 10 para. 2 of the Charter of Fundamental
Rights and Basic Freedoms, the Constitutional Court has granted the
constitutional complaint in accordance with the provisions of § 82 para.
2 clause a) of Act No. 182/1993 Coll. on the Constitutional Court as
amended by later regulations, and annulled the contested decisions of
the Supreme Court, of the Regional Court in České Budějovice, and of the
District Court in Jindřichův Hradec.
54.
The objection by the secondary party concerning the active standing of
the petitioner to bring an action to the ordinary courts was not
addressed by the Constitutional Court, since this issue was not dealt
with by the ordinary courts, and thus the courts could not have
infringed the fundamental rights of the petitioner by possible defective
interpretation of the sub-constitutional right.
V.
55.
The Constitutional Court also addressed the petition of the petitioner
for annulment of Act No. 143/1947 Coll. on Transfer of Ownership of
Property of the Hluboká Branch of the Schwarzenberg Family to the
Province of Bohemia, due to its conflict with the Czechoslovakian
Constitution of 1920, or petition for declaration of its
ineffectiveness.
56.
Firstly it is necessary to state that the Constitution of 1920 is not a
reference criterion for the Constitutional Court, since constitutional
norms contained in Act No. 121/1920 Coll. whereby the Constitutional
Charter of the Czechoslovakian Republic is introduced, are not a valid
part of the present constitutional order of the Czech Republic, which is
the only relevant criterion which could be used by the Constitutional
Court in proceedings on annulling acts and other legal regulations to
assess the constitutionality of the contested act.
57.
As specified above, the Constitutional Court did find a violation of
the fundamental rights of the petitioner; however, this infringement
occurred as a result of a constitutionally non-conforming interpretation
of Act No. 143/1947 Coll. The Constitutional Court thus asserted
unconstitutionality not in the existence of the Act as such (which was
not reviewed in terms of its merits), but only in its unconstitutional
interpretation by the ordinary courts, according to which this Act also
applied to the family vault. On the contrary, with respect to the
above-mentioned facts, alienation of the vault by the state represented a
violation of the right to respect for family life and, therefore, in
the past or present, the above-mentioned Act cannot be applied to the
same at all. If such an Act is not to be applied, the petitioner does
not hold any active standing to file a petition for annulment thereof.
For this reason, the Constitutional Court denied the accessory petition
of the petitioner for annulling Act No. 143/1947 Coll., in accordance
with the provisions of § 43 para. 2 clause b) in connection with the
provisions of § 43 para. 1 clause c) of Act No. 182/1993 Coll. on the
Constitutional Court as amended by later regulations, as a petition
filed by a person clearly unauthorised therefor.
Note: Decisions of the Constitutional Court cannot be appealed.