FIFTH SECTION

Applications nos. 15275/11 and 76058/12 Jerome COLLOREDO MANNSFELD against the Czech Republic lodged on 2 March 2011 and 15 November 2012 respectively

STATEMENT OF FACTS

The applicant, Mr Jerome Colloredo-Mansfeld , is a Czech national, who was born in 1949 and lives in Zbiroh , Czech Republic . He is represented before the Court by Mr L. Kasl , a lawyer practising in Prague .

A. The circumstances of the cases

The facts of the cases, as submitted by the applicant, may be summarised as follows.

The two applications arise from the same restitution proceedings instituted by the applicant ’ s predecessor, Mr J., and Ms K. in 1992. After Mr J. died in 1998 the applicant joined the proceedings as successor to Mr J.

The following summary of facts concerns only the part of the restitution proceedings which is relevant to the applicant. The claims of Ms K., even though decided in the same proceedings , were more extensive and had a different basis.

The applicant ’ s restitution claim concerned movable property, which had been in Opočno castle. The castle itself belonged to another person of whom the applicant is not an heir. The movable property was initially confiscated from the applicant ’ s predecessor during the German occupation of Czechoslovakia in 1942 by the order of the German Secret State Police considering him an enemy to the German Reich. After the end of the Second World War the property was once again confiscated in 1945; this time by the Czechoslovak State under the Beneš decrees as he was considered to be of German nationality. That expropriation was quashed on appeal by the National Council in Prague ( zemský národní výbor ) on 21 January 1947 after it had been established that the applicant ’ s predecessor was of Czechoslovak nationality and had been loyal to the Czechoslovak State . What happened to the property afterwards is disputed and was discussed in the domestic decisions (see below).

Due to the large number of items claimed the first-instance court decided on the claim by way of three partial judgments. First, in 1999 the Pardubice District Court returned to the applicant and Ms. K a collection of paintings. That judgment was upheld on appeal and the defendant ’ s appeal on points of law was dismissed. These proceedings are not part of the present applications. The second and third judgments gave rise to the present applications.

1 . Application no. 15275/11

On 27 October 2006 the Pardubice District Court ordered the National Heritage Institute to return to the applicant and Ms. K movable property in Opočno castle. It found that the applicant ’ s predecessor was the owner of the property on the critical date, that is 25 February 1948, as the earlier confiscation orders had been quashed. Consequently, when the Communist regime prevented him from using the property without any legal ground, the conditions for restitution laid down by the restitution legislation, including loss of ownership after 25 February 1948, had been fulfilled.

On 18 October 2007 the Hradec Králové Regional Court quashed the judgment and dismissed the action. It held that the property in question had been taken away from the applicant ’ s predecessor before 25 February 1948 and therefore the restitution legislation did not apply. Even though it was true that the 1945 confiscation order had been quashed in 1947 the State had used the property without a legal basis before 25 February 1948. It based this decision on two pieces of evidence. First, the court referred to a letter of 24 June 1947 of the national administrator of Opočno castle to his superiors informing them that the applicant ’ s predecessor had visited the castle the previous day but had been informed that visits were not allowed. He had thus only deposited some documents in the family archives and left. Second, the Court noted that it knew through the exercise of its functions of a decision of the Ministry of Agriculture of 30 April 1947 by which Opočno castle with the movable property had been declared State cultural property. That decision was not adduced as evidence in the proceedings.

The applicant lodged an appeal on points of law arguing, inter alia , that the appellate judgment had come as a complete surprise and that he had not been requested to supplement his statement of facts as required by the Code on Civil Procedure when the court had the intention to make a different factual assessment from the previous stages of the proceedings. He also maintained that the judgment was based on two pieces of evidence, one of which, the decision of the Ministry of Agriculture of 30 April 1947, he had not seen and had not been able to comment upon. He further noted that the second piece of evidence, a letter written on 24 June 1947, actually proved that the applicant ’ s predecessor had been allowed to dispose of his property. He had entered the castle where he spent seven hours and even deposited some new documents in the family archives.

On 11 February 2009 the Supreme Court dismissed the appeal on points of law lodged by the applicant. It stated that, unlike in the proceedings concerning the first part of the claim, this time the appellate court had reached its conclusion on the basis of the decision of the Ministry of Agriculture of 30 April 1947. It did not comment anyhow on the applicant ’ s argument that he had not seen that decision.

The applicant lodged a constitutional appeal claiming violations of his right to a fair trial.

On 11 August 2010 the Constitutional Court dismissed the appeal as manifestly ill-founded. It held that the ordinary courts had comprehensively reasoned that the property had been taken from the applicant ’ s predecessor before the critical date. In view of the decision of the Ministry of Agriculture of 30 April 1947 their conclusions appeared justified. Regarding the complaint that that decision had not been adduced before the courts it noted that under Article 121 of the Code of Civil Procedure it was not necessary to prove facts which were generally known, or known to a court through the exercise of its functions.

2. Application no. 15275/11

On 22 April 2009 the District Court dismissed the rest of the applicant ’ s restitution claim. In its reasoning it simply referred to the judgment of the Regional Court of 18 October 2007 and that of the Supreme Court of 11 February 2009.

On 27 January 2011 a different chamber of the Regional Court than in the decision of 18 October 2007 upheld the first-instance judgment. It based its decision primarily on the fact that there had been already a final, albeit partial, judgment in the matter which had been upheld by both the Supreme Court and the Constitutional Court . It could thus depart from their opinions only if the facts or legal situation were different. The chamber stated that it did not know of the decision of the Ministry of Agriculture of 30 April 1947 through the exercise of its functions and therefore it had tried to find the document. Nevertheless it was not able to do so as in the file where it should have been there was only a document from 1957, which, in turn, contained information about the 1947 decision. Nevertheless, it considered that this fact alone cannot lead to a different conclusion than that reached previously, that is that the State had acquired the property before 25 February 1948, as this document had only supplemented other evidence.

On 28 November 2011 the Supreme Court dismissed the appeal on points of law lodged by the applicant, holding that the courts in the present case were bound by the decisions of the Supreme Court and the Constitutional Court in the same matter and noted that in its previous decision of 11 February 2009 it had found correct the conclusion that the State had acquired the property in question already before 25 February 1948. It held that nothing had been discovered since then that would refute those conclusions. Since the appeal on points of law was inadmissible it could not review the complaint that the decisions had not been based on the evidence taken given that the decision of the Ministry of Agriculture of 30 April 1947 had not been found.

On 19 April 2012 the Constitutional Court dismissed the constitutional appeal lodged by the applicant claiming violations of his rights to fair trial and to property as manifestly ill-founded. It acknowledged that the fact that in the same matter the courts had first upheld the applicant ’ s claim concerning the collection of paintings but then had dismissed the remainder constituted a manifest error. Yet, that alone did not make the decisions which were being challenged unconstitutional. It noted also that it had not issued any decision in the proceedings concerning the collection of paintings and it had always upheld the conclusions that the property had been taken from the applicant ’ s predecessor before 25 February 1948.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning restitution of property are set out in the Court ’ s decision in the case of Gratzinger and Gratzingerova v. the Czech Republic ( dec. ), no. 39794/98 , § 19-44, ECHR 2002 ‑ VII.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the decision of the Ministry of Agriculture on which the domestic courts based their judgments has not been adduced as evidence and he could not comment on it and that neither the Supreme Court nor the Constitutional Court took appropriate measures to remedy that defect. He also complains that the domestic decisions are insufficiently reasoned.

Further, relying on Article 1 of Protocol No. 1 he complains that the domestic courts did not return him the property to which he had a right under the restitution laws.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the principle of adversarial trial respected as regards the use as evidence of the decision of the Ministry of Agriculture of 30 April 1947?

2. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, was a “fair balance” struck between the demands of the public interest and the need to protect the applicant ’ s right to the peaceful enjoyment of his possessions (see Sovtransavto Holding v. Ukraine , no. 48553/99, § 98, ECHR 2002 VII)?