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Cite as: [2011] ECHR 1778
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FIFTH SECTION
DECISION
Application no.
14549/05
by Kristina COLLOREDO MANSFELDOVÁ
against
the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 4 October 2011 as a Chamber composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Angelika
Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having regard to the above application lodged on 14 April 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Kristina Colloredo Mansfeldová, is a Czech national who was born in 1940 and lives in Opočno. She was represented before the Court by Mr P. Virag, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background of the case
The applicant is the daughter and heir of J. Colloredo Mansfeld, a Czech nobleman who died in 1990. On 16 February 1942 during the German occupation of Czechoslovakia, the latter’s estate and castle in Opočno were confiscated by the occupying forces. After the war and after the estate had been returned to the applicant’s family, the former Prague Municipal National Council (zemský národní výbor) confiscated the estate on the ground that the applicant’s father was to be considered German, as he had stated that he was of German origin in a questionnaire during the war.
On 16 December 1948 the Ministry of Agriculture, deciding upon an appeal by the applicant’s late father, quashed the confiscation decision finding that the statutory requirements necessary for the confiscation had not been met in his case. The estate remained in the possession of the State.
B. Restitution proceedings
In March 1995 the applicant filed an action with the Rychnov nad KněZnou District Court (okresní soud), whereby she sought to order the State represented by the Pardubice Heritage Institute (památkový ústav) to conclude with her a restitution agreement with regard to the castle and other facilities under the Extra-Judicial Rehabilitation Act. On 27 September 1995 the District Court rejected her action but the Hradec Králové Regional Court (krajský soud) quashed this judgment on 17 October 1997 and sent the case back to the District Court which, in a judgment of 16 March 1999, dismissed the applicant’s action for the second time, finding that she did not meet requirements enshrined in the restitution legislation, including the requirement that the transfer or passing of the ownership of the property occurred in 1942 should have been due to racial persecution.
The judgment was subsequently upheld by the Regional Court.
In judgment no. 28 Cdo 1733/2000 adopted on 31 August 2000 the Supreme Court (Nejvyšší soud), deciding upon the applicant’s appeal on points of law, quashed both judgments. In its view, the confiscation by Germany had been due to the applicant’s Czech origin, as Czechs were regarded by the Nazis as an inferior race, and therefore amounted to racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act. It noted that the estate had been taken under a confiscation measure that applied to Jews. Having regard also to the fact that the estate had been taken from the applicant’s family twice, first by the Nazis and then by the communist regime, the court found that the requirement of section 3(2) of the Act was met. It stated obiter dictum that any interpretation of the term of racial persecution, limiting the application of that notion only to Jews, would be contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and to the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). The court held in particular:
“Having regard to the objectives of the restitution laws, it appears unsustainable to the Supreme Court to interpret the notion of racial persecution in a restrictive manner when the Nazi administration of ... [occupied Czechoslovakia] sanctioned the applicant’s ascendant for “efforts adverse to the Reich”.
On 12 June 2002 the District Court, bound by the Supreme Court’s judgment, found in favour of the applicant and ordered the defendant to conclude a restitution agreement with her and to transfer the ownership of the estate to her. On 13 May 2003 the Regional Court upheld this judgment.
On 15 and 16 July 2003 the applicant concluded with the National Heritage Institute (Národní památkový ústav), successor in title to the Pardubice Heritage Institute, the restitution agreement on the transfer of the estate to her. On 17 July 2003 she was registered as the owner of the estate with the land register and during the same year entered into possession in accordance with the restitution agreement.
On 4 December 2003 the Supreme Court declared inadmissible an appeal on points of law by the Heritage Institute which, on 20 February 2004, made a constitutional appeal alleging an infringement of its property rights and the right to judicial protection under the Charter.
In a judgment of 16 December 2004 the Constitutional Court quashed the lower courts’ decisions and remitted the case to the District Court. It admitted that in civil proceedings, it was incumbent upon the parties to assert their rights and to allege relevant facts, but considered that the ordinary courts were nevertheless obliged to search for and take further evidence on their own initiative. It found that, not having done so, they had breached the Code of Civil Procedure. According to the court, the conclusion of the lower courts that the applicant’s late father had met the conditions set by the Extra-Judicial Rehabilitation Act was erroneous, since he had been registered as German when filling in a questionnaire. It added that, the courts had omitted to take into consideration certain material, including an essay entitled “The Colloredo family and the Colloredo family of Opočno” of which the Constitutional Court took judicial notice, which showed that the applicant’s late father had been disloyal during the war as he had applied for German citizenship.
The court also considered that the confiscation of the estate by the German occupying forces could not be regarded as constituting racial persecution of the applicant’s late father within the meaning of the Extra-Judicial Rehabilitation Act, as the Supreme Court had found on 31 August 2000. It was apparent from sections 2(1)(c) and 3(2) of this Act, from its aim and from the record on the debate preceding the adoption of Act no. 116/1994 in the lower chamber of the Parliament, that the term of “racial persecution” covered in particular Jews who were victims of the Holocaust. This was, however, not the case of the applicant’s father. The court rejected as inappropriate the Supreme Court’s obiter dictum that such a restrictive interpretation would constitute inequality among victims of the period of lack of freedom and would privilege one group of people on the ground of race contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Charter. Indeed, the principle of equality could not be interpreted as an absolute one and equality among citizens could not be construed as an abstract category, but as a relative equality within the meaning of all modern constitutions. A restrictive interpretation of the notion of racial persecution under the Extra-Judicial Rehabilitation Act was not contrary to the principle of equality.
Apparently on 6 April 2005 the District Court asked the parties to the procedure whether they would propose further evidence. It also requested the applicant to specify whether she would propose further evidence in support of her assertions that the confiscation had taken place due to racial persecution and that the estate had been taken away and passed into the ownership of the Czechoslovak State in the relevant period within the meaning of the Extra-Judicial Rehabilitation Act. It also requested the defendant to indicate whether it would propose any further evidence to support its assertion that the Czechoslovak citizenship of the applicant’s late father had legally ceased to exist. Both parties submitted further documentary evidence.
At the hearing of 12 July 2005 the District Court considered extensive documentary evidence, including a historical essay by Dr. Jaroslav Šůla called “The Colloredo family and the Colloredo family of Opočno” (Colloredové a opočenští Colloredové), the so-called administrative record and correspondence between the Municipal National Council and the Ministry of the Interior of 1947 and 1948 when these two authorities were searching for documents concerning the examination of the citizenship of the applicant’s late father.
On 13 September 2005 the District Court, having held another hearing, dismissed the applicant’s action. It found that all the requirements for restitution had been met with the exception of loss of property due to racial persecution. The court underlined that when assessing that requirement it was bound by the ruling of the Constitutional Court of 16 December 2004.
On 5 June 2006 the Regional Court upheld this judgment.
On 6 November 2007 the Supreme Court rejected the applicant’s appeal on points of law, referring to the binding interpretation by the Constitutional Court of the notion of racial persecution.
On 8 February 2008 the applicant appealed to the Constitutional Court, asserting an erroneous interpretation of the notion of racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act and procedural shortcomings in consequence of which she had not put forward any evidence establishing that her father’s mother was of Jewish origin. It appears that her constitutional appeal remains undecided.
C. Proceedings on determination of ownership of the estate
On 11 February 2005 the State represented by the National Heritage Institute filed against the applicant an action for determination of ownership of the estate with the District Court.
In a judgment of 23 December 2005 the court granted the State’s action and found it to be the owner of the estate and decided that the Institute was empowered to maintain the estate.
On 11 September 2006 the Regional Court quashed this judgment as to the District Court’s finding that the Institute was empowered to upkeep the estate, stayed the proceedings in this respect and transferred this part of the case to the Ministry of Finance. It noted that the District Court had been bound by the judgment of the Constitutional Court of 16 December 2004. The judgment became final on 11 October 2006.
On 29 January 2007 the State was registered in the land register as the owner of the estate.
B. Relevant domestic law and practice
Extra-Judicial Rehabilitation Act (Act no. 87/1991)
The act provides for mitigation of injustices caused by the Communist rule in Czechoslovakia from 25 February 1948 to 1 January 1990 (“the relevant period”).
Under section 2(1) property injustices caused by, inter alia, unlawful practices carried out in the relevant period, are to be mitigated, inter alia, by the surrender of the property, provided that the injustices originated in political persecution or in a practice contravening universally accepted human rights and freedoms (section 2(1)(c)).
Section 3(2) extended the application of the Act to natural persons who had lost their property due to racial persecution during the Second World War and were entitled to restitution of it after the war pursuant to Decree no. 5/1945 or Act no. 128/1946 and in respect of whom the Communist regime established on 25 February 1948 had failed to grant such claims whilst pursuing its policy of political persecution or carrying out practices contrary to universally accepted human rights and freedoms.
Constitutional Court Act (Act no. 182/1993)
Under section 23 if a chamber comes to a legal view differing from that expressed by the court in a previous ruling, it shall submit the issue to the Plenum for its consideration. The latter’s legal view is binding on the chamber in further proceedings.
Under section 72(1)(a), a constitutional appeal may be lodged pursuant to section 87(1)(d) of the Constitution by a natural or legal person, alleging that its fundamental rights or basic freedoms guaranteed by the constitutional law have been infringed as a result of a final decision in proceedings to which it was a party, a measure, or any other infringement by a public authority.
Decision of the Plenary Constitutional Court no. Pl. 16/94 of 21 July 1994
The Constitutional Court rejected a constitutional appeal lodged by a group of MPs seeking to abrogate the adjective “racial” from section 3(2) of the Extra-Judicial Rehabilitation Act. In their view, the term “racial persecution” created inequality on the ground of race among those whose property was adversely affected during the occupation. They asserted that it manifestly contravened the International Convention on the Elimination of All Forms of Racial Discrimination adopted by the UN General Assembly in 1965 and the Charter of Fundamental Rights and Freedoms. In the court’s view the impugned provision had to be interpreted in conformity with these legal instruments. It held, inter alia:
“[I]t is evident that racial discrimination under the Third Reich concerned a much larger group (groups) of people than only those concerned by the Nuremberg Laws [i.e. Jews], and that the legal terms such as “national, racial and political” used in section 1(1) of Decree no. 5/1945 are largely superfluous.”
Decision of the Constitutional Court no. IV. ÚS 352/03 of 25 January 2005
The Constitutional Court rejected a constitutional appeal lodged by the Office for the Representation of the State in Property Matters. The Office had contested the legal assessment of ordinary courts as to which State body should be held liable to pay compensation to a private individual. Having noted that that issue was governed by public law, the court ruled that the Office could not be regarded as an owner disposing freely of its property, but merely as a State body acting in its public authority, which does not have a standing to appeal to the Constitutional Court.
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 that she had been illegally deprived of her estate. This deprivation of her possession by the State lacked any legitimate aim and public interest.
3. Lastly, the applicant claimed to have been discriminated against on the ground of her origin, as the notion of racial persecution was interpreted by the Constitutional Court as applying only to Jews, and not Czechs. She was allegedly also discriminated against on the ground of her family background.
THE LAW
The applicant alleges that the Czech authorities violated her rights mainly guaranteed by Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention which, so far as relevant, read as follows:
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The parties’ submissions
The Government maintained that the application was premature. In their view, the interpretation of the term “racial persecution” given by the Constitutional Court may yet be reviewed by that court before which the case is anew pending. A different outcome of the proceedings before the Constitutional Court could not actually be excluded as the ordinary courts had taken evidence after the impugned judgment of the Constitutional Court.
The applicant disagreed.
The Court’s assessment
The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in rule 35 § 1 of the Convention is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The State must have a chance to put matters right through its own legal system before having to answer before an international body for its acts. In consequence, complaints intended to be brought subsequently before the Court in Strasbourg should first have been made – at least in substance – to the appropriate domestic body (see Hutten-Czapska v. Poland (dec.), no. 35014/97, 16 September 2003). Moreover, where there is doubt as to the prospects of success in a particular case, the issue should be submitted to the domestic courts for resolution (see Horváth and Vadászi v. Hungary (dec.), no. 2351/06, 9 November 2010 with reference to Roseiro Bento v. Portugal (dec.), no. 29288/02, ECHR 2004-XII (extracts); and also Whiteside v. the United Kingdom, no. 20357/92, Commission decision of 7 March 1994, DR 76, p. 80).
The Court observes that the Constitutional Court decided the applicant’s case in its judgment of 16 December 2004 which was binding on all State authorities. Therein, the court expressed its opinion on the notion of racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act and its extend, pointing out at the same time, that the applicant’s late father had been registered as German when filing a questionnaire and could not, therefore, have met the conditions of the Extra-Judicial Rehabilitation Act.
It is true that the ordinary courts examining the remitted case after the Constitutional Court’s ruling made in respect of the relevant facts of the case the same findings as they had done before, the different outcome being the term of racial persecution given by the Constitutional Court. However, the applicant challenged the lower courts’ judgments before the Constitutional Court bringing forward new arguments relating to the alleged Jewish origin of her father’s mother which did not seem to be relevant in the precedent proceedings held before the ordinary courts as she could not foresee that the Constitutional Court would change its jurisprudence. Therefore, the applicant cannot be considered not to have any reasonable prospect of success in the new proceedings before the Constitutional Court which still may decide the same point differently. In these circumstances, the fact that these proceedings are still pending prevents the Court from dealing with the application.
It follows that the Government’s objection is upheld, and the application must be rejected as premature pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean
Spielmann
Registrar President