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The Constitutional
Court, sitting in the Chamber composed of the President, Mr Jiří Zemánek, and Judges Josef Fiala and Radovan Suchánek (Judge-Rapporteur), has decided
on the constitutional
complaint of the complainant Kristina Colloredo-Mansfeld, represented
by JUDr. Jakub Fröhlich, attorney-at-law, with registered seat at Spálená 84/5,
Prague 1 - Nové Město, against the resolution of the Supreme
Court of February 1, 2017, No 28 Cdo
3893/2016-1536, the resolution
of the Regional Court in Hradec
Králové of
April 21, 2016 No. 26 Co 421/2015-1503, and the resolution of the District
Court in Rychnov nad Kněžnou of September 22, 2015, No.
12 C 6/2015-1227, with the
participation of the Supreme Court, the Regional Court in Hradec
Králové and the District
Court in Rychnov nad Kněžnou, as parties to the proceedings, and the State Contributory Organisation National Heritage Institute, with its registered seat at Valdštejnské
náměstí 162/3, Prague 1 - Malá Strana, represented
by Mgr. Jiřina Svojanovská, attorney at law, with
registered seat at Šilingrovo náměstí 257/3, Brno, as intervener, as follows:
The constitutional complaint is dismissed.
Reasons:
...
The decision
of the Constitutional Court cannot be appealed.
Brno, May 12, 2020.
Jiří Zemánek
, by his own hand
President of
the Chamber
Dissenting Opinion
of Judge Jiří Zemánek
in Case III. ÚS 1283/17
The majority
opinion of the members of the Third
Chamber, expressed in
the judgment rejecting the constitutional complaint of the complainant
Kristina Colloredo-Mansfeld, deviates from the legal opinion of the Constitutional Court expressed in the case of the same complainant in the judgment of 5 March 2014, Case No. 2430/13, and therefore
the question of proving the confiscation of her father's property during the period of non-freedom (from 30 September 1938 to 4 May 1945) on grounds
of racial persecution as one of the conditions
for the review of transfers of property occurring outside the relevant period (from 25 February 1948 to 31 December
1989) pursuant to Article
3(2) of Act No.
87/1991 Coll. on Non-judicial
Rehabilitations, should
have been submitted to judge in a plenary pursuant to Article 23 of Act No. 182/1993 Coll., on the Constitutional Court.
According to point 36 of the
above-mentioned judgment,
"It is sufficient
for the fulfilment of the conditions of section 3(2) of the Act
on Non-judicial Rehabilitations
if racial reasons ... are present, even if they
act together with other reasons for the occupying authorities' hate towards the persecuted person. It is
not necessary, and indeed
would be inappropriate in the decision-making of the judicial authorities of a democratic State governed by the rule of law, to establish clearly whether the applicant's father was of Jewish
origin within the meaning of the so-called Nuremberg Laws ... It is sufficient to establish whether the occupying authorities could have acquired such a belief. The essential question is therefore whether the occupying authorities could have made a finding that the political attitudes and activities of the applicant's father could be connected with his racial origin, which was alleged in the said 1913 German Weimar historical and genealogical pocket list of all nobility of Jewish origin, which makes the evidence put by the applicant essential and decisive."
Instead of following this relevant case-law interpretation of the above-mentioned
provision of the Act on Non-judicial Rehabilitations by
the Constitutional Court, the majority opinion of the Third Chamber returns to the - already somewhat outdated - narrow definition of the conditions of property confiscations committed by the occupation authorities, according to the judgment of 16 December 2004, Case
No. III ÚS 107/2004. The latter
limited the possibility
of reviewing the related interference with the right to property "only to the most extreme cases of injustice" ...
"which must be understood as only the most extreme forms of racism, perpetrated during the Second World War, in particular in the form of the Holocaust", whereby the persecution was motivated at least in part,
but not necessarily exclusively,
by racial reasons, in
addition to other, e.g. selfish, reasons.
If the majority opinion of the Third
Chamber refers to the will of the "restitution" legislator,
according to which
not all past property
wrongs can be redressed, but only "some", as well as to the principle of legal certainty as a fundamental element of a democratic state governed by the rule of law and the constitutionally guaranteed right to protection of property rights that have arisen as a result of subsequent property transfers, so that "it must be proved in proceedings before the general courts that a particular person has been deprived of his or her property rights precisely because of racial persecution"
(point 31. ), then, given
the availability of information about the Jewish origin of the applicant's
father to the occupation authorities and the difficulties associated with the immediate documentary proof of the racial
motivation for the confiscation of his property more than 70 years later, such an interpretation of the fulfilment of the conditions
of section 3(2) of the Act
on Non-judicial Rehabilitations
is contrary to the principle in favorem restitutionis, which - also as a moral imperative - has governed
the restitution
jurisprudence of the Constitutional Court from the beginning.
If the majority opinion of the Third
Chamber sees in such
a procedure an "ignoring" of the statutory conditions and limits of restoration of the right
to property under the restitution legislation, which is not in accordance with its meaning and purpose (point
31.), but a means of circumventing the requirement to prove the relevant facts, then I cannot but consider such an opinion to be an expression
of consent to a chicanerous application of the law,
which is not worthy of the Constitutional Court as a judicial body for the protection
of constitutionality under Article 83 of the Constitution.
In Brno, May 12, 2020
Jiří Zemánek
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