HARRACH v. THE CZECH REPUBLIC
Inadmissible
The applicant, Mr Ernst Leonhard Harrach, is a Czech and Austrian national. He was born in 1920 and lives in Bruck an der Leitha (Austria). He is represented before the Court by Mr P. Hrdina, a lawyer practising in Prague, and by Mr J. Eltz, a lawyer practising in Vienna. Johann Harrach, the applicant’s cousin, owned real estate in former Czechoslovakia. On 28 December 1941 he made a will appointing his son Ferdinand his universal heir and the applicant his testamentary substitute. Johann Harrach died on 12 May 1945. As his son did not acquire the estate, it became hereditas iacens (a “dormant” inheritance; ležící pozůstalost; ruhender Nachlaβ). The property was confiscated on 21 June 1945 under President Beneš Decree no. 12/1945. Stephanie Harrach, Johann Harrach’s widow, requested that the property be excluded from the confiscation, as her husband had been loyal to the Czechoslovak State during the German occupation. Her request was rejected by the Hradec Králové District National Committee (okresní národní výbor) on 11 December 1946. The National Land Committee (zemský národní výbor) upheld this decision on 31 March 1947. On 25 August 1961 Ferdinand Harrach died. As a result, the right to take over the hereditas iacens passed to the applicant. On 24 January 1993 the applicant lodged a claim for restitution of the property which had been confiscated from Johann Harrach. On 16 March 1999 the Tábor District Land Office (okresní pozemkový úřad) held that the applicant was the owner of part of the property. It found that Johann Harrach had died as an Austrian national and that the Ministry of Agriculture (ministerstvo zemědělství) had subsequently ordered the confiscation of his property under President Beneš Decree no. 12/1945. The Land Office’s decision stated that the confiscation proceedings had been held in respect of the hereditas iacens which had been considered under the Civil Code 1811 as being formally possessed by the deceased person until acquired by an heir. The Land Office established that the confiscation could have been effective only after a final administrative decision had been taken and that the confiscation proceedings should have been held subsequent to the ex officio inheritance proceedings, in which the heirs could have lodged their inheritance applications in order to acquire the estate. It held that confiscation proceedings could not have been conducted against the hereditas iacens and that there had never been any proceedings concerning the applicant’s inheritance. It concluded, with reference to the Land Ownership Act, that the property had been transferred to the State unlawfully and that the applicant’s property rights had been infringed during the period covered by that legislation. On 22 October 1999 the Hradec Králové Regional Court (krajský soud), upon the defendant’s appeal, quashed the Land Office’s decision and remitted the case to the administrative authority, on the ground that the Land Office had insufficiently established the facts of the case. The court considered, in particular, that the Land Office had failed to examine the date on which the confiscation of the property had taken place. That issue was relevant for establishing whether the applicant’s case ought to be examined under the Restitution Act 1992. The court established that the Land Office’s legal opinion that the confiscation had been null and void was not supported by the evidence adduced. In the Regional Court’s view, the confiscation proceedings ended with the former National Land Committee’s decision of 31 March 1947, and thus fell outside the period laid down in section 4 of the Land Ownership Act. The court noted that the restitution requirements set out in section 6 of the Land Ownership Act could be fulfilled, provided that the relevant chronological requirement was satisfied. The decision further stated that the Land Office had failed to establish whether any proprietary wrong had in fact been caused to the applicant and, if so, whether it had been caused within the relevant period. The court did not share the Land Office’s opinion that (i) the confiscation proceedings had been held by authorities which lacked power to deal with the case contrary to President Beneš Decree no. 12/1945, and that (ii) the final decision on confiscation had not become effective. The court further found, contrary to the view expressed by the Land Office, that the relevant provisions of the Civil Code 1811 had not excluded confiscation of the hereditas iacens. In the meantime, on 6 September 1999, the Tábor District Land Office found that the applicant was the owner of the other part of the property claimed by him. It held that the confiscation proceedings had been conducted against the deceased owner, and that under the Civil Code 1811 the hereditas iacens had been considered as being in the possession of the testator until acquired by an heir. Accordingly, the confiscation of Johann Harrach’s property had been null and void, and the State had acquired the property illegally. The Land Office concluded that the applicant had suffered a proprietary wrong within a period covered by the Land Ownership Act, and that his restitution claim fell within the scope of section 6(1) of that Act. On 23 February 2000 the České Budějovice Regional Court, upon the defendant’s appeal, quashed this decision and remitted the case to the Land Office for further consideration. The court held that the main reasons for which the property of Johann Harrach had been confiscated were that he had opted for German nationality and the German language as his mother tongue in 1939, that he had been active in associations having German professional or other interests, that he had acquired, on 27 September 1939, a German passport indicating that he was a German national, that he had become a member of a German political party (Sudetendeutschen Partei) on 28 August 1939, and that he had joined the Nazi political party NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) on 1 November 1942. The court established that the property had been transferred to the State by operation of President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent decisions on confiscation had only had a declaratory character. The court found that the applicant’s case fell outside the scope of the Land Ownership Act which covered exclusively the period between 25 February 1948 and 1 January 1990. It rejected the Land Office’s argument that the legislation in force in former Czechoslovakia had not provided for the confiscation of the hereditas iacens. With reference to Articles 547 and 819 of the Civil Code 1811, the court noted that the proprietary nature of inheritance rights allowed their confiscation pursuant to President Beneš Decree no. 12/1945. It also noted, with reference to a decision of the Czech Constitutional Court of 2 November 1999, that the hereditas iacens was to be understood as a legal person sui generis. The court added that Johann Harrach had been represented by a guardian in the confiscation proceedings. The court finally stated that, even assuming that the confiscation could be deemed null and void, the State would have acquired the property without any legal title outside the relevant period prescribed by the Land Ownership Act, as the confiscation proceedings had terminated in 1947. It ordered the Land Office to examine whether Johann Harrach satisfied the conditions for the restitution of property laid down in the Restitution Act 1992. The applicant lodged a constitutional appeal (ústavní stížnost) which was rejected as being premature by the Constitutional Court (Ústavní soud) on 7 June 2000. On 5 June 2000 the Tábor District Land Office, after having joined the cases, decided that the applicant was not the owner of the estate. The Land Office, being bound by the judgments of the Hradec Králové Regional Court and the České Budějovice Regional Court, held that the property had been confiscated lawfully and that the confiscation fell outside the relevant period specified in the Land Ownership Act. The Land Office also held that the original owner had not satisfied the conditions for the restitution of property fixed by the Restitution Act 1992 as he had become a German citizen on 27 September 1939 and had not re-acquired Czechoslovak citizenship. The Land Office stated that the applicant had neither acquired the estate from Johann Harrach, as provided for in section 2 of the Restitution Act 1992, nor had they kinship as specified in section 2 § 3 of that Act. On 9 August 2000 the Supreme Court held that the applicant’s appeal against the Tábor District Office’s decision of 5 June 2000 was to be considered by the České Budějovice Regional Court. On 25 October 2000 the České Budějovice Regional Court upheld the administrative decision. In addition to the reasons set out therein, the court held that, pursuant to Articles 710 and 819 of the Civil Code 1811, an heir had acquired property upon a court decision and that an estate had been considered as being in the possession of the testator until delivered to an heir by a decision of a court of law. The Regional Court also held that, since the inheritance in the form of a hereditas iacens was in general of a proprietary character, it could have been subject to confiscation under the President Beneš Decrees. The property in the form of a hereditas iacens was a legal person sui generis with legal capacity. As a result, it could have been confiscated after the original owner’s death, provided that it had not yet been transferred to an heir in inheritance proceedings. On 8 March 2001 the Constitutional Court, endorsing the reasons given in the Regional Court’s judgment of 25 October 2000, and referring to its decision no. II ÚS 170/96, rejected as being manifestly ill-founded the applicant’s second constitutional appeal, in which he claimed a violation of his right to a fair hearing and his right to the peaceful enjoyment of possessions. The Land Ownership Act governs, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim. The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Under section 4(1), any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the aforementioned period, in one of the ways set out in section 6(1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is dead, the owner’s heirs or next of kin in a specified order (section 4(2)). By section 4(2), restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children and spouses, d) parents, or e) brothers and sisters or their spouses and children. Section 5 provides that the persons obliged to restore property include the State and any legal person possessing the property at the date when the Act entered into force. This Act constitutes a lex specialis in relation to the Land Ownership Act. Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic, who lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, and who was loyal to the Czechoslovak State and re-acquired Czechoslovak citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act. Section 2(3) provides that where such a person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate in inheritance proceedings, b) testamentary heirs who acquired part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children. Article 547 provides for the concept of hereditas iacens, which exists from the moment of the owner’s death until a heir accepts the estate. Hereditas iacens is based on the notion that, during this period, an estate is considered to be formally owned by the deceased. By Article 819, a person who has been declared heir by a decision of a court of law on his or her application, and who has fulfilled his or her obligations, receives the estate, thus putting an end to the inheritance proceedings. The Civil Code 1811 was repealed at the end of 1950, whereupon the legal concept of hereditas iacens ceased to be valid in Czechoslovakia. The decree provides for expropriation, with immediate effect and without compensation, of agricultural property for the purposes of programmed land reform. It concerns agricultural property, including buildings and movable goods, owned by persons of German and Hungarian origin irrespective of their citizenship status. For the purposes of the land reform, section 1(1) provides, with immediate effect and without compensation, that the property of the following persons shall be confiscated: a) persons of German and Hungarian origin irrespective of their citizenship, and b) traitors and enemies of the State. Section 1(2) provides that the property of persons of German and Hungarian origin who were active in the battle for the liberation of Czechoslovakia is eligible for exemption from confiscation. Section 1(3) provides that decisions as to whether the property referred to in section 1(2) is exempt from confiscation shall be taken by the National District Committees. Section 2(1) defines persons of German or Hungarian origin as being those who, in any census after 1929, declared themselves to be of German or Hungarian origin, or who became members of national groups, formations or political parties made up of persons of German or Hungarian origin. That case concerned a claim for the restitution of property which had been confiscated, in the form of an hereditas iacens, under President Beneš Decree no. 12/1945. The applicants claimed a violation of their property rights, alleging that their father had been the principal heir and they had been his substitutes in succession. The Constitutional Court stated that, pursuant to the Civil Code 1811, an heir had had the right either to accept or reject the hereditas iacens; however, an hereditas iacens could only have passed to an heir by virtue of a court decision. It established that, as the hereditas iacens in question had not been considered by the national courts in inheritance proceedings, the plaintiffs’ inheritance title to the property had been irrelevant for the purposes of the restitution proceedings. The court further stated that the property claimed had been confiscated pursuant to President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent administrative decisions on confiscation had only been declaratory. It noted that the national courts had rightly applied the Restitution Act 1992 instead of the Land Ownership Act on the facts of the case, as the former was a lex specialis. The Constitutional Court concluded that only the owner of the confiscated property had to comply with the conditions for restitution of property laid down in the Restitution Act 1992 (i.e. to show that he or she was a Czech citizen, that the property had been confiscated under President Beneš Decree no. 12/1945, and that he or she was loyal to the Czechoslovak State and had acquired Czech citizenship). The Constitutional Court held that, as the original owner had not satisfied those conditions and the plaintiffs’ father had not acquired the hereditas iacens, and thus had never owned the property, the plaintiffs were not entitled to claim its restitution.