KVĚTOŇOVÁ v. THE CZECH REPUBLIC
Inadmissible
Peer Lorenzen
The applicant, Ms Eva Květoňová, is a Czech national who was born in 1934 and lives in Munich. She was represented before the Court by Mr I. Chytil, a lawyer practising in Prague. The applicant’s parents owned a family house and two lands located in Trutnov. In February 1971 the applicant’s father died. The applicant and her mother became his legal successors. In 1972 the applicant and her mother were convicted in absentia of deserting the Republic. The courts imposed a term of imprisonment and ordered the confiscation of all their property. In 1973 the Trutnov State Notary (státní notářství) determined the late father’s estate, holding that the applicant and her mother inherited the whole estate but that, bearing in mind their criminal conviction, it should be forfeited for the benefit of the State. On 12 September 1974 the confiscated property was sold by the State to Mr and Ms M., with an agreement giving them the right to make personal use of the lands attached to the house. According to the applicant, the purchase contract contained a number of legal inaccuracies which made it null and void. Actually, the State was represented by the former Trutnov National District Council (okresní národní výbor) which at the material time had three quarters of the property at its disposal, the rights relating to the remaining quarter being transferred to it on 18 November 1974. Moreover, the real estate appraisal used for the purposes of the purchase was, contrary to the law, older than one year, the property at issue was not clearly specified in the purchase contract, the identity of the contractual parties was not verified and the person acting on behalf of the National District Council was not clearly indicated. In addition, the new owners’ right to make personal use of the lands attached to the house was approved by the Trutnov National Council on 22 August 1974, so before the transfer of the administration rights regarding the property. On 20 September 1977 the applicant’s mother died. The applicant became her legal successor. On 20 August and 8 October 1990 respectively, the District Court declared that, pursuant to section 2 of the Judicial Rehabilitation Act, the applicant’s and her mother’s convictions and all ancillary decisions had been automatically quashed with retrospective effect. On an unspecified date in 1995 the applicant initiated restitution proceedings against Mr and Ms M. pursuant to the Extra-Judicial Rehabilitation Act. However, the courts did not grant her restitution claims finding that the purchase contract had not been concluded in breach of the regulations then in force and that the new owners had not enjoyed an unlawful advantage. After the death of Mr and Ms M., their sons became the owners of the property. In January 2001 the applicant sought to recover the property in issue by means of a civil action brought against the Mr and Ms M.’s sons, alleging the nullity of the purchase contract. In a judgment of 13 September 2002 the Trutnov District Court dismissed the applicant’s action stating, inter alia: “In a judgment no. ÚS 4/97 of 11 March 1997 the Plenary of the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed [pursuant to the Judicial Rehabilitation Act] did not form a basis on which the ownership rights could be renewed. The applicant claimed the restitution ... under [the Extra-Judicial Rehabilitation Act], but was unsuccessful. Having regard to the fact that [she] based her current arguments mainly on her incorrect legal opinion concerning the effects of the nullity of the confiscation decision, her [civil] action [is] not substantiated. [I]t is not decisive whether the purchase contract ... is valid or not. ... [T]he question of [its] validity or the nullity is more specific than the criteria laid down in the Extra-Judicial Rehabilitation Act for natural persons obliged to restore immovable property to a restitution claimant .... [The court examined in the [previous] restitution proceedings whether the new owners could have acquired the property contrary to the law then in force ... or on the basis of any unlawful advantage, and found that it was not the case.] The court, therefore, did not examine in detail [the applicant’s arguments concerning] the alleged nullity of the purchase contract.” On 28 January 2003 the Hradec Králové Regional Court (krajský soud) upheld the first instance judgment. The applicant’s subsequent appeal on points of law (dovolání) was dismissed by the Supreme Court (Nejvyšší soud) on 30 October 2003, the court stating, in particular: “[N]either the appellate court nor the court of first instance erred in applying [the provisions of the Judicial Rehabilitation Act and the Extra-Judicial Rehabilitation Act]; they rightly considered their interrelationship and took account of the [previous] restitution proceedings closed upon a final and conclusive judgment. The applicant based her claims on the substantially same arguments which she had used in the previous restitution proceedings, emphasising the [alleged] nullity of the purchase contract ... [However] it is inadmissible to circumvent the restitution law by applying the general civil law, in case that the [previous] restitution action failed. ...” The Supreme Court concluded that the applicant’s appeal on points of law did not challenge a decision which would give rise to a question of crucial legal importance as provided for in section 237(1)(c) of the Code of Civil Proceedings. The applicant challenged the lower courts’ legal opinions before the Constitutional Court (Ústavní soud) maintaining that the courts had failed to examine the validity of the purchase contract. She alleged, in this respect, a violation of her right to judicial protection under Article 36 § 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and her property rights guaranteed by Article 11 § 1 of the Charter. On 1 July 2004 the Constitutional Court rejected the applicant’s constitutional appeal (ústavní stížnost) finding that the procedural steps taken by the lower courts and their interpretation of the legislation did not infringe the applicant’s fundamental rights guaranteed by the constitutional law or international treaties. Article 11 § 1 provides, inter alia, that everyone has the right to own property. All owners’ property rights are equal in the eyes of the law and enjoy the same legal protection. The right to inherit is guaranteed. Under Article 36 § 2 anybody who claims that his or her rights have been violated by a decision of a public administration organ may turn to a court for a review of the legality of such decision, unless the law provides differently. However, review of decisions affecting the fundamental rights and freedoms listed in the Charter may not be excluded from the jurisdiction of courts. Section 1 states that the purpose of the Act is to provide for the quashing of convictions that are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and guaranteed by international treaties, and to ensure the social and economic rehabilitation of persons so convicted. Section 2 provides that all convictions from 25 February 1948 to 1 January 1990 that contravened those principles and related to events occurring after 5 May 1945 are to be quashed with retrospective effect, together with any ancillary decisions. Courts are to examine of their own motion all matters relating to the rehabilitation of convicted persons. Section 23(2) provides that the implementing conditions for claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims, are to be laid down in a special law. Section 1 provides that the purpose of the Act is to mitigate the effects of certain wrongs committed between 25 February 1948 and 1 January 1990 (“the period concerned”) which were incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights. The Act also lays down the conditions for lodging claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims. Section 2 provides that infringements of property rights which occurred during the period concerned are to be redressed either by restitution of property or by pecuniary compensation. Section 4 requires the State and/or any legal entity in possession of confiscated property on the date on which the Act came into force to return the property. Paragraph 2 provides that any natural person who acquired property from the State unlawfully or by means of an unlawful advantage is likewise required to return the property. Section 19(1) provides that any person who has been rehabilitated in accordance with Law no. 119/1990 is entitled to claim restitution provided that he or she satisfies the conditions laid down in section 3(1). Section 20(1) provides that any legal entity within the meaning of section 4(1) and any natural person within the meaning of section 4(2) must return confiscated property acquired from the State where the State itself obtained it as a result of the conviction of the original owners; the central administrative authorities of the Republic are likewise required to return any confiscated property. Section 237(1)(b) provides that an appeal on points of law lay against appellate court judgments and decisions upholding first instance decisions in which the court of first instance decided differently from its previous meritorious decision, having been bound by the legal opinion of the appellate court which had quashed the previous decision at first instance. Under section 237(c) an appeal on points of law lay also against appellate court judgments and decisions upholding first instance decisions if such an appeal is not admissible under paragraph b) and if the court dealing with the appeal on points of law finds that the challenged decision gives rise to a question of crucial legal importance. In this judgment the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed pursuant to the Judicial Rehabilitation Act did not form a basis on which anyone thus rehabilitated was entitled to be entered in the land register as the owner. It held that such decisions did not restore previous ownership, since section 23(2) of the Judicial Rehabilitation Act provided that the conditions for implementing that Act were laid down in the Extrajudicial Rehabilitation Act. In this decision the Supreme Court held, in particular, that the provisions of the Extra-Judicial Rehabilitation Act constitute a lex specialis in relation to the general provisions of the Civil Code. In restitution cases, it is therefore not possible to seek judicial protection under the general provisions of the Civil Code (e.g. by means of an action for recovery), but only by a special way provided for in the restitution legislation. In this decision the Supreme Court admitted that the entire removal of all wrongs committed by the former communist regime was not possible. The legislator opted, therefore, for legal means aiming to mitigate “the effects of certain wrongs”. For these purposes, it determined the “restitution border” (the period between 25 February 1948 and 1 January 1990 in which the wrongs had taken place) and fixed the conditions and the way to pursue to claim restitution of property. If other parallel procedural ways were accepted to be pursued under the general legal provisions the special restitution law would lose its sense. In this decision the Supreme Court stated that the restitution legislation demonstrates the legislator’s will to contribute to the mitigation of huge wrongs which were committed in the decisive period, i.e. between 1948 and 1989. This legislation, including the Extra-Judicial Rehabilitation Act is not based on the conception of declaration of the nullity of decisions, acts and legal actions. It indicates the special way to pursue for claiming restitution. In this decision the Supreme Court recalled its legal opinion expressed in its decision no. 28 Cdo 2343/2000 of 31 January 2001 stating, moreover, that according to the established national case-law, the restitution legislation is a lex specialis in relation to the general provisions of the Civil Code. Actually, if the restitution law is applicable in a particular case, it is inadmissible to circumvent it and, in case that the restitution action failed, to base the restitution claims on the general legal provisions. This would create a situation of legal uncertainty of the parties to the legal acts which were challengeable under the restitution law.