2004/03/24 - I. ÚS 38/02: Application of Restitution Act

24 March 2004

HEADNOTES

In

applying the restitution acts, a too restrictive, or formalistic,

approach must not be taken, on the contrary, they must be applied in a

very sensitive manner, always with the circumstances of the particular

case in mind, and above all the cited purpose and significance of the

act.  As far as concerns the above-stated central question relating to

the necessity of the precise individualization or specification of the

items demanded, under the sanction that the claim would otherwise be

extinguished, it would perhaps be possible to agree with the ordinary

courts’ conclusions if this matter had not concerned an enormous extent

of moveable property, but about several items where it would be entirely

and without any doubt evident that it was within the restituent’s power

to specify in detail the property in question within the time period

allowed by the statute.

If

there exists several possible interpretations of a particular legal

enactment or of certain of its provisions, consideration must be given

to the intent of the legal rule.  In the case of Act No. 87/1991 Coll.

that intent is doubtless the effort to mitigate the consequences of

certain property injustices committed by the totalitarian state in the

decisive period.  If two equally valid interpretations are possible, one

of which is broad and the other narrow, between them the court must

select that which corresponds to further interpretive methods, in

particular teleological reasoning.  The ratio legis of the restitution

acts is to redress, at least to a certain degree, the consequences of

the infringement of the fundamental rights of natural and legal persons

in the totalitarian era.  Thus, a constitutionally conforming

interpretation is generally a broad one:  a statute and its individual

provisions must be interpreted in such a way that, by applying them, it

is possible to attain the aim pursued by the legislature.

When

interpreting the relevant provisions of the restitution acts, it also

cannot be overlooked that it was a totalitarian state which illegally

stripped its citizens of their property and that subsequently state

bodies dealt with that property in an arbitrary fashion for a period of

nearly 40 years, in the course of which movable property was

appropriated and in fact relocated to various places; therefore, the

Constitutional Court is convinced that the consequences of these or

similar transactions cannot now be interpreted, in principle, solely to

the detriment of the entitled persons.  It is necessary always to

proceed on the basis of the circumstances of the particular, concrete

case.  


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 
On

this day the Constitutional Court decided in a panel in the matter of

the constitutional complaint of the complainant I.T., represented by

JUDr. D. T., an attorney, against the 25 October 2001 judgment of the

Regional Court in Brno, No. 13 Co  249/99, and against the 7 December

1998 judgment of the Municipal Court in Brno, No. 15 C 165/92, as

follows:
 

I. The 25 October 2001 judgment of the Regional Court in Brno, No. 13 Co  249/99, is hereby quashed.
II. The remainder of the constitutional complaint is rejected on the merits.

 



REASONING


I.
 

With

reference to an alleged infringement of Art. 36 para. 1 of the Charter

of Fundamental Rights and Basic Freedoms and of Art. 90 of the

Constitution, the complainant requests in her constitutional complaint

that the 25 October 2001 judgment of the Regional Court in Brno, file

no. 13 Co 249/99 and the 7 December 1998 judgment of the Municipal Court

in Brno, file no. 15 C 165/92, be quashed.  In the complainant’s legal

matter against her opponents, the Institute of Monuments in Brno, the

Regional Institute of Monuments in Pardubice and the Historical Museum

of Slavkov by Brno the Municipal Court in the last-cited decision

rejected her proposals that the opponents be obliged to enter with her

into an agreement to turn over moveable items from the state castles

Boskovice, Lysice, Milotice, Rájec Jestřebí, Lednice, Slatiňany and from

the Museum of the City of Slavkov.
 

As

the daughter of the original owner, A. S., the complainant claimed

these moveable items in a proceeding initiated pursuant to Act No.

87/1991 Coll., on Extrajudicial Rehabilitation, as subsequently amended

(hereinafter only “Act No. 87/1991 Coll.”).  In relation to the

defendant, the Institute of Monuments in Brno, the claim was rejected on

the merits, in part due to the fact that the items which the

complainant requested passed to the State, as a part of the property of

the complainant’s father, by confiscation in accordance with the 21 June

1945 Decree of the President of the Republic, No. 12/1945 Coll.,

allegedly prior to the decisive period as laid down in § 1 para. 1 of

Act No. 87/1991 Sb, and in part, and this above all, due to the fact

that the request to turn over items, addressed to a subject designated

imprecisely as “the Administration of Monuments in Brno”, allegedly did

not meet the requirements laid down in § 5 para. 1, as it failed to duly

specify the property to which the request relates and further

designated solely items in the records of the Lomnice u Tišnova State

Castle, and thus did not concern items from the Luhačovice Castle.  The

claim against the other defendants, the Regional Institute of Monuments

in Pardubice and the Historic Museum of Slavkov by Brno, was rejected on

the merits since a request to turn over items was not submitted as

against these subjects, nor was it duly asserted before a court within

the time period laid down in § 5 para. 2 of Act No. 87/1991 Coll.
 

Acting

as the appellate court in this matter, the Regional Court in Brno

declared in the reasoning of its decision, by which it affirmed the

judgment of the first instance court, that an entitled person under Act

No. 87/1991 Coll. must designate, already in the requests, items of

moveable property in such a manner that it is evident that the claim

concerns original items, taken over by the State.  The requirement that

requested items be individualized cannot be waived, so that if the

moveable items are not already identified in the request, the request

that they turned over cannot be successful.  In her request that

moveable property be turned over, served upon the Institute of Monuments

in Brno, the complainant stated that the request related “to paintings,

furniture and other valuable objects, which are located in various

castles falling under your administration” (that is, of the Institute of

Monuments in Brno).  In the court’s view such request was entirely

non-concrete and did not enable the requested items to be matched with

the original items which the State took.  Therefore, the complainant’s

claim expired in accordance with § 5 para. 2 of Act No. 87/1991 Coll.
 

In

its 28 January 2003 ruling, file no. 28 Cdo 262/2002, the Supreme Court

of the Czech Republic rejected as inadmissible the complainant’s

extraordinary appeal against the mentioned Regional Court judgment, as

it did not fulfill the requirements for admissibility as laid down in §

239 para. 2 of the Civil Procedure Code, in the version prior to the

amendment to it introduced by Act No. 30/2000 Coll.
 

In

the complainant’s view, the interpretation of § 5 para. 1 of Act No.

87/1991 Coll., employed by the Regional Court in Brno, was “made to her

extreme detriment”, against the sense and purpose of that provision. 

She asserts that it cannot be deduced from the wording of that provision

that an entitled person is obliged to meet the burden of producing

evidence in relation to moveable items already in the written request

and within a period of 6 months, under the sanction that the claim will

otherwise be extinguished.  In view of the extent and character of the

property claimed by the complainant, in order for her to duly assert her

claim, it was sufficient if, in conjunction with giving the reason for

the demand, she stated in it the obliged and entitled persons and

designated approximately the demanded items with a request they be

turned over; the complainant’s request, delivered to the Institute of

Monuments in Brno on 30 September 1991, contained all of this

information.  To the extent that more concrete detail was given

concerning individual items only afterwards in the courts of the

judicial proceeding, as soon as she succeeded in obtaining the relevant

list of inventory of moveable property from the Lomnice u Tišnova

Castle, the complainant is convinced that her claim to have the items

turned over could have expired.  The complainant acknowledges that, if

in the request for the surrender she were to have requested “entirely

abstractly designated items, such that it would not be possible to

deduce to what the request relates, the (judicial) decision would

evidently have been correct.”  That was not the case in the adjudged

matter, however.  It allegedly appears from the 24 March 1992 letter of

the Institute of Monuments in Brno, addressed to the complainant, that

it was entirely clear to that organ which specific property was being

demanded, no doubts in this respect were cited, and this institute

merely raised an objection concerning “the impossibility of proceeding

in according with Act No. 87/1991 Sb”.  It can also be seen from

expression of views on the complaint, submitted on 30 May 1994 by the

Regional Institute of Monuments in Pardubice, that it was uncontested

that the items listed in the complainant’s request are in the Slatiňany

State Castle and that that institute has the right of management in

relation to them.
 

In its

statement of views on the constitutional complaint, the Regional Court

in Brno repeated that it could not waive the requirement that moveable

items be designated individually in the request made within the required

period under § 5 para. 1 of Act No. 87/1991 Coll.  In the view of the

party to the proceeding, that request had to contain an

individualization of the particular requested items as such is a

requirement to preserve the claim that they be turned over.  The

Regional Court agreed that oral hearing in the matter be dispensed with.
 

In

its statement of views on the constitutional complaint, the Municipal

Court in Brno, referred to the content of its case file and stated that

it agrees to dispensing with an oral hearing.
 

The

National Monument Institute (territorial expert workplace in Pardubice)

informed the Constitutional Court that, as a result of the 1 January

2003 decision of the Ministry of Culture, file no. 11.617/2002, the

state allowance organizations established by the Minister of Culture in

the area of the care of monuments were merged into the National Monument

Institute with its seat in Prague.  In its statement of views on the

constitutional complaints, the National Monument Institute itself then

entirely concurred with the legal views expressed by the party to the

proceedings, namely that the item whose surrender is demanded must,

already in the restitution request for the surrender of property, in the

sense of § 5 para. 1 of Act No. 87/1991 Coll., be identical with the

item originally taken away, that is, described (individualized) in such

as to make it impossible for the item to be confused with another; the

term employed, “item”, cannot be otherwise interpreted than as

concerning an individually designated item – not a category, but an item

that cannot be confused with some other.  The Act places upon entitled

persons a duty, failure to fulfill by the deadline results in loss of

the claim.  In the view of the secondary party to the proceeding, the 6

month time period allowed for the submission of the request was

sufficiently long, and it was allegedly possible, within the given

period, to obtain even a precise specification of the items at the then

State Institute for the Care of Monuments.  The complainant’s

restitution request did not individualize a single concrete item, and in

consequence of its entirely (according to the statement of views)

uncertain designation of items, the surrender of which was requested, it

did not meet the condition of concretization of the claim in relation

to individually designated items.  Thus, the secondary party to the

proceeding entirely concurred with the ordinary courts’ interpretation

in this case.  The secondary party agreed that an oral hearing before

the Constitutional Court could be dispensed with.
 


II.
 

The

Constitutional Court has many times stated that it is not competent to

review the overall legality of decision-making by ordinary courts,

neither to substitute its evidence taking and evaluation of the admitted

evidence.  As the judicial body for the protection of

constitutionalism, it is however authorized, or obliged, to adjudge

whether there has been, in the earlier proceeding, a violation of

constitutionally-guaranteed basic rights, among which is included the

right to judicial and other legal protection and to fair process,.
 

After

acquainting itself with the materials in the file and after evaluating

the essential circumstances of the case, the Constitutional Court has

come to the conclusion that the constitutional complaint is well-founded

in part.
 

In that matter

under consideration, it is of basic significance to assess the issue

whether the request to turn over property, delivered on 30 September

1991 to the Institute of Monuments in Brno, can be considered a proper

request in the sense of Act No. 87/1991 Coll., and whether the requested

items of movable property were precisely individualized in this

request.  As is evident from the reasoning of the decision contested in

the constitutional complaint, the ordinary courts, primarily the

appellate court, considered this to be the crucial issue and the

complainant’s arguments contained in the constitutional complaint are

directed against the conclusions adopted by them on it.
 

In

the case under review, the Constitutional Court learned, both from the

contested decisions of the ordinary courts and from the relevant file

material (the file of the Municipal Court in Brno, No. 15  C 165/92),

that in the request received by the Institute of Monuments in Brno, the

complainant requested “the surrender of the items of movable property

which, on 25 February 1948, where contained in the register of the state

castle Lommice u Tišnova”; she further stated that “it concerns

paintings, furniture and valuable objects which are located in various

castles which you are administering”.  The complainant added that she

herself could not determine precisely where particular items could be

found at present but that she was convinced that the said organization

must have a precise record detailing to where particular items had been

transferred.  By way of conclusion she offered to cooperate in

identifying those items and gave as an example that when visiting the

castle in Milotice with her sister, they recognized paintings that were

originally their property.  In the course of the court proceeding, it

was ascertained from, among others, archival material of the State

Administration of Monuments (No.l. 13 of the file) that from the castle

Lomnice u Tišnova alone items were distributed to the buildings of

Jemniště in Central Bohemia, Lysice and Rájec nad Svitavou in Southern

Moravia and Kratochvíle in Southern Bohemia; according to contemporary

materials (the 10 September 1992 statement of the State Institute for

the Care of Monuments), these movable asserts are located in Slatiňany,

Kratochvíle, Lysice, Rájec nad Svitavou and Náměšti nad Oslavou.  In

reasoning its decision, the first instance court merely stated briefly

of the inventories of movable items, sent by the State Institute for the

Care of Monuments, that “the complainant could have obtained them in

the archives”; in the court’s view the petition was properly

particularized only after the deadline in § 5 para. 4 of Act No. 87/1991

Coll. (within one year of its entry into force, that is, from 1 April

1991).  Thereafter the appellate court considered the mentioned request –

as is analyzed in more detail above - “as entirely unspecific” and

declared that, in conformity with § 5 para. 2 of the restitution act the

complainant’s claim lapsed.
 

The

Constitutional Court, which in its decision-making gives preference to

the substantive conception of the law-based state and the interpretation

of legal enactments from the perspective of their purpose and

significance, and recalls that, by means of the restitution acts, the

democratic society is endeavoring at least to mitigate the consequences

of past property and other injustices, and the State and its bodies are

obliged to proceed in accordance with the restitution acts in harmony

with the statutory interests of the persons whose injury should be at

least partially compensated.  In applying the restitution acts, a too

restrictive, or formalistic, approach must not be taken, on the

contrary, they must be applied in a very sensitive manner, always with

the circumstances of the particular case in mind, and above all the

cited purpose and significance of the act.  As far as concerns the

above-stated central question relating to the necessity of the precise

individualization or specification of the items demanded, under the

sanction that the claim would otherwise be extinguished, it would

perhaps be possible to agree with the ordinary courts’ conclusions if

this matter had not concerned an enormous extent of moveable property

(compare No. 1. 13 of the file), but about several items where it would

be entirely and without any doubt evident that it was within the

restituent’s power to specify in detail the property in question within

the time period allowed by the statute.  It is appropriate to recall the

age-old general principle that nobody may be obliged to do the

impossible (nemo tenetur ad impossibile).  It cannot categorically be

stated that, in the given case, it was entirely out of the question for

the complainant to be able, in the original request, to individualize

the items, in the Constitutional Court’s view, this fact was not

demonstrated in the proceeding in a sufficiently persuasive manner.  If

such factual findings as would be in harmony with the ordinary courts’

conclusions could not safely be drawn from the evidence admitted, than

it can be concluded that this constituted a violation of the principles

of fair process.  In essence it does not suffice to make a mere

reference to the content of the file and to the views expressed by the

State Institute for the Care of Monuments (compare the contested

judgment of the Municipal Court, No.1 176 of the file), or to the

opinions of the obligated persons.
 

If

there exists several possible interpretations of a particular legal

enactment or of certain of its provisions, consideration must be given

to the intent of the legal rule.  In the case of Act No. 87/1991 Coll.

that intent is doubtless the effort to mitigate the consequences of

certain property injustices committed by the totalitarian state in the

decisive period.  If two equally valid interpretations are possible, one

of which is broad and the other narrow, between them the court must

select that which corresponds to further interpretive methods, in

particular teleological reasoning.  The ratio legis of the restitution

acts is to redress, at least to a certain degree, the consequences of

the infringement of the fundamental rights of natural and legal persons

in the totalitarian era.  Thus, a constitutionally conforming

interpretation is generally a broad one:  a statute and its individual

provisions must be interpreted in such a way that, by applying them, it

is possible to attain the aim pursued by the legislature.
 

When

interpreting the relevant provisions of the restitution acts, it also

cannot be overlooked that it was a totalitarian state which illegally

stripped its citizens of their property and that subsequently state

bodies dealt with that property in an arbitrary fashion for a period of

nearly 40 years, in the course of which movable property was

appropriated and in fact relocated to various places; therefore, the

Constitutional Court is convinced that the consequences of these or

similar transactions cannot now be interpreted, in principle, solely to

the detriment of the entitled persons.  It is necessary always to

proceed on the basis of the circumstances of the particular, concrete

case.  If in view of the above-described situation, the complainant

drafted her original request in a not entirely specific fashion,

precisely with regard to the unusual nature of the given case this can

be accepted, unless it has been proven without any doubt that it was

within her power by the end of the statutory period to learn precisely

which specific items were concerned and where these items could be

found.  A notion that is not at all unmeritorious is possible as well: 

were the complainant, due to time pressures, to designate certain items

imprecisely then she could scarcely later claim items specified in a

different fashion, as an objection in that respect would obviously be

forthcoming.  On the contrary, the complainant has from the beginning

presumed and stated that the property she is demanding would be

specified during the course of the proceeding as soon as there would no

longer be doubts as to where the items were actually located, and that

occurred by her 26 April 1994 supplement to the “proposal of the

complaint”.  Otherwise, even the manner in which the obligated persons

have conducted themselves and the very course of the proceeding itself

have confirmed the complainant in her view that further legal

transactions were not needed and that it was obviously entirely evident

to the obligated persons which items she was claiming be turned over

(compare, for example, the record of the 22 July 1992 hearing, No. 1. 5

of the file).
 

If then the

appellate court, in relation to the defendant Institute of Monuments in

Brno, proceeded on the basis of the above-described conclusions (that

is, that the complainant did not serve a proper request upon the obliged

person) and affirmed the negative judgment of the first instance court,

and if, in addition, it literally stated that it did not find it

necessary to concern itself with further objections contained in the

complainant’s appeal, or to give its views on the other grounds which

led the first instance court to reject the action on the merits, then

the Constitutional Court is persuaded that this constitutes a violation

of the right to fair process which the complainant claims.
 

As

far as concerns the contested judgment of the first instance court, the

Constitutional Court did not ascertain from the constitutional law

perspective any error of such a character, or intensity, that it would

be imperative to react by quashing this decision as well.  While it

might be admitted that the reasoning of the given judgment, despite

being extensive, could have been more persuasive and even more

comprehensible for a layman, nonetheless that court addressed the matter

in detail and, in the written version of its decision, captured the

main points in a sufficient manner; it appears from the reasoning of

this judgment the relations between, on the one hand, the factual

findings and the considerations when weighing the evidence and, on the

other hand, the Municipal Court’s legal conclusions.  The Constitutional

Court is proceeding here primarily on the principle of the

minimalization of intrusion into the jurisdiction of other public

authorities; by annulling even the first instance decision, it would be

placing itself into the role of an appellate court and would scrutinize

this decision from the perspective both of process and substance.
 

In

conclusion then, the Constitutional Court emphasizes that it did not

concern itself with other grounds upon which the complainant’s

restitution claim was rejected on the merits by the first instance

court.  Since in the proceeding the courts and the complainant

considered as the fundamental question, whether the request to turn over

the items of movable property; the appellate court itself explicitly

stated that it did not consider it necessary to concern itself with

others of the complainant’s objections nor to give its views also on

other grounds which led to the rejection of the action on the merits. 

If they observe the principles of fair process, the adjudication of

these grounds falls within the exclusive jurisdiction of ordinary

courts, and the Constitutional Court is in no way anticipating, nor may

it anticipate, their final resolution.  It will be up to the appellate

court to hear this matter again and, in the reasoning of its decision,

persuasively to respond to all of the relevant objections made by the

complainant in the matter.  Merely as obiter dictum, the Constitutional

Court would recall that naturally the appellate court might even annul

the decision of the first instance court, if in further proceedings it

comes to the conclusion, for example, precisely on the basis of a

careful review of the complainant’s objections, that such is necessary

in order to reach a just resolution of the matter.
 

Since

the Constitutional Court ascertained, on the basis of the above-stated

grounds, that in the given case there was a violation of Art. 36 para. 1

of the Charter of Fundamental Rights and Basic Freedoms, it granted the

complainants in relation to the contested decision of the Regional

Court in Brno and quashed that court’s contested decision [§ 82 para. 3

lit. a) of Act No. 182/1993 Sb, on the Constitutional Court, as

subsequently amended].
 

As

for the remainder, that is as far as concerns the first instance

decision, on the above-stated grounds the petition was rejected on the

merits.

Notice: A Constitutional Court decision can not be appealed.

Brno, 24. March 2004