2009/01/07 - I. ÚS 2477/08: Protection of Private and Family Life – the Schwarzenberg Vault

07 January 2009

Constitutional complaint filed by A. P., connected with the petition for annulment, or declaration of ineffectiveness, of Act No. 143/1947 Coll. on Transfer of Ownership of Property of the Hluboká Branch of the Schwarzenberg Family to the Province of Bohemia.

HEADNOTES

 

It

may be stated that family and family life represent a community of

persons connected with biological and emotional links, and, as an

implication, also with property connections. It is a set of these links

and connections maintained not only between living individuals, but also

links and connections which, by contrast, transcend human life. They

represent a line which connects individuals alive today with their

predecessors as well as descendants.

 

An

indisputable part of the right to family life is formed by a

relationship of a living family member to their late predecessors, a

typical and socially provable content of which consists of a respect for

the memory of predecessors, or a requirement for reverent attendance of

predecessors.

 

In

this, it is true that the way of handling the dead, and the form and

location of placing their mortal remains are to be decided on by the

individuals themselves. A special bond of an individual is thus bound

not only to dead predecessors, but also to their place of eternal rest

which they selected and built with their own means. Therefore, such

reverence relates not only to the dead alone, but also to the place of

reverence. Reverent and emotional relationship to such a site may be, in

such a case, even stronger than ownership relations to this place

For

human dignity, it is essential that also the death of an individual is

viewed with respect related (at the least) to noting that the person has

died and announcing it to close individuals, and, furthermore, it

involves the considerate handling of the remains and designation of the

grave, this being a traditional interest of an individual or their

relatives. (…) Such rights originate from the respect for general human

nature, in both ways, meaning in relationship to deceased persons and

survivors.”

 

Naturally,

it holds that the right to respect for private and family life, as well

as other fundamental rights, may be subject to certain limitations

which are constitutionally approved, determined by law, pursue a

legitimate objective and are proportionate to such a right. In the case

of the right to the respect for family life, reasons for limitations

result from Art. 8 para. 2 of the Convention

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 

A

Panel of the Constitutional Court, consisting of Chairman Vojen Güttler

and Justices František Duchoň and Eliška Wagnerová (Justice

Rapporteur), adjudicated on 7 January 2009 the matter of a

constitutional complaint filed by A. P., represented by Mgr. Jan Dáňa,

an attorney at law with a registered office at Na Ořechovce 4, 162 00

Prague 6, against a resolution by the Supreme Court dated 1 July 2008,

file No. 28 Cdo 1743/2008, a judgment of the Regional Court in České

Budějovice dated 12 December 2007, file No. 7 Co 2573/2007, and a

judgment of the District Court in Jindřichův Hradec dated 25 July 2007,

file No. 9 C 401/2006; connected with the petition for annulment, or

declaration of ineffectiveness, of Act No. 143/1947 Coll. on Transfer of

Ownership of Property of the Hluboká Branch of the Schwarzenberg Family

to the Province of Bohemia; with participation by the Supreme Court,

the Regional Court in České Budějovice and the District Court in

Jindřichův Hradec as parties to the proceedings, as well as the National

Monument Institution represented by JUDr. Irena Chmelíková, an attorney

at law with a registered office at Nám. Přemysla Otakara II. 34, 370 01

České Budějovice, and the Czech Republic represented by the Office of

the Government Representation in Property Affairs, as secondary parties

to the proceedings, as follows:

 

I.

By a resolution of the Supreme Court dated 1 July 2008, file No. 28 Cdo

1743/2008, by a judgment of the Regional Court in České Budějovice

dated 12 December 2007, file No. 7 Co 2573/2007, and by a judgment of

the District Court in Jindřichův Hradec dated 25 July 2007, file No. 9 C

401/2006, the fundamental right of the petitioner to be protected from

any unauthorised intrusion into private and family life in accordance

with Art. 10 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms, and the right to respect for private and family life in

accordance with Art. 8 para. 1 of the Convention for the Protection of

Human Rights and Fundamental Freedoms were violated.


II. Therefore, the above-specified decisions shall be annulled.


III.

The petition for annulment, or declaration of ineffectiveness, of Act

No. 143/1947 Coll. on Transfer of Ownership of Property of the Hluboká

Branch of the Schwarzenberg Family to the Province of Bohemia shall be

denied.

 

 

REASONING

 

I.

 

1.

By a constitutional complaint filed in due time and properly as for

other preconditions, the petitioner contested the decisions of the

ordinary courts designated in the heading hereof. The judgment of the

District Court in Jindřichův Hradec dismissed the action by the

petitioner requesting that the court establish that the “Schwarzenberg

vault”, located on parcels of land Nos. 72, 73, 487/1, 488/1, 498/1,

498/2, 498/4, 498/5, 498/6, 498/7, 498/9, 498/10, 498/11, 498/12, 498/13

and 498/14 in the cadastral area of Domanín u Třeboně, all registered

in Property Deed No. 37 with the Cadastral Office for the Region of

South Bohemia, Cadastral Workplace in Třeboň, is part of the inheritance

left by the late Dr. Adolf Schwarzenberg. The contested judgment by the

Regional Court in České Budějovice subsequently confirmed the judgment

of the court of first instance, and the contested resolution of the

Supreme Court then dismissed as impermissible the appeal on a point of

law by the petitioner.

 

2.

The petitioner, within her constitutional complaint, objected that the

contested decisions violated her constitutionally guaranteed right to a

fair trial in accordance with Art. 36 of the Charter of Fundamental

Rights and Basic Freedoms and Art. 6 of the Convention for the

Protection of Human Rights and Fundamental Freedoms, in connection with

Art. 13 of the Convention. This was based on the reason that the

petitioner has long been prevented from accessing relevant documents

which relate to the loss of property of the petitioner’s legal

predecessor, Dr. Adolf Schwarzenberg, this in spite of the fact that the

state bodies were aware of a number of relevant facts, particularly in

respect of whether the property of Dr. Schwarzenberg was confiscated on

the basis of the “Beneš Decrees” (Decrees No. 12/1945 Coll. and No.

108/1945 Coll. ), or later on the basis of Act No. 143/1947 Coll. on

Transfer of Ownership of Property of the Hluboká Branch of the

Schwarzenberg Family to the Province of Bohemia. In this manner, the

petitioner’s restitution claim was negated in the past, and at present

her pressing legal interest in ascertaining ownership rights, which she

claimed following her failure in the matter of restitutions, is

paradoxically negated in the same way. Furthermore, the petitioner

believes that Art. 2 para. 2 of the Charter in connection with Art. 2

para. 3 of the Constitution, pursuant to which the objective and task of

state power is to serve citizens, were violated. In addition, Art. 11

of the Charter was allegedly violated, since the Opinion of the

Constitutional Court Plenum, file No. Pl. ÚS - st. 21/05, dated 1

November 2005, was applied by the ordinary courts to the case of the

petitioner, but the conditions reflected by the Opinion are not met in

this case. The ordinary courts thus retroactively interfered with the

ownership rights of the petitioner by negating the existence of the

legal interest. At the same time, Art. 3 para. 1 of the Charter was also

allegedly violated, this Article guaranteeing equality of individuals

without regard to gender, race, colour of skin, language, faith and

religion, political or other conviction, national or social origin,

property, birth, or other status. The petitioner objected that in cases

of other persons who were affected by illegal confiscation of property

without compensation, restitution of property rights eventually took

place (e.g. in the case of the Walderode family). To this the petitioner

added that Dr. Adolf Schwarzenberg made a considerable contribution to

the integrity of the Czechoslovakian state by no small financial

investment into the defence of the country in 1937, and by further

support of the struggle for liberation of the country when in exile in

the USA.

 

3.

The petitioner further elaborated this basic framework of argumentation

in her constitutional complaint by raising several objections. The

petitioner stated that possession of all property was taken by the

Czechoslovakian state in May 1945 from the German Gestapo. In June,

national administration was unreasonably and unlawfully imposed on the

property and, in October 1945, agricultural property was confiscated by a

Notice by the District National Committee issued on the basis of “Beneš

Decrees”. By the issue of Act No. 143/1947 Coll., confiscation was

extended to cover all business and commercial property which, following

the termination of national administration as of 31 May 1948, passed to a

newly established unit under the ownership of the Province of Bohemia.

Extensive personal effects belonging to Dr. Adolf Schwarzenberg were

consequently handed over to this unit, without any legal cause, insofar

as the same were not retained, in a similarly unlawful manner, by the

Czechoslovakian Republic.

 

 

4.

Following the issue of Act No. 143/1947 Coll., the District National

Committee issued, on 12 February 1948, an assessment whereby they

annulled the confiscation in accordance with Decree No. 12/1945 Coll. In

the petitioner’s opinion, this was done ineffectively and in

contravention of the Decree itself, as the Decree did not imply that it

would be at all possible to annul or discontinue an expropriation which

had already been administered. In connection with this, the petitioner

referred to a document which was delivered to her by the Ministry of

Finance on 6 September 2007, implying a legal opinion of the state

bodies dated 7 September 1981, specifying that the property of Dr.

Schwarzenberg was confiscated in accordance with Decrees of the

President of the Republic No. 12/1945 Coll. and No. 108/1945 Coll., and

that Act No. 143/1947 Coll. was merely confirmation of the confiscation,

not a confiscatory measure.

 

5.

The petitioner stated and objected that if the property had conceivably

been confiscated on the grounds of Act No. 143/1947 Coll., then such

confiscation could not have been achieved upon such an Act becoming

effective, but only upon intabulation of the right of ownership.

According to the petitioner, historical records in the land register

show that the state administration bodies construed the condition of

intabulation in connection with Act No. 143/1947 Coll. as a precondition

necessary for the transfer of the given property. All records of

ownership rights were made only after 25 February 1948, i.e. within “the

qualifying period” for the origination of a claim pursuant to

restitution regulations. According to the petitioner, in this context it

is irrelevant that the petitioner in the past did not submit a

restitution petition in accordance with Act No. 87/1991 Coll. Such a

non-submission was due to the fact that until the expiry of the term for

filing the restitution petition, the existence of relevant files was

concealed from the petitioner, and instructions which were given to her

by the state bodies were incorrect. By not accepting the claims now

being exercised in accordance with § 126 and § 451 of the Civil Code

with reference to the opinion of the Constitutional Court adopted in the

case of Kinský, the fundamental rights of the petitioner are again

violated. The petitioner deems such conduct to be in contravention of

good morals, as the state acts mala fide when the same refers to its own

unconstitutional conduct in order to be able to again repudiate

existing claims.

 

6.

In this given specific case, the petitioner is of the opinion that

whether the majority of property of Dr. Adolf Schwarzenberg was

confiscated in accordance with Beneš Decrees or on the basis of Act No.

143/1947 Coll., the Schwarzenberg family vault has never been governed

by either of these regulations.

 

7.

Ownership over the vault and adjacent land could not be affected by

confiscation in accordance with Decree No. 12/1945 Coll. since the same

was not agricultural property, but immovable property of a personal

nature important only to the members of the Schwarzenberg family and

their descendents. In addition, the confiscation notice does not imply

that the vault is part of the confiscation in accordance with the

above-mentioned regulation. Moreover, the vault was not confiscated on

the basis of Decree No. 108/1945 Coll. This was due to the fact that in

the case of the Schwarzenberg vault, no decision on confiscation was

issued in accordance with such a Decree. Finally, the vault could not be

assigned to the Province of Bohemia on the basis of Act No. 143/1947

Coll. since the wording of § 1 para. 2 of the Act implies that

confiscation is to affect immovable property relating to agriculture,

forestry, ponds and lakes, industry, commerce and trade, including all

buildings and chateaux and furnishings therein. However, the Act did not

and could not include articles and immovable property of a personal

nature of representatives of the Hluboká branch of the Schwarzenberg

family, such as, according to the petitioner, the very vault in

question, i.e. immovable property of a highly personal nature, which is

of significance to the members of the Schwarzenberg family and their

descendents.

 

8.

In addition, the petitioner stated that she herself evidenced before

the ordinary courts that the Czechoslovakian state administration bodies

acknowledged the inviolability of the vault in terms of ownership, as

the same was not deregistered from the property of JUDr. Schwarzenberg

from the land register before 1950; and the vault with adjacent land was

assigned to the ownership of the Czechoslovakian state – probably for

purely administrative reasons – as late as the 1960s.

 

9.

The petitioner emphasised that the vault and particularly the mortal

remains of her predecessors could not be confiscated by any of the

regulations, since the same would be in conflict with the Czech ordre

public. A vault is a rei extra commercium, to which conclusions

resulting from Opinion of the Constitutional Court Pl. ÚS -st. 21/05

cannot apply, since the same is not affected by the interests pursued in

such an Opinion. To this the petitioner added that the legislature

surely did not intend to enact a global legalisation of theft when

adopting restitution regulations. Such approval, which would turn

restitution legislation into that serving as justification of any

injustice, would have to be at least intentional on the part of the

legislature, and would have to be objectively formulated, which in fact

did not take place. The issue whether or not there is a legitimate

precondition for further continuance of possession of illegitimately

confiscated property is, according to the petitioner, governed by

circumstances of any given case. However, in this one, specific

circumstances were not examined by the courts.

 

10.

According to the petitioner, ownership is, according to its very

nature, non-prescriptible and in civilised countries exists permanently.

A law-based state with a democratic legal order is characterised by the

fact that the property of a citizen is not subject to state

arbitrariness, but is protected by the Constitution. In a corresponding

manner, it is necessary to proceed from the fact that in the

Czechoslovakian Republic where the Constitution from 1920 was valid, a

proven owner has a legitimate expectation that their right of ownership

will be acknowledged, irrespective of the period of time expired. Only

special circumstances, such as cessation of the state, which interrupts

constitutional and legal continuity, may abort such a legitimate

expectation. The petitioner stated that her legitimate expectations

were, in addition, strengthened by the Czechoslovakian state and later

Czech state. In June 1945, a note by the Czechoslovakian Republic was

produced and addressed to the Soviet Union, in which Dr. Schwarzenberg

was described as a well-known anti-Fascist against whom reparations

cannot be enforced; the reasoning to the decision by the Provincial

National Committee in Prague dated 5 March 1946 stated that Adolf

Schwarzenberg was of Czech nationality, always acting as a Czech, and

due to imminent persecution had had to flee from the Germans, and it was

not possible to treat him as a German or traitor; and thus his property

was not subject to confiscation, and suchlike.

 

11.

Therefore, the petitioner objected that she did not agree with the

opinion of the court of appeal on a point of law, according to which,

with reference to the opinion of the Constitutional Court, it is true

that legitimate expectation of restitution of alienated property is not

established. Throughout the 1990s, the Czech Republic via its bodies

obstructed the objective handling of restitution petitions by the

petitioner, through concealing the existence of confiscation files and

providing untrue information to land registration offices. An analogous

application of Opinion of the Constitutional Court Plenum Pl. ÚS -st.

21/05 would mean nothing but the fact that the Czech Republic continues

to violate fundamental rights and basic freedoms, which violation

started during the times of non-liberty.

 

12.

With respect to the circumstances above, the petitioner proposed that

the Constitutional Court by their Judgment annul all contested decisions

of the ordinary courts and return the case to the District Court in

Jindřichův Hradec to be re-heard.

 

13.

At the same time, the petitioner filed a petition for annulment of Act

No. 143/1947 Coll., as the same has fundamentally violated the generally

acknowledged fundamental rights and basic freedoms of the legal

predecessor of the petitioner, and the purpose of the same consisted

solely of political persecution. With respect to this, the petitioner

believes that this legal regulation is in conflict with constitutional

statute No. 23/1991 Coll., whereby the Charter of Fundamental Rights and

Basic Freedoms was proclaimed, and according to which legal regulations

in conflict with the Charter became legally ineffective as of 31

December 1991; this Act was also in contravention of the then valid

Constitution of 1920.

 

14.

On the basis of a request from the Constitutional Court, parties and

secondary parties to the proceedings submitted their statements

concerning the constitutional complaint.

 

15.

In his statement, the President of a Chamber of the Supreme Court

stated that he did not share the opinion of the petitioner declared in

the constitutional complaint as regards the violation of

constitutionally guaranteed fundamental rights. Furthermore, he stated

his agreement with the conclusions of basic level courts, i.e. that the

transfer of property “of the Hluboká Branch of the Schwarzenberg Family

to the Province of Bohemia” took place on the basis of Act No. 143/1947

Coll., and this prior to 25 February 1948. According to the Supreme

Court, the evaluation of this legal matter is covered by the fundamental

interpretative legal conclusions contained in Opinion of the

Constitutional Court Plenum dated 1 November 2005, file No. Pl. ÚS -st.

21/05 (published as Notice No. 477/2005 Coll.). The ordinary courts

proceeded in this legal matter on the basis of the same. Therefore, the

Supreme Court stated that they do not consider the constitutional

complaint as justified.

 

16.

The President of a Chamber of the Regional Court in České Budějovice

stated that she based her decision on the conclusion that the court of

the first instance correctly inferred that property of JUDr. Adolf

Schwarzenberg was not confiscated by Decree of the President of the

Republic No. 12/1945 Coll. but that the transfer was implemented by Act

No. 143/1947 Coll. This Act has been valid ever since and the case

cannot be assessed otherwise. The Regional Court in its decision making

allegedly also proceeded from the fact that the petitioner claimed by

action that the legality of process in accordance with Act No. 143/1947

Coll. should be reviewed, or that she stated that this Act could not

serve as the basis for transfer of the right of ownership. However,

according to the Regional Court, the powers to review this Act do not

pertain to ordinary courts; through an action requiring that ownership

rights be ascertained by the court (“declaratory action”), it is not

possible to demand that an act be declared invalid. It is also not

possible to evaluate whether such an Act was or was not in accordance

with the law, or to decide whether property could have passed to the

state when the confiscation of the same property had already been

decided upon in accordance with the Decree of the President of the

Republic. The Regional Court, therefore, concluded that since Act No.

143/1947 Coll. is even today a part of the legal order of the Czech

Republic, the petitioner may not, by filing the action, circumvent

restitution regulations and claim that such an Act should not have been

used as the basis for procedure. In connection with this, the Regional

Court referred to the fact that even the Constitutional Court, by

Resolution dated 16 October 2008, file No. II. ÚS 2491/08, denied the

petition for annulment, or declaration of ineffectiveness, of Act No.

143/1947 Coll. As for details, the Regional Court referred to their

judgment and the judgment of the court of first instance.

 

17.

In her statement, the President of a Chamber of the District Court in

Jindřichův Hradec referred to her judgment which – as was pointed out by

the court – has not been changed by any decision of the higher level

courts; furthermore, she stated that she leaves the decision on the

constitutional complaint to the Constitutional Court to consider.

 

18.

In their statement, the Office of the Government Representation in

Property Affairs stated that the constitutional complaint is completely

unsubstantiated, since both the ordinary courts and the Constitutional

Court in several cases have made decisions in similar matters, i.e. in

restitution cases of the petitioner, and also with respect to her

petitions for ascertaining ownership to the property of the Hluboká

branch of the Schwarzenberg family, and it has always been concluded

that, on the basis of Act No. 143/1947 Coll., a change took place in the

identity of the owner of the property and that the above-specified Act

dispossessed ownership in one step from the owners named in the Act. The

property specified in the Act was transferred to the state in one step

ex lege to the date of effectiveness of the Act, i.e. 13 August 1947,

whereby the transfer was accomplished once and forever. Therefore, the

petition by the petitioner for declaration of ineffectiveness of such an

Act as at 31 December 1992 is completely irrelevant. The Office of the

Government Representation in Property Affairs further denied the

statement of the petitioner that the courts had not dealt with the fact

that the vault is property of a personal nature; the Office stated that,

to the contrary, a conclusion was pronounced within the proceedings

that the vault, including the adjacent immovable property, formed part

of an agricultural property called “The Třeboň Estate”. With respect to

this, the Office of the Government Representation in Property Affairs

proposed that the constitutional complaint be denied.

 

19.

Another secondary party, the National Monument Institution, firstly

doubted the active standing of the petitioner for filing the action

before the ordinary courts, this for the reason that she was declared,

within inheritance proceedings, to be merely one of the legal successors

of Dr. Jindřich (Heinrich) Schwarzenberg, who was an heir of JUDr.

Adolf Schwarzenberg, and, therefore, according to the secondary party,

she cannot exercise exclusive right of ownership to the entire possible

subject of the inheritance. At the same time, the National Monument

Institution pointed out a discrepancy resulting from the constitutional

complaint, in which the petitioner incorrectly stated that JUDr. Adolf

Schwarzenberg was her grandfather. The National Monument Institution

further stated that the property was seized as early on as during the

life of JUDr. Adolf Schwarzenberg, and thus he, as the testator, on the

date of his death on 27 May 1950, did not actually own the immovable

property in question, and thus such property cannot form part of his

inheritance. In addition, the immovable property in question was

transferred to the state prior to the “qualifying period”. In connection

to this, the secondary party pointed out the case law of the Supreme

Court relating to other property of the Hluboká branch of the

Schwarzenberg family, according to which their property was affected by

Act No. 143/1947 Coll., prior to which no confiscation on the basis of

Decree No. 12/1945 Coll. occurred.

 

20.

The National Monument Institution further denied the allegedly biased

statement of the petitioner that the vault was actually “purely private

property and the vault did not fall under the wording of Act No.

143/1947 Coll.” The Institution pointed out that, in 1995, the opinion

of the petitioner was completely different since she, in her request

delivered to the Monument Institution in České Budějovice concerning the

release of immovable property, stated this immovable property is

predominantly property of an agricultural nature, and the family vault

is always an indivisible part of the manor, whether the nature of the

same is agricultural or not. To this the National Monument Institution

added that it was proven before the court of first instance, by a

statement from Land Tables, Entry No. 1540 “The Třeboň Estate”, a

statement from Land Registers, Entries No. 34, 47, 1182 and 1307 for the

cadastral area of Třeboň, that the immovable property in question was

owned (before the ownership rights were registered in the name of the

Province of Bohemia) by JUDr. Adolf Schwarzenberg. Ownership rights in

the name of the Province of Bohemia were recorded on the basis of Act

No. 143/1947 Coll. with effectiveness as of 13 August 1947. The court of

appeal then in their judgment did not share the petitioner’s opinion

that the vault and the adjacent land is property of a personal nature to

which the above-specified Act could not apply, and the court of appeal

explicated their opinion in the reasoning. According to the National

Monument Institution, two buildings and 16 parcels of land are involved,

and, therefore, it is hardly possible to speak of immovably property of

a highly personal nature and status, as is claimed by the petitioner.

 

21.

In the case of the Schwarzenberg vault, it is not a vault which served

only to entomb the mortal remains of members of the Schwarzenberg

family. This structure, from the very time it was erected, has not been a

funereal building of single purpose, as is the case with other vaults

of important or wealthy persons. Typologically, this is an

ecclesiastical building, the interior layout of which features all the

sections inherent to a church or chapel (presbytery, nave, choir and

sacristy), which were also used for such purposes following the

completion of construction work. Services were regularly held and mostly

attended by religious parishioners; when important anniversaries were

celebrated, also by Schwarzenberg family members when they were staying

at Třeboň. In order to secure public services, a nearby former gatehouse

in the park was adapted and became a rectory. Similarly, the external

architectural form of the building is in the shape of a sanctuary, as it

primarily and regularly served such a purpose. A monumental

double-flight stairs converges at the landing of the porch of the

chapel; the building features a typical belfry, and is dominated by a

centrally arched nave with external and internal sculptures. The vault

itself forms a partially buried basement section of the building as a

crypt. This concept is a standard one for all ecclesiastical buildings

which were used, in addition to liturgical purposes, as a place of

burial. The clear majority of urban and convent churches and chapels may

serve as examples.

 

22.

As for the adjacent land, the National Monument Institution believes it

must be stated that the park in Domanín has been – since its

establishment by the landscape architect Wácha in 1875, which was one

year after the commencement of building the chapel – conceived as a

natural landscape park of Romantic style, and was also associated with

economic usage. It has never been enclosed by a wall or separated in any

manner from neighbouring land, as was common for cemeteries or

spiritual places. A number of public roads led through the park, one of

them being the main central route leading directly to the church of St.

Jiljí and its cemetery. The park was farmed, in terms of agriculture and

forestry, which was also made possible by its uninhibited connections

to the surrounding landscape, including commercial access to the Svět

Lake.

 

23.

The National Monument Institution concluded that the person who claims a

right after many dozens of years cannot legitimately expect to be

successful with a proposed judgment which only abuses the institute of

declaratory action in order to evade special acts. Property, the

restitution of which the state intended to make possible, was included

in special restitution acts. In other cases, it is not possible to

misuse general legal instruments to make long-term ownership

relationships insecure. With respect to this, the National Monument

Institution proposed that the constitutional complaint be denied as

clearly unsubstantiated.

 

II.

 

24.

Furthermore, the Constitutional Court, in order to evaluate the

constitutional complaint, has requested the file from the District Court

in Jindřichův Hradec, file No. 9 C 401/2006. From this, the

Constitutional Court ascertained that the petitioner claimed, before the

ordinary courts, that it be determined the Schwarzenberg vault, located

on parcels of land Nos. 72, 73, 487/1, 488/1, 498/1, 498/2, 498/4,

498/5, 498/6, 498/7, 498/9, 498/10, 498/11, 498/12, 498/13 and 498/14 in

the cadastral area of Domanín u Třeboně, all registered in Property

Deed No. 37 with the Cadastral Office for the Region of South Bohemia,

Cadastral Workplace in Třeboň, pertains to the inheritance of Dr. Adolf

Schwarzenberg. She supported her pressing legal interest with the fact

that she is a rightful heir of JUDr. Adolf Schwarzenberg, more

specifically his adopted son Dr. Jindřich (Heinrich) Schwarzenberg, and

the immovable property forms “hereditas iacens”. She further stated that

the vault is incorrectly registered in the Cadastre of Real Estate in

the name of the Czech Republic. The individual parcels of land were

re-registered to the Czechoslovakian state during 1961, on the basis of a

Notification of the Ministry of the Interior dated 20 May 1957, file

No. 132897/1957-232-VI; according to the petitioner, this was an

arbitrary assignment of the property made after more than ten years from

the death of Dr. Adolf Schwarzenberg. Furthermore, the petitioner

raised objections in her action which are contentually identical to

those the petitioner stated in the constitutional complaint. A part of

the file is formed by copies of statements from the Land Register, Entry

No. 154, cadastral area of Domanín, the statement being entitled

“Family vault – confiscation”. This statement includes, in addition to

immovable property listed in the action, also other items of immovable

property, for example, the Church of St. Jiljí and its cemetery.

Immovable property to which the action relates is designated as a chapel

with a vault, park and garden. At the very end, it contains an entry

saying “Filed on 22 November 1961 No. 1078. In accordance with § 1 para.

1 and 2 of Act dated 10 July 1947 No. 143/47 Coll. on Transfer of

Ownership of Property of the Hluboká Branch of the Schwarzenberg Family,

and in accordance with this petition: a) a note on confiscation to the

benefit of the German Reich, item B7 appurtenant, shall be deleted, b) a

note on national administration under item B-10 appurtenant, shall be

deleted. Right of ownership shall be registered for: to be continued on

page 21." Page 21 contains a conclusion of the preceding text as

follows: the Czechoslovakian state – District National Committee in

Jindřichův Hradec.”

 

25.

From the file, the Constitutional Court further familiarised itself

with the reasonings of the individual contested decisions by the

ordinary courts. The reasoning of the judgment of the District Court in

Jindřichův Hradec implies that they deemed the petitioner to be a legal

successor of JUDr. Adolf Schwarzenberg, who was the owner of the

property covered by the action filed. The court of first instance also

concluded that the petitioner has a pressing legal interest in the

required determination of legal relationships. Substantively, however,

the court concluded that ownership of this property passed to the

Province of Bohemia upon Act No. 143/1947 Coll. coming into effect, that

is as of 13 August 1947. According to the court of first instance, the

assignment took place ex lege, since such an Act did not specify that

the assignment would take place by entering the same into the Land

Register. The court of first instance further stated that in accordance

with § 1 para. 2 of the Act, the property in question means immovable

property relating to agriculture, forestry, ponds and lakes, industry,

commerce and trade, registered in books in the name of Josef (Joseph)

Adolf, the Prince of Schwarzenberg, Jan (Johann), the Prince of

Schwarzenberg, and Dr. Adolf Schwarzenberg, this including all buildings

and chateaux and furnishings therein, together with all rights and

obligations, plus livestock and deadstock, along with all supplies and

all working capital. For assessing which items of property pass to the

Province of Bohemia, their status as on 9 May 1945 was decisive. The

court of first instance concluded that the immovable property – the

subject of the proceedings – passed, on 13 August 1947, to the ownership

of the Province of Bohemia, this during the lifetime of the legal

predecessor of the petitioner. Therefore, at the date of his death, 27

February 1950, such real estate was not his property.

 

26.

The reasoning of the contested judgment of the Regional Court implies

that the judgment of the court of first instance was confirmed as

correct in terms of the matter itself. However, the court of appeal did

not identify itself with the conclusion of the court of first instance

that the petitioner has a pressing legal interest in the declaration. On

the contrary, they referred to the Opinion of the Constitutional Court

Plenum, published as a Constitutional Court Notice under No. 477/2005

Coll., which states that by declaration of right of ownership, in

particular such a right which requires entry in the Cadastre of Real

Estate, in the case of absence of legitimate expectation on the part of

the petitioner, the preventive function of action pursuant to § 80

clause c) of the Civil Procedure Code is not fulfilled, and thus the

pressing nature of the legal interest is not given; and that the action

for declaration of ownership rights may not be used to evade the meaning

and purpose of restitution legislation. The court of appeal paraphrased

the contents of the Opinion of the Constitutional Court Plenum, i.e.

that outside the scope of restitution regulations, it is impossible to

claim the release of property (and according to the court of appeal, it

is also impossible to claim that it be declared that such property is

included in inheritance after a person who died in the interim), when

the property was taken over by the state prior to the qualifying period,

that is prior to 25 February 1948.

 

27.

Within its reasoning, the court of appeal further dealt with the

objection by the petitioner that the vault is property of a personal

nature to which Act No. 143/1947 Coll. did not apply. They stated that

this vault was not one that served only for entombing the mortal remains

of persons from the Schwarzenberg family, but it was a building serving

for the administration of public church services for parishioners from

the Třeboň Estate. The fact that this was not only a building serving as

a burial place is, according to the Regional Court, also derivable from

the fact that the petitioner calls for not only this structure to be

released, but also a number of parcels of land of an agricultural and

forestry nature, which were in the past utilised for such purposes.

 

28.

The Supreme Court, within the contested resolution, concluded that the

issue dealt with in the judgment of the court of appeal is not an issue

of a material legal importance, since vital interpretation was provided

earlier by the judgment of the Grand Panel of the Civil Committee dated

11 September 2003, and in the Opinion of the Constitutional Court Plenum

dated 1 November 2005, file No. Pl. ÚS -st. 21/05, whereby ordinary

courts are bound.

 

29.

The Constitutional Court further administered evidence via publicly

accessible text found on the Regional Information Server of the Třeboň

Area (http://www.trebon.cz/hrobka.html; verified on 20 November 2008).

From this it is implied that “since 1784, members of the main branch of

the Schwarzenberg family were buried in the nearby cemetery of the

Church of St. Jiljí, first mentioned in 1515. However, in the second

half of the 19th century, this church was full and also did not meet

relatively strict hygiene regulations, which required that the rooms of

the vault be separately ventilated and bodies be embalmed prior to being

placed in a two-shell coffin.” The contents of this text is basically

equal to another publicly accessible text (http://cs.wikipedia.org;

verified on 20 November 2008): “Prior to the building of the vault,

members of the main branch of the Schwarzenberg family were buried –

following 1784 – at the St. Jiljí Church in Třeboň; this church,

however, no longer met, in terms of dimensions and hygiene, new

regulations stating that it is obligatory to bury in the ground unless

the vault is consistently separated from the sacred areas of the church,

and also that it is necessary to embalm the bodies prior to their

resting in two-shell coffins […] Works on the building started on 14

July 1874. A complex draining system for the vault was built, buried

under the level of the surface […] The vault was consecrated on 29 July

1877 by Bedřich (Friedrich) Schwarzenberg, the Archbishop of Prague,

brother of Prince Jan (Johann) Adolf II. […]. In 1888, a rectory was

built in the vicinity, and the adjacent areas landscaped as an English

park […] The vault itself […] has, according to the regulations then

valid, a separate entrance, small non-transparent windows, and internal

air circulation […] Even though bodies of the Schwarzenbergs are resting

in the vault, their hearts are located in special receptacles in Český

Krumlov, with the exception of the heart of the daughter of Princess

Eleonora.”

 

30.

Furthermore, the Constitutional Court, in accordance with the

provisions of § 44 para. 2 of Act No. 182/1993 Coll. on the

Constitutional Court as amended by later regulations, asked the parties

to the proceedings for approval of dispensing with an oral hearing. The

petitioner, by a note dated 19 November 2008, informed the

Constitutional Court of her disapproval. Therefore, the Constitutional

Court ordered that an oral hearing be held on 7 January 2009, and

summoned all parties to the proceedings to the same.

 

31.

In the course of the oral hearing held on 7 January 2009, the legal

representative of the petitioner referred to facts resulting from the

contents of the constitutional complaint, and only in relation to the

petition for annulment, or declaration of ineffectiveness, of Act No.

143/1947 Coll. appended the arguments included in the constitutional

complaint with a statement that the Act referred to cannot be considered

valid, since the same lacks generality and the only purpose of the same

was to confiscate property of the petitioner’s predecessor. Legal

representatives of the secondary parties in accord referred to the

contents of their statements concerning the constitutional complaint,

which they considered unsubstantiated, since the fundamental rights of

the petitioner were not affected.

 

III.

 

32.

Following the proceedings administered, the Constitutional Court

concluded that the contested decisions violated the constitutionally

guaranteed fundamental rights of the petitioner, however, not those

which the petitioner designated in her constitutional complaint. The

settled case law of the Constitutional Court specifies that the

Constitutional Court is, in its decision making, bound by the proposed

verdict of the petition, not by its reasoning, and is entitled to

examine whether constitutionally guaranteed fundamental rights other

than those referred to by the petitioner within the constitutional

complaint were violated.

 

33.

Therefore, in spite of the fact that the petitioner within her

constitutional complaint objected that her right of ownership and the

right to a fair trial were violated, the Constitutional Court concluded

that the fundamental right which was violated by ordinary courts

consists of the right to respect for private and family life in

accordance with Art. 8 of the Convention for the Protection of Human

Rights and Fundamental Freedoms, and Art. 10 para. 2 of the Charter of

Fundamental Rights and Basic Freedoms.

 

III.A

 

34.

In Judgment file No. II. ÚS 568/08, the Constitutional Court stated, in

relation to the right to respect for private and family life, that

provisions of Art. 10 para. 2 of the Charter as well as provisions of

Art. 8 of the Convention speak, at a general level, of protection of

family life, or respect for family life, however, without defining – in

legal terms – the meaning of the term “family life”. When interpreting

such provisions it is therefore necessary to commence from the fact that

a family primarily represents a factual biological link and a social

institute which is only subsequently anticipated by legal regulation.

 

35.

The scope of the interpretation of the term “family life” is thus

determined, in particular, by social experience which may change in the

course of social development. It may be definitely stated that family

and family life represent a community of persons connected with

biological and emotional links, and, as an implication, also with

property connections. It is a set of these links and connections

maintained not only between living individuals, but also links and

connections which, by contrast, transcend human life. They represent a

line which connects individuals alive today with their predecessors as

well as descendants, even though it is expectable that intensities of

such links differ when it comes to relationships among living members of

the family and relationships with long-deceased predecessors. In such a

sense, family represents a spiritual home, one’s roots and a sense of

shared identity (Peschke, K.-H.: Křesťanská etika /Christian Ethic/.

Vyšehrad, Prague 2004, p. 479).

 

36.

An indisputable part of the right to family life is formed by a

relationship of a living family member to their late predecessors, a

typical and socially provable content of which consists of a respect for

the memory of predecessors, or a requirement for reverent attendance of

predecessors. The same conclusion is also held by the case law of the

European Court of Human Rights, according to which the methods of

burying and handling buried remains fall under the scope of Art. 8 of

the Convention, and this right may be claimed by survivors (cf. judgment

dated 17 January 2006 in the case of Elli Poluhas Dödsbo v. Sweden).

 

37.

In other words, a part of family life is also indubitably formed by the

manner of treating deceased predecessors, by the form of reposing their

mortal remains, and the place where such remains are located. This is a

right to protection of reverence of personality, which, for that

matter, is not only an accomplishment of a liberal or a law-based state,

but has its historical archetype in Christian morals or theological

teachings (cf. Kotrlý, T.: Pohřbívání v kostele /Burial in Church/.

Revue církevního práva /Church Law Review/, No. 3/2007, pp. 233 - 235).

In this, it is true that the way of handling the dead, and the form and

location of placing their mortal remains are to be decided on by the

individuals themselves. A special bond of an individual is thus bound

not only to dead predecessors, but also to their place of eternal rest

which they selected and built with their own means. Therefore, such

reverence relates not only to the dead alone, but also to the place of

reverence. Reverent and emotional relationship to such a site may be, in

such a case, even stronger than ownership relations to this place, or

the feeling of “absolute legal rule” over the property – a place of

eternal rest of predecessors.

 

38.

Also, the European doctrine of human rights accentuates a specific

relationship to dead predecessors. “The death of a human being is a

private matter. Like birth, death is an existential change, through

which an individual cannot be accompanied by another. Yet death holds a

central position in interpersonal relationships. All civilizations hold

funeral rites by which an individual is mourned. Death as well as life

are related to human existence in its individual dimension, and as such

must be acknowledged in relation to any person. However, human beings do

not live and die only for themselves. Both human nature and the

environment in which a man lives are social categories, since we all

number among a small or large group of friends, family or community. For

human dignity, it is essential that also the death of an individual is

viewed with respect related (at the least) to noting that the person has

died and announcing it to close individuals, and, furthermore, it

involves the considerate handling of the remains and designation of the

grave, this being a traditional interest of an individual or their

relatives. (…) Such rights originate from the respect for general human

nature, in both ways, meaning in relationship to deceased persons and

survivors.” (Greve, H. S.: “What’s in a Name?” - The Human Right to a

Recognized Individual Identity. In Human Rights, Democracy and the Rule

of Law. Liber Amicorum Luzius Wildhaber. Dike Verlag, Nomos

Verlagsgesellschaft, Zürich, Baden-Baden 2007, p. 310).

 

39.

Naturally, it holds that the right to respect for private and family

life, as well as other fundamental rights, may be subject to certain

limitations which are constitutionally approved, determined by law,

pursue a legitimate objective and are proportionate to such a right. In

the case of the right to the respect for family life, reasons for

limitations result from Art. 8 para. 2 of the Convention, according to

which legitimate reasons for limitations of such a fundamental right

consist of measures in the interests of national security, public safety

or the economic well being of the country, for the prevention of

disorder or crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others. Only the existence of

such reasons may legitimate restriction of a fundamental right, in the

given case, the above-specified reverence for mortal remains of

predecessors and a place where they rest. Typically, such measures may

consist of the existence of hygiene or building and technical

restrictions, possibly also right of ownership of a private person to a

place (land, structure) where the mortal remains are placed.

Nevertheless, priority of an emotional bond to the place of rest of

predecessors (family life) over absolute legal rule (ownership) over

such place is not given once and forever. In the specific case, the

competition of fundamental rights is subject to the test of

proportionality.

 

40.

The state is not endowed with fundamental rights and, therefore, its

ownership may not be subsumed under limitations specified under Art. 8

para. 2 of the Convention, or under the cause of “the protection of the

rights and freedoms of others”. Not even the present legal regulation of

funeral services in the Czech Republic, in accordance with Act No.

256/2001 Coll. on Funeral Services and on Alterations to Some Acts,

requires that graves are owned by the state (or public law

corporations); it allows for the existence of private or non-public

burial sites, including existing family vaults (§ 3 para. 1 of the Act)

(cf. Kotrlý, T.: Pohřbívání v kostele /Burial in Church/. Revue

církevního práva /Church Law Review/, No. 3/2007, pp. 233 - 243 et

seq.).

 

41.

The condition that the grave, vault and land on which the same are

located would have to be necessarily owned by the state cannot be

subsumed, in accordance with the conviction of the Constitutional Court,

under the provision of the economic well being of the country pursuant

to the above-quoted Art. 8 para. 2 of the Convention; the Constitutional

Court cannot see in which aspect ownership of the vault would bring

about such a benefit to the state, upon which the well being of the

country would depend.

 

 

III.B

 

42.

In one of its first Judgments (file No. Pl. ÚS 19/93), the

Constitutional Court set up limits which must be respected when

interpreting legal standards, no matter how old these legal norms may

be. Even though the present democratic law-based state is built on the

basis of a formal legal continuity with preceding legal and political

systems, the interpretation of law, which has its historical origin,

cannot neglect the present principles of a material law-based state. The

Constitutional Court further developed these ideas in its Judgment file

No. Pl. ÚS 42/02, in which they stated that the interpretation of

criminal law norms, however ancient they may be, if the same is

performed by a court today (due to usable procedural means) with impacts

on evaluating criminal sanction over a person, that is with effects

interfering with the personal domain of such a person, cannot be

administered regardless of today’s valid constitutive values and

principles of a democratic law-based state as they are expressed in the

constitutional order of the Czech Republic. Continuity with the “old

law”, the application (lawfulness) of which is the subject of

contemporary proceedings, may be understood only in such a limited way,

discontinual in terms of values.

 

43.

In Judgment file No. I. ÚS 137/03, the Constitutional Court related

these conclusions not only to the field of criminal law and private

freedom of an individual, but also to other domains of public law

regulation and infringement of other fundamental rights of an

individual. In other words, it is indubitable that the conclusions

firstly declared by the Constitutional Court in Judgment file No. Pl. ÚS

19/93 are universal postulates which apply to interpretation and

application of any legal standards, should they be implemented at the

present time with current consequences on the legal standing of an

individual.

 

III.C

 

44.

The First Panel of the Constitutional Court is aware of the fact that

the Constitutional Court dealt with the issues of the confiscation of

the property of the Hluboká branch of the Schwarzenberg family in its

case law repeatedly, most recently in its Resolution dated 16 October

2008, file No. II. ÚS 2491/08, which was presented to the Second Panel

by the Justice Rapporteur, who is a Rapporteur also in this case. In

such case law, the Constitutional Court reached the same conclusion as

the ordinary courts in the case being at present assessed, i.e. that the

case of the petitioner is covered by considerations treated in the

Opinion of the Constitutional Court Plenum dated 1 November 2005, file

No. Pl. ÚS - st. 21/05 (published under No. 477/2005 Coll.). According

to this Opinion, “restitution acts in fact legalised ownership by the

state over the property which the state acquired through confiscation,

nationalisation and other property measures, irrespective of the fact

that without existence of the same, it would have been possible, in some

cases, to apply ownership rights over such property in accordance with

general regulations. Thus, they at the same time excluded the

possibility of applying such rights in any other way, that is in

accordance with general norms, since such legal regulation represents

special arrangements specifying the general regulations. […] Even though

the property injustice which the [legislature] meant to mitigate (not

to rectify completely) occurred essentially in conflict with principles

of a law-based state in the past, neither the Constitution nor any other

legal regulation requires that this property be returned or

compensation for the same provided, or that any alterations in the legal

order be made for such purpose. It was free will of the state whether

or not to allow former owners of the property in question to make

endeavours for return of the same […] The very establishment of

restitution claims was then a beneficium of the state – specifically

defined from the viewpoint of time and material aspect. Any questioning

of such a definition effectively results in disputing the act of the

state as such.” Therefore, the Constitutional Court in such previous

resolutions stated that the conclusions of the Opinion make it

impossible for the petitioner successfully to claim protection of her

alleged right of ownership to the property which was allegedly

confiscated outside the qualifying period, and which the state did not

restitute by way of special restitution acts.

 

45.

The First Panel of the Constitutional Court does not intend at all to

deviate from such conclusions, since the Opinion of the Constitutional

Court Plenum pursuant to § 23 of the Act on the Constitutional Court is

binding for all its Panels. However, it cannot be overlooked that the

Opinion of the Plenum was dealing with the consequences of the fact that

some categories of property were not included within restitution

regulations, this in relation to ownership rights of individuals. The

Opinion did not deal with issues of respect or protection of the right

to family life, even when the same is in the specific case expressed

through property. In other words, the right to private and family life

may be only mediated through ownership right to property. Therefore, the

Opinion of the Plenum will not be applied in such a situation.

 

IV.

 

46.

The Constitutional Court, guided by the deliberations mentioned above,

evaluated the specific circumstances of the petitioner in the case

presently under consideration, and reached the following conclusions.

 

47.

The Constitutional Court does not identify itself with the assessment

of the court of appeal, this being that the structure of the vault is

not a matter of a purely personal or family nature. To the contrary,

from the evidence examined, it was shown that the motive for the

petitioner’s ancestors or legal predecessor to build the vault was a

lack of burial sites in the adjacent Church of St. Jiljí, where the

members of the Schwarzenberg family had previously been buried, as well

as the adoption of new hygiene regulations which required separation of

the vault from the area of the church. Therefore, it is not possible to

accept the opinion that the vault is not a funeral building, but it is,

in principle, an ecclesiastical building. On the contrary, the primary

purpose of this structure was to create a new location, approved by the

public law regulation then valid, for entombing the mortal remains of

family members; its ecclesiastical role was only secondary (originally

for the purposes of the burial rite, and later for rites for a larger

range of local parishioners), which is, from a historical point of view,

completely logical. According to the Constitutional Court, the building

of the vault is thus a place to which protection of reverence applies,

such protection – as was explained above – being part of the right to

family life of the petitioner.

 

48.

The Constitutional Court, therefore, believes that the nature of this

structure does not make it possible that the same be included in the

categories of property in accordance with § 1 para. 2 of Act No.

143/1947 Coll., as was, in accordance with § 1 para. 1, subject to the

transfer to the Province of Bohemia.

 

49.

Interpretation according to which this provision applied generally to

the property of the Hluboká branch of the Schwarzenberg family, does not

preserve, in the case of the vault including the mortal remains placed

therein, the nature of protection of family life. The purpose of this

Act was not to deprive the family members of purely personal property,

which is particularly of importance to the members of the family. The

purpose of the Act was to sequester from the predecessors of the

petitioner objects serving economic activities (revenue for such

operations was to be replaced with a pension in accordance with § 5

para. 2 of the Act). In this respect, the ordinary courts did not take

into account the proven fact that the alteration in the record in the

land registers took place as late as 1961, that is under the

totalitarian regime, when the ownership rights were registered to the

Czechoslovakian state. From this it may be deduced that the

Czechoslovakian state, until the Communist coup d'état in 1948, had not

striven after such property, and such property was arbitrarily alienated

as late on as during the period of the totalitarian state.

 

50.

If the subsequent Communist state truly promoted the interpretation now

held by the ordinary courts, and on the basis of the same the state

“misappropriated” right of ownership additionally to this property

through which the right of the petitioner to family life is exercised,

then it may be considered that such an act was only proof of a policy

aimed against certain “hostile” groups of inhabitants (in this case,

aristocratic dynasties), the objective of which was not only

confiscation of property of such inhabitants, but basically their

absolute liquidation, including depriving them of their family identity,

i.e. the above-mentioned transcendental bonds between predecessors,

contemporaries and descendants, forming the fundaments of life of a

family and dynasty. Such measures, the nature of which exceeds simple

infringements of the property domain of an individual, are naturally

unacceptable under the conditions of a democratic law-based state, and

cannot be provided with protection by the judicial power at the present

time.

 

 

51.

As specified above, the Opinion of the Constitutional Court Plenum file

No. Pl. ÚS - st. 21/05 did express a conclusion according to which the

restitution regulations had the consequence of legalisation of ownership

right of the state over the property which the state seized, be it

through simple physical occupation, but the Opinion cannot be used to

infer that the same would apply to usurpation of property of a purely

personal nature, such as a family vault with mortal remains of family

predecessors, when such an act affects, also through infringement of

right of ownership, the fundamental right to family life. Therefore, in

the given case, the Constitutional Court considers the reference by the

ordinary courts to such an Opinion to be inappropriate. This is also

based on the fact that the petitioner before the ordinary courts did not

bring an action for declaration of her right of ownership or an action

for release (eviction), but action for declaration that the vault and

the adjacent land form part of the inheritance left by Dr. Adolf

Schwarzenberg. Therefore, the decisions of the ordinary courts in

themselves would not pronounce and declare the ownership rights of the

petitioner, nor would they impose on the state the obligation to evict

the immovable property, they would only declare which immovable property

forms part of the inheritance left by the legal predecessor of the

petitioner. On the contrary, the Constitutional Court, therefore,

identifies itself with the conclusion of the court of first instance

concerning the fact that the petitioner has a pressing legal interest in

such a declaration, since decisions of the ordinary courts are a

precondition for continuing inheritance proceedings, in which the

ownership rights of the petitioner are to be proven.

 

52.

At the same time, the Constitutional Court is of the opinion that the

conclusion on violation of the right to family life may affect only the

place of eternal rest of the members of the Schwarzenberg family, that

is the vault, including all its parts and appurtenances and the land

beneath it. Protection of reverence is only related to such places, as

are the above family ties of special importance solely for family

members. It is possible to agree with the ordinary courts that the

adjacent lands were historically always registered as parks or gardens,

and this designation did not change even following the erection of the

vault.

 

53.

Therefore, for reasons specified above, due to violation of Art. 8

para. 1 of the Convention for the Protection of Human Rights and

Fundamental Freedoms, and Art. 10 para. 2 of the Charter of Fundamental

Rights and Basic Freedoms, the Constitutional Court has granted the

constitutional complaint in accordance with the provisions of § 82 para.

2 clause a) of Act No. 182/1993 Coll. on the Constitutional Court as

amended by later regulations, and annulled the contested decisions of

the Supreme Court, of the Regional Court in České Budějovice, and of the

District Court in Jindřichův Hradec.

 

54.

The objection by the secondary party concerning the active standing of

the petitioner to bring an action to the ordinary courts was not

addressed by the Constitutional Court, since this issue was not dealt

with by the ordinary courts, and thus the courts could not have

infringed the fundamental rights of the petitioner by possible defective

interpretation of the sub-constitutional right.

 

V.

 

55.

The Constitutional Court also addressed the petition of the petitioner

for annulment of Act No. 143/1947 Coll. on Transfer of Ownership of

Property of the Hluboká Branch of the Schwarzenberg Family to the

Province of Bohemia, due to its conflict with the Czechoslovakian

Constitution of 1920, or petition for declaration of its

ineffectiveness.

 

56.

Firstly it is necessary to state that the Constitution of 1920 is not a

reference criterion for the Constitutional Court, since constitutional

norms contained in Act No. 121/1920 Coll. whereby the Constitutional

Charter of the Czechoslovakian Republic is introduced, are not a valid

part of the present constitutional order of the Czech Republic, which is

the only relevant criterion which could be used by the Constitutional

Court in proceedings on annulling acts and other legal regulations to

assess the constitutionality of the contested act.

 

57.

As specified above, the Constitutional Court did find a violation of

the fundamental rights of the petitioner; however, this infringement

occurred as a result of a constitutionally non-conforming interpretation

of Act No. 143/1947 Coll. The Constitutional Court thus asserted

unconstitutionality not in the existence of the Act as such (which was

not reviewed in terms of its merits), but only in its unconstitutional

interpretation by the ordinary courts, according to which this Act also

applied to the family vault. On the contrary, with respect to the

above-mentioned facts, alienation of the vault by the state represented a

violation of the right to respect for family life and, therefore, in

the past or present, the above-mentioned Act cannot be applied to the

same at all. If such an Act is not to be applied, the petitioner does

not hold any active standing to file a petition for annulment thereof.

For this reason, the Constitutional Court denied the accessory petition

of the petitioner for annulling Act No. 143/1947 Coll., in accordance

with the provisions of § 43 para. 2 clause b) in connection with the

provisions of § 43 para. 1 clause c) of Act No. 182/1993 Coll. on the

Constitutional Court as amended by later regulations, as a petition

filed by a person clearly unauthorised therefor.

 

Note: Decisions of the Constitutional Court cannot be appealed.