CASE OF COLLOREDO MANNSFELD v. THE CZECH REPUBLIC

1. The case originated in two applications (nos. 15275/11 and 76058/12) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Jerome Colloredo Mannsfeld (“the applicant”), on 2 March 2011.
2. The applicant, who was born in 1949 and lives in Zbiroh, was represented by Mr L. Kasl, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V .A. Schorm, of the Ministry of Justice.
3. The applicant alleged, in particular, that he had not had a fair trial and that his property rights had thereby been breached.
4. On 25 March 2013 the applications were communicated to the Government.
5. Mr Aleš Pejchal, the judge elected in respect of the Czech Republic, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Chamber decided to appoint Mr Zdeněk Kühn to sit as an ad hoc judge (Rule 29 § 1(b)).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant had a restitution claim concerning movable property located in Opočno Castle. The castle itself belonged to another person, of whom the applicant is not an heir. The movable property was initially confiscated from a predecessor of the applicant during the German occupation of Czechoslovakia in 1942 on the orders of the German Secret State Police, which considered him to be an enemy of the German Reich. After the end of the Second World War, the property was once again confiscated, in 1945, by the Czechoslovak State under the Beneš decrees as he was considered to be of German nationality. That expropriation was quashed on appeal by the National Council in Prague ( zemský národní výbor ) on 21 January 1947 after it had been established that the applicant ’ s predecessor was of Czechoslovak nationality and had been loyal to the Czechoslovak State. What happened to the property afterwards is disputed and was discussed in the domestic decisions.
7. On 31 March 1992, the applicant ’ s father, together with his cousin, Ms. Kristina Colloredo-Mansfeld, claimed the restitution of movable property which had been in Opočno Castle. The applicant entered the proceedings as the heir and legal successor to his father, who died in 1998.
8. Due to a large number of items in question, the first-instance court decided the case by way of three separate judgments.
9. In 1999 the Pardubice District Court ( okresní soud ) returned a collection of 68 paintings to the applicant and his co-plaintiff. That judgment was upheld on appeal by the Hradec Králové Regional Court ( krajský soud ) on 1 June 2000 and the defendant ’ s appeal on points of law was dismissed. Those proceedings are not part of the present applications.
2. The second proceedings – application no. 15275/11
10. On 27 October 2006 the District Court ordered the National Heritage Institute to return to the applicant and his co-plaintiff certain movable property located in Opočno Castle. It found that the applicant ’ s predecessor had been the owner of the property on the critical date, that is 25 February 1948 (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 24, ECHR 2002 ‑ VII), and that the statutory conditions for its restitution had been fulfilled.
11. On 18 October 2007 the Regional Court quashed the judgment and dismissed the action. It held that the property in question had been taken away from the applicant ’ s predecessor before 25 February 1948 and that therefore the legislation on restitution did not apply. During a hearing on 8 October 2007, the court did not raise with the parties any questions or elements of evidence but was merely listening to the comments of the parties on the decision of the first-instance court, after which the case was adjourned for delivery of a judgment.
12. The Regional Court based its decision on two pieces of evidence. Firstly, there was a letter of 24 June 1947 from the national administrator of Opočno Castle to his superiors, informing them about a visit by the applicant ’ s predecessor to the castle. The second piece of evidence was a decision by the Ministry of Agriculture of 30 April 1947 by which Opočno Castle had been declared State cultural property (hereinafter “the 1947 decision”). The 1947 decision had not been raised with the parties in the course of the hearing and the parties had not received an opportunity to comment on it. In its reasoning the Regional Court noted that it was aware of the existence of the document through the exercise of its functions.
13. On 11 February 2009 the Supreme Court ( Nejvyšší soud ) dismissed an appeal on points of law ( dovolání ) lodged by the applicant. It noted that the appellate court had reached its conclusion, inter alia, on the basis of the 1947 decision. It did not address the applicant ’ s argument that he had not seen that decision and had not been able to comment on it.
14. On 11 August 2010 the Constitutional Court ( Ústavní soud ) dismissed a constitutional appeal by the applicant as manifestly ill-founded. It noted the importance of the 1947 decision, but stated that the requirements of Article 121 of the Code of Civil Procedure had been met and that it was not necessary to prove facts which were generally known, or known to a court through the exercise of its functions.
3. The third proceedings – application no. 76058/12
15. On 22 April 2009 the District Court dismissed the rest of the applicant ’ s restitution claim. In its reasoning it referred to the judgment of the Regional Court of 18 October 2007 and that of the Supreme Court of 11 February 2009.
16. On 27 January 2011 the Regional Court upheld the first-instance judgment. The court relied as evidence on a letter by the Ministry of Agriculture of 27 May 1957 referring to the 1947 decision. Despite the applicant ’ s repeated requests, the 1947 decision was not produced for the parties.
17. On 28 November 2011 the Supreme Court dismissed an appeal by the applicant on points of law.
18. On 19 April 2012 the Constitutional Court dismissed a constitutional appeal by the applicant, claiming a violation of his right to a fair trial and to his property, as manifestly ill-founded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The judicial and extra-judicial rehabilitation legislation
19. The relevant domestic laws and practice concerning the restitution of property are described in Gratzinger and Gratzingerova, cited above, §§ 19 ‑ 44.
B. The Code of Civil Procedure (Act no. 99/1963, as amended)
20. The relevant legal provisions are described in Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 27-28, 3 March 2000).
21. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them, in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22. The applicant alleged that his right to a fair hearing had been violated in the proceedings before the domestic courts. He submitted that the Regional Court had based its decision in the second proceedings on a document which was not adduced at the hearing, which was not shown to the parties or discussed by them and which had also affected the outcome of the third proceedings. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations, ... everyone is entitled to a fair ... hearing ... by [a] tribunal ...”
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
24. The applicant submitted that the legal conclusion of the courts in the second and third set of proceedings regarding the ownership of the property in question on the critical date, that is 25 February 1948, had been based on the 1947 decision. However, that piece of evidence had not been brought to the attention of the parties during the oral hearing before the Regional Court and they had not able to comment on whether it even existed or was authentic.
25. The Government submitted that the courts had not based their conclusion on the 1947 decision. They had only considered the facts established by that decision, not the decision itself, and the applicant ’ s view of the facts had been generally known, and known to the court, through the exercise of its functions. At the same time, the applicant had had an opportunity to acquaint himself with the facts contained in the 1947 decision long before the final decision in the second proceedings and had indeed commented on the facts it had contained during the third proceedings before the Czech courts.
26. The Government were convinced that the principle of an adversarial trial had been respected and that the guarantees of Article 6 § 1 of the Convention had not been violated.
27. The Court reiterates that the concept of a fair hearing implies the right to adversarial proceedings, in accordance with which the parties must have the opportunity not only to adduce evidence in support of their claims but also to have knowledge of, and comment on, all evidence or observations filed, with a view to influencing the court ’ s decision (see Nideröst-Huber v. Switzerland, 18 February 1997, § 24, Reports of Judgments and Decisions 1997 I; K.S. v. Finland, no. 29346/95, § 21, 31 May 2001; and Milatová and Others v. the Czech Republic, no. 61811/00, § 59, 21 June 2005 ). This principle is valid in respect of submissions made by the parties just as much as it is in respect of submissions made by an independent member of the national legal service (see Kress v. France [GC], no. 39594/98, § 65, ECHR 2001 ‑ VI), by representatives of the national administration (see Krčmář and Others, cited above, §§ 38 – 46 ), or by the court whose judgment is the subject of appeal (see Nideröst-Huber v. Switzerland, cited above).
28. In addition, the Court recalls that judges themselves must respect the principle of adversarial proceedings, in particular when they reject an appeal or decide on a claim on the basis of a matter raised by the court of its own motion (see Prikyan and Angelova v. Bulgaria, no. 44624/98, § 42, 16 February 2006; Skondrianos v. Greece, nos. 63000/00, 74291/01 and 74292/01, §§ 29 – 30, 18 December 2003; and Clinique des Acacias and Others v. France, nos. 65399/01, 65406/01, 65405/01 and 65407/01, § 38, 13 October 2005 ).
29. The Court further reiterates the importance for those who bring their claims to court of being able to rely on the proper functioning of the justice system: that reliance is based, among other things, on the certainty that a party to a dispute will be heard in respect of all relevant items in the case (see Duraliyski v. Bulgaria, no. 45519/06, § 32, 4 March 2014 ). In other words, it is legitimate for the parties to a dispute to expect to be consulted as to whether a specific document or argument as may be the case, calls for their comments (see, mutatis mutandis, Krčmář and Others, cited above, § 43).
30. The Court notes that the present case concerns complex restitution proceedings in which the main issue was the determination of the ownership of movable property on a particular, critical date (see paragraph 10 above). In line with the observations of the parties, the Court considers that it was particularly important to determine the moment of the passage of the property to the state in relation to the critical date set out in the law governing restitution. In this regard, the 1947 decision was relied on by the domestic courts as a key element concerning the relevant facts.
31. In the second set of proceedings, the Regional Court based its legal conclusion on the facts contained in the 1947 decision. The Supreme Court considered those facts to be relevant, referring to the document concerned. The Constitutional Court in its decision of 11 August 2010 also concluded that the findings of the courts had been “well-founded”, explicitly taking that specific document into account. In the third set of proceedings, the Regional Court stated that the 1947 decision was only of a corroborative nature. The Supreme Court, however, in its decision of 28 November 2011 again noted the significance of that piece of evidence.
32. From the record of the oral hearing before the Regional Court of 8 October 2007, it is apparent that no documentary evidence was read out or otherwise raised with the parties by the court. The court heard statements from the parties in relation to the decision of the first ‑ instance court and adjourned the hearing in order to deliver a judgment. In the third proceedings, the 1947 decision was not part of the file and the Regional Court failed to produce it, despite a request from the applicant to do so (see paragraph 16 above).
33. The Court notes that granting the applicant the possibility to discuss all the documentary evidence was all the more necessary because it served as the basis for the decision of the Regional Court, which was adopted against the applicant in the second proceedings and served as the grounds for the District Court ’ s third decision that the statutory requirements for restitution were not fulfilled in his case (see paragraphs 11 and 15 above). Hence, even if the evidence had been submitted and read during the oral hearing that would not have protected the right of the applicant to adversarial proceedings, given the character and importance of the evidence. Parties to proceedings must have the possibility to familiarise themselves with the evidence before the court and have the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time-limit. If need be, that can be in writing or it can be made in advance (see Krčmář and Others, cited above, § 42). It is for the applicants to judge whether or not a document calls for their comments, so the onus was therefore on the Regional Court to afford the applicant an opportunity to comment on the relevant facts and evidence prior to its decision (see, mutatis mutandis, Milatová and Others, cited above, § 65).
34. The Court therefore finds in the present case that respect for the right to a fair hearing, as guaranteed by Article 6 § 1, required that the applicant should have been put on notice of the documentary evidence relied on by the courts and be given the opportunity to comment on it.
35. There has accordingly been a breach of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
36. The applicant complained that the domestic courts had rejected his claims for restitution of property although under the applicable national law he was entitled to obtain restitution. He alleged a violation of Article 1 of Protocol No. 1, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
37. The Government objected that the complaint was incompatible ratione materiae with the Convention as the applicant had not had any property rights within the meaning of Article 1 of Protocol No. 1. They maintained that in the first proceedings the exclusive ownership of the paintings of the applicant ’ s predecessor had been clearly identified, whereas the ownership of the rest of the items had remained unresolved. Furthermore, the Government argued that the movable property at issue in the second and third proceedings had passed to the State before the date which according to the law governing restitution was decisive. Restitution rights could only arise in respect of property that had been transferred to the State after 25 February 1948, whereas it had been established by the domestic courts that the movable property in question had passed to the State already prior to that date, together with Opočno Castle in which the movables were located. This had occurred on 30 April 1947, when the castle had been declared cultural property of the State.
38. The applicant considered that he had had a legitimate expectation that the rest of the items would be restored to him as he had already been successful with his first restitution claim and had met all the statutory requirements under domestic law. According to the applicant, the movable property claimed by him had been taken over by the State only after the critical date, and the domestic courts had acted in an arbitrary manner when reaching a contrary conclusion in the second and third proceedings. The evidence showed that following the confiscation of the property in question by the Germans, it had been returned to his predecessor before the critical date, and that this movable property was not covered by the decision by which the castle had been declared cultural property of the State, which in any case had not been taken until after the critical date.
39. The Court reiterates the following relevant principles as established by the practice of the Convention institutions under Article 1 of Protocol No. 1. Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see, inter alia, Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002 ‑ II (extracts)). An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 - 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova, cited above, § 69 ).
40. The Court also recalls that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States ’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003). On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State ’ s ratification of Protocol No. 1 (see Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004 ‑ V).
41. Turning to the present case, the Court observes that the relevant national legislation, namely Act no. 87/1991, has been adopted in order to redress the consequences of certain violations of property and other rights especially in the period between 25 February 1948 and 1 January 1990. The Act provided for the restitution, subject to certain conditions, of properties that had been transferred to the State during the said period. Thus, the question of whether the applicant could rely on a restitution claim under the national law, and consequently, whether he can be considered to have a right protected under Article 1 of Protocol No. 1, depends inter alia on whether the movable property in question had passed to the State before or after the critical date of 25 February 1948.
42. The issue of when the property had been taken over by the State has been under dispute in the domestic proceedings. In 1992 the applicant ’ s predecessor brought an action for the restitution of property, which was decided by three partial judgments in succession owing to the large number of items. The present applications concern only the second and third sets of proceedings. In 2006, in the course of the second proceedings, the District Court considered the applicant ’ s claim well-founded and ordered to the State to return a large set of items to him. However, this judgment was overturned by the Regional Court and upheld by the supreme jurisdictions. In the third proceedings, the District Court followed the conclusion of the Regional Court in the second proceedings and dismissed the applicant ’ s claim. This decision was upheld by all levels of courts, including the Constitutional Court.
43. The Court points out that it has been the task of the domestic courts to determine whether or not the applicant ’ s restitution claim met the criteria laid down in the applicable national law in order to succeed, including the determination of whether the transfer of the property in question to the State had occurred before or after the critical date. The Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable. This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law (see Glaser v. the Czech Republic, no. 55179/00, § 58, 14 February 2008).
44. In this case, the applicant has argued that the domestic courts have acted in an arbitrary manner. The applicant has referred to the fact that the outcome of the second and third proceedings was different from the outcome of the first proceedings. The applicant has also considered that the various factual elements and pieces of evidence concerning the fate of the movable property in question and the related action of the authorities in the period before and after the critical date have been assessed in an arbitrary manner, and that as a result, the determination of the point in time at which the taking over of the property by the State occurred had been wrong. He has further alleged that the domestic courts committed an error in law by concluding that the movable property in question followed the fate of the castle, when the castle was declared cultural property of the State.
45. The Court, having examined the applicant ’ s arguments and the materials before it from the limited point of view of ascertaining whether or not the decisions of the domestic courts can be qualified as being flawed by arbitrariness or manifestly unreasonable (see paragraph 43 above), is not able to detect flaws of such nature in the way in which the domestic courts have adjudicated the applicant ’ s claims.
46. This conclusion in regard to Article 1 of Protocol No. 1 is not altered by the Court ’ s findings in relation to Article 6 § 1 of the Convention (see paragraphs 27 - 35 above), because the Court is not in a position to find that the procedural shortcomings in question had a direct impact on the outcome of the case, and therefore on the applicant ’ s right to the peaceful enjoyment of his possessions (compare and contrast Sovtransavto Holding v. Ukraine, no. 48553/99, § 97, ECHR 2002-VII).
47. As in Glaser, cited above, the domestic courts have examined the arguments and the questions of fact and law that have arisen in the cases before them, and concluded that the conditions for restitution had not been met. The Court concludes that the applicant has not shown that he had a claim which was sufficiently established to be enforceable, and that, therefore, he cannot argue to have a “possession” within the meaning of Article 1 of Protocol No. 1. Consequently, the judgments of the national courts in his case did not amount to interference with the peaceful enjoyment of his possessions, and the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1.
48. It follows that this complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
49. The applicant also complained about the insufficient reasoning of the decisions of the Supreme Court and the Constitutional Court in the second set of proceedings and about the interpretation and application of the domestic law by the national courts in the third set of proceedings.
50. The Court notes that according to its case-law reflecting a principle related to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz, cited above, § 26; Huseynli and Others v. Azerbaijan, nos. 67360/11, 67964/11 and 69379/11, § 120, 11 February 2016). In the present case the Court observes that the national courts addressed the essential issues which had been submitted to their jurisdictions and did not merely endorse without further ado the findings reached by the lower courts.
51. In addition, it is not the Court ’ s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). The Court finds that the requirements of fairness were satisfied in the particular circumstances of the instant case and that the proceedings in issue were not rendered unfair on these grounds invoked by the applicant.
52. This part of the applications is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
54. The applicant claimed 15 million euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage.
55. The Government saw no causal link between the alleged pecuniary damage and the alleged violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
56. The Court does not discern any causal link between the procedural violation found and the pecuniary damage alleged and it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,400 in respect of non-pecuniary damage.
57. The applicant also claimed EUR 812 for the costs and expenses incurred before the domestic courts and EUR 649 for those incurred before the Court.
58. The Government expressed their doubt as to some of the items on the applicant ’ s list of costs enclosed in his observations.
59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regarding the costs and expenses incurred in domestic proceedings, only those that were essentially aimed at remedying the violations of the Convention found before the Court may be taken into account (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 283-284, ECHR 2006-V).
60. In the present case, regard being had to the violation found, the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 593 to cover costs and expenses in the domestic proceedings and EUR 649 for the proceedings before the Court.