The Legal Status of the Elisabeth von Pezold Case

Despite her efforts in the Czech courts dating back to the beginning of the 1990s and continuing to this day, Elisabeth von Pezold has still not succeeded in rectifying the injustice she and her predecessors have suffered in connection with the property of the Hluboka branch of the Schwarzenberg family. Since seeking the restitution of her family's property she has encountered numerous problems and the reluctance of state authorities and the courts to resolve her case.

Known as Lex Schwarzenberg, Act No. 143/1947 Coll. was issued in order to seize the business property of Adolph Schwarzenberg of the Hluboka branch. However, at the time it was issued in July 1947, this law had no direct ex lege effect. All of the property that was confiscated on the basis of this law after 25 February 1948 should therefore be returned in accordance with Act No. 87/1991 Coll. and Act No. 229/1991 Coll. Instead, state administrative authorities, especially land authority offices and their higher authorities, have rejected Elisabeth von Pezold's restitution claims since 1994 on the basis of Lex Schwarzenberg. They justify this with the false assertion that the law had direct ex lege effect as early as 1947, not only after February 1948 and, hence, the confiscated property is not subject to restitution. Lex Schwarzenberg was thus applied since 1994 in conflict with a ban on laws that violate basic human rights and freedoms. Furthermore, the non-business property of Adolph Schwarzenberg - including his castles at Cesky Krumlov and Hluboka with his vast collections of art which he kept there - was not confiscated in accordance with the law, but simply taken over by the totalitarian regime after February 1948 without any legal title. These art collections just became looted art and they remain to be looted art in possession of the Czech Republic regardless of the arbitrary legal constructions of its lawyers and courts.

The Czech Constitutional Court did not take these unconstitutional measures into consideration and refuses to this day to hear any of Elisabeth von Pezold's requests to consider the constitutionality of Lex Schwarzenberg. The court, insisting that Elisabeth von Pezold is not entitled to request a review of the constitutionality of the law, ignores her appeals. This conduct could be considered as an obstruction of justice. After all, restricting the right to request the review of a law by state authorities is based on the assumption that unconstitutional "ad hominem" laws aimed against individuals are not issued or used. But Lex Schwarzenberg has been used against Elisabeth von Pezold since 1994, leading to a violation of the right to a proper hearing on the matter and effective rectification according to the European Convention on Human Rights. Elisabeth von Pezold has therefore submitted a complaint against this violation of the convention to the European Court of Human Rights in Strasbourg. She is currently waiting for the matter to be settled.

A positive judgement in the matter was handed down by the Czech Constitutional Court in February 2009, when it was ruled that the Schwarzenberg family tomb in Domanin near Trebon belongs to the estate of Adolph Schwarzenberg, Elisabeth von Pezold's grandfather. On the basis of a motion by Karel Schwarzenberg, Elisabeth's stepbrother, the courts then ruled, at least for the time being, that Elisabeth von Pezold is not and will not be a party to the probate proceedings. In the court's opinion the sole heir is Karel Schwarzenberg. As a result, the tomb would be returned to Karel Schwarzenberg, despite the fact that none of his direct descendants are buried there. The worst consequence of this ruling is that Elisabeth von Pezold is denied the right to claim any property from Adolph Schwarzenberg's estate. Karel Schwarzenberg himself has publicly declared that he accepts the loss of the entire Hluboka estate, despite the fact that he never informed Elisabeth von Pezold of his opinion in due course. He should have done this before the restitution deadlines. As the heir, Karel Schwarzenberg is now also entitled to block restitution claims from the perspective of civil law.

All of the events described above are the result of last year's erroneous resolution by the Czech Supreme Court. This court ruled that the estate of Adolph Schwarzenberg will be resolved in the same way the matter was handled in Austria. A probate court there in 1967 established that the universal heir of Heinrich Schwarzenberg (the son of Adolph Schwarzenberg, and to whom all of the hereditary rights passed after the death of his father) is his adopted son, Karel Schwarzenberg. But adopting this ruling in the Czech Republic is inadmissible due to the fact that, according to international private law, property located in the Czech Republic cannot be acted upon on the basis of this non-final decision which dealt exclusively with Adolph’s property in Austria.

Furthermore, the Czech Supreme Court's resolution also violates applicable Austrian law. After all, Heinrich Schwarzenberg ordered that if Karel Schwarzenberg could not pursue the restitution of Adolph’s family estate on Czech territory, the right to the Czech heritage must pass to his daughter Elisabeth. Heinrich also ordered that Karel had to fight against Lex Schwarzenberg in due course using all available means; Karel did not meet this instruction; if he did so culpably, he lost his heritage, not only in the Czech Republic, but in Austria and Germany as well, which passed to him on the basis of Heinrich’s will. What's more, Karel Schwarzenberg claimed at the Austrian court that his adoption by Heinrich Schwarzenberg is invalid in the Czech Republic. He did so against better knowledge from valid decisions of the Czech courts and the Czech Constitutional Court which were delivered on his own request.

For these reasons Elisabeth has submitted an appeal to the Czech Supreme Court, as she does not agree with the ruling that she should not be a party to the probate proceedings and that she cannot claim the heritage from her father, Heinrich Schwarzenberg, or her grandfather, Adolph Schwarzenberg. Elisabeth von Pezold is currently waiting for a decision on this appeal.