Partial Success

A turnaround in the whole cause occurred at the start of 2009 when the Constitutional Court received a petition from Elisabeth von Pezold in which she requested an examination of the decisions of courts of lower instances. These had rejected her case for the return of the family tomb at Domanin near Trebon to the family estate. The Constitutional Court, on the other hand, concluded in January 2009 that the tomb should be returned to the family according to Article 8 of the European Convention on Human Rights, insofar as it concerned private property of a particularly sacred character. It decided that the entire estate had been taken by Lex Schwarzenberg, or by the abuse of this act, not the Benes Decrees, but the tomb had been taken illegally. It is purely private property, which should never have been confiscated. The case returned to the court of the first instance, the District Court in Jindrichuv Hradec, which determined that the family tomb in Domanin near Trebon pertains to the family estate and the state must release it to the family.

This was a revolutionary decision for the family; for the first time the courts had determined that some landed property belonging to the Hluboka branch of the Schwarzenberg family prior to expropriation did pertain to them and was a part of their inheritance. The tomb never ceased to be family property and its nationalization took place illegally.

This is also a key decision for the other ongoing disputes. Lex Schwarzenberg should be repealed, as it is unconstitutional. But at least this decision states that the family should be given back other non-business property which was illegitimately transferred to state ownership in abuse of the Lex Schwarzenberg after June 1948.

The decision relates to the tomb as a building and does not relate to the adjoining property. This was not returned to the family. Elisabeth von Pezold believes, however, that the property adjoining the tomb is of a non-business character and she has therefore appealed against this decision.

The court has determined that the tomb pertains to the estate of Adolph Schwarzenberg. It must now be decided, within the inheritance process, which of the living family descendents shall become the heir apparent.

Dozens of Elisabeth von Pezold’s legal disputes with the state are still taking place across the whole country. She is claiming the castles in Hluboka nad Vltavou, Cesky Krumlov, Cerveny dvur and Postoloprty, as well as the Schwarzenberg and Salmovsky palaces in Prague’s Hradcany quarter, and other real estate and large properties, and - last but not least - the substantial collections of looted art which are also not affected by the Lex Schwarzenberg.

Elisabeth von Pezold is convinced that she will manage to annul the embezzlement of at least the non-business property that was confiscated illegally in abuse of the Lex Schwarzenberg; it remains her stated aim, however, that Lex Schwarzenberg will be revoked by the Constitutional Court and that the business property, including the huge forestry estate, will also be returned. She is confident that such a blunt arbitrary act of political and social persecution in contempt of the fundamental rights and liberties guaranteed by the Czech Constitution cannot be upheld as part of the legal order of the Czech Republic. In this context she points out that under the jurisdiction of the Czech Constitutional Court even the Presidential Decrees No. 5/1945 Coll. and No. 12/1945 Coll. – which, in contrast to Lex Schwarzenberg, granted the right to appeal against confiscation – can only be accepted as part of the legal order, because “the violation of the fundamental constitutional principle “in dubio pro reo” could be ignored only “in the interest of democracy and the rule of law” under the post-war circumstances. In this context she recalls that it was well established public knowledge already in May 1945 that her grandfather Adolph Schwarzenberg had been a staunch supporter of democracy and the rule of law at all times and therefore there is no base for the contempt of the principle “in dubio pro reo” in his case whatsoever – because it has been well known at all times that he never acted against the Czechoslovak Republic, but supported the republic before and during the period of bondage. She believes it is self-evident that her grandfather’s loss of any Czech property – passport, personal documents, correspondence, family pictures, furniture, cutlery, private motor cars, clothing and underwear included – is a criminal penalty, albeit without an element of crime, as the loss of agricultural property under the above-mentioned decrees has been accepted to be a criminal penalty.

In view of the fact that among the real estate at issue there are buildings that are currently national monuments; Elisabeth von Pezold and her family have undertaken to take exemplary care of them if they are returned, and have said that those that are at present open to the public shall remain so in the future.

Today, more than 60 years after the fall of the Nazi regime, no European state should profit from the injustice of Nazi policies. Accordingly, the Czech estate of Adolph Schwarzenberg (which is held by the Czech Republic as a “successor in possession” of the Gestapo until today), has to be returned. The Czech Republic has returned other important property to its rightful owners. There is no valid argument for the continuing illegitimate possession of the property of Adolph Schwarzenberg, who supported Czechoslovakia against the Nazi terror. The refusal to return his property, and especially his looted art collection, to the claimant and his legal heir not only makes a mockery of the law, but also of the lifelong efforts of Adolph Schwarzenberg for the Czech State.

Is it worthwhile keeping a blunt act of injustice as part of the Czech legal order, thus violating the Czech Constitution or international law in the interest of state greed?