Attempts to achieve restitution and how they were thwarted by public service offices

As the only applicant, Adolph Schwarzenberg’s granddaughter, Elisabeth von Pezold (neé Schwarzenberg, from the family’s Hluboka primogeniture) petitioned for the restitution of Adolph Schwarzenberg’s Czech property in January 1993.

She then requested President Havel in a very polite letter to ask the Constitutional Court to revoke Act 143/1947 Coll. His office replied in a rude response that it was unheard of to address the President in such an improper way as “His Excellency” and denied her application without any meaningful reason.

The Land Authority in the first restitution procedure asked the Property Authority whether Elisabeth von Pezold or her father Prince Heinrich Schwarzenberg had received any compensation under the Austrian Czechoslovak Agreement on Property Matters. The Property Authority stated that there was no compensation paid under this agreement. However in its response it also deliberated on the matter of how and when the estate was lost. This same authority had found in its own statement to the Ministry of Foreign Affairs in 1981 that the estate was nationalised by confiscation under Decree No. 12/1945 Coll. and not under Act 143/1947 Coll. However, in 1994 it illegally used the unconstitutional ad hominem Act No. 143/1947 Coll. to reinterpret it as the cause of the nationalisation of property for Adolph Schwarzenberg and then suddenly came to the conclusion that this act of injustice had immediate ex lege effect. In its response to the Land Authority, it reversed its statement of 1981 - which it concealed from the Land Authority – and “advised” it to deny restitution because the properties were nationalised under Act No. 143/1947 Coll., the Lex Schwarzenberg, with immediate effect on the day of its promulgation in 1947. Against the clear limitation of Lex Schwarzenberg to the business properties in its § 1, subsection 2, it stated that the whole estate had been lost under this act.

The Property Authority was well aware of its fraudulent intent because it denied Elisabeth von Pezold access to its original statement of 1981 from 1994 until August 2007.

The Property Authority influenced with this bogus “advice” and misinformation the denial of the restitution claims of Elizabeth von Pezold. The request was rejected with reference to Act No.403/1990 Coll. on Limiting the Consequences of Some Property Injustices (the so-called Restitution Law). This stipulates that only property confiscated by the state after 25 February 1948 can be restituted. Lex Schwarzenberg was issued a few months before this date, but the handover of the estate from the National Administration to the Czech state happened only on 1st June 1948 and the transfer of the real estate was entered into the land registers at a later date, partly in the 1950s and 1960s. Even if it is assumed that the business estate was nationalised under Act No. 143/1947 Coll., this registration should be the determining factor for the decisions of the restitution courts in the case of the unconstitutional special ad hominem Act No. 143/1947 Coll. as it is in the case of general Act No. 142/1947 Coll., as stated by constitutional judge JUDr. Czermak in his dissenting opinion on 31.10.1999, when he did not even know about the sudden “reinterpretation” and use of Lex Schwarzenberg by the Property Authority in 1994.

Since she applied for restitution, however, Elisabeth von Pezold has come up against the reluctance of public service offices to resolve her cases. Up until 2001, the Ministry of Agriculture prevented the claimant from accessing documents regarding the application of the Benes Decrees and the consequent Schwarzenberg appeal against them. An official asserted to her lawyer that the appeal file no longer existed. When von Pezold however, had gained certified copies of the fundamental documents of the file from other state archives, the same official told her lawyer “Of course we are in possession of these files and your client now again has to apply to inspect them and after a period of six weeks she will be allowed to inspect them.”

Because of the violation of her fundamental right to a fair hearing via the suppression of relevant files, the United Nations Human Rights Committee decided on 25 October 2002 that the Czech Republic is obliged to grant her new proceedings under the restitution laws, as well as new deadlines for her applications. This decision is binding for the Czech Republic because it ratified not only the International Covenant for the Protection of Civil and Political Rights, but also the Optional Protocol. However, until today, the Czech Republic refuses to implement this decision, thus breaching international law.

After its content was submitted to the authorities, the Regional Court in Ceske Budejovice confirmed, in its ruling of 29 November 2001, that the property had indeed been taken according to Decree No.12/1945 Coll. (the Benes Decrees). For this reason, von Pezold requested that the appeal, which had been appropriately lodged in 1945 and whose admissibility was guaranteed by the Decree itself, be decided upon once and for all. So far, however, nothing has happened in this matter. Public service offices still refuse to discuss this case under the spurious pretext that the responsible body which would have dealt with appeal proceedings made possible by the Benes legislation no longer exists and, absurdly, that, after the insertion of the Charter of Human Rights into the Constitution of the Czech Republic on 28 December 1992, a decision with regard to this appeal would be inadmissible.

For this reason, and also because of the obscurity in the interpretation of the restitution law, Elisabeth von Pezold decided to file determining law suits which would decide what property would be included in the inheritance of Adolph Schwarzenberg. The Constitutional Court, however, in connection with the cases of the Kinsky family, issued the opinion of the plenary meeting P1. US. 21/05, saying that it was not possible to circumvent the meaning of the aforementioned restitution law by this type of suit. In the majority of cases, therefore, the courts have refused to consider Elisabeth von Pezold’s suits, notwithstanding the fact that in her case - in contrast to the Kinsky case – the appeal against confiscation was lodged in due course and was never decided upon. She applied for restitution under the restitution laws and it cannot be argued that she tried to circumvent them. Besides this, the substantial non-business assets were embezzled only after 25.2.1948, in June 1948 or later, and their return cannot be denied under the Kinsky Opinion whatsoever.

The Lex Schwarzenberg remains a problem. Because of the conditions under which it arose (see the chapter The Blocking of the Appeal Process and Lex Schwarzenberg) it should not have come into effect at all. Its validity can only be disputed by the Constitutional Court at the request of the President, a quorum of Members of Parliament, or the Senate or judges. No judge of any instance, however, has so far tried to settle von Pezold’s law suits against the state by initiating an examination of the law by the Constitutional Court. Because of this, dozens of law suits that could be resolved in one go are being dragged out.