Decided 24 March 2004 – I. US 38/02
                              
              “Application of Restitution Acts”

HEADNOTES
In  applying  the  restitution acts, a too  restrictive,  or
formalistic,  approach must not be taken, on  the  contrary,
they must be applied in a very sensitive manner, always with
the  circumstances of the particular case in mind, and above
all  the cited purpose and significance of the act.  As  far
as  concerns  the above-stated central question relating  to
the   necessity   of   the   precise  individualization   or
specification of the items demanded, under the sanction that
the  claim would otherwise be extinguished, it would perhaps
be  possible  to agree with the ordinary courts’ conclusions
if  this  matter  had  not concerned an enormous  extent  of
moveable property, but about several items where it would be
entirely  and without any doubt evident that it  was  within
the restituent’s power to specify in detail the property  in
question within the time period allowed by the statute.
If  there  exists  several  possible  interpretations  of  a
particular  legal enactment or of certain of its provisions,
consideration must be given to the intent of the legal rule.
In  the  case  of  Act  No. 87/1991  Coll.  that  intent  is
doubtless the effort to mitigate the consequences of certain
property  injustices committed by the totalitarian state  in
the  decisive  period.  If two equally valid interpretations
are  possible,  one of which is broad and the other  narrow,
between them the court must select that which corresponds to
further  interpretive  methods, in  particular  teleological
reasoning.   The ratio legis of the restitution acts  is  to
redress,  at least to a certain degree, the consequences  of
the  infringement of the fundamental rights of  natural  and
legal   persons   in   the  totalitarian   era.    Thus,   a
constitutionally conforming interpretation  is  generally  a
broad one:  a statute and its individual provisions must  be
interpreted  in  such a way that, by applying  them,  it  is
possible to attain the aim pursued by the legislature.
When interpreting the relevant provisions of the restitution
acts,   it  also  cannot  be  overlooked  that  it   was   a
totalitarian state which illegally stripped its citizens  of
their property and that subsequently state bodies dealt with
that property in an arbitrary fashion for a period of nearly
40  years,  in  the  course of which  movable  property  was
appropriated  and  in  fact  relocated  to  various  places;
therefore,  the Constitutional Court is convinced  that  the
consequences of these or similar transactions cannot now  be
interpreted,  in principle, solely to the detriment  of  the
entitled persons.  It is necessary always to proceed on  the
basis of the circumstances of the particular, concrete case.

JUDGMENT
On  this day the Constitutional Court decided in a panel  in
the   matter   of  the  constitutional  complaint   of   the
complainant  I.T., represented by JUDr. D. T., an  attorney,
against  the 25 October 2001 judgment of the Regional  Court
in  Brno, No. 13 Co  249/99, and against the 7 December 1998
judgment of the Municipal Court in Brno, No. 15 C 165/92, as
follows:
I.  The  25 October 2001 judgment of the Regional  Court  in
Brno, No. 13 Co  249/99, is hereby quashed.
II.  The  remainder  of  the  constitutional  complaint   is
rejected on the merits.

REASONING

I.
With reference to an alleged infringement of Art. 36 para. 1
of  the Charter of Fundamental Rights and Basic Freedoms and
of  Art. 90 of the Constitution, the complainant requests in
her  constitutional  complaint  that  the  25  October  2001
judgment  of  the Regional Court in Brno,  file  no.  13  Co
249/99  and  the 7 December 1998 judgment of  the  Municipal
Court  in  Brno, file no. 15 C 165/92, be quashed.   In  the
complainant’s  legal  matter  against  her  opponents,   the
Institute  of  Monuments in Brno, the Regional Institute  of
Monuments in Pardubice and the Historical Museum of  Slavkov
by  Brno  the  Municipal  Court in the  last-cited  decision
rejected  her  proposals that the opponents  be  obliged  to
enter with her into an agreement to turn over moveable items
from  the  state castles Boskovice, Lysice, Milotice,  Rajec
Jestrebi, Lednice, Slatinany and from the Museum of the City
of Slavkov.
      As  the  daughter of the original owner,  A.  S.,  the
complainant  claimed these moveable items  in  a  proceeding
initiated   pursuant   to   Act  No.   87/1991   Coll.,   on
Extrajudicial   Rehabilitation,  as   subsequently   amended
(hereinafter only “Act No. 87/1991 Coll.”).  In relation  to
the defendant, the Institute of Monuments in Brno, the claim
was rejected on the merits, in part due to the fact that the
items  which the complainant requested passed to the  State,
as  a  part of the property of the complainant’s father,  by
confiscation in accordance with the 21 June 1945  Decree  of
the  President of the Republic, No. 12/1945 Coll., allegedly
prior to the decisive period as laid down in § 1 para. 1  of
Act No. 87/1991 Sb, and in part, and this above all, due  to
the fact that the request to turn over items, addressed to a
subject  designated  imprecisely as “the  Administration  of
Monuments  in Brno”, allegedly did not meet the requirements
laid  down in § 5 para. 1, as it failed to duly specify  the
property to which the request relates and further designated
solely  items in the records of the Lomnice u Tisnova  State
Castle,  and thus did not concern items from the  Luhacovice
Castle.   The  claim  against  the  other  defendants,   the
Regional  Institute  of  Monuments  in  Pardubice  and   the
Historic  Museum  of Slavkov by Brno, was  rejected  on  the
merits  since a request to turn over items was not submitted
as against these subjects, nor was it duly asserted before a
court within the time period laid down in § 5 para. 2 of Act
No. 87/1991 Coll.
      Acting  as  the  appellate court in this  matter,  the
Regional  Court  in Brno declared in the  reasoning  of  its
decision,  by  which it affirmed the judgment of  the  first
instance  court,  that  an entitled  person  under  Act  No.
87/1991 Coll. must designate, already in the requests, items
of  moveable  property in such a manner that it  is  evident
that  the claim concerns original items, taken over  by  the
State.    The   requirement   that   requested   items    be
individualized  cannot be waived, so that  if  the  moveable
items are not already identified in the request, the request
that  they turned over cannot be successful.  In her request
that  moveable  property be turned  over,  served  upon  the
Institute of Monuments in Brno, the complainant stated  that
the  request  related  “to paintings,  furniture  and  other
valuable  objects,  which  are located  in  various  castles
falling  under  your  administration”  (that  is,   of   the
Institute  of Monuments in Brno).  In the court’s view  such
request  was  entirely non-concrete and did not  enable  the
requested items to be matched with the original items  which
the  State took.  Therefore, the complainant’s claim expired
in accordance with § 5 para. 2 of Act No. 87/1991 Coll.
      In  its  28  January  2003 ruling,  file  no.  28  Cdo
262/2002,  the Supreme Court of the Czech Republic  rejected
as   inadmissible  the  complainant’s  extraordinary  appeal
against the mentioned Regional Court judgment, as it did not
fulfill the requirements for admissibility as laid down in §
239  para.  2  of the Civil Procedure Code, in  the  version
prior  to the amendment to it introduced by Act No.  30/2000
Coll.
      In  the complainant’s view, the interpretation of §  5
para.  1  of Act No. 87/1991 Coll., employed by the Regional
Court  in Brno, was “made to her extreme detriment”, against
the  sense and purpose of that provision.  She asserts  that
it cannot be deduced from the wording of that provision that
an  entitled  person  is  obliged  to  meet  the  burden  of
producing evidence in relation to moveable items already  in
the  written request and within a period of 6 months,  under
the  sanction that the claim will otherwise be extinguished.
In  view of the extent and character of the property claimed
by  the  complainant, in order for her to  duly  assert  her
claim, it was sufficient if, in conjunction with giving  the
reason  for  the  demand, she stated in it the  obliged  and
entitled  persons and designated approximately the  demanded
items  with a request they be turned over; the complainant’s
request, delivered to the Institute of Monuments in Brno  on
30  September  1991, contained all of this information.   To
the  extent  that more concrete detail was given  concerning
individual  items  only afterwards  in  the  courts  of  the
judicial  proceeding, as soon as she succeeded in  obtaining
the relevant list of inventory of moveable property from the
Lomnice u Tisnova Castle, the complainant is convinced  that
her  claim to have the items turned over could have expired.
The complainant acknowledges that, if in the request for the
surrender  she  were to have requested “entirely  abstractly
designated  items,  such that it would not  be  possible  to
deduce  to what the request relates, the (judicial) decision
would  evidently have been correct.”  That was not the  case
in  the adjudged matter, however.  It allegedly appears from
the  24  March 1992 letter of the Institute of Monuments  in
Brno,  addressed  to the complainant, that it  was  entirely
clear  to  that  organ  which specific  property  was  being
demanded,  no  doubts in this respect were cited,  and  this
institute   merely  raised  an  objection  concerning   “the
impossibility  of  proceeding  in  according  with  Act  No.
87/1991  Sb”.  It can also be seen from expression of  views
on  the  complaint, submitted on 30 May 1994 by the Regional
Institute of Monuments in Pardubice, that it was uncontested
that  the items listed in the complainant’s request  are  in
the  Slatinany State Castle and that that institute has  the
right of management in relation to them.
      In  its  statement  of  views  on  the  constitutional
complaint, the Regional Court in Brno repeated that it could
not  waive the requirement that moveable items be designated
individually in the request made within the required  period
under  § 5 para. 1 of Act No. 87/1991 Coll.  In the view  of
the party to the proceeding, that request had to contain  an
individualization of the particular requested items as  such
is  a  requirement to preserve the claim that they be turned
over.   The Regional Court agreed that oral hearing  in  the
matter be dispensed with.
      In  its  statement  of  views  on  the  constitutional
complaint,  the  Municipal Court in Brno,  referred  to  the
content  of  its  case file and stated  that  it  agrees  to
dispensing with an oral hearing.
      The  National  Monument Institute (territorial  expert
workplace  in  Pardubice) informed the Constitutional  Court
that,  as  a  result of the 1 January 2003 decision  of  the
Ministry  of  Culture,  file  no.  11.617/2002,  the   state
allowance  organizations  established  by  the  Minister  of
Culture  in  the area of the care of monuments  were  merged
into  the  National  Monument Institute  with  its  seat  in
Prague.   In  its  statement of views on the  constitutional
complaints,  the  National Monument  Institute  itself  then
entirely  concurred with the legal views  expressed  by  the
party  to  the  proceedings,  namely  that  the  item  whose
surrender  is  demanded  must, already  in  the  restitution
request for the surrender of property, in the sense of  §  5
para. 1 of Act No. 87/1991 Coll., be identical with the item
originally  taken  away, that is, described (individualized)
in such as to make it impossible for the item to be confused
with another; the term employed, “item”, cannot be otherwise
interpreted  than  as concerning an individually  designated
item  –  not a category, but an item that cannot be confused
with  some  other.  The Act places upon entitled  persons  a
duty, failure to fulfill by the deadline results in loss  of
the  claim.   In  the  view of the secondary  party  to  the
proceeding,  the  6  month  time  period  allowed  for   the
submission of the request was sufficiently long, and it  was
allegedly possible, within the given period, to obtain  even
a  precise  specification of the items  at  the  then  State
Institute  for  the  Care of Monuments.   The  complainant’s
restitution request did not individualize a single  concrete
item,  and in consequence of its entirely (according to  the
statement  of  views) uncertain designation  of  items,  the
surrender  of  which  was requested, it  did  not  meet  the
condition  of  concretization of the claim  in  relation  to
individually designated items.  Thus, the secondary party to
the  proceeding entirely concurred with the ordinary courts’
interpretation  in  this case.  The secondary  party  agreed
that  an oral hearing before the Constitutional Court  could
be dispensed with.

II.
The  Constitutional Court has many times stated that  it  is
not  competent to review the overall legality  of  decision-
making  by  ordinary  courts,  neither  to  substitute   its
evidence taking and evaluation of the admitted evidence.  As
the  judicial  body for the protection of constitutionalism,
it  is  however  authorized, or obliged, to adjudge  whether
there  has  been, in the earlier proceeding, a violation  of
constitutionally-guaranteed basic  rights,  among  which  is
included  the  right to judicial and other legal  protection
and to fair process,.
     After acquainting itself with the materials in the file
and  after  evaluating  the essential circumstances  of  the
case,  the  Constitutional Court has come to the  conclusion
that the constitutional complaint is well-founded in part.
      In  that  matter under consideration, it is  of  basic
significance to assess the issue whether the request to turn
over  property,  delivered  on  30  September  1991  to  the
Institute of Monuments in Brno, can be considered  a  proper
request  in the sense of Act No. 87/1991 Coll., and  whether
the  requested  items  of  movable property  were  precisely
individualized  in  this request.  As is  evident  from  the
reasoning  of  the decision contested in the  constitutional
complaint,  the  ordinary  courts, primarily  the  appellate
court,  considered  this to be the  crucial  issue  and  the
complainant’s  arguments  contained  in  the  constitutional
complaint  are directed against the conclusions  adopted  by
them on it.
      In  the  case  under review, the Constitutional  Court
learned,  both from the contested decisions of the  ordinary
courts and from the relevant file material (the file of  the
Municipal  Court  in Brno, No. 15  C 165/92),  that  in  the
request received by the Institute of Monuments in Brno,  the
complainant requested “the surrender of the items of movable
property which, on 25 February 1948, where contained in  the
register of the state castle Lommice u Tisnova”; she further
stated  that “it concerns paintings, furniture and  valuable
objects  which are located in various castles which you  are
administering”.   The  complainant added  that  she  herself
could  not determine precisely where particular items  could
be found at present but that she was convinced that the said
organization must have a precise record detailing  to  where
particular items had been transferred.  By way of conclusion
she offered to cooperate in identifying those items and gave
as an example that when visiting the castle in Milotice with
her  sister, they recognized paintings that were  originally
their  property.  In the course of the court proceeding,  it
was ascertained from, among others, archival material of the
State  Administration of Monuments (No.l. 13  of  the  file)
that  from  the  castle Lomnice u Tisnova alone  items  were
distributed to the buildings of Jemniste in Central Bohemia,
Lysice  and  Rajec  nad  Svitavou in  Southern  Moravia  and
Kratochvile  in Southern Bohemia; according to  contemporary
materials  (the  10 September 1992 statement  of  the  State
Institute for the Care of Monuments), these movable  asserts
are  located  in Slatinany, Kratochvile, Lysice,  Rajec  nad
Svitavou   and  Namesti  nad  Oslavou.   In  reasoning   its
decision, the first instance court merely stated briefly  of
the   inventories  of  movable  items,  sent  by  the  State
Institute  for the Care of Monuments, that “the  complainant
could  have  obtained them in the archives”; in the  court’s
view the petition was properly particularized only after the
deadline in § 5 para. 4 of Act No. 87/1991 Coll. (within one
year  of its entry into force, that is, from 1 April  1991).
Thereafter  the  appellate  court considered  the  mentioned
request – as is analyzed in more detail above - “as entirely
unspecific” and declared that, in conformity with § 5  para.
2 of the restitution act the complainant’s claim lapsed.
      The Constitutional Court, which in its decision-making
gives  preference to the substantive conception of the  law-
based state and the interpretation of legal enactments  from
the  perspective  of  their purpose  and  significance,  and
recalls  that,  by  means  of  the  restitution  acts,   the
democratic  society is endeavoring at least to mitigate  the
consequences of past property and other injustices, and  the
State  and  its bodies are obliged to proceed in  accordance
with  the  restitution acts in harmony  with  the  statutory
interests  of the persons whose injury should  be  at  least
partially compensated.  In applying the restitution acts,  a
too restrictive, or formalistic, approach must not be taken,
on  the  contrary, they must be applied in a very  sensitive
manner, always with the circumstances of the particular case
in mind, and above all the cited purpose and significance of
the  act.   As  far  as  concerns the  above-stated  central
question   relating  to  the  necessity   of   the   precise
individualization  or specification of the  items  demanded,
under  the  sanction  that  the  claim  would  otherwise  be
extinguished, it would perhaps be possible to agree with the
ordinary  courts’  conclusions  if  this  matter   had   not
concerned  an enormous extent of moveable property  (compare
No.  1.  13 of the file), but about several items  where  it
would be entirely and without any doubt evident that it  was
within  the  restituent’s power to  specify  in  detail  the
property in question within the time period allowed  by  the
statute.   It  is appropriate to recall the age-old  general
principle  that  nobody may be obliged to do the  impossible
(nemo  tenetur ad impossibile).  It cannot categorically  be
stated  that, in the given case, it was entirely out of  the
question  for  the complainant to be able, in  the  original
request,  to  individualize the items, in the Constitutional
Court’s  view,  this  fact  was  not  demonstrated  in   the
proceeding  in  a sufficiently persuasive manner.   If  such
factual  findings as would be in harmony with  the  ordinary
courts’  conclusions  could not safely  be  drawn  from  the
evidence  admitted,  than  it can  be  concluded  that  this
constituted  a violation of the principles of fair  process.
In  essence it does not suffice to make a mere reference  to
the  content of the file and to the views expressed  by  the
State  Institute  for  the Care of  Monuments  (compare  the
contested judgment of the Municipal Court, No.1 176  of  the
file), or to the opinions of the obligated persons.
      If there exists several possible interpretations of  a
particular  legal enactment or of certain of its provisions,
consideration must be given to the intent of the legal rule.
In  the  case  of  Act  No. 87/1991  Coll.  that  intent  is
doubtless the effort to mitigate the consequences of certain
property  injustices committed by the totalitarian state  in
the  decisive  period.  If two equally valid interpretations
are  possible,  one of which is broad and the other  narrow,
between them the court must select that which corresponds to
further  interpretive  methods, in  particular  teleological
reasoning.   The ratio legis of the restitution acts  is  to
redress,  at least to a certain degree, the consequences  of
the  infringement of the fundamental rights of  natural  and
legal   persons   in   the  totalitarian   era.    Thus,   a
constitutionally conforming interpretation  is  generally  a
broad one:  a statute and its individual provisions must  be
interpreted  in  such a way that, by applying  them,  it  is
possible to attain the aim pursued by the legislature.
      When  interpreting  the  relevant  provisions  of  the
restitution acts, it also cannot be overlooked that it was a
totalitarian state which illegally stripped its citizens  of
their property and that subsequently state bodies dealt with
that property in an arbitrary fashion for a period of nearly
40  years,  in  the  course of which  movable  property  was
appropriated  and  in  fact  relocated  to  various  places;
therefore,  the Constitutional Court is convinced  that  the
consequences of these or similar transactions cannot now  be
interpreted,  in principle, solely to the detriment  of  the
entitled persons.  It is necessary always to proceed on  the
basis of the circumstances of the particular, concrete case.
If in view of the above-described situation, the complainant
drafted  her  original  request in a not  entirely  specific
fashion, precisely with regard to the unusual nature of  the
given  case this can be accepted, unless it has been  proven
without any doubt that it was within her power by the end of
the statutory period to learn precisely which specific items
were  concerned  and where these items could  be  found.   A
notion that is not at all unmeritorious is possible as well:
were  the  complainant, due to time pressures, to  designate
certain  items  imprecisely then she  could  scarcely  later
claim  items  specified  in  a  different  fashion,  as   an
objection  in  that respect would obviously be  forthcoming.
On  the  contrary,  the complainant has from  the  beginning
presumed and stated that the property she is demanding would
be  specified during the course of the proceeding as soon as
there  would no longer be doubts as to where the items  were
actually  located, and that occurred by her  26  April  1994
supplement  to the “proposal of the complaint”.   Otherwise,
even   the  manner  in  which  the  obligated  persons  have
conducted  themselves and the very course of the  proceeding
itself  have  confirmed the complainant  in  her  view  that
further legal transactions were not needed and that  it  was
obviously  entirely evident to the obligated  persons  which
items she was claiming be turned over (compare, for example,
the  record  of the 22 July 1992 hearing, No. 1.  5  of  the
file).
      If  then  the  appellate court,  in  relation  to  the
defendant Institute of Monuments in Brno, proceeded  on  the
basis of the above-described conclusions (that is, that  the
complainant did not serve a proper request upon the  obliged
person)  and  affirmed the negative judgment  of  the  first
instance  court,  and if, in addition, it  literally  stated
that  it  did  not find it necessary to concern itself  with
further objections contained in the complainant’s appeal, or
to  give its views on the other grounds which led the  first
instance court to reject the action on the merits, then  the
Constitutional  Court is persuaded that this  constitutes  a
violation of the right to fair process which the complainant
claims.
      As far as concerns the contested judgment of the first
instance  court, the Constitutional Court did not  ascertain
from the constitutional law perspective any error of such  a
character,  or  intensity, that it would  be  imperative  to
react by quashing this decision as well.  While it might  be
admitted  that the reasoning of the given judgment,  despite
being  extensive, could have been more persuasive  and  even
more  comprehensible  for a layman, nonetheless  that  court
addressed  the matter in detail and, in the written  version
of  its  decision, captured the main points in a  sufficient
manner;  it appears from the reasoning of this judgment  the
relations between, on the one hand, the factual findings and
the  considerations when weighing the evidence and,  on  the
other  hand,  the Municipal Court’s legal conclusions.   The
Constitutional  Court is proceeding here  primarily  on  the
principle  of  the  minimalization  of  intrusion  into  the
jurisdiction of other public authorities; by annulling  even
the first instance decision, it would be placing itself into
the  role  of  an appellate court and would scrutinize  this
decision from the perspective both of process and substance.
     In conclusion then, the Constitutional Court emphasizes
that it did not concern itself with other grounds upon which
the  complainant’s  restitution claim was  rejected  on  the
merits by the first instance court.  Since in the proceeding
the courts and the complainant considered as the fundamental
question,  whether  the request to turn over  the  items  of
movable  property;  the  appellate court  itself  explicitly
stated  that  it  did not consider it necessary  to  concern
itself  with others of the complainant’s objections  nor  to
give  its  views  also on other grounds  which  led  to  the
rejection of the action on the merits.  If they observe  the
principles  of  fair  process,  the  adjudication  of  these
grounds  falls within the exclusive jurisdiction of ordinary
courts,   and  the  Constitutional  Court  is  in   no   way
anticipating, nor may it anticipate, their final resolution.
It  will  be  up to the appellate court to hear this  matter
again and, in the reasoning of its decision, persuasively to
respond  to  all  of  the relevant objections  made  by  the
complainant  in  the matter.  Merely as obiter  dictum,  the
Constitutional  Court  would  recall  that   naturally   the
appellate  court might even annul the decision of the  first
instance  court, if in further proceedings it comes  to  the
conclusion, for example, precisely on the basis of a careful
review  of  the  complainant’s  objections,  that  such   is
necessary in order to reach a just resolution of the matter.
      Since  the  Constitutional Court ascertained,  on  the
basis  of  the above-stated grounds, that in the given  case
there  was a violation of Art. 36 para. 1 of the Charter  of
Fundamental  Rights  and  Basic  Freedoms,  it  granted  the
complainants  in relation to the contested decision  of  the
Regional  Court  in Brno and quashed that court’s  contested
decision  [§ 82 para. 3 lit. a) of Act No. 182/1993  Sb,  on
the Constitutional Court, as subsequently amended].
      As  for the remainder, that is as far as concerns  the
first  instance  decision, on the above-stated  grounds  the
petition was rejected on the merits.

Notice: A Constitutional Court decision can not be appealed.

Brno, 24. March 2004