The Case of Adolph Schwarzenberg and the Confiscation of his Property
German troops entering Prague Castle. Schwarzenberg Palace, visible in the background, was later seized by the Gestapo.
When the Nazi Gestapo took over his properties in August 1940, Adolph Schwarzenberg owned about 55 000 ha of forests, farm land and ponds, various business enterprises, archives and art collections, the castles at Hluboka nad Vltavou and Cesky Krumlov, as well as the Zlata Koruna monastery and two palaces in the Prague quarter of Hradcany. All this is now in state ownership. The claim that the Czech Republic has on this property is, however, based on ongoing injustice.
Adolph Schwarzenberg was an outspoken opponent of the Nazis. As a consequence, in 1940 all his property was confiscated by the Gestapo and he was forced to flee abroad. He spent the remainder of the war in exile in the USA, where he completed a PhD at Columbia University and supported the Czechoslovak cause. After the end of the war he was entitled to retrieve his property embezzled by the Nazi occupants and later under Decree No. 5/1945 Coll., but the Czechoslovak Republic stole his estate again as a “successor” of the Gestapo.
After the departure of the Nazis, while he was preparing to leave America, National Administration was declared illegally over his Czech property. This was ostensibly done to ensure the continued running of the business, in total disregard of the fact that a team of experienced, loyal Czech pre-war managers such as Dr. Adamec and Ing. Zumr (who had not been fired by the Nazis) were at hand to immediately to resume management of the estate. Adolph Schwarzenberg’s property was subsequently stolen through abuse of Benes Decrees No. 5/1945 Coll. and No. 12/1945 Coll. and Adolph Schwarzenberg’s managers, Dr. Adamec and Ing. Zumr, became National Administrators in September 1945, administrators on behalf of the Czech state in June 1948.
In its decision dated 5 March 1946, the Regional National Committee in Prague clearly stated the illegality of the use of Decree No. 12/1945 Coll., in his case, but illegally it did neither revoke national administration nor the confiscation which took place in abuse of Decree 12/1945. Sixteen months later the National Assembly issued Act 143/1947, also known as “Lex Schwarzenberg”, which ordered Adolph Schwarzenberg’s business assets to be confiscated without compensation or the possibility of appeal. When this law was passed, it was already at variance with the constitution, which prohibited the confiscation of property without compensating the owner. It is also against legal principles to pass a law that lacks generality – i.e. one that does not relate to all citizens, but only to a selected individual, one that discriminates against him in violation of the principle of equality before the law.
Adolph Schwarzenberg never received any compensation. At least the Lex Schwarzenberg clarified that he was not a “politically unreliable person” and that he had never acted against the Czechoslovak Republic, as he was granted a pension for life by the legislator of Lex Schwarzenberg. In doing so, the legislator made it clear that Adolph Schwarzenberg had provided no reason to forfeit his property; however he never received any pension. He was totally disenfranchised in the Czechoslovak Republic and died prematurely in Italy in 1950.
Now his granddaughter, Elisabeth von Pezold, née Schwarzenberg, is trying to restore her grandfather’s good reputation and claim her rightful property. Elisabeth von Pezold petitioned for the restitution of her family’s property under Act No. 229/1991 Coll., but she has not been successful to date, because the procedures were based on the suppression of files in violation of her right to a fair hearing and full information under § 4a of Act No. 229/1991. Since then she has been engaged in protracted disputes at all levels of the Czech justice system, the majority of them without success.
The first fundamental, albeit partial, success came at the start of 2009. The Constitutional Court examined her complaint in the case of the family tomb in Domanin near Trebon, whose restoration to the family had been rejected by all courts of all instances. The Constitutional Court concluded that Lex Schwarzenberg did not provide for the nationalisation of non-business property belonging to the Schwarzenberg family and that this property should be returned to its estate. The District Court in Jindrichuv Hradec, where the case was returned to, decided on 24 February 2009 that the tomb, as a sacred and truly private place, should never have ceased being family property, that its nationalization took place illegally, and that the state must release it to the family.
This breakthrough decision gives Elisabeth von Pezold hope that other disputes will also be considered in a similar spirit and that at least the non–business property will be returned to the estate of Adolph Schwarzenberg. The main point of dispute, however, remains the validity, or otherwise, of the unique Act of Injustice, Lex Schwarzenberg, in today’s legal order of the Czech Republic. It is Elisabeth von Pezold’s case that the unconstitutional and arbitrary Lex Schwarzenberg should be repealed.
Following this Constitutional finding, the Municipal Court in Prague, as an appeal court, revoked a negative court decision on the return of substantial property in Prague, including the two palaces at Hradcany. It found that it was not comprehensible how the lower court concluded that these properties had been expropriated. It became quite obvious that the jurisdiction over the last 15 years did not deal with the complex illegal and unconstitutional steps taken by the state to misappropriate these non-business private properties without any legal reason or compensation after the abolishment of the National Administration on 31 May 1948.
Elisabeth von Pezold is confident of regaining this property, especially according to the finding of the Constitutional Court No. US 428/06 of 4 December 2008 – be it in pending restitution procedures or civil law procedures. Here the Constitutional Court found in another restitution case that any legal defects as a result of state negligence must not be held against the claimant and it is the courts’ duty to find justice according to the merits of the individual case and to protect the relevant constitutional rights of the claimant and not to look for overly formalistic pretences to deny just claims of claimants.