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A few years ago, I claimed Svaty Jan estate that belonged to Ferdinand Zdenek Lobkowic, and it was rejected in all tribunals up to the constitutional court, basically on the grounds that it was restitutable being in hereditas jacens at the time of confiscation. However we were surprised to have found out that recently Martin Lobkowicz had that same property returned without the objections I was opposed, years after my initial claim.

Arguments in Mr. Martin Lobkowicz's case

The court stated that the Mr. Martin Lokkowicz´s application for release of the Sv. Jan property is justified namely due to the following reasons:

Mr. Martin Lokkowicz´s procedural right to claim:

-    There was no heir of the FZL property recognised before the confiscation was declared therefore, the confiscation process was held against FZL (his hereditas iacens) - this is thesis is proved also by decisions of the court in 30´s and 40´s of the 20 century regarding the specific legal status of the “hereditas iacens” and its procedural consequences;
-    The six daughters of FZL have all had a relationship with the German empire and as a result of that they were after the war not even entitled to claim the inheritance;
-    The only person entitled for inheritance was Max but he was based in London, a member of the exile cabinet, and therefore he was not allowed to claim the inheritance within the war and he came back to Czech lands in 1947 when already the confiscation started;
-    As a result  “it was not a fault of Max that he did not claim the inheritance” and Martin is considered as a justified claimant of the property.

Invalidity of the confiscation:

-    The declarative decision on the confiscation should have been delivered to all participants of the inheritance proceeding, which was not fulfilled in the case, as a result the confiscation was invalid;
-    As a result there was a legal title for Martin´s  restitution in line with the § 6 para 1 letter p) of the Land Act (invalidity of the confiscation decision) and in line with  the § 6 para 1 letter p) of the Land Act due to the fact that “FZL was not alive at the moment of the confiscation and the only hair (Max) was not present due to his mission in London;
-    The court declared that the confiscation proceeding was held against the heriditas iacens however  the title for restitution was fulfilled (i.e. the fact that the confiscation was held against a private person since the possible hairs had been considered (in accordance with the respective laws) as the “testators” - i.e., original owner of the property and therefore a private person.
-    The court did not consider the nationality of FZL as it is irrelevant fact.

On the contrary the main argument in your case

-    There was the hereditas iacens in the time of confiscation - the inheritance proceeding has not been completed in the time of confiscation and therefore the confiscation was invalid;
-    The restitution was allowed only if the confiscation was held against a private person (which was not the case in this matter while the hereditas iacens was not the private person);
- The argument regarding delivery of the confiscation decision was not raised;
- a lot of arguments were dedicated to the nationality of FZL (which was not the question in the end),
-    The Constitutional Court in your case stated (in 2002) that neither the title for restitution was fulfilled due to the fact that the application for the inheritance was not submitted by FJL because of the “strait” on his side as there is not possible to mix the “strait” which could lead to non-submission of the application and the “strait under which the application is withheld” which is a condition required by law for such restitution title; The CC also confirmed the previous statements that property in hereditas iacens could have been subject of confiscation;
-    The confiscation decision was proceeded in line with the respective laws and is valid (therefore the title for restitution is not justified neither from this reason).

The main difference in the argumentation/court decisions was that the confiscation decision have been declared as invalid and void and that the fact the confiscation was held against hereditas iacens is not obstacle for restitution. The invalidity of the decision is something what was also partially raised in your argumentation but it was not accepted. The position of hereditas iacens and the consideration of its nature (whether it is a private person reflected in the persons of hairs or whether it is a specific entity but not private person) is something very difficult but it is clear that in your case this served as argument for refusal for the case (on the contrary Martin ´s decision mentioned opposite interpretation). However, it is necessary to add that in your case the argument regarding hereditas iacens were different (and also not fully acceptable) to those used by Martin while your arguments were focused on the assumption that a confiscation  cannot be held against hereditas iacens which is however not a correct argument.

It is very strange that the court in Mr. Martin Lokkowicz´s has not mentioned that also FJL was one of the possible hairs as there have been mentioned only the six sisters and Max as the only possible hairs. Furthermore, the declaration that the six sisters were in relationship with Germans and therefore only Max Lobkowicz could have applied (again being in London without any possibility to apply for the inheritance although it was already two years after the war and he was not for sure stuck in London) is done without much evidence since the file regarding the inheritance was not available.