Czech government left reeling in wake of Kinsky court verdict

Senior Czech officials held high-level talks over the weekend to discuss the return of property confiscated after the war from Franz Ulrich Kinsky, a member of an aristocratic family with long roots in Bohemia. The case goes to the very heart of the post-war Benes decrees, still a highly emotive subject in the Czech Republic. Rob Cameron has been following the case and joins me in the studio now: Rob, who is Franz Kinsky?

Czech government left reeling in wake of Kinsky court verdict

Photo: CTK

"Franz Ulrich Kinsky is a member of a large noble family with several branches still living in the Czech Republic. Mr Kinsky's legal status is fairly complicated: he was born in Czechoslovakia in 1936, and, as such, was born with Czechoslovak citizenship. This fact allowed him to successfully regain his Czech citizenship in 2001, which is a prerequisite for any restitution claim. But lawyers hired by the Czech authorities say regardless of how many passports he holds, in 1945 the nine-year-old Kinsky was a German national, because both his mother and father were of German nationality. He was also, technically, a fully-fledged German citizen, according to a law signed in October 1938 between Czechoslovakia and Nazi Germany."

And as a German he was subjected to the post-war Benes decrees.

"Yes, immediately after the war, property in East Bohemia belonging to Franz Kinsky was confiscated under the decrees, which sanctioned the seizure of all property belonging to ethnic Germans after they were expelled from Czechoslovakia. The Czech authorities maintain to this day that the Kinsky case is clear cut: he cannot reclaim that property because it was legally confiscated from him as a German national, under the Benes decrees. And as you know, the Czech state refuses to recognise any property claims arising from before February 1948, because that would mean challenging the legality of the Benes decrees."

But despite that, he's successfully reasserted ownership of his property in court.

Tokan Hunting Lodge - a bone of contention between Franz Kinsky and the Czech state, photo: CTK

"Yes, Franz Kinsky has so far won five court cases. The court said the confiscation of his property was unlawful, and as such he had never ceased to own it. At the moment the cases concern a few hectares of land in East Bohemia, but he has filed around 150 more claims relating to property worth an estimated 40 billion crowns, which the court must now consider."

On what grounds was the confiscation ruled unlawful?

"Mr Kinsky successfully challenged the state's assertion that property confiscated from him in 1945 had been inherited from his father, who had pro-Nazi sympathies. He proved in court that he had actually inherited the property from his great-grandfather, who died in 1904. Mr Kinsky says his father was merely the legal administrator, not the owner, of that property. His lawyer also quoted decree number 108, which says that confiscation of property does not apply to those Germans who had committed no wrongs towards the Czechoslovak state. And as a nine-year-old boy, decree 108 would clearly have applied to him. Even the question of Mr Kinsky's German nationality was challenged by his lawyer. The Benes decrees apply to those who had "claimed" German nationality before the war: Mr Kinsky was an infant when the last pre-war census was taken, meaning that even if he was declared "German", it was without his knowledge or consent."

The government is obviously disturbed by the Kinsky case - what is it trying to do about it?

"Prime Minister Vladimir Spidla wants the Justice Minister, Pavel Rychetsky, to turn to the Supreme Court with a request urging a common approach to all cases involving the return of confiscated property. But in practice all the Supreme Court can do is issue a recommendation to the lower courts, such as the one dealing with the Kinsky case. But the very idea of the government asking the Supreme Court to intervene in this way is highly controversial, because it violates the very idea of an independent judiciary. It's most unlikely courts will take any notice of what the government says, so we could see a wave of legal challenges, and not just from members of the aristocracy."