In Suverénní Řád Maltézských Rytířů – České Velkopřevorství v The Czech Republic [2025] ECHR 202, the Czech Grand Priory of the Sovereign Order of the Knights of Malta (thank you, Google Translate!) sought restitution of its property. Some had been confiscated in 1945 under Presidential Decree No. 12/1945, which provided for immediate confiscation without compensation of agricultural property owned by people or companies/corporations that had intentionally served the German war machine for fascist or Nazi purposes. Yet more was confiscated in April 1948 under Law no. 142/1947.

As of 1 January 2013, the Church Property Settlement Act (Law No. 428/2012) permitted the restitution of property or parts of property that had originally belonged to particular Churches and which had been unlawfully confiscated by the communist regime. The law applied to property owned by the State, but not to property owned by persons governed by private law. Churches also had standing under the Act to bring proceedings for the restitution of property that they had originally owned and which had been transferred to private persons in breach of a blocking provision in s.29 of the Land Ownership Act. However, property confiscated from Churches under Presidential Decrees Nos. 12/1945 and 108/1945 was excluded from restitution under that Act. The Grand Priory began restitution proceedings in 2013 under the Church Property Settlement Act for the return of 506,784 sqm of land. It argued that the land had been confiscated under Law No. 142/1947 and that a private farmer had acquired it in breach of the blocking provision in s.29, meaning that the Grand Priory, as the original owner, could seek restitution under the Act. It was unsuccessful in the domestic courts.

Relying on Article 6 (fair trial) and Article 1 of Protocol No. 1 (protection of property), it argued before the ECtHR that the national courts’ interpretation of domestic law had been contrary to the principle of fairness and had failed to take account of previous judgments of the Czech Constitutional Court in analogous cases: in short, that there were two inconsistent lines of case-law, and the domestic courts had followed the wrong one [57-59]. The Government contested that assertion, arguing that the case-law on the effect of confiscations under Presidential Decree no. 12/1945 was settled and that the judgments cited by the Grand Priory merely demonstrated that the case-law had evolved dynamically by distinguishing previous judgments in order to respond to “the need to mitigate some of the harshness of a general approach where the facts of certain cases are objectively novel in significant respects” [60]. Alternatively, even if the Court were to find that the two lines of case-law were inconsistent in certain respects, that did not automatically mean that there had been a violation of the Grand Priory’s rights under Article 6(1), since that provision did not guarantee a right to consistent case-law per se [63].

The Court reiterated at the outset that while the Convention imposed no specific obligation on states parties to provide redress for wrongs or damage caused prior to their ratification of the Convention, where they did decide to enact legislation to compensate victims of past injustices ‘it must be implemented with reasonable clarity and coherence in order to avoid, in so far as possible, legal uncertainty and ambiguity for the legal persons concerned’ [64-65]. That uncertainty was an important factor to be taken into account in assessing a State’s conduct [65]. In the present proceedings,

“the Constitutional Court Act provides … for a mechanism to ensure consistency of practice within the different chambers of the Constitutional Court … giving a possibility to a chamber which, in the course of its decision-making, arrives at a legal opinion departing from a legal opinion of the Constitutional Court previously expressed in a judgment to submit the matter to a plenary session of the Constitutional Court for consideration. However, the fourth chamber of the Constitutional Court decided not to make use of that mechanism, even though it must have been aware that the first and second chambers of the Constitutional Court had developed since 2021 different case law on the concurrence of property confiscations under Presidential Decrees and under the Revision of the First Land Reform Act – an issue that was at the heart of the applicant’s restitution case they examined, in their publicly pronounced and therefore binding judgments” [73].

The fourth chamber’s disregard of the development of the case-law prior to its decision of 16 November 2021 in the present case and subsequently, and the fact that it had come to a decision without taking account of or commenting on and distinguishing from that new line in the case-law, together with its failure to refer the issue to the plenary of the Constitutional Court, had violated the principle of legal certainty [76]. The Grand Priory had therefore been deprived of a fair hearing, and there had been a violation of Article 6(1) of the Convention [77-78]. The complaint under A1P1 was ill-founded [83].