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2022. October 19.

Decision 23/2022 (X. 19.) AB on establishing a violation of the Fundamental Law

Decision number: III/01652/2022
Subject of the case:

Judicial initiative against section 2 of the Government Decree No. 22/2019 (II. 25.) on the repeal of the Government Decree 449/2013 (XI. 28.) on the procedure for the return of cultural property of disputed ownership held in public collections and on the transitional provisions related thereto (modification of the laws applicable to the restitution procedure)

The Constitutional Court found that section 2 of the Government Decree No. 22/2019 (II. 25.) on the repeal of the Government Decree 449/2013 (XI. 28.) on the procedure for the return of cultural property of disputed ownership held in public collections and on the transitional provisions related thereto were in conflict with the Fundamental Law and annulled it, moreover, it ordered a prohibition of application in the case underlying the judicial initiative. The subject-matter of the review proceedings pending before the petitioner Curia is the plaintiffs’ application for the return of two panel paintings from the collection of the Museum of Fine Arts. The legislation governing the restitution procedure has changed during the proceedings: On 26 January 2019, the Government Decree No. 22/2019 (II. 25.) (hereinafter: D2) on the repeal of Government Decree No. 449/2013 (XI. 28.) (hereinafter: D1) on the procedure for the return of disputed cultural property held in public collections and on the transitional provisions related thereto entered into force, according to section 2 of which pending and repeated procedures shall be conducted in accordance with the provisions of D2. Under the new rules, the applicant must prove that his claim is beyond reasonable doubt, whereas under R1 the claimant only had to establish probable ownership, while the State was required to prove ownership beyond reasonable doubt. In the Curia’s view, the change in the law was to the detriment of the applicants; the new provision not only required the application of a procedural rule in ongoing cases, but also required the application of different and more onerous substantive conditions to be applied in the proceedings, thus infringing the prohibition of retroactivity. In its decision, the Constitutional Court stated that the law-maker clearly has the possibility to reassess aspects it considers important in the course of legislation, even by including other values contained in the Fundamental Law or even by omitting them in the absence of an obligation to include them. Having said that, however, Article P of the Fundamental Law cannot be interpreted in such a way as to allow the prohibition of retroactive legislation to be breached, even if the law-maker intends to strengthen the aspects of cultural heritage protection in respect of the obligation imposed on it by Article P. The corrective effort in relation to the structure of institutional protection can only be enforced by respecting the prohibition of retroactive legislation and ensuring the consistency of the two requirements. The contested text of the legislation applicable in the case at issue is contrary to the prohibition of retroactive legislation, and the Constitutional Court has therefore ordered its annulment and the prohibition of its application.