477/2005 Sb.
The COMMUNICATION FROM the
The Constitutional Court
Plenum of the Constitutional Court in the composition of Stanislav Duchoň, Package,
Vlasta Formankova, Turgut Güttler, Pavel Holländer, Dagmar Lastovecká,
Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,
Elisabeth Wagner and Michael Židlická at the meeting of 1 June 2006. November 2005
adopted pursuant to section 23 of the Act No. 182/1993 Coll., on the Constitutional Court, in the case
legal opinion (II). Chamber of the Constitutional Court, derogating from the rule of
in the opinion of the Constitutional Court has issued findings SP. zn. I-539/98 and
SP. zn. IV. the TC 403/98,
This opinion:
I. Statement of ownership, in particular, that requires the record to the
the real estate cadastre, in the absence of legitimate expectations on the part of
the petitioner is not populated with the preventive function of the application according to section 80 (a). (c))
Code of civil procedure, and is therefore not given even the urgency of legal
the interest of the petitioner.
II. Action by specifying the ownership cannot circumvent the sense and purpose of the
the restitution law. You cannot effectively claim under the General
or the protection of ownership rights, to whose demise occurred before 25.
2.1948 and the special restitution or determined the way prescription
remedy the financial damage.
Justification
(I).
The complainant F. O. K., represented by Msc. J. No., lawyer, constitutional
complaints lodged by 17 December. June 2003 attacked the judgment of the District Court in
Positively dated 16. October 2002 No. 15 C 57/2001-80 and the judgment of the regional
a court in Prague from 5 December 2005. March 2003-No. 30 What 46/2003-97. To the constitutional
the complaint was attached the proposal to repeal section 37 of annex 3, part a
marked as Female monasteries in the Czech Republic, Act No. 298/1990
Coll., on certain property relations monastic orders and congregations
and the Archbishopric of Olomouc, as amended by Act No. 338/1991 Coll., Constitutional
the complaint was conducted under SP. zn. I-333/03.
The complainant handed (8 January 2004) another constitutional complaint (described under
SP. zn. II.-14/04), when prompted to repair defects accompanied by 10 March. February
2004, directed against the judgment of the District Court in the affirmative of 16 June.
October 2002 No. 15 C 57/2001-80, as amended by an amending resolution of 18 May.
June 2003 No. 15 C 57/2001-105, and the judgment of the regional court in Prague
of 15 July. October 2003-No. 30/2003 what the 411-117, which was also
accompanied by a proposal for the abolition of the provision of law no 298/1990
SB. Both the constitutional complaint must meet the other conditions prescribed by the
Act No. 182/1993 Coll., on the Constitutional Court, as amended
regulations.
After the Constitutional Court found that it is a constitutional complaint
the complaint against the decision issued by the general courts in the
identical subject and relate to the same issue, the resolution of the
plenum of the Constitutional Court of 24 June. February 2004, SP. zn. I-333/03-12 both
a constitutional complaint to the joint management of the merged under the SP. zn. II. the TC 14/04
(hereinafter referred to as the "complaint").
The constitutional complaint is directed against the negative decision of the Court of first
the degree, which was confirmed by the Court of appeal, the decisions of an
the complainant, which pushed for the designation of its ownership rights to
real estate in kat. territory w. K. W. s. (in the constitutional
complaint by letter of 1 December 2004. July 2004, the defendant of its position
the next participant abandon). The focus of stěžovatelovy reasoning is
in the claim that the real estate nepřešly on State confiscations, as
confiscation proceedings did not complete properly, i.e. that the complainant never stopped
be the owner, and the steps that the Czechoslovak State also made in
the allocation procedure for these properties are not valid. If
the State did not endorse the complainant's property on the validly of the defendant in the proceedings,
avoid them right of ownership, which would give them the State could later withdraw
and after years of allowing recovery for the use of the law no 298/1990 Coll., in
amended by Act No. 338/1991 Coll., the complainant argues that the two courts, which
his decisions have infringed its rights, guaranteed by the article. 11. 1
The Charter of fundamental rights and freedoms (the "Charter"), article. paragraph 36. 1 and
2 of the Charter in conjunction with article. 4 and article. the first sentence of the Constitution the Czech 90
Republic (hereinafter referred to as "the Constitution") and article. 6 of the Convention for the protection of human rights and
fundamental freedoms ("the Convention") on the matter have failed
the provisions of § 109 paragraph. 1 (a). (c)) code of civil procedure (hereinafter referred to as
"o. s. l.") not even transposed the complainant proposed means of evidence to the
proof of the conditions of use of this provision, and the conclusion of their decision
so based on the provisions of the law, according to him, which is in conflict with the constitutional
policy of the Czech Republic. The complainant has the above reasons for it,
that the provisions of point 37 of annex 3, part a identified as a female in monasteries
The Czech Republic, Act No. 298/1990 Coll., as amended by Act No. 338/1991
Coll., has been incorporated into the law by mistake, since the legislature did not have to
available information about that property referred to in this section are not
owned by the State, and for this reason cannot be based on the law
disposed of, as it would to the expropriation of the original owner, without
the premise of public interest has been satisfied and the granting of compensation for
expropriation, and it is therefore necessary to proceed to its cancellation for his contradiction
with the article. 11. 4 of the Charter.
II.
The second Chamber of the Constitutional Court in this connection came to the legal opinion
partially different from the legal opinion has issued, in ruling
of the Court of 20 June. March 2001, SP. zn. I-539/98 [collection of findings and
the resolution of the Constitutional Court (hereinafter referred to as "Collection decision"), volume 21,
finding no. 46], according to which "the legal relations of the parties, which are not
beneficiaries under law No. 87/1991 Coll., as amended
regulations, this law cannot have the nature of a special law ", and also in the
the finding of the Constitutional Court of 21 June. December 1998, SP. zn. IV. the TC 403/98
(A collection of decisions, volume 12, finding no. 156), according to which "If the
prevents the assets by the State without legal reason (...), disrupt anything,
to make its assets (the plaintiff) called for action, based on the
the General rules of civil law. In other words, the existence of special
restitution does not preclude the rules in this case, the procedure referred to in
the general rule of regulation. ". Both findings were based on the legal opinion
the general courts (particularly in the express decision of the Supreme Court of the sp.
Zn. 22 Cdo 560/99 of 21 June 1999. August 2000, In: Právní rozhledy No.
11/2000, pp. 524-525-decision finding SP. zn. I-539/98
directly retrieved). Above findings deal only with the relationship of the restitution
legislation (Act No. 87/1991 Coll. on extra-judicial rehabilitation, in
as amended) and the General (Civil Code)
There, where the State has to take things at the material time (between 25. 2.1948
and 31. 12.1989, see section 1 of Act No. 480/1991 Coll., on the time of oppression), and where
There was a direct conflict between the application of the restitution claim and claims on
the determination of ownership, therefore, could be content with finding
specialties of the restitution law, which is stated in their legal
the sentences. The second Chamber is of the opinion that this conclusion despite an identical
the legal situation is not applicable in all cases, since it cannot be
above the rate set by applicable laws, i.e., outside the framework of the laws of the
restitution (in particular Act No. 243/1992 Coll., to regulate
certain issues relating to Act No. 229/1991 Coll., on the adjustment of
the ownership of land and other agricultural property as amended by
Act No. 93/1992 Coll.), claim the property if such property
It was treated as property confiscated (or znárodněným),
If the takeover by the State before the applicable period defined by law No.
480/1991 Coll., on the time of oppression. The findings, however, cited no time nor
a different boundary or limitation of express legal opinion provides, in
the principle of such a procedure, which is the former owner of the property, which ceased before
applicable period, is seeking through the General editing, allow you to.
The second Chamber of the Constitutional Court considers that despite that the disagreement with the
the legal opinion expressed by only partial, it is necessary to proceed according to section 23 of the
the law on the Constitutional Court, since the cited legal opinion raises due
to its binding decisions of the Constitutional Court for the more serious legal
the consequences.
The findings are based on interpretation cited of positive law-the principle of lex
specialis derogat legi generali, but this basic legal principle-
There, where there is special legislation, cannot take advantage of the General adjustment-
to some extent, ignore, and attend to the opposite conclusions. Described by the
the interpretation of the provisions concerned only the laws of the
restitution, not their application as a whole, taking into account the
the objectives, that their release of the legislature followed, therefore, to define clearly
the circle of relations, which can intervene, and the others leave in
the condition in which they were at the time of the adoption of the restitution of the standards. Such narrowing
subject of the so-called. restitution legislation only on legal relations
emerging in the implementation of the law set out the facts is in violation of the
not only with the direct intention of the legislator to remedy some of the leading how to
the law defined property-related injustices incurred during the relevant period,
and to the settlement of property relations (cf. e.g. § 1 of the Act No. 229/1991
Coll., on the adjustment of the ownership of land and other agricultural property,
as amended, the preamble to the Act No. 87/1991 Coll. on
extrajudicial rehabilitation, among others. also the name as well as the text of section 1
Act No. 172/1991 Coll., on the passing of some of the things from the assets of the Czech
Republic to the ownership of municipalities, as well as other regulations governing the
the transition of ownership of the State of the physical education organization or
Church, spoke to them the right of ownership until 1948), that the constitutional
the Court in many decisions he took for his own, but could lead and in
many of the cases leading to the depreciation of the circumvention of this obvious will.
The dispute reflects the opinion and not entirely consistent case-law of the General
the courts, including the Supreme Court, when part of the case-law, the use of proprietary
actions to determine the ownership of the domáhajících to the přešlým on the State of things without
the rule of reason before the applicable period, the part, however, is of the
the view that this option allow you can, and this inconsistency in the case law has not yet
has not been resolved. [A partial, but not sufficient, the solution is
contained in the opinion of the Senate came to a large civil
the College of the Supreme Court of 11 March. September 2003, SP. zn. 31 Cdo 1222/2001:
"The person whose property taken over by the State in the closing period from the
25.2. 1948 to 1. 1. the 1990 without a legal reason, cannot sue
protection of ownership rights in accordance with General Regulations (in particular under section 126
paragraph. 1 German), even in the form of determination of ownership under section 80
(a). c) CCP. "]
The Constitutional Court, without addressing the aspect of time, eventually
in favour of the opinion of the general courts described in decision
The Supreme Court SP. zn. 22 Cdo 560/99, thus to express the relations
specialties of the laws of restitution to the General rules (in particular
Civil Code) in the strict sense of the word. In particular, the Act No. 229/1991
Coll. expressed goal, namely, to modify the ownership of the soil as
such including their settlement mitigates the wrongs that have been in
the relevant period taken, however, used the interpretation of nekonvenují and is
the relationship must be defined specialties look wider.
The legislation, whose purpose was to alleviate at least some of the mostly
property wrongs caused in a time of 25. February 1948 (Act No. 87/1991
Coll., Act No. 229/1991 Coll., Act No. 243/1992 Coll., Act No. 403/1990
Coll. on the mitigation of certain property injustices, law no 298/1990
Coll., Act No. 175/1990 Coll. repealing Act No. 68/1956 Coll.
Organization of physical education, and adapting some other relationships
regarding the voluntary physical training organization, Act No. 172/1991
Coll. along with regulations issued in implementation thereof, and in some of its
aspects also Act No. 119/1990 Coll., on the judicial rehabilitation, or
Law No. 212/2000 Coll. on the mitigation of certain property injustices
caused by the Holocaust and on the amendment of Act No. 243/1992 Coll., which
regulate certain issues relating to Act No. 229/1991 Coll., on the
modify the ownership of land and other agricultural property, in
the text of Act No. 93/1992 Coll., as amended), are not
completely sourodou a group of standards, not always the same terminology, but always
for the same purpose. The legislature when their Constitution was based on the actual
in 1990, the State or a little later, aware of not only at the time
out of memory nevytrácejících reasons that such intervention in the
property rights, but also the necessity led limited change in the
ownership structure to remain proportionate to the purpose that it was
monitored and which is best expressed in the provisions of section 1 of Act No.
229/1991 Coll. and the preamble of the Act No. 87/1991 Coll., the targeted and precise
the defined change in the Division of assets, which at that time was. As follows
clearly expressed will have more content, since this step
not obligated. Even if the whole of the inequities that meant to mitigate (not
fix), there was, in principle, contrary to the principles of the rule of law in the past
period, the Constitution nor other legislation do not require that the assets
He was returned or a refund for it, and even to this
the purpose of the carried out any changes in the law. It was a free
the will of the State that allows the former owners of the property to seek
his return because his property rights and ownership rights of persons,
that in the meantime the assets acquired, are not dependent on the unconstitutional
standards or procedures, which is originally based. Anchoring itself
restitution claims was beneficiem state-clearly defined from the
in terms of the time and the factual. Any challenge to this definition has
the effect of calling into question the Act of the State as such (cf. Constitutional
of the Court of 16 May 2002. December 2004, SP. zn. III. TC 107/04, will be published
in the decision, volume 35, finding no. 192). Consistently expressed
also the Hungarian Constitutional Court (decision of 27/1991 dated 20 April 1991
and 15/1993 of 12 October. March 1993). The European Court for human rights then
in its decisions the following fixed the border questioned, but
on the contrary, clearly stated (eg. in a decision dated March 7, 2003
Jantner against Slovakia, decision of 22 July 2003. June 2004 Broniowski
against Poland), that article 1 of Protocol No. 1 to the Convention for the protection of human
rights and fundamental freedoms, which guarantees the protection of ownership rights,
"cannot be interpreted as meaning that it would however restrict the freedom of the Contracting
States in the selection of the conditions under which it will accede to the repatriation of assets,
that to them was converted before the Convention. Also
No it does not limit their freedom to establish the scope of restitution of the standards and
the conditions under which the assets to return the persons who have been deprived of it. "
(decision of the European Court of human rights in the case against Jantner
Slovakia, according to its judgment of the Grand Chamber in the case against Simi
Slovakia). The right to the restitution of ownership continue to be
It is not guaranteed.
In the findings, SP. zn. I-539/98 and SP. zn. IV. the TC 403/98 described the conclusion
transient restitution legislation as a whole and giving priority to
partial interpretation of individual provisions, however, has resulted in a permanent and
the special subject of the regulation of these regulations, the narrowing and ultimately
then the dissemination of legal uncertainty in those relationships, that according to the conclusions of the
case-law of the General Court in terms of the definition of virtue, time and
personal subject of this edit are not. It was first approved,
to outside the framework of the laws of restitution and the limited facts
General courts were assessing the validity and effects of administrative or other acts
on the basis of which the State took ownership of the business. Courts as access
the fact that through the prism of today's legal theory, starting from the fact
intervening decades ago, and therefore also of the difficult burden of
the situation, then the acts of the State administration and their consequences.
Moreover, the finding of the Constitutional Court i. ÚS 539/98 ("the legal conclusion, according to which
the State shall, in the cases referred to in article 6 (1). 2 of law No. 87/1991
Coll. things in ownership without a legal reason of physical occupation is from
the constitutional point of view unsustainable. Sense of the restitution Act
is in an attempt to alleviate even at least certain property
grievances, arising in the relevant period, and that sense was clearly
disowned, if restitution was based in the new regulation
the reason for the creation of ownership by the State. As is clear from
the provisions of § 6 of the grammar of the cited Act, paragraph 1 of this
the regulation governs cases where, in the relevant period, "the State",
While under paragraph 2, the obligation to issue the thing "applies also to cases
When the State took over the case without a legal reason. ". It is therefore obvious that the sense
paragraph 2 of that provision is not in the Constitution of the new
nabývacího the title of things for the State, but in the treatment of cases of possession of things
the State, which has no legal grounds. ") by mixing the two legal concepts
-the title and one of its attributes, IE. the right to the
protect-admitted prejudice the status quo of current legal relations
to the soil.
The ownership right of authorised persons in accordance with the laws of restitution arises when
at the moment the issue of the matter. It is in fact legalised transition
the assets of the State, and that no matter what was the title for this
transition, and only in the cases that are in the restitution laws expressly
listed is the original purchase title of the State, of course, for the fulfilment of the other
in these conditions, the reason for returning things. Restitution
the laws in effect legalize the ownership of State assets that the State
He won, and books confiscated from the property's other measures, without
Regardless, that would otherwise have been without their existence possible in the
in some cases, apply to such property ownership referred to in
General regulations. At the same time it has ruled out the possibility of applying these rights
otherwise, according to the General regulations, because this is a special
by modifying the General rules.
At the same time the Basic Law of restitution, which is the law on extrajudicial
rehabilitation in the preamble expressly excluded from the restitution of property that
He moved to the State before the applicable period. It is therefore not true that this law
does not address other than the one that went to the State to the relevant
period, but in fact applies to all assets of the State, that State shall
owned on the date of the adoption of this law, and which took in the period up to the end
in 1989. In the preamble, that excludes the correction of property-related injustices "of the
period even more remote, including grievances on the citizens of German and Hungarian
nationality ", enacted that such property is owned by the State, and
You cannot claim on him, according to the General regulations.
The Constitutional Court has repeatedly reminded that the restitution legislation forms a complex
and the need is always interpreted in their mutual context, with regard to the
the target, which was set by (cf. e.g. find SP. zn. IV.
TC 691/01, first sentence), and mitigation of certain property injustices
occurring in the so-called. the relevant period. It can be considered that the result of their
the adoption and follow-up of the application should also be the establishment of legal certainty in
ownership structure. Such a requirement is essential for the continued existence of
The Czech Republic such as the rule of law, whose cornerstone is also
the principle of legal certainty. The principle then of the Czech Republic of the newly
undertakes in relation and in the framework of the commitments taken at the entrance to the European
the Union. The Constitutional Court, while fashioning a tendency to odčiňovat the wrongs as possible
the widest range, always, however, within the rules, which are to mitigate the
these grievances are adopted, and always, and it is necessary to emphasize, in particular, with the
regard to State legitimovanou the will to remedy the injustices to which
in the years 1948-1989, at a time to be defined as the period of oppression
Act No. 480/1991 Coll., in the time of the totalitarian system applied
the Communist Party, not the grievances of the other. This will state clearly
as defined by laws, and only just restitučními in material and time range
These laws specified is permissible axle. In his award dated June 23.
February 2005, SP. zn. II. the TC 114/04 (will be published in the ECR,
Volume 36, finding no. 32), the Constitutional Court stated that "according to the article. 1
The Constitution of the Czech Republic is a sovereign, unified and democratic legal
State based on respect for the rights and freedoms of man and citizen. One of the
the basic pillars of the rule of law is legal certainty. Under this light
the angle must be judged the disputes about ownership in particular, where the grounds for
his challenge is not in the present, but in the events that
become decades ago. In the case the owners who received
the subject of the ownership of the undisturbed for 40 years, are suddenly confronted with the
situations that their ownership is disputed on the basis of the
circumstances which no bribe and whose contents couldn't know.
On the contrary, from all the circumstances that were known to them, they could make a single
the possible conclusion that rights acquired in accordance with the applicable laws. Their
good faith, that the right acquired from the State in accordance with the law, must be
protected and cannot be in the interests of legal certainty, to accept the interpretation of the absolute
invalidity of legal acts, which returns across the decades of legal
relations in the past. Cannot accept such an interpretation of the General
the rules, which would lead to the extension of property restitution in excess
claims arising from the restitution legislation. ". At the same time, however, deduced,
without again declare any time limit, that "such a conclusion is not in
contrary to the previously raised the idea that the existence of the restitution legislation
shall preclude the property rights under the provisions of the General. This conclusion
Indeed, applies only to those cases where it was not possible to make a claim under the
restitution legislation. ". The second Chamber of the Constitutional Court here was the
from the top of the opinion of the Grand Chamber of the Supreme Court, without
he needed something closer to its decision to define additional questions
including the aforementioned time limit, since it was a question of a transfer
ownership rights in 1967, therefore, in the time frame restitučními
the rules given.
With this conclusion, however, certainly valid in General without further in resolving the
similar ownership disputes from the perspective of maintaining the principle of legal
security do not. Comment-if the legislature its obvious intention to
limit the atonement for the wrongs not only by establishing the legal conditions on the side of the
persons authorized to (i) persons liable and in terms of the factual, but primarily
a time limit of 25. February 1948, therefore the date of taking over of State power
the Communist regime, the date from which depends on the legal and social
the changes leading to the establishment of the undemocratic regime, can be as follows
clearly expressed will to give him the right to conclude that such a fundamental intervention in
ownership relations occurring prior to that date would not be socially
desirable and in terms of the goals of the restitution legislation, it
It is not necessary, and if this need in the next in terms of sharpness solved
the issue has arisen (e.g. regarding Jewish property), so already
by the way the law in defined cases of breakthrough for the time
the border has made (Act No. 243/1992 Coll., Act No. marginally 212/2000 Coll.).
The Constitutional Court has noted that even before the defined date,
especially the period 1945 to 1948, cannot be seen as a period
the legal or social tranquillity, as this period is
the characteristic extensive effort just after the reconstruction ratios in the State
within the meaning of the settlement of the legal and economic order affected by the war and the
post-war period, often inconsistent and chaotic effort to adapt
This change has already encountered, including the movement of the masses of the population in the
border areas related with the forced retirement of the first
the Czech population after the conclusion of the Munich Agreement and
the current depopulation of these regions odsunem the German population on
the basis adopted by the international order. This effort is, however,
now to be seen from the viewpoints of the historical, legal and social
the views of the then, not today's. This opinion expressed Constitutional
the Court has already-in the assessment of the constitutionality of the Decree of the President of the
No. 108/1945 Coll., on the confiscation of enemy property and Funds
national reconstruction, as amended, (find the Constitutional Court of the
Day 8. March 1995 SP. zn. PL. ÚS 14/94, decisions of the Collection, volume 3,
find. No 14; declared under the No 55/1995 Sb.): "what comes from the
the past, must even in the face of the presence of ad valorem compete, this
the guest cannot, however, be the last court presence over the past.
In other words, the order of the past cannot be built before a Court of law
the presence of which is already instructed other experience from these
the experience of many phenomena and draws looks and evaluated with time
hindsight. "). To protect the rights, for which there existed legislation
as defined by the procedural path instance and the judicial control of administrative
the decision of its special nature, no doubt is, therefore, unable to take advantage of the
Additionally, after such a resource cannot be applied, the path of action,
whose purpose is different.
Action for the rights of [§ 126 BGB in conjunction with § 80
(a). (c)) on the s. l.] was and is a tool for the protection of subjective rights before
unauthorised interference. As to the nature of preventive action (cf.
Mountain, j.: Czechoslovakian civil procedural law. Part I of the doctrine of
Organization and jurisdiction of the courts. Všehrd, Prague 1922, pp. 154-155,
Bureš, j., Clawed, l., Scone, m.: the code of civil procedure-comment. (I).
Part. 6. Edition. C. h. Beck, Prague 2003, p. 259)-its purpose is to
to avoid uncertainty about the conditions of a particular law or its performance and
its significance is purely practical-to establish legal certainty in the endangered
relations, taking more than the actions to meet the care, to avoid
to abuse (Hora, j.: Czechoslovakian civil procedural law. Part of the
I. the study of organization and jurisdiction of the courts. Všehrd, Prague 1922, str.
154: "cannot dovolávati the activities of the Court only because of the decision of questions
academic or due to the satisfaction of the interest that he got the recognition of the legal
regulations. "). Especially to this defense is, therefore, required a certain quality
action to determine the rights of that must be given to the claimant's
(stěžovatelův) press a legal interest in the desired destination, which must
be invoked, which causes that the legal status of the applicant to the things
became or becomes uncertain, is in doubt. The match and the text of the
the relevant legal provisions-section 228 c. l. s. [Note red.: Law No.
113/1895 row on judicial proceedings in civil law emotional one-on-one struggles
(civil procedure Court)] expressly stated that the plaintiff shall have legal
interest in that "this legal ratio or the right or the authenticity of the documents
they were built for sure as soon as possible ", and the requirement that when filing
action given the interest on what the fastest destination, became the subject of a
the taking of evidence (cf.. Serious 1357). As a basic condition for the application of the
validity from section 80 (a). (c)) of the s. l. It also examines today's judge.
As soon as the law was already broken, does not have preventive protection
the position of the plaintiff of any meaning, because through it, already in the
the principle cannot be disputes about them can arise in the future or
the emergence of the already imminent, averted. The Constitutional Court,
identifies with in General, and for decades a valid premise
theory and practice, concluded that "urgent legal interest may
fundamentally go only if the Court has issued without the destination (that
the legal relationship or right there) was either compromised the right of the plaintiff, or
should his legal position became uncertain, which-put in other words-
means that the plaintiff must either go for a legal relationship (right)
the existing (at least at the time of issue of the decision) or by a his
the procedural or substantive situation in which would objectively in the already
the existing legal relationship could be at risk. for uncertain of their
the position would be subjected to a specific injury. " (finding of the Constitutional Court
of 20 December. June 1995 SP. zn. III. TC 17/95, collection of decisions, volume
3, find no 35, p. 261).
The current case law, however, also steadied on the view that can be considered
the press interest everywhere, where the decision of the Court will be
the basis for entry in the land register. This conclusion is reflected
the current statutory adjustment entries to the land property rights
real estate and land registry offices, the procedure that
proceed to the registration of ownership rights on the basis of a court decision
on the issue of the matter, although the reason for this decision was to be
ownership of the property by judicial decision
released. Still, the urgent legal interest in determining whether the right
or not, is given by, where you can seek compliance. Therefore, if a
someone claims that it is the owner of the stuff, including the stuff real, cannot
exercise their right to sue on the destination, but the only action on the performance,
that is the claim of ownership. From the point of view of the protection of ownership rights
It cannot be in any other situation the owner that is registered in the land registry
real estate, and the owner, who is not entered. The urgency of legal interest
the určovacím statement is given only if it is in dispute on the protection
ownership proved ownership, and derives only from
the fact that such a statement is the basis for entry in the register. The urgency of the
the legal interest is therefore neodvíjí from needs discovery property, but
from the fact that the rules do not allow the land cadastre
write the title to the property on the basis of the audit opinion, which
meritorně resolves to the property entered in the cadastral register
real estate.
Although it is possible to change the record of the ownership rights to
real estate on the basis of the decision on the validity of the petition, you cannot without further
only from this fact press interest in the plaintiff (complainant)
inferred. This applies where the applicant to legal relations were with the
Some consequences of prejudice to a few decades ago, not today, and
do not become a uncertain now, but just an action to determine the
ownership and the questioning of acts, on the basis of which the right to
the plaintiff died, is placed in the uncertainty of the current owner's right to
things. The validity of the claim here is not a tool of prevention, but
the instrument, which are to be replaced by legal means of protection in their
the time of the unused or failed and questioned the legality of the sixty
years ago made public procedures; in fact, so few
to establish legal certainty on the part of the applicant, but rather to its distortion
on the side of the current owner of the things (cf. in this respect, the conclusions in the
top cited the finding of the Constitutional Court SP. zn. II. the TC 114/04). Legal
the security of all persons, as well as maintaining the necessary authority the State require
that final decisions of the Court or of an administrative authority, on the basis of
a person becomes or ceases to be the ownership of things was
the unquestioned legal facts, having effect in the future, without
regardless of whether a written copy of such an act. In
otherwise, it would be possible to apply the claim of its defects
immediately after the expiry of the period for its shredding, was destroyed or
lost. The current land owners, not only registered for a long time,
that has elapsed since the termination of ownership rights of the person who is it today
through určovacích, or other similar actions, would be
especially long-lasting deformations of ownership, rights of tenure and
prescription and also the importance and challenge of library binding
(cadastral) unilaterally, as it writes at a disadvantage in most
cases cannot meet the requirements for the proof of facts occurring
more than half a century ago. The design of the burden of the claim and the burden of
in the context of proof of civil procedure in today's form would then
the degree of justifiable workload on the side that would be such
claims challenged. If the legal action being challenged the confiscation of (her
process, effects the legality) of Decree No 12/1945 Coll., on confiscation and
accelerated distribution of agricultural property of Germans, Hungarians, as well as the traitors
and the enemies of the Czech and Slovak nation, or Decree No. 108/1945 Coll.,
or acts of revision of the first agrarian reform, it should be underlined that the
the burden of proof here at konfiskovaného the owner of the property, which
defending against the confiscation in the sense that it was up to him to prove
It is not legal conditions for confiscation of the assets given, in
the time of the confiscation. Through the request destination title
However, the same rights, or his descendants (or of any other person claiming
your legal interest) of this legal burden-shedding and transfer them to
Second, the already disadvantaged side of the dispute. If it was, in principle, outside the
defined time frame and the substantive review of the Ministry of public
the procedure, which was the title for the transition of ownership rights, it would mean
admit it the general courts permission, which at the time of the issuance of such act
should not. For example. According to the decision of the Supreme Court of CZECHOSLOVAKIA Rc 187/47 of 5 March 2002.
February 1947 it was the courts deal with the question of confiscation (from
the perspective of compliance with statutory conditions) or provisionally [consistently Serious 625;
also in relation to the Decree No 12/1945 Coll., the judgment of the Supreme Court of
28 June. in May 2003, SP. zn. 22 Cdo 683/2002, publ. In: File
the decision of the Supreme Court, St. 26, (C) 1959: "... (the Court) or in the
the present time is that in proceedings relating to the protection of the ownership of the referee
the existence of the prerequisites to confiscation under that Decree. "].
Contemporary rules of procedure deliberately set a time limit within which it is possible to
the legal effects of the Act or its legal attack on the way, otherwise, the
If this deadline is missed, it is the decision of the public authorities
the final (in relation to the administrative policy is the correctness of the decision
administrative decision), including effects on its basis.
If this period of time was called into question, as well as the effects of the Act, the
There would be no certainty, nor limit whatever kind, but in particular the
for a time, which would prevent former owners or their
descendants, to claim property, which suddenly lost any time in the past-
for example, on the basis of the establishment of the reconstituted provincial (1627) or steps
the first land reform Act (Act No 215/1919 SB., about preventing large
the assets of the land), with reference to their defects, invalidity or
ineffectiveness, or the absence of such a title.
In this context, to highlight the purpose of the restitution legislation,
that one break this period. Only in their context, and in order to
achieving the objectives outlined in them, IE. alleviate some of the grievances
caused by the Communist regime, however, as the Constitutional Court also
has repeatedly stated, calling into question the administrative act or the determination of the consequences of his
the lack of reach. The Constitutional Court admitted the general courts permission
to assess the legality of the confiscation of documents only in the framework of the
restitution claims in terms of eligible for restitution
titles, i.e., only in the framework of a special procedure, in particular, on the basis of the
the law, which was to alleviate the injustices incurred in connection with
the application of Decree No 12/1945 Coll., or Decree No. 108/1945 Coll.
adopted by the legislature. Act No. 243/1992 Coll., adopted on the basis of a mandate
contained in section 7 of the Act No. 229/1991 Coll., so allow the correction of certain
other property-related injustices arising as a result of the validity or
the special application of certain legislation or based on other
reasons (including some of the questions the confiscation by decrees no. 12/1945 Coll., and
No. 108/1945 Coll., as part of the first law), but only some, and in
the time limit previously set.
III.
The passage of time is in the opinion of the Constitutional Court the facts so
fatal, that even when it cannot in all cases, the demise of the relationship to the
things in terms of legal, or, conversely, its emergence, associate, you must
give him the effects of de facto. The significance of time as a law of the
the stability in terms of the requirement of ownership relations, underlining the legislature in
the restitution legislation, when on one side decided to allow breakthrough
to ownership, on the other hand, however, the filing of claims under the
These provisions restrict the relatively short time frame for the application of the
the restitution claim, which seek the end of claim prekludoval.
Deformation of the concept of property and its content, made after 1948,
the effects of legal acts (whether individual or normative)
occurring before this period, as the Institute itself was deprived of
in the meantime, some of the valid attributes, including the influence of time on the change of rights
or their content. The then legal science, in accordance with the valid legal
editing, held the view that it is now the theory of ownership
restored, which is "the more content that is linked to the notion of ownership,
respectively. the existence of a property as a category of legal, social,
the economic "(Sedláček, j., Rouček, f.: a comment to the Czechoslovak
the General Civil Code and civil law in force in the Slovak Republic and in the
Carpathian Ruthenia. Prague 1935, II. volume, page 198 et seq.). The need to
the recognition of ownership as a social category, which must fit in conformity with
his concept of legal, was seen in a situation where someone acted to
things as the owner, was a (sometimes even by the State and its organs)
the owner of the recognised and is fundamentally about its proper ownership convinced, though
legal status may be different. This problem is solved after all the time
the existence of a developed legal systems – in principle, already from the time of Roman (here
Institute Honorary or praetorského property). More solutions
looking for legal theory in institutes of legitimate possession and prescription. These
the institutes together with the time constraints of an action against the so-called ownership.
knihovnímu [owner as a form of praescriptio tabularum according to § 61-67
the library of law No 95 of 25 February. July 1871 (Note red.: Law No.
95/1871 l. on the introduction of the General Law on land books)-see
RAND, and the right of ownership: according to Austrian law, IV. a corrected Edition.
Prague 1889, pp. 113 et seq., Sedláček, j., Rouček, f.: a comment
to the Czechoslovak General Civil Code and civil law in force
in Slovakia and Carpathian Ruthenia. Prague 1935, II. volume, page 537 and
seq.] and the protection of the purchaser in good faith, were in a legal procedure with the
an unbroken tradition of absolutely natural and necessary
or the effects were not in dispute. With the efficiency of the Civil Code of 1950
(note the red.: the law No. 141/1950 Coll.) However, they were were, which was made
the next step in the deformation of the ownership rights and its protection for several
tens of years.
However, it is beyond doubt that the effects of the passage of time there, regardless,
whether or not the rule of law aprobovány, as these effects
public procedure as the title of the transition of ownership rights or
the transition of ownership rights (regardless of the existence or accuracy
the title of this transition) were not contested in the context of any review
(or did so unsuccessfully) and on the basis of such an Act (of which
correctness arisen doubts) there has been a change in the legal relations
to the point. The time that has elapsed since 1948, is more than half a century and
far exceeded any period of limitation periods laid down,
and as for the proper prescription, so extraordinary (i.e. prescription
beztitulárního). You can therefore be considered that the facts before this
date and their legal consequences, unless they have been affected in the context of the application
the legal adjustment of the Special Act No. 243/1992 Coll. exhaustively laid down in the
the cases are dokonanými information both from the perspective of law
International (G. Jellinek), so they must admit this effect from
in terms of the national law. Any alleged grieving occurring before
applicable period so cannot be reparovatelná today's resources
the laws. Equally it already expressed by the Constitutional Court in its decision of December
October 25, 2001, SP. zn. IV.-437/01 (unpublished): "the Constitutional Court's
is aware that the courts or administrative authorities or are not entitled to
direct intervention and to the final decision of the interference from the previous period.
Exceptionally, however, in matters of restitution, the Constitutional Court has expressed the opinion that the
as regards the administrative acts adopted in the so-called. the relevant period are referred to
the authorities authorised to assess the impact of their decisions in terms of account
titles listed in the restitution order restitution legislation
(find in things sp.. III. TC 225/96, published under no. 18, Volume 7
Collections of the findings and resolutions of the Constitutional Court). Such restitution case
However, in the case of the claimant, and not the Constitutional Court does not share her
the belief that the findings in matters of restitution should be respected, even when
deciding on the určovacích actions. The public authorities in the matter of
the claimant is therefore not obliged to deal with the critical examination of whether
the relevant administrative decision (declaratory) about whether they are satisfied
the conditions for confiscation under Presidential Decree No. 108/1945 Coll., has been issued in
accordance with the applicable legislation. The Constitutional Court is of the
considers that, in the case of the claimant or her grandmother's conditions for
the confiscation were not met. However, it is also of the opinion that, in 1946, when the
Edition of the konfiskačního assessment occurred, was a Czechoslovak Republic
a democratic State, and thus the grandmother of the claimant to use anything
the possibility of appeal to the competent Committee in the provincial national
the meaning of section 1 (1). 4. the Decree. If so, hurrying to
the current legal status of reverse the administrative decision in question the validity of
Sue. This conclusion also corresponds to the valid system of restitution legislation,
that is an expression of the will of the legislator to limit the remedy the committed assets
grievances to those which occurred in the so-called. the relevant period, i.e.. from 25. 2.1948
up to 1. 1.1990. The Constitutional Court notes that if in this period to
the completion of the dispute that began before this period (e.g. a dispute about
the validity of the seizure), then their decisions against those for which
It was obvious that there was abuse of the decrees of the President subsequently
Republic, for example. anulací arbitrary decision in favor of the owners,
or their successors in title [see for example find things in the sp.. IV. THE TC
309/97 (Note red.: a collection of decisions, Volume 11, finding no. 91),
cited in justification of the constitutional complaint]. "
Confiscation by Executive Decree No. 12/1945 Coll., and 108/1945 Coll. was legal
the Act, which cannot be assessed in terms of defects on the follow-up
administrative (deklaratorních) the decision, if it is not expressly by law
admitted. Indeed, in matters of forfeiture pursuant to Decree No. 12/1945 Coll.
as a rule, leading to the confiscation of the Act itself without administrative proceedings,
If the owner of the things as a person whose property has been subject to confiscation,
marked by the State authorities (see the resolution of the Constitutional Court dated
June 24, 2003, SP. zn. II.-155/03, unpublished) and if he
proposed, to be decided in the administrative procedure, or the issuance of such
declaratory decision did not recognize myself in the necessary administrative office. The claim
on the defects in the konfiskačním proceedings issued by the decision itself is not with
It effects the confiscation, since the legal dispute the title transition
ownership here is not an administrative act, but the Decree itself.
By providing protection for alleged ownership right that died before
almost sixty years ago, this would have been disrupted by legal security of persons in
During this time the ownership of the things (regardless of whether it is a
the property registered in the land registry or not) were acquired from the State
or from the previous owner and they can only rely on the principle of trust in the
cadastral registration. Refusal of protection in the allegation of the law cannot be
such cases, in breach of article. 11 of the Charter. There is a need to point out the
the time when the Charter came about and also the obvious intention of the legislature to anchor
protection especially of what was previously violated on a massive scale.
This article is mainly a reaction to the previous interventions of totalitarian power
ownership, similarly as in the case of the first model
Documents-Declaration of the rights of man and of the citizen of 1789, where appropriate,
The Universal Declaration of human rights of 1948 and the Protocol No. 1 of the year
1952 to the Convention for the protection of human rights and fundamental freedoms. Is
indisputable, that none of those documents had in mind
the provision of the protection of the long nevykonávanému and often forgotten
formal law; otherwise, it would not be possible or prescription.
In the present case, nor is it about expropriation, as has been pointed out many times,
but the demise of the options apply the protection of the law as a result of the expiry of the
long time (as with prescription); If a person who has ceased to be
assets as a result of the withdrawal of the State, nedomáhala in the Court of protection (and
at least in the years 1945-1948, there was a possibility) or not
successful, after a period of many decades, cannot legitimately expect that they would
This may result in the recovery of its ownership. Czech Republic is the
obliged to defend the legal interests of the persons subject to its jurisdiction-that is,
particular interest to the current legal status has not been questioned and
without doubt, in terms of ownership, validity of
other conveyances. In the event that the assets acquired by the State
Meanwhile, transferred to a third party (e.g. on the basis of the CZECH NATIONAL COUNCIL Act No. 172/1991
On the transition of some of the things from the ownership of assets of the Czech Republic
municipalities, or privatization), the principle of protection of legitimate expectations at the same time
This shows that the owner must be able to count with the requirements
a particular legal status, and he should be afforded protection against
any change in this State, you could reasonably expect. In the opposite
If, in a situation where in the absence of certainty, whether you can take
the property right to real estate, without the risk that the owner
then someone will be declared, in which it was considered that his right
died before more than half a century ago, and this situation, nor with the largest possible
the care could not be foreseen at the time of the transfer, they would state this obligation
does not meet the.
Therefore, you cannot think outside of special laws defined framework, ownership
the right people, that is acquired from the State, challenging the legal
facts occurring before the listed deformation rule of
and regardless of whether it was a transition of ownership reflected in
of entries in public registers for the purpose intended (land
the books, the land registry, the patent register and others) or
not. You cannot put before the material property, based on the
registration in the land registry, encountered almost sixty years ago,
prefer a formal title, the law, if they are invoked doubts about
his demise just because you subsequently to that deformation has occurred.
Such a procedure would not be able to compete not only in terms of the rights protected by article.
11. 1 and also the article. 11. 3 the second sentence of the Charter, but above all
with regard to the article. 1 of Protocol No. 1 to the Convention for the protection of human rights and
fundamental freedoms. The European Court of human rights gave a through
their decisions in the interpretation of this article has repeatedly made clear, even in the
relation to the Czech Republic, that the Convention, or Protocol is protected by
existing assets (existing possesions, biens actuels), not
"the expectation that it will be recognised by the survival of the former ownership, which
It has long been impossible to perform effectively "(see decision of the European
Court of human rights in matters of X. Y. and z. against Germany, 1997,
Malhous against the Czech Republic, 2000, Gratzinger and Gratzingerová against the
The Czech Republic, 2002, and others). The interpretation of the European Court of human
the law gives priority to maintaining legal security of people, which suggests
the attribute of an existing property, and which can be awarded "legitimate
the expectation that this status will be maintained "(see for example. Michael Stretch in.
United Kingdom, 2003).
On the question of whether it is possible to pursue the protection of ownership rights, to whose
the extinction occurred before 1948, by calling into question the legal
the facts on the basis of which such extinction has occurred, and therefore not
methods laid down in the legislation, but restitučními for the application of the General
civil institutes (that is, the action for the determination of rights, as well as the action
on eviction and claims to release stuff), corresponds to the Constitutional Court.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, took to the opinion of the judges of the plenum Eliška
Wagner and Miloslav Excellent and its grounds the judge Turgut Güttler.