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Opinion Of The Plenum In The Action-The Determination Of Ownership

Original Language Title: stanovisko pléna ÚS ve věci žaloby o určení vlastnického práva

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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.