164/1994 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic held on 12 June 2006. July 1994 in plenary in
the case of the claimant group of members of Parliament
The United States, party to the proceedings-the Chamber of deputies of Parliament
The United States and the intervener. E. w., represented by
JUDr. A. g., of the application for revocation
1. under the provisions of § 3 para. 1 of law No. 87/1991 Coll. on extra-judicial
rehabilitation, as amended by laws to changing and supplementing, in the words of
"and has a permanent residence on its territory", and part of the provisions of § 3 para. 2 of the same
the Act, as amended by laws to changing and supplementing, in words "and have
permanent residence on its territory ",
2. under the provisions of § 5 para. 2 (a). 4 of law No. 87/1991 Coll. on
out-of-court rehabilitation, as amended by the laws to the changing and
supplementary, in the words "from the effective date of this Act,"
as follows:
On 1 January 2004. November 1994 shall be deleted:
1. in article 3, paragraph 3. 1 of law No. 87/1991 Coll. on extra-judicial
rehabilitation, as amended by laws to changing and supplementing, part of a sentence
for a (second) with a comma in the words "and has a permanent residence on its territory", and in the
the provisions of § 3 para. 4 of the same Act, as amended by the laws to the changing and
supplementary (prior to effect of Act No. 116/1994 Coll. is listed as the
paragraph 2), part of the sentence in the words "and have a permanent residence on its territory",
2. in the provisions of § 5 para. 2 (a). 4 of law No. 87/1991 Coll. on
out-of-court rehabilitation, as amended by the laws to the changing and
additional, the words "from the effective date of this Act".
(A substantial part)
A group of 53 members of the Chamber of deputies of the Parliament of the United Kingdom
filed:
1. the cancellation of the part of the sentence after the comma, the words "and has a permanent residence in the
its territory "in the provisions of § 3 para. 1 of law No. 87/1991 Coll. on
out-of-court rehabilitation, as amended by laws No. 265/1992 Coll., no.
267/1992 and no. 133/1993 Coll., and in the provisions of § 3 para. 2 of the same
the Act, as amended, on the part of the sentence-sounding "and have
permanent residence on its territory, "referring to the fact that they are in violation of:
and with the provisions of article). 1, 4 and 10 of the Constitution of the Czech Republic,
(b)) with the provisions of article. 1, 3, 4 and 5(1). 11 (1) 1 the second sentence, as well as with the
article. 36, 38 and 42 of the Charter of fundamental rights and freedoms,
(c) the provision of article). 1 (1). 1 of the additional protocol to the European
the Convention (the Convention) on the protection of human rights and fundamental freedoms;
2. the cancellation of part of the provisions of § 5 para. 2 (a). 4 of the same law, in
as amended, the words "from the effective date of this
the law ". In a supplementary submission of 2 July. June 1994 stated that this
the provisions in the above words are contradictory with the same constitutional
the regulations, which are in violation of the contested portions of § 3 para. 1, 2 of the Act
No. 87/1991.
The Chamber of deputies of the Parliament in its observations of 8 June. April 1994
(signed by the President of the Chamber of Deputies, PhDr. Milan Uhdem) said,
that the adopted Law No. 87/1991 Coll. is in accordance with the Constitution and our legal
of procedure. The law was approved by the required majority of the members of the Federal
Assembly on 21 February 2006. March 1991, was signed by the respective constitutional
agents and has been properly declared. The purpose of the Act is to perform at least
partial mitigation arising from injustices as the frequency ranges
social life, which have been in our country for material and other
grievances in the period from 25. February 1948 to 1. January 1990, although damaged, and
the amount of people affected to a large extent limit the opportunities of comprehensive
the legislation, which would include the correction of the effects of all grievances. As well
so it is not possible to perform a full rehabilitation, or full compensation of all,
who have been in the past. In accordance with this principle of law
provided by the beneficiaries as a condition of citizenship and permanent
stay on the territory of the Republic. The adoption of this policy fully corresponds to the
International Customs.
29 April 2004. April 1994 was adopted by Act No. 116/1994 Coll., amending and
supplementing Act No. 87/1991 Coll. on out-of-court rehabilitation, as amended by
amended. This law took effect on January 1. July 1994.
According to the article. I, point 1, in section 3, paragraph 1 the following new paragraphs 2 and 3
and paragraphs 2 and 3 shall become paragraphs 4 and 5. This
the legal change is therefore without prejudice to the provisions of § even numbering the contested 3
paragraph. 2 of the law on extrajudicial rehabilitation, which continues to indicate
as paragraph 4.
Their own analysis of the issues
1. The Constitutional Court first dealt with the question of the constitutionality of the narrowing circle
persons to whom they have been caused by some property and other injustices of the
Civil and labour law acts and administrative acts which
were in the so-called. vesting period (i.e., from 25 February 1948 to 1 January 1990)
made in violation of the principles of a democratic society that respects
the rights of citizens, expressed in international documents and treaties
binding for our State (section 1, paragraph 1, of Act No. 87/1991 Coll. on
extrajudicial rehabilitation). The narrowing circle the beneficiaries results from
the provisions of § 3 para. 1 of the Act, under which it is authorized
person means a natural person, the only thing she moved into State ownership in the
the cases referred to in section 6 of the Act, if a citizen of
CZECHOSLOVAKIA and has permanent residence in its territory. In the event that this person has already
She died, an entitled person is the natural person who is a legal
the successor listed in § 3 (1). 4 (b). a) to (e)) of the Act [formerly
in section 3, paragraph 3. 2 (a). a) to (e))], if a citizen of CZECHOSLOVAKIA and has
permanent residence on its territory.
It is common ground that, in the process of restitution of ownership is necessary
consider the principle of equality before the law in regard to the specific features of
the area in which he has found its fulfillment. It is necessary to consider whether, under
the existence of only a relative equality potentially interested
individuals can the concept of fundamental rights, the constitutional law of the CZECH REPUBLIC tolerate
the existence of a narrowing of the provisions as to the subjects of rights under
the criterion of residence in the territory of the Czech Republic.
First of all it is necessary to assess the importance of the interpretation of the preamble
Act No. 87/1991 Coll., from which it is apparent that the objective of the legislation is "an effort to
mitigate the consequences of certain property and other injustices "that have occurred in the
the period from 1948 to 1989. A definition of the content of the concept of "some"
proprietary rights and other injustices. The question arises whether the concept can be understood
not only in relation to the circuit and the intensity of equity interventions, in particular in the
ownership of the citizens during the relevant period, or whether it can be seen as a
even the legal space for the narrowing of the entitled subjects with regard to the
whether they have permanent residence in the CZECHOSLOVAK FEDERATIVE REPUBLIC (from January 1, 1993 in the Czech Republic). On this
question should be answered in the negative. The phrase "some material and
other grievances "can be regarded as the expression of the will of the legislator to mitigate rather than
all the wrongs in their content and scope, but rather-and only in
this direction — only the most severe injustice. Space for the exclusion of certain
the bodies of those characters in any of the restitution of the title
However, from that, the wording of the preamble of the Act cannot be inferred. Out of it
It is possible to conclude that between the definition of "eligible persons" referred to in
the provisions of § 3 para. 1 (a). 4 (formerly paragraph 2) the contested act and the
the text and the purpose of its preamble is not consistent.
Option explicit restrictions on the acquisition of certain things into possession only
some entities contains the article. 11 (1) the Charter of fundamental rights and
freedoms, which States that "the law may also provide that certain things can
only be owned by citizens or legal persons based in the United
and Slovak Federative Republic (from January 1, 1993 in the Czech Republic). In relation to the
article. paragraph 42. 1 of the Charter of fundamental rights and freedoms under the term "citizen"
means a citizen of CZECHOSLOVAKIA (Czech Republic). This adjustment, however, for natural persons
refers only to the conditions of citizenship of the CZECH REPUBLIC, and it still not generally,
but only in respect of certain matters set out in the Act. The Charter
fundamental rights and freedoms in that provision then without authorising
the legislature to determine other terms of the acquisition of property (whether in the
the restitution process, or in General), the conditions of residence
on the territory of the Czech Republic. Such a mandate could not be found, nor in other constitutional
regulations of the Czech State.
By itself, the term "permanent resident" is defined in article 3, paragraph 3. 2 of law No.
135/1982 Coll. on reporting and registration of residence of citizens. Permanent residency is
stay at the place of permanent residence of the citizen, it is usually in the place where the
family, parents, apartment or job. The provisions of § 1 of the Act
It follows that the purpose of the Act is to regulate security and proper and
early reports and records residence of Czechoslovak State citizens to
the territory of the former CZECHOSLOVAKIA. This is about the law from public law, that
has the nature of only the registration and police; It is, moreover, the helmet from
the provisions of § 3 para. 3 of this Act, according to which a permanent resident can
citizens only in objects that are marked with the number according to the specific
regulations. The concept of "permanent residence" should therefore not have relevance in the standard,
that governs private relationships, such as in the case in question
Law No. 87/1991 Coll. on out-of-court rehabilitation, as amended by laws
to changing and supplementing them.
When a solution to the question of the constitutionality of the conditions of permanent residence within the meaning of
the contested law is also necessary to consider the provisions of the article. 14. 1 and
paragraph. 2 of the Charter of fundamental rights and freedoms, although it group design
members explicitly invoked. According to this article, freedom of movement and
the stay is guaranteed. Anyone who is legally staying in the territory of CZECHOSLOVAKIA (now
The Czech Republic), has the right to freely leave her. Therefore, if the contested provisions
Act No. 87/1991 SB. (section 3 (1), 2-4) is considered to be justified
person only a natural person who (among other conditions) is habitually resident
on the territory of CZECHOSLOVAKIA (Czech Republic)-and if the law only allows the person with
the success of the request withdrawn release things-then this statutory condition in
effect of constitutionally guaranteed freedom of residence and movement.
The Constitutional Court therefore concluded that the proposal for group members
The Chamber of deputies of the Parliament of the Czech Republic for annulment of the contested
under the provisions of § 3 para. 1, para. 2 (now paragraph 4) of Act No.
87/1991 Coll. on out-of-court rehabilitation, as amended by the laws of the
changing and additional, justified, if it points to a contradiction:
-with article. 1 of the Constitution, which declares the Czech Republic under the rule of law,
based on respect for the rights and freedoms of man and citizen
-with article. 1 of the Charter of fundamental rights and freedoms, guaranteeing the equality of
rights,
-with article. 3 (2). 1 of the Charter of fundamental rights and freedoms, prohibiting the
discrimination in the field of fundamental rights and freedoms,
-with article. 4 (4). 2 of the Charter of fundamental rights and freedoms, establishing the principle of,
that the limits of fundamental rights and freedoms can be under the conditions laid down
The Charter of fundamental rights and freedoms governed only by the law,
-with article. 4 (4). 3 of the Charter of fundamental rights and freedoms, which specifies that
legal restrictions of fundamental rights and freedoms must apply equally to all
cases that meet the specified conditions
-with article. 1 (1). 1 of the additional protocol to the European Convention (the Convention) on the
the protection of human rights and fundamental freedoms, the determinant of any natural
or legal person has the right to the peaceful enjoyment of his possessions,
-with article. 10 of the Constitution, under which ratified and proclaimed International
the Treaty on human rights and fundamental freedoms binding on the Czech
Republic is bound are directly binding and have precedence over the
by law.
The contested provisions of the Act is also in breach of article. 11 (1) 2 of the Charter of
fundamental rights and freedoms, which empowers the legislature merely to provide
that certain things can only be owned by citizens or legal entities
residents in the Czech and Slovak Federal Republic. It is also in the
contrary to the article. 14. 1, 2, of the Charter of fundamental rights and freedoms, which
enshrines the freedom of movement and residence, and other rights therein.
However, if the Group of the proposal based on the below-mentioned articles of the Constitution and
The Charter of fundamental rights and freedoms, Constitutional Court did not find their
violation of the following reasons:
-article. 4-Constitution stipulates that fundamental rights and freedoms are protected by the
of the judiciary. This article emphasizes the protection of the judicial power, has
a different meaning and does not touch the parts of the provisions of § 3 para. 1, para. 4 (formerly
paragraph 2) of Act No. 87/1991 Coll., as amended by the laws to the changing and
additional,
-article. 36 and 38 of the Charter of fundamental rights and freedoms-both of these articles put
the emphasis on the protection of the judicial power, the same as the article. 4 of the Constitution,
-article. 42 of the Charter of fundamental rights and freedoms-it is not a contradiction with this
article. The proposal attacks the condition of permanent residence, article. 42 of the Charter of
fundamental rights and freedoms, however, refers to the definition of "citizen" and guarantees
human rights and fundamental freedoms guaranteed by the Charter of fundamental rights and
freedoms for foreigners, if these rights are not granted explicitly to the citizens.
Article. 42 of the Charter of fundamental rights and freedoms, therefore, Mr. stuff at all
does not apply.
2. the proposal for a group of MPs also rails against disproportionately short deadline
laid down in the provisions of § 5 para. 2, paragraph 1. 4 of law No. 87/1991.
submission calls for the release of the case (6 months from the effective date of the Act) and to
exercise of the right of a competent person in court (1 year from the effective date
of the Act). The proposal argues, in particular, the fact that these provisions are
the provisions of § 3 para. 1, para. 2 (now paragraph 4) the contested act-
which are clearly unconstitutional-as organically linked to normují
how, how can (and must) by a person of his or her claim. For
This is by design, a group of MPs necessary to repeal in
the provisions of § 5 para. 2, paragraph 1. 4 the words "from the effective date of this
the law ", because only this can enable persons whose entitlement spawns only
the finding of the Constitutional Court (that is, the citizens of the CZECH REPUBLIC, who persisted in its territory
stay do not), that it is properly raised by the deadline, the beginning of the
fall together with the entry into force of the revoking of the award by the Constitutional Court.
In previous considerations the Constitutional Court took the view that the provisions of section 3 of the
paragraph. 1 (a). 4 (formerly paragraph 2) of Act No. 87/1991 Coll., as amended by
laws to changing and supplementing, if normovalo for authorised persons
whether or not the condition of permanent residence on the territory of the CZECHOSLOVAK FEDERAL REPUBLIC (since 1 January 1993 on the territory of the
The Czech Republic), is inconsistent with the constitutional principle of equality, in particular of people
enshrined in the Charter of fundamental rights and freedoms. This conclusion, however, would itself
on its own was not enough to eliminate the inequality between the beneficiaries, since the
the time limits contained in the provisions of § 5 para. 2 (a). 4 the contested act
already completed. Natural persons who are citizens of the CZECH REPUBLIC and have at its
the territory of permanent residence should, therefore, not their claims with the success of the exercise,
Since the expiry of the statutory time limits. This would repeal unconstitutional
the provisions of § 3 para. 1 (a). 4 (formerly paragraph 2) the contested act
completely missed the point. To fulfill the constitutional principles, which raises the
need to cancel part of the provisions of § 3 para. 1, para. 4 (formerly paragraph 2)
the law, therefore, it is necessary to repeal part of the provisions of § 5 para. 2 (a).
4 of the Act, specifically the words "from the effective date of this Act," since, as
the rapporteur rightly points out, the only way to allow citizens, whose claim
spawns only constitutional court to have exercised it in a timely manner. The provisions of the
§ 5 para. 2, 4 and § 3 (1). 1, 4 (formerly paragraph 2) of the Act are therefore
mutually connected enough that they cannot be separated, and think about
the constitutionality of § 5 para. 2, 4 separately. Therefore, the Constitutional Court concludes that
also challenged part of the provisions of § 5 para. 2, 4 of Act No. 87/1991.
in effect, contrary to the same constitutional provisions that are
the contested parts of the provisions violated section 3 (2). 1, 2 of this Act.
If the Constitutional Court repealed the provisions of § 5 para. 2 (a). 4
Act No. 87/1991 Coll., the words "from the effective date of this Act," then
the period referred to in § 5 para. 2 (a). 4 of the same Act shall begin on the date of
enforceability of the award of the Constitutional Court, i.e. on 1 January 1999. November 1994.
This conclusion is necessary, as otherwise the things Mr. protection
the constitutional principles that led to the annulment of the contested parts of the provisions
§ 3 para. 1, 4 (formerly paragraph 2) of Act No. 87/1991 Coll., as amended by
laws to changing and supplementing, not guaranteed. This newly
the deadline, however, concerns only the persons finding become persons
authorized. Therefore, persons who did not meet the condition of permanent
stay on the territory of CZECHOSLOVAKIA (Czech Republic), finding of the Constitutional Court to annul it. Run the new
the period from the date of enforcement of the award, however, does not apply to people who already
effect of the award were persons authorized, if applicable
the condition of permanent residence in the territory of CZECHOSLOVAKIA (Czech Republic) meet and from different
the reasons have not advanced the claim in time.
The Constitutional Court shall be dealt with and for completeness of the claimant's objection that the
the 6-month period to call for the release of things and sustained period to claim
in court, which commence already on the date of effectiveness of the law, are
unreasonably short. I regard this objection should be. Significant is that the
the two time limits on the effectiveness of the law, weighs about which many citizens with permanent
residents outside the territory of the Republic, in particular the citizens of overseas countries,
She didn't have to. could ever learn in a timely manner. In this situation, it is
determination of several months of time limits to claim, in particular, in relation to the
These citizens of the discriminatory, since, in effect, many of them
make it impossible to make their claims within the statutory time limit raised. From this perspective, the
It can be inferred that the determination of an unreasonably short time limits in the provisions of section 5 of the
paragraph. 2, 4 of the Act is contrary to the constitutional provisions covered by the proposal
a group of MPs. Strictly speaking, it is in conflict with the provisions of the
article. paragraph 36. 1 of the Charter of fundamental rights and freedoms and article. 6 (1). 1
The European Convention for the protection of human rights and fundamental freedoms, as
in particular, referred to the citizens was not completely unrealistic deadlines to allow for specifying,
in order to obtain their rights before an independent and impartial court.
Period referred to in the provisions of § 5 para. 2, 4 of Act No. 87/1991 Coll., of course,
The Constitutional Court can no longer cancel due to the fact that the proposal on their
the cancellation has not been filed. However, even if such a proposal was filed, by clearing the
those time limits would both provisions may no longer be any factual sense. Even with the
taking into account the Constitutional Court concludes that protection of constitutionality
corresponds to the above conclusion, according to which the existing deadlines weighs in on
the enforceability of the award of the Constitutional Court, i.e. on day 1. November 1994.
This is sufficiently respected equal rights of all citizens, including
citizens permanently living abroad, for which it is to be assumed that now
with the passage of time are of their rights within the meaning of Act No. 87/1991 Coll.,
in the text of the laws to changing and supplementing, sufficiently informed and
can you realistically and in a timely manner.
The Constitutional Court in this regard and the question of whether the deletion of the
parts of the provisions of § 5 para. 2 (a). 4 the contested act does not have the nature
retroactive and that does not infringe the principle of legal certainty, which can be inferred
from the article. 1 of the Constitution of the Czech Republic. In the case of Mr. redress or
to atone for the wrongs that have occurred in the past, and part of that is i
restitution of property. Axle is effected via specific laws
governing the individual segments of life while respecting the principle that
earlier standards will not be zrušovány retroactively, but that will be
removed some of the consequences of their only previous use. It is true,
that the interference with the legal situation created by the old standards in the
the previous period a certain aspect of the retroactive has. Law No. 87/1991 Coll.,
in the text of the laws to changing and supplementing, however, the legal
order of the critical period (i.e., from 25 February 1948 to 1 January 1990)
retroactively does not interfere, since it concerns only the consequences, which are
the effects of this law, and nowhere else.
Jurisprudence recognizes the retroactive effect right and retroactive effect wrong.
Right; includes cases where the legal standard and reglementuje
the formation of the legal relationship arising out of him and the claims prior to its effect.
False; lies in the fact that the legal relations of tangible and
procedural law, which arose under the old rules, are managed
in principle this law, until such time as the effectiveness of the new law; After his
However, the effectiveness of the new law. This policy, however, is true only as long as
If the other final provisions of law does not lay down in the light
on the characteristics of certain legal relationships of something else.
If u Act No. 87/1991 Coll., as amended by the laws to the changing and
additional, talk about retroaktivitě, then this is only
the wrong one, which is the retroactive effect from the point of view of legal certainty
acceptable. Construction axles (rehabilitation) consists in determining
the person required to file a person, having the challenge of compulsory in
imperative time-limit laid down, in particular the obligation to take out compulsory
an agreement on the issue and the need to bring in a period of action for imperative
the debtor to force the signing of such an agreement, if the obligor
refused to conclude the agreement on the issue. Not a classic vindikaci,
Although this is a claim on the issue, which is, however, based on the lex
specialis (Law No. 87/1991 Coll., as amended by the laws to the changing and
additional). This adjustment also means recognizing the validity of the
an earlier legal order, and in the absence of the realization of the right to issue
things remain when you created the legal status and it is not possible to use another
legal provisions, even provisions of the General.
It is obvious that these considerations in terms of retroactive assessment
the legislation not only of Act No. 87/1991 Coll. on extra-judicial
rehabilitation, as amended by laws to changing and supplementing, as
a whole, but that they also apply to the consequences of the deletion of the words "after the date of
the effectiveness of this law, "not yet contained in the provisions of § 5 para. 2,
4 of the Act.
Therefore, the Constitutional Court has come to believe that the deletion of the words in the
the provisions of § 5 para. 2 (a). 4 of law No. 87/1991 Coll., 2 as amended by the
laws to changing and supplementing, inadmissible the retroactive effect
does not constitute. Otherwise, the whole of that law would have to be considered
for while avoiding retroactive. In Mr. case, as already mentioned, the
However, it may be just an mocked-up, which is the retroactive effect in legal theory (i)
in practice, it is generally considered acceptable.
Therefore, the Constitutional Court referred to in article. 87 para. 1 (b). and the Constitution and pursuant to section) 70
paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, on January 1. November
1994 repealed:
1. in article 3, paragraph 3. 1 of law No. 87/1991 Coll. on extra-judicial
rehabilitation, as amended by laws to changing and supplementing, part of a sentence
for a (second) with a comma in the words "and has a permanent residence on its territory", and in the
the provisions of § 3 para. 4 of the same Act, as amended by the laws to the changing and
supplementary (prior to effect of Act No. 116/1994 Coll. is listed as the
paragraph 2), part of the sentence in the words "and have a permanent residence on its territory",
2. in the provisions of § 5 para. 2 (a). 4 of law No. 87/1991 Coll. on
out-of-court rehabilitation, as amended by the laws to the changing and
additional, the words "from the effective date of this Act".
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to a different opinion with your connections on behalf of the decision on
application for annulment of part of the provisions of § 5 para. 2 and 4 of the contested act
under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, have taken advantage of these
judges: JUDr. Vladimír Čermák and JUDr. Vlastimil Sevcik.
