In The Matter Of The Application For Revocation Of Options. Ust. Cust. About Mimosoud. Rehabilit.

Original Language Title: ve věci návrhu na zrušení někt. ust. zák. o mimosoud. rehabilit.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=42105&nr=164~2F1994~20Sb.&ft=txt

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.