On behalf of the Republic
Constitutional Court decided under ref. Nos. Pl. US 10/13 of 29 May 2013
Plenary composed of the Chairman Pavel Rychetsky court, judge Stanislav Balik
(Rapporteur), Jaroslav FENYK, John Philip Vlasta
Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir
crust Dagmar Lastovecká, Jan Musil, Jiri Nykodým, Milady Tomková,
Miloslav Vyborny and Michaela Židlická a petition from a group of 18 senators
Czech Parliament to repeal the Act no. 428/2012 Coll. about
property settlement with churches and religious societies and amending some laws
(Act on property settlement with churches and religious societies
), or parts thereof, with the participation
Chamber of Deputies of the Czech Parliament and Senate
Czech Parliament as parties, the Government of the Czech Republic, 47 deputies of the Parliament of the Czech Republic
a group of 45 Members of Parliament
Czech Republic, as interveners,
I. The provisions of § 5. i) the words "fair" Act no. 428/2012 Coll
. property settlement with churches and religious communities and
amending some laws (Act on property settlement with churches and religious societies
) are canceled on the day of its publication in the Collection of Laws
II. The proposal in part directed against the provisions of § 19-25 of the Act no. 428/2012 Coll
. property settlement with churches and religious
companies and amending certain laws (the property settlement
churches and religious societies) is denied.
III. In the remaining part of the proposal is rejected.
Definition matter and recapitulation draft
First A group of 18 senators of the Senate of the Parliament of the Czech Republic (
"appellants"), represented by attorney JUDr. Karol gates with
petition, submitted to the Constitutional Court on 5 February 2013, under Art. 87
paragraph. Point 1. a) the Constitution of the Czech Republic (the "Constitution") and
§ 64 para. 1 point. b) Act no. 182/1993 Coll., on the Constitutional Court, the abolition
Act no. 428/2012 Coll., on property settlement with churches and
religious societies and amending some laws (the asset
settlement with churches and religious communities) (hereinafter
"law on compensation of churches"), or of individual draft
provisions specified, namely § 2 the words "or that belonged
" and the words "or other legal persons established or
formed to support the activities of registered churches and religious societies
to the spiritual, pastoral, charitable,
medical, educational or administrative purposes, or their legal predecessors
" , § 3. c) the words "
legal entity established or founded to promote the activities of registered churches and religious societies
to the spiritual, pastoral, charitable,
medical, educational or administrative purposes," § 5. d)
§ 5 point. i) the word "fair", § 5. j) the words "procedure
violating generally accepted principles of democratic rule of law or
human rights and freedoms, including" § 11, heads the third part of the first
including title, § 18 par. 1 and 9, the whole part four and § 25 points 1, 2, 3, 4 and 5
in the words "legal persons established or founded to support
activity registered churches and religious societies to spiritual
pastoral, charitable, medical,
educational or administrative purposes. "
Second Furthermore, this group of senators same petition seeking the annulment of
§ 64 para. 1 point. b) Law on the Constitutional Court in the words
"at least 41" and the words "at least 17" and the annulment of § 64 paragraph
. 5 of the same Act, the words "required number of deputies or senators
". By order dated April 17, 2013 sp. Nos. Pl. US 10/13
Constitutional Court ruled that the application for annulment of § 64 para. 1 point.
B) and section § 64 par. 5 of Law no. 182/1993 Coll., On the Constitutional Court
, as amended, excludes separate proceedings.
Third By order dated March 5, 2013 sp. Nos. Pl. US 10/13, the Constitutional Court
it refused an application for interim measures and also decided that
matter under file no. Nos. Pl. US 10/13 is urgent and will be discussed among
Fourth On 22 May 2013 the Constitutional Court received a submission
legal representative of the group of 18 senators, which, among others, argued
bias Judge Rapporteur in the case file. Nos. Pl. US 10/13
Stanislav Balik. By order dated 28 May 2013, the Constitutional Court ruled that
judge Stanislav Balik not barred from discussing and deciding in
matter file. Nos. Pl. US 10/13.
Party and intervene
Fifth Party - petitioner - this procedure is a group of 18 senators
Senate of the Czech Republic, represented by attorney JUDr. Karol
gates. The Constitutional Court found that the petition meets all statutory
formalities and requirements, and that nothing hinders its
hear and adjudicate. Within the meaning of § 69 para. 1
Law on the Constitutional Court, the parties to this proceeding are
Chamber of Deputies of the Czech Republic (the "Chamber of Deputies
") and the Senate of the Parliament of the Czech Republic (hereinafter " Senate ").
6th Procedurally identical proposal, delivered to the Constitutional Court on 18 February
2013, a group of 47 deputies of the Chamber of Deputies, represented by Deputy
PhDr. Lubomir Zaoralek, also sought the abolition of the settlement with
churches. This proposal Constitutional Court in its resolution sp. Nos. Pl. US 11/13
dated February 26, 2013 pursuant to § 43 para. 2 point. b) in connection with § 43 para. 1
point. e) of the Act no. 182/1993 Coll., on the Constitutional Court, as amended
amended (hereinafter the "Law on the Constitutional Court") rejected the
grounds of lis pendens. The Constitutional Court granted this group
47 deputies within the meaning of § 35 para. 2 of the Constitutional Court as an intervener '
[hereinafter "intervener 1)] in the present,
earlier proceedings initiated by petition of the group 18 senators.
as is clear from the provisions of § 28 para. 2 of the Constitutional court, the intervener in the proceedings
same rights and obligations as participants.
7th on 21 February 2013 the Constitutional court a group of 45 deputies
deputies, represented by JUDr. Zuzka Bebarová-Rujbrová,
filed last proposal within the meaning of § 64 para. 1 point. b)
Law on the Constitutional court seeking annulment of the Act on compensation churches.
Resolution sp. Nos. Pl. ÚS 12/13 dated 26 February 2013, the Constitutional court also
this proposal lis pendens and refused to put on weight and this
group of deputies of the House of Commons as intervener | || [hereinafter referred to as "intervening 2)] launched a proposal
group of 18 senators.
8th A note delivered to the Constitutional Court on 27 February 2013, the Public Defender
within the meaning of § 69 para. 3 of the Constitutional Court
waived his right to join the proceedings as an intervener.
9th A note dated 20 March 2013 the Constitutional Court delivered a government
together with observations on the present application also communication within the meaning of § 69 para. 2
Constitutional Court Act that enters intervene.
Arguments of the Petitioners and interveners in question
constitutional conformity of the Law on Compensation of Churches
III and /
Arguments of the petitioners against the content of the statute
10th The petitioners allege in its draft law contested his
discriminatory guaranteeing churches and religious communities
exercise their restitution claims against other legal persons
privileged position, even though the church legal persons not in
past in restitution negatively discriminated against.
Granting such privileges to church juridical persons is
according to their opinion, not only contrary to the prohibition of discrimination enshrined in
Charter of Fundamental Rights and Freedoms (the "Charter"), but also
state deprives his secular character guaranteed in Art. 2 paragraph. 1
Charter. Moreover, the law according to their opinion, threatens the very foundations
Czech Republic, destroys the idea of the founding fathers of the Czechoslovak Republic
a de facto declares the Benes Decrees as the source of injustice.
Petitioners in the law also perceive the intention of creating material
base for right-wing political forces and resources of all citizens and
to the extent of jeopardizing the economic and legal stability of the country.
11th Specific arguments of the petitioners, dovozující contradiction content
contested Act with the constitutional order, they can be briefly summarized in the following claims
12th The contested law primarily to Czech law enshrines
discrimination against atheists and atheistic legal persons, when
regardless of their religion, and in violation of the principle of religious neutrality of the state
enshrined in Art. 2 paragraph. 1 of the Charter converts huge assets
property value to organizations serving against the interests and beliefs
large part of society and the political spectrum. This should
violated the principle of protection of political pluralism, which is, along with the secular character of the state
, to be in the Czech constitutional order be considered an essential requirement
within the meaning of Art. 9 Sec. 2 of the Constitution. There is no doubt that this
law, under the guise of morality, creating an economic base
certain range of political and ideological forces in society, making it possible
its adoption also called a flagrant violation of Art. 5 and 6 of the Constitution and | || Article. 22 of the Charter.
13th The contested law in § 2 allows the benefit of the church
corporate publishing and property, which was owned
third parties (eg. Collaborators and traitors), of which the proprietary right
passed directly to the state. According to that provision have now
ecclesiastical juridical persons entitled to restitution of property to them in the past only "belonged"
which according to the petitioners often includes assets of public
character who only occasionally served for cult purposes. Unlike all other
restitution as churches and religious communities may not
prove original ownership right, but they will be published
all assets associated with the activities of churches owned obligated persons and
with the full right of disposal that religious organizations from the Middle Ages
14th The Act further petitioners clearly discriminates against non-denominational (especially
atheist) humanitarian legal person, who was also not possible in the past
fully restituted property, even though they were also based example.
For medical or educational purposes.
15th According to the contested Act pertains to church juridical persons per
unreleased assets for financial compensation in the amount of market prices, while in the past
(since 1919) for the confiscated property belongs tabular
compensation that is significantly lower. Financial compensation does not correspond
historical traditions nor the expected compensation based on provisions
land reform in 1947. From the petitioners conclude that
ecclesiastical juridical persons are unfairly privileged compared to other
restituentům, and therefore conclusion of the agreement state and churches on the financing of churches
undermines the secular character of the Czech Republic. Financial compensation is provided in addition
well as possession of which is uncertain when he moved to happen
thereby breached border on February 25, 1948. The financial compensation paid by
contested Law unreasonably high amounts above that | || does not correspond to the historical traditions of the substitution of confiscated property
according to pre-war legislation. For such high compensation
there is no rational reason, when the European Court of Human
Rights ( "ECHR") has accepted as sufficient even
significantly reduced compensation. The explanatory memorandum does not deal with the extra
address emerging contradictions of historical documents in question (not)
payment of compensation for confiscated property after 1948.
16th The law does not reflect the historical circumstances in which the Church was
acquiring the property, which according to the petitioners believe
denies the fundamental principles of law, according to which no one can benefit from their dishonesty and injustice
can not stand up right. Historical sources
describing the relationship between the state and churches in the Czech lands indicate that the church was
its assets often dobrali oppression against religious freedom and that his
withdrawal during the First Republic was legitimate concern such injustices
at least partially undone. Thus, the Act allows for the emergence of property rights
result of oppression, which builds on these wrongs committed against Czech
nation that with its policy of trying to undo President Masaryk.
State fades and pressure the church, whose leaders in the past clearly stated
church restitutions as de facto ended, especially in
moment when finds himself in need of evidence, as the floods in
2002 the destruction of important archives of the Ministry of agriculture.
Not forget the fact that the development of property is now published
Connected with the pressure of a foreign power that has now again become rich at the expense of the state
(resp. People). This foreign power is also under worldwide media
associated with many financial scandals linked to money laundering,
which threatens to become the de facto international support
17th Doubts also raises size emitted (resp.
Superseded) property, which according to the petitioners, greater than suggested
from reports on the revision of the land reform of 1947.
18th The petitioners further contend that even if ecclesiastical juridical persons were
owners of the disputed property, it will only provide financial compensation
registered churches, and no direct legal persons who
any ownership rights in the past belonged, as a result
can not exclude the application of such neodškodněných church juridical persons, and the law
can not fulfill its stated purpose.
19th Churches and religious communities in the petitioners only
legal persons to whom it is issued and undeveloped land.
This leads to discrimination against other legal persons and violation of the secular nature of the state
. They were generally in favor of the restitution of legal entities exceptional
while the Church there can not be discriminated against, but now there are only
restitution in favor of religious legal entities, amounting
unprecedented in any other type of restitution.
Adjustment in addition to the earlier restitution regulations in favor of legal persons based
risk a huge amount of lawsuits against the contested law discriminated
entities, even though his "generosity" already
threatens the state budget, while the final "expenditure" under the Act on
settlement with churches may be in the hundreds of billions of crowns.
Contested Act represents progress of state power, which not only serves
all citizens within the meaning of Article. 2. 3 of the Constitution, but it goes against the interests and opinions
20th The petitioners point out that the law stands on an erroneous judgment on the existence
constitutional obligation to restitute church property or
any way with the church legal entities deal. This obligation
law violates the contrary, though it ignores the means to present
spent by the state on the activity of the Church, especially clergy salaries. Conversely
European Court of Human Rights clearly stated that
Convention on the Protection of Human Rights and Fundamental Freedoms ( "the Convention")
does not create a right to restitution of property confiscated before accession to the Convention
21st The provisions of § 5. j) of the Act can not be contested by the petitioners opinion
apply if called. Benes Decrees, which were
accepted in exceptional historical situation and do not meet accepted standards
to the right of the democratic rule of law. The legislature is thereby trying
consequences of these decrees actually revise and threaten their validity
as in § 8 paragraph. 1 point. h) of the contested bill expressly
includes the provisions for which compensation not covered.
22nd § 11 of the contested Act violates the petitioners then u
other restitution regulations raised legal principle that rights belong
watchful, since transferred to the State is obliged to look restituent
23rd The petitioners also perceive the unconstitutional provisions of § 18 par. 1
that threatens ownership rights of third parties who acquired the property in good faith
, and makes them inconsistent with Art. 11 of the Charter of adequate protection of their property
24th The provisions of § 18 par. 9 of the petitioners directly cancels reform
Joseph II. and crossing the border in February 1948, to which no representative
state power did not and does not explain nor the explanatory memorandum.
25th The petitioners subsequently pointed out that Part Four of the contested Act discriminates against other
restituents who were not successful in restitution proceedings
exempt. By this law violates the prohibition of discrimination
and the principle of religious neutrality and non-binding on any state
ideology within the meaning of Article. 2. 1 of the Charter.
26th The petitioners conclude that the Law on Compensation of Churches
is unpredictable because its content is not what voters could
expected by the election programs of the parties.
Law and does not meet standards consistent source of law in the sense of finding
of the Constitutional Court. Nos. Pl. US 77/06 of 15 February 2007.
III / b
Arguments group of 47 MPs against the content of the statute
27th Specific arguments of 47 MPs as interveners
dovozující contradiction content of the statute with the constitutional order,
can be briefly summarized in the following statement:
(I) In the introduction to its proposal for a group of 47 deputies, represented by Deputy
PhDr. Lubomir Zaoralek, referring to a number of historical sources
shows that until 1949 were ecclesiastical juridical persons considered
public bodies and in the management of their assets had the last word
state. This is therefore called into question the basic premise of the contested Act
that the state has even a moral obligation to restitute called.
Church property because the disposal of the subject since at least 1848
consent of the state. On the truthfulness loses an engineered "property
injustice" because the church or religious society
before the relevant period (and even almost three years after it) did not enjoy the right of private
autonomy in the management of their property . It is therefore inappropriate that
Act no. 428/2012 Coll. restitution based on essentially the same facts
, as it has for other restitution regulations.
It gives the wrong impression that the church legal persons have suffered similar
type of property injustice.
(Ii) In addition, under the Act is not in accordance interveners determine
which specific assets subject to the issue and which is paid
financial compensation for what reasons he was elected in the explanatory memorandum stated range and emitted
the replaced property, nor why the range of assets
issued pursuant to the Act no. 428/2012 Coll. very close to the size of the property
church legal entities in the so-called. first land reform in 1919.
This also makes the specified vesting period commencing on 25 February 1948
only empty proclamations. The law does not even
seek to determine whether the property is not the same church juridical persons
replaced twice - in kind and financial compensation.
(Iii) The construction process of issuing property shows in the opinion
interveners characters legislative arbitrariness, since a large portion
emitted property leads to fusion of the person liable and the administrative authority
which has a statutory duty to supervise the the legality of the process.
Such legislative design also provides no guarantee
written decision, which is not subject to review within
bodies of executive power and even the law effectively limits the protection
judicial review of legality. Such adjustments can hardly be described as
harmony with the principles of the rule of law protected by Art. 1 paragraph. 1 of the Constitution.
(Iv) actual free issue of such a large amount of property in the hands
church juridical persons is by interveners
inconsistent with the principle of the lay state enshrined in Art. 2 paragraph. 1 of the Charter, because
this gift to which an organization endowed with no subjective
claim forms become binding directly to religion, to which these entities
(V) that the law enshrined adjustment rate financial compensation
within the meaning of § 15 of the Act on Compensation of Churches, then, in the opinion side
participants not clear its purpose. Should it be
mitigate property injustices, it is illogical to say that such financial compensation was paid
and religious communities, which at the time on the territory of the state
not cause, and unpaid contrary to those at the time
proven to perform religious activities, but today they are no longer on the list of registered churches
. If the reason for the economic empowerment
churches, the approach chosen by the legislature achieves exactly the opposite effect
because over thirty years lashed the state as a creditor and patron
selected churches, while the fate of the other churches he is indifferent to | || adjustment getting into obvious contradiction with the principle of religious neutrality of the state
enshrined in Art. 2 paragraph. 1 of the Charter. Where then are the purpose of this regulation
legal basis for a waiver of the private claims of religious
legal persons called. Original property, this provision is also
meaningless, because no such claim exists. In this regard
so vague and indeterminate legislation contravenes the principle of legal certainty
which is an essential attribute of the rule of law, principles which are
Art. 1. 1 of the Constitution protected.
(Vi) In addition to an unclear purpose, not by interveners from the law,
explanatory report or statement of government officials seen what was intended by
resulting financial compensation, which is totaling
correspond to the amount of 59 billion . CZK and that in its application to take account
assets issued enum laws from the early 90s and property released so.
executive way in the years 1996 to 1998.
(Vii) Treatment of the lump sum by the conviction interveners
meets the definition of overt discrimination, since the amount is so called.
Inflationary clause pursuant to § 15 para. 5 of Act no. 428/2012 Coll.
enshrine into law of the considerable disparity between ecclesiastical legal persons and other
(Viii) According to the law has become a contract settlement with church
legal persons to enter into government, who do not lack any
constitutional mandate. The Government may, under Article. 78 of the Constitution
only issue a regulation to implement the law. No provision of the constitutional order of the government does not
according interveners implementation of the law in the form of private contracts
with normative effect. This process of concluding agreements on the settlement
between state and church legal entities are in conflict with Art. 78 of the Constitution
(Ix) Treaty settlement entered into by Act no. 428/2012 Coll.
then intervened deemed exceptional for its commitment to non-standard,
because it can not be stopped by any of the conventional methods of private
termination liabilities, cancellation, termination, but even
offsetting debt waiver or agreement . Such property may qualify
mark in conflict with Article 11. Paragraph. 1 and Art. 3. 1 of the Charter, which
enshrine the principle of equal protection of property rights.
(X) as inconsistent with the constitutional order and the interveners
adjustment of subsidy to support the activities of the affected churches and religious societies
contained in § 17 of Act no. 428/2012
Coll., As despite the proclaimed purpose of increasing economic independence
churches and religious societies retains legal rights
for a relatively long period of 17 years the principle of state financing of certain
churches. These selected churches so they have to many more years for his activities
secured state contributions, which can not come even
event that will seriously violate the laws of the Czech Republic. Additionally, these contributions are greatly
discriminatory, since it does not take into account
other religious communities which have decided for whatever reasons
currently not demand state subsidy, as well as companies that
over the next 17 years be incurred. Contested modification is thus in conflict with Article
. 2. 1 of the Charter A link to a specific country
ecclesiastical juridical persons, which is magnified by the cumulative
paying financial compensation under § 15 of Act no. 428/2012
Coll. and contribution to support the activities within the meaning of § 17 of the same Act
. This state allows religious organizations selected
be independent of their members and believers of religion. All this
during the validity of § 4 para. 2 of Act no. 3/2002 Coll., On freedom
religion and status of churches and religious societies and
amending some laws (Act on churches and religious societies) ,
according to which the State may not provide religious or anti-religious
activity, as well as in the validity of the principle of religious neutrality of the state
enshrined in Art. 2 paragraph. 1 of the Charter and established case law
conclusions of the Constitutional court, according to which state must guarantee religious pluralism
, and abstain from offering such discrimination against some religious
directions or organizations.
(Xi) For all the above reasons, the interveners suggested that
Constitutional Court Act settlement with churches canceled conflict with the constitutional order
III / c
Arguments group of 45 MPs against the content of the statute
28th Dovozujících beyond the arguments of unconstitutionality of the contested Act
listed in both the above mentioned proposals of the group of 18 senators and 47 deputies
considers the group of 45 deputies as the intervener
unconstitutional establishment of the institute, "people do not have jurisdiction", ie different people || | the person liable to release things which the law imposes a series of obligations which
Has the benefit of churches and religious communities to meet the charge.
29th Unlike other restitution law provides
ecclesiastical legal persons the possibility of protection against the transfer of assets carried
early 90s contrary to mandatory laws.
Minor parties conclude that this fact is very likely to lead to
administering a series of constitutional complaints of persons who will be compared with
churches and religious communities mentioned in the contested Act
feel discriminated against.
30th The interveners emphasize above all that the content
law is contrary to good morals, because ignores the fact that
ecclesiastical juridical persons acquired the property in the past at the expense of the Czech people, and moreover
absurdly gives Czech Republic Czech people
obligation to correct injustices committed during the Austro-Hungarian monarchy, in which sovereignty was
Czech nation itself suppressed. By
inter alia, the law clearly breaks proclaimed the beginning of the decisive
period, set at 25 February 1948.
Arguments challenging the constitutionality of the legislative process
adoption of the Law on Compensation of Churches
IV and /
31st The petitioners in their submissions note that due
unconstitutional manner for the adoption of the contested Act were violated in particular the right of citizens to participate in the
governance guaranteed by Article. 21 paragraph. 1
Charter and the constitutional principle of political pluralism
forces and the protection of political minorities within the meaning of Art. 5 and 6 of the Constitution and Art. 22 of the Charter.
32nd The petitioners point out that the rights of opposition MPs was during
passing the contested Act often limited in conflict with the Constitutional Court
made the interpretation of the constitutional principles of protection of pluralism
political forces and the right to undisturbed parliamentary duties. By
been unduly affected by the free competition of political parties, represents
under the Act and consideration and adoption of tampering
distorting the essential requirements of a democratic rule of law within the meaning of Article
. 9 Sec. 2 of the Constitution.
33rd Denying the ability of opposition MPs, as representatives of some
citizens to express themselves when discussing the contested Act was also
violation of Art. 1 of the Charter, which states that all people are equal in rights
and Art. 2 . 2 of the Charter, according to which the state power
exercised only in cases and within the limits set by law and in the manner expected
34th Defense in the criticism of the contested law, in an effort to get consideration
Act, the necessary information and the possibility of influencing other Members and
public through the mass media, according to the petitioners
flagrant violation of the right to freedom of expression within the meaning of Art. 10 | || and 14 of the Convention, as well as Art. 3 of the Charter. By not
required information to Members and restricting the rights of critics also saw
violation of the right to information guaranteed by Art. 17 of the Charter and the infringement of the prohibition of censorship
enshrined in Art. 17 Sec. 3 of the Charter, as well as rights to
political activity under Art. 20 paragraph. 2 and 3 of the Charter.
35th Violation of the above principles and provisions of the constitutional order
conclude petitioners primarily from the following factors:
36th Adoption and discussion of the law took place at a time when pressure peaked and
political attacks on the government side of things the public to this page
split, which subsequently confirmed by the court, acting on the impeachment
Vit Barta, Vice husband parties public affairs. This
sides split actually occurred, which was created by a group
"renegades", with the help of the coalition could opaque church
enforce restitution. Political party Public Affairs was also the beginning
dealing systematically deceived by false promises made by Prime Minister
and other government officials. Without this support obtained by lies
Public Affairs party the law was already rejected in the first reading.
37th Throughout the discussion of the law governing coalition refused
addressed questions and comments from opposition deputies in all areas
even remotely related to church restitutions, such as they were.
Reasonable suspicion regarding efforts to split political parties Stuff | || public, so the question. "breaking" period in February 1948, the so-called purpose.
blocking section or range emitted and the replaced assets.
38th When discussing the deputies of the government coalition deliberately misrepresented
conclusions of Constitutional Court so that MPs concluded that
regardless of their vote will be restituted religious property because
obligation to give back the confiscated property derives directly from the Constitution. Likewise
deputy reporter falsely stated that the Catholic Church
substantial part of their claims surrenders, which is in stark contrast with the case
European Court of Human Rights, which consistently finds that there is no restitution
legal claim, and therefore it can not be waived.
39th Deputies restricted in contravention of § 59 para. 1
Act no. 90/1995 Coll., On the Rules of Procedure of the Chamber of Deputies, speaking
for individual deputies, thereby limiting the right of political parties
express their opinion through elected Members.
Speeches at party deputies Public Affairs then has often been in the Chamber
noise, which was their opportunity to talk to other Members de facto
reduced even more.
40th Opposition MPs were against the law no. 90/1995 Coll., On
Rules of Procedure of the Chamber of Deputies, as amended, (hereinafter referred to as
"Rules of Procedure of the Chamber of Deputies") are forced by law to discuss the
thus limited conditions even late at night, which is an apparent effort
coalition government's political opponents tire, thereby reducing
discussion. This violates the provisions of § 53 par. 1 and 2 of the Rules of Procedure of the Chamber of Deputies
which allow one after 21 pm
evening, but only in emergency situations gives Deputies
right to initiate voting on bills and after 19 o'clock.
According to the petitioners, it is necessary for the Chamber of Deputies to apply analogy
editing mandatory deadlines for the rest enshrined in the Code
work. For this reason, it is necessary to consider a resolution adopted by the Chamber of Deputies
contrary to the rules of the time enshrined in § 53
Rules of Procedure of the Chamber of Deputies non-existent.
41st Deputies did not discuss the Senate of the Parliament of the Czech Republic
returned draft of the contested act at the next meeting
within the meaning of § 97 para. 3 of the Rules of Procedure of the Chamber of Deputies, but his
discussion was postponed from dubious reasons, thereby effectively to | || refusal. His later discussion is not only a violation of the Rules of Procedure of
, but also the right of the Senate to expedite the opposition senators in
minimal changes in the composition of the Chamber of Deputies. Act for approval
occurred after suspicious circumstances, causes concern
of corruption, resigned from his post as part of government MPs who were
replaced by new members, the government's arguments accessible. By
all were violated principles of proper legislative process and the principles
democratic rule of law.
42nd The adoption of the law occurred at the time of the actual break in the hearing, which is
gross violation of the Rules of Procedure of the Chamber of Deputies and the right to undisturbed
performance of MPs. Over the same situation as what was announced
break in favor of the governing party, it was benefice breaks
political party Public Affairs denied a despicable manner. About
break for his parliamentary group asked the Vice Party
Public Affairs and President of the Chamber of Deputies this break
announced, but then conceded a vote on its launch.
This vote was not present we have no opposition MP. Thanks
that the contested act was the first ever actually approved during
43rd The law was abnormally quickly sent to the President of the Republic and his
opinion of Members, which explains that the law
return back to the Chamber of Deputies, but even it has been signed, sent
President of the Chamber of Deputies Members before the deadline for
possible return of the Act, whereby the President was prevented
change your mind, for example. based on the comments of citizens.
44th The process of adoption and continuous media presentation contested Act
taken place in a democratic social atmosphere, as opponents of the law
(including experts) were almost invited to the mass media
funds, including public, which is to be labeled as censorship || | which, together with deliberate avoidance of certain issues by itself
challenging the legality of the law.
45th Of all the reasons set out in Parts III / IV aa / and this finding
the petition contains a group of 18 senators in the first place the requirement
the Constitutional Court annul the entire Act no. 428/2012 Coll., On property
settlement with churches and religious societies and amending some
laws (the property settlement with churches and religious societies
46th If the Constitutional Court does not annul the above mentioned law
as a whole, the group of 18 senators proposed to abolish the alternative proposed judgment
conflict with the constitutional order of the contested Act, which
listed in section 1 of this finding.
IV / b
Arguments 45 MPs challenging the constitutionality of the legislative process of adopting the contested Act
47th A group of 45 deputies of the Parliament of the Czech Republic, represented by JUDr
. Zuzka Bebarová-Rujbrová sees in the legislative process
adoption of Act no. 428/2012 Coll. violation of the constitutional principle
ban legislative arbitrariness, whose default has occurred
serious questioning of the legitimacy of this law. Deputies
impossible for citizens of the Czech Republic to participate in the exercise of public power directly
which they are guaranteed in Art. 2 paragraph. 1 and 3 of the Constitution and Art. 21 paragraph. 1
Charter, although the majority of Czech citizens expressed content with
contested Act disapproval. This government MPs broke his
Article. 23 paragraph. 3 of the constitution, MPs vow, under which they exercise their mandate
in the interest of the people.
48th The proper conduct of the legislative process was violated by the petitioners
that the deputies did not vote on the Senate returned the draft
Act at the next meeting, thereby effectively to its rejection.
The inclusion of the vote on the Senate had rejected the bill at another meeting later
was contrary to the rules of procedure of the Chamber of Deputies,
without MPs exercised their rights enshrined in the provisions of § 1.
2 Rules Chamber of Deputies to modify the rules dealing
bills rejected by the Senate. The contested bill that could be
again relegated to discuss only the new Chamber of Deputies for the proper
49th Of all the reasons set out in Parts III / IV ca / b this finding
petitioners requested that the Constitutional Court Act no. 428/2012 Coll. set aside.
Recap statements of the parties and the intervener
50th The Constitutional Court, under § 42 para. 4 and § 69 of the Law on the Constitutional Court
sent the petition to annul the contested provisions
government and the Chamber of Deputies and the Senate.
V / a
Expression of Deputies
51st Chamber of Deputies of the Parliament of the Czech Republic in their
observations, lodged at the Constitutional Court on 11 and 21 March 2013, signed
chairwoman Miroslava Nemcova, closely recapitulates
legislative process of adopting the Act no. 428/2012 Coll., Which does not
as unconstitutional, and does not identify themselves with the petitioners' objections.
52nd Deputies in a statement that the shortened
parliamentary speech did not cover the entire legislative process.
Only during the third reading was the time of parliamentary speeches
shortened and modified the time and negotiations across the House.
Interpretation of § 53 of the Rules of Procedure of the Chamber of Deputies executed
appellant is wrong, because the last sentence of paragraph 1 of this
provision for the possibility of amending the negotiations and vote Chamber of Deputies
applies to the entire paragraph 1. This interpretation is on the ground
Chamber of Deputies adopted since 1995. Likewise, the Chamber of Deputies
in its statement protesting against the petitioner nadnesenému
interpretation of § 97 para. 3 of the Rules of Procedure of the Chamber of Deputies, which governs only the duty chairman
submit to Parliament a proposal returned
Senate but has not constitute an obligation to the House on this proposal
definitive way to decide. The absence of opposition MPs during the voting
a break for the Group Public Affairs party was not caused
"confused situation", as suggested by the petitioners, but demonstratively leaving
53rd Deputies finds that the Act no. 428/2012 Coll.
was adopted after a properly conducted legislative process, and is therefore fully on
Constitutional Court, in connection with the petition
assess the constitutionality of this law.
V / b
54th The Senate of the Parliament of the Czech Republic, represented by its chairman
Milan Stech, in their observations, lodged at the Constitutional Court on 12 and 21 March
2013 comprehensively summarizes submitted proposals and describes
that Act no. 428/2012 Coll. in the Senate, while repeating
most important arguments during debate in the Senate heard.
V / c
Government's argument in support of the constitutionality of the content of the contested Act
55th The Government in its extensive statement on the objections of the petitioners and
interveners - Group 45 and Group 47 Members -
initially stressed that it should not even speak to the issue of active
standing of the petition or the issue through the legislative process
chambers of Parliament, including consideration of efforts to split political parties
things public, but it is required to comment only on those parts of the proposal, which
directed to the content of the Law on compensation of churches, whose proposal was presented
Deputies for approval.
56th The government opposes thoroughly objections and arguments of the petitioner
other interveners, while its arguments may be summarized
in the following claims:
(I) The contested statute can not be seen as discrimination according to government
other (non-denominational) legal persons, as the Constitutional Court in its case
emphasizes the fact that the principle of restitution legislation is based
on the basis that the assets can not be a claim by
general rules, but only rules of restitution, while the issue
degree range, perfection or completeness of restitution is entrusted exclusively
legislators and not the Constitutional court [opinion of the Plenum of the Constitutional court
sp. Nos. Pl. US-Wed 21/05 dated 1. 11. 2005 (ST 21/39 SbNU 493;
477/2005 Coll.) And the Constitutional Court decision. Ref. II. US 14/04 of 25
first 2006 (N 22/40 SbNU 169)]. In this context, also pointed to the fact that
Constitutional Court found in relation to non-compliance with § 29 of Law no. 229/1991
Coll., On the ownership of land and other agricultural property
(hereinafter the "land Act") unconstitutional situation rather than referring to
equality between past restituents and religious subjects, but with
reference to other provisions of the constitutional order, and he emphasized the difference
church entities from other natural and legal people
referring here to the Constitutional court decision. Nos. Pl. US 9/07 of 1 7. 2010 (N 132/58
SbNU 3; 242/2010 Sb.).
(Ii) as to the unfounded government sees the proviso that the provisions
§ 11 of the settlement with churches introducing the principles and obligations
found in other restitution laws did not apply, and argue that it is a | || principles (eg. synergies between public authorities in the provision of extracts from
records, etc.), which emerged from the "restitution" law of the Constitutional court
and who therefore naturally in the early 90s there;
But now the law could not ignore these judikaturní requirements, and therefore had
be incorporated into law.
(Iii) The Government further argues with the caveat that the agreement state and churches
does not reflect the current state payments to the church, noting that such a requirement
credits secondly goes against the purpose of alleviating the property
injustices and also lacks legal basis. In this connection, examples of so-called
issues. Economic security of churches, as well as the Institute
so. State's consent under the Act no. 218/1949 Coll., on
economic security of churches and religious societies by the state, as
amended, demonstrates the unsustainability of such objections, even in relation
ban on retroactivity of the law to the detriment of its addressees.
(Iv) The Government disputes the petitioners and other interveners
parties alleged violation of the principle of the secular nature of the state under Art. 2
paragraph. 1 of the Charter, noting that the contracts entered into allegiance to
religion entails, with the provision in the Charter
not be construed as a blanket prohibition on the existence of any relationship between the state and churches
(V) Lich's opinion, the government also reservation petitioners and other
interveners that the provisions of § 18 par. 1 of the Act on Compensation of
churches threatens ownership rights of other persons who acquired the property of the state
in good faith and who are not in this situation
no protection is provided when the explanatory memorandum explicitly states that the provisions of § 134
Civil Code concerning adverse possession is not that the contested provision does not affect
, referring to the jurisprudence of the Constitutional Court regarding
good faith in the case of acquisition of property from non-owner.
(Vi) of the Act settlement with churches under government neprolamuje border
February 1948, when alone in § 1 defines the vesting period of time
period 25. 2. 1948 to the first 1st 1990. Concerning
status of religious nut, it will over time significantly changed, the current
Religious nut can not be compared with the institution established in the late 18th century
, and its activities after 1948 can hardly be described as the result
reforms of Emperor Joseph II., that the petitioners had challenged the law
interfere. In the list of legal reasons, the property damage are also not included
regulations issued by Joseph II. nor the acts of the so-called. First Republic.
Moreover, it is in the law expressly states that things are not issued
confiscated on the basis of presidential decrees. Act no. 142/1947 Coll., On
revision of the first land reform was indeed received 11. 7. 1947
but was implemented only after 25. 2. 1948, when the first expropriation under this
Law and issued on the basis of the IPC could be up
first 3rd, 1948, that the transition of ownership to the state was decisive to
date when the state took over the land in fact, a principle identical to that
that was applied in the Land Act (§ 32 par. 2 ).
(Vii) The Government disagrees with the allegation of discrimination
restitution of other (non-denominational legal entities) on the issue of taxation because
this objection finds itself in conflict with other petitioners' objection and
with their allegations that these other claimants to have been discriminated against, because
themselves could not restituted. So if they could not restituted, then
however, they could not even be exempt from such a tax, respectively. by
nerestituovali, not their non-exempt
perceived as discriminatory. The main barrier to the inclusion of other real
legal persons in the ambit of authorized persons has always been a fact of their
termination without legal successor after 1948, and unlike physical persons
(Viii) The claim of discrimination flat-rate compensation for non-extradition
assets are inapposite, since this institute started secondly subsidiary
until then, if you can not proceed to restitution in kind, on the one hand, this basic form of restitution
no different from the model that was chosen
in Act no. 87/1991 Coll., on extrajudicial rehabilitation, as amended
. It is also necessary to look at judikaturní dimension compensation
the amount and method of calculation depend on the conclusions arrived at
past the Constitutional Court. In this context, the government extensively
explains why it was necessary to account for compensation of property claim
depend on the current value at the time of the adoption of a legislative solution
(Ix), the argument that if it was legal persons issued property, causing it
based on an enumerated law, and now it does not discriminate
does not hold water, because these enumerated regulations were issued before || | constitutional court case law requiring the generality of the legislation, and therefore
adoption of an enumerated Act today could lead to improbable
not challenge the constitutionality of such a solution, if
law would be found by law only in terms of their form, but not to what to
(X) can not agree with the objection that religious legal entities are only
legal persons who are experiencing a change in the nature of ownership
compared to the period before its transition to happen, because so it was in a different
extent in the case of restitution after 1990.
(Xi) can not accept the fact that before the adoption of the contested Act
there was no obligation whatever to church juridical persons
restitute or to otherwise deal with them as such commitment
resulted, among other things. Iz constant and gradually in favor of ecclesiastical bodies
escalating Constitutional court jurisprudence constructing
legitimate expectations of such persons, which need to be pointed out. Referring to the case
European Court of Human Rights is irrelevant because those obligations
legislature has nothing to do.
(Xii) the Vatican itself, or rather the Holy See, nothing restitution
not receive as owners become more religious entities -
parishes, orders and charity, but not the Roman Catholic Church, which
As a legal entity previously owned nothing, moreover
circle of beneficiaries made up of 17 churches, of which the Catholic Church
represent only the Roman Catholic Church and the Greek Catholic Church, other churches
have no ties to the Vatican.
(Xiii) The purpose of the seventeen-year transition period, after which it will
affected churches provided a contribution to support their activities, is
minimize consequences of the radical changes in the organization of relations between the state and
churches and religious communities so that existing
addiction is gradually degraded and is therefore conceived as a contribution regressive,
because without this transitional period, there was a significant downturn and negative
activities of churches and religious societies, especially
immediate reduction in the number of clergy.
57th In conclusion of its statement, the government proposed that the Constitutional Court
proposal for the abolition of the settlement with churches or its individual parts
Constitutional Court sent their joint opinion on the discussed proposals
A representative of the Czech Bishops' Conference, the representative of the Ecumenical Council of Churches
in the Czech Republic and a representative of the Federation of Jewish Communities in the Czech Republic
(hereinafter "representatives of religious communities").
Contents of this statement is, in their opinion, the Constitutional Court to consider the idea of how
institutes were under the law presented
representatives of religious communities, of whose party was then with such content
under the law expressed consent. Representatives of religious
company pointed out that under the law, although it can be described as part
restitution and rehabilitation legislation, monitors the two side by side
equal standing purposes, correction of certain property injustices committed by the communist regime
on one side and
settlement of property relations between the state and religious communities selected
on the other side. File institute, which was contested Act seeks to fulfill these objectives
represents "the antithesis of the system established by the communist totalitarian regime
". These individual institutes, thus
restitution in kind and called. Financial settlement must be seen as intertwined, inseparable
ways in which you can not clearly determine which of them more
pursues the objective redress the property damage and which of them
is a way to create an independent state on the asset base. Financial compensation
consisting of financial compensation and a contribution to support the activities of churches
as interrelated variables, it should be like the end of several hundred years
lasting support system for the church from the state. Subsequently
representatives of religious communities in its statement
occupy a position on certain objections of the plaintiffs.
Above all, in their opinion, can not be compared, with respect to the limitations of natural restitution
and end the current system of support
religious societies from the state, according to financial compensation under the Act with financial compensations within the meaning
other restitution laws . Equally odd
objection that financial compensation be paid to the churches, which
during the Communist regime did not suffer any property injustices, as there
one of the Churches occurred to her separation from other religious
company demonstrably during the totalitarian regime of property
wrongs suffered, and in the second case cited was a religious society
Although recognized by the state in 1989, but its leaders
actively worked and were persecuted back in the 50s 20th century.
At the conclusion of his statement submitted by representatives of the religious
brief economic analysis of the impact of financial compensation from
which shows that the model is approved at the limits of the possible survival
religious communities, since two of them will not cover financing | || refund or salary costs clergy. For other
we can talk about "profit" in excess of those costs only in units or tens
percent, which is all the means that religious communities
obtained for "the creation of an independent state on the asset base."
59th During the hearing, Judge-Rapporteur summarized the current course
60th During the hearing, the petitioners' legal representative, deputy
Group of 45 deputies and deputy groups of 47 deputies propose additional
61st Petitioners' legal representative requested that witnesses had been heard
Michal Babak, Vit Barta, Radek John and Catherine Klasnová. This proposal
The Constitutional Court rejected on the grounds that their potential testimony to
during the 45th, 46th, or 47th meeting of the Chamber of Deputies
redundant because the court based on the stenographic records that provide
more accurate information during the meeting than the memories of individual participants
a longer time interval.
62nd A representative group of 47 deputies asked the Constitutional Court to supplement
evidence on interviews with witnesses Mgr. Alena Hanáková, the Minister of Culture,
Ing. Petr Bendl, Minister of Agriculture, Mgr. Petra Šťovíček,
director of the State Land Office, Ing. Michael Gaube, CEO
enterprise Lesy Czech Republic (all for the purpose of clarifying the
calculating and determining the extent of compensation), Milan Kern, Chairman of the Executive Committee
Baptist church, and Jan Graubner, Archbishop
Olomouc (the circumstances related to the conclusion of contracts between the government and churches
). The Constitutional Court rejected the proposal. A similar proposal
representative group of 47 deputies to the Constitutional Court from those witnesses
requested written comments on drafts of this intervention, reply and
issues raised at the hearing, the Constitutional Court also rejected, in all
cases on the grounds that with the exception of Archbishop of Olomouc and
Baptist church it is the state authorities, for which the present case is
government. In the case of Archbishop of Olomouc and fraternal
Unity Baptist Constitutional Court came to the conclusion that a written report that
should concern negotiations within the relevant religious bodies, not for the present proceedings
relevant meaning. Another proposal of this group
deputies to interrupt the proceedings and raise questions to the Court of Justice of the European Union
Constitutional Court also failed.
63rd The deputy group of 45 deputies proposed that the Constitutional Court requested from the Chamber of Deputies
transcripts 45th and 47th meeting, which was discussed
Parliamentary Press 580, and to request further specified
reports from the Ministry of Culture
and the Ministry of agriculture, as well as the Chairperson of the Czech Office for Surveying, Mapping and Cadastre
(hereinafter "ČÚZK"). The Constitutional Court stated that
transcripts from the 45th and 47th meetings has been available, and therefore there is no need
evidence in this respect supplement. Regarding the proposal of this group
deputies to request reports from the Ministry of Culture, Ministry of Agriculture and opinions
chairman ČÚZK, the Constitutional Court did not grant them a
grounds that it was an opinion relating to previously intended
draft enum law and not the law that is at issue.
64th Petitioners' legal representative in its final draft reiterated
raised the argument in the application instituting proceedings and subsequent
written submissions, divorced historical excursion, under which highlighted
various historical events related to the status and activities of churches.
Suggested that the Constitutional Court annul the contested law, as stated in
65th A representative group of 47 deputies dealt primarily with the issue
how the government arrived at an amount to be paid under
financial compensation. Finally, referring to the arguments
The approach in written proposals, as well as the reply to the statement of government.
66th The deputy group of 45 deputies agreed with the arguments of the petitioners
group of 47 MPs and reiterated the fundamental objections that
this group is already stated in the written copy of their proposal. Over their
framework discussed in particular the question of the role of religious legal entities
terms of their personality in the legal system in the past, even in
relation to the contested Act. Finally, he proposed to repeal the statute.
67th Deputy Minister in his speech mainly reacted to the appearance
petitioners and Members of both groups and refuted their claims. Finally
he noted that the contested law does not regard as unconstitutional.
68th The Constitutional Court considered the arguments of the petitioners
participants and interveners and concluded that the proposal is in the range
directed against the provisions of § 5. i) of the Act no. 428/2012 Coll. in
Word "fair" justified. To the extent directed against the provisions of §
19-25 of the Act no. 428/2012 Coll. Regarding the proposal clearly unfounded and
remainder of the proposal unjustified.
Review of competence and the legislative process
69th Review of compliance with the law constitutional order consists accordance with the provisions
§ 68 para. 2 of the Constitutional Court of three elements. These are competencies
authority which issued the contested law, the procedure adoption and promulgation of Act
and consistency of its content with the constitutional order. The logic of the Constitutional Court
first looks at whether the organ is endowed with competencies
contested regulation issue. If so, the Constitutional Court examines whether the contested
issued in the constitutionally prescribed manner, and finds
If the Constitutional Court or misconduct in this element
review the constitutionality of the contested Act, finally accede to assess the content
accordance with the law under review standards and values of the constitutional order.
70th From the stenographic report of the 41st meeting of Deputies
sixth legislative term held on June 14. 7. 2012, the Constitutional Court found that
Act no. 428/2012 Coll. submitted by the government (Parliamentary print no. 580/0) was adopted
Chamber of Deputies at its third reading in the poll Ser. no. 158
while the 182 participants (present) voted for the Bill
93 deputies, 89 deputies against the draft (resolution no. 1251).
Was subsequently approved bill to the Senate on 19 7, 2012 as publication no.
71st From the stenographic reports 25th meeting of the Senate held on 15. 8. 2012
clear that the bill was rejected by Resolution no. 713, when the
poll Ser. no. 9 for the adoption of this resolution of the 77 senators present voted in favor
43 senators voted against the adoption of the 33 senators.
Subsequently, on 16 8, 2012 the bill returned to the House of Deputies.
72nd Deputies returned a bill to vote again, and it
at its 47th meeting on 8. 11. 2012. The poll Ser. no. 156
Chamber of Deputies maintained the bill (Resolution no. 1359), with whom he originally
consent, he voted for its adoption
102 deputies voted against the adoption of one deputy.
73rd On 8 11. 2012 was enacted law delivered to the President; he
it on 22. 11. 2012 neither signed it nor returned the Chamber of Deputies.
The opinion of the President on the same day it was distributed to Members as
parliamentary document no. 4603. On 5 12. 2012 law was enacted in the amount
155 Collection of Laws under No. 428/2012 Coll.
74th The question of assessing the competence of the issuing authority
The Constitutional Court therefore finds that the subject of review in this case is the constitutionality
Act no. 428/2012 Coll. and the competence of the Parliament of the Czech Republic, who
adopted this new law, it follows clearly from Article. 15 paragraph. 1 of the Constitution. The Constitutional Court therefore finds
question of competence in the contested Act, as resolved
nor any of the petitioners, no objection was raised in that direction.
75th The first group of objections raised by a group of 18 senators and a group of 45 deputies
forms alleged failure to comply with the constitutionally prescribed process
adoption of the contested law. This mainly concerns the objection of the bill is approved in
contrary to the rules of procedure of the Chamber of Deputies due to its
did not discuss at the first possible meeting after its return by the Senate and opposition
systematic violations of the rights of the opposition MPs
throughout the legislative process.
76th The first of these objections is not considered Constitutional Court
founded. The question of voting on the bill returned by the Senate and his
debate in the Chamber of Deputies adjusts to the constitutional level, Art. 47
paragraph. 1 of the Constitution, which stipulates that if the Senate rejects a bill
vote on it Deputies again. The bill is adopted
if it is approved by an absolute majority of all deputies. The provisions of §
97 para. 3 of the Rules of Procedure of the Chamber of Deputies also stipulates that if
Senate bill rejects the resolution, the President shall at the next meeting, but
first ten days of receipt resolution Members submit
House to vote on it again. The bill is adopted, if approved by the House it
absolute majority of all deputies.
77th The nature of the periods contained in the related provisions of § 97 para. 1
Rules of Procedure of the Chamber of Deputies (in the words "without undue delay
"), the Constitutional Court has in the past expressed in its judgment. Nos. Pl.
ÚS 5/02 dated 2. 10. 2002 (N 117/28 SbNU 25; 476/2002 Coll.)
These words: "The resolution pronouncing the Chamber of Deputies a bill
agreement must therefore be seen as a decision containing (in the procedural stage
) definitive statement, which was the legislative process in the Chamber of Deputies
terminated; the requirement of the law for (Chamber of Deputies
) approved bill was chairman of the Chamber of Deputies || | sent to the Senate without undue delay (§ 97 para. 1 of Law no. 90/1995
Coll.), has neither material nor temporal association with its own decision-making process
Deputies and actually instruct a technical nature
which should face administrative delays between the (completed)
legislative process in the Chamber of Deputies and the Senate decision makers
(§ 97 para. 2-4 of the Act no. 90/1995 Coll.) does not have its own decision-making process
Chamber of Deputies no influence, much less would he then
could resume. "
78th With this interpretation of the Constitutional Court concurs, even if the provisions
§ 97 para. 3 of the Rules of Procedure of the Chamber of Deputies, noting that the deadline set
words "at the next meeting, at the earliest, for ten days" has no factual
or temporal association with its own decision-making process
Deputies and the instruction of a technical nature only directed towards
President of the Chamber of Deputies by which it regulates
continuity between completed the legislative process in the Senate, which rejected the draft resolution
, and repeated vote of the House. In addition to efforts to counter
administrative delays ( "At the next meeting") contains
period ( "first but after ten days") to provide the Members
sufficient time for familiarization with the course of the legislative
process in the Senate and the reasons for rejection of the proposal. The passage of time limits according to § 97 paragraph
. 3 Rules of Procedure of the Chamber of Deputies, respectively. the obligation
Chairman of the Chamber of Deputies by the deadline, therefore
own decision-making process of Deputies has no influence, especially not a
limitation period for substantive poll addressed the Chamber of Deputies.
Cited provisions of § 97 para. 3 of the Rules of Procedure of the Chamber of Deputies
by the Chamber of Deputies chairman consummated submitting returned
law, when the next time or substantive issues related to voting
pass into the realm of Deputies (as whole).
79th In Art. 47 paragraph. 1 expressly states that a draft returned
The House voted again. Voting within the meaning of the Constitution
always a positive act, that is not the behavior implied, omissive.
Exceptional situation where inaction body has in the legislative process
specific positive consequences must be explicitly stated in the Constitution, which makes such
. Art. 46 para. 3 of the Constitution. The provisions of § 97 para. 3 of the Rules of Procedure of the Chamber of Deputies
according to its text, no preclusion to vote
Chamber of Deputies does not, which with respect to the wording of Article. 47 paragraph. 1
Constitution can not contain. Such a period is contained only in
provisions of § 97 para. 2 of Act no. 90/1995 Coll., And in direct relation to the wording of Article
. 46 para. 3 of the Constitution.
80th Even in the plane of pure interpretation of sub-constitutional law is not a requirement
petitioners snug. Even if they could from § 97 para. 3 of the Rules of Procedure of the Chamber of Deputies
existence periods for repeat voting
Chamber of Deputies to conclude this deadline, the law does not attach any consequence
particular, therefore, does fiction disapproval of the proposal.
Also, the word "to vote on it" testifies to the obligation to vote
not the discretion of the House, to vote on whether the Senate had rejected the bill will
81st Doctrinaire conclusions (Suchanek In Šimíček R. et al.
Constitution of the Czech Republic, Commentary. Praha: Linde, 2010, p. 589) can be confirmed that
extent, if they conclude that a Senate rejection or return the draft
bill may vote only because of Deputies, which approved it
and passed to the Senate. There is no doubt that the period (latest time limit)
vote for the Chamber of Deputies there. However derive from the words "at the next meeting
" under Art. 97, para. 3 of the Rules of Procedure of the Chamber of Deputies
but from Art. 34 Sec. 4 of the Constitution, according to which the meeting of the Chamber of Deputies
ends at the end of its electoral term
or its dissolution, in conjunction with § 121 par. 1 of the Rules of Procedure of the Chamber of Deputies
according to which the new term of the Chamber of Deputies fundamentally
Not discuss proposals that had not been discussed and decided in the previous
82nd That the submission by the Senate rejected the bill
chairman of the Chamber of Deputies at the next meeting of the Chamber of Deputies, however
first ten days of receipt of Members to vote on it again,
in accordance with § 97 para. 3 of the Rules of Procedure of the Chamber Deputies occurred
petitioners have not intervened does not dispute. From the statements of Deputies
shows that it was the third item on the agenda
45th meeting of the Chamber of Deputies, which took place from 4. 9. 2012. The fact that
then there was a vote for exclusion point of the agenda 45th and 46th meetings
Chamber of Deputies, and was substantively discussed point to the 47th meeting
Chamber of Deputies, which took place from 23. 10. 2012, not in terms
review questions respecting the constitutionally prescribed manner promulgation of Act
83rd Objections pages systematic violations of the rights of the opposition
Constitutional Court also unjustified.
Constitutional conformity of the legislative process in terms of a possible shortening of the rights of opposition representatives
Constitutional Court has in the past engaged primarily in the discovery of
1 March 2011 sp. Nos. Pl. US 55/10 (N 27/60 SbNU 279; 80/2011 Coll.)
A judgment of 27 November 2012 sp. Nos. Pl. US 1/12 (437/2012 Sb.).
In relation to the present application, the Constitutional Court finds that the violation
binding conclusions of the above-mentioned findings in the case of the legislative process
adoption of Act no. 428/2012 Coll. He has found.
84th In its judgment. Nos. Pl. US 12/10 of 7 September 2010 (N 188/58 SbNU
663; 269/2010 Coll.) The Constitutional Court dealt with the question, to what extent
constitutionally consistent procedural decisions in situations when it is made
in compliance broad majority, and concluded the following: "in consideration
things can not be overlooked that the vote to confirm the state of legislative emergency for
always expressed significant majority of MPs and that during that Act
Chamber of Deputies or its committees
formulate a distinct minority whose rights might seem like
shortened. " Conclusions that can be applied by analogy to the present case.
For the postponement of the 45th to the 46th session of the Chamber of Deputies voted 180 deputies
against was only one deputy for postponement from the 46th to the 47th meeting
179 deputies voted in favor, three were against.
85th In its judgment of 22 March 2011 sp. Nos. Pl. US 24/10 (N 52/60 SbNU
625; 94/2011 Coll.), The Constitutional Court stated that it considers "necessary
stressed that the institute proposal to repeal a law or its individual provisions under Article
. 87 paragraph. 1 point.) of the Constitution of the Czech Republic, served
group of deputies or senators under § 64 para. 1 point. b)
Law on the Constitutional court, inter alia, an expression of constitutionally guaranteed principle of protection
minorities (Art. 6 of the Constitution of the Czech Republic) and
primarily serves as one of the tools of parliamentary minority (opposition)
against any arbitrariness (or despotism) the decisions taken
parliamentary majority in the legislative process based on | || principle of majority decision-making [cf. to report the Venice Commission
CDL-AD (2010) 025, report on the role of the Opposition in parliament and Democratic
'dated 15. 11. 2010, which enables law
parliamentary opposition to seek constitutional review decisions taken mostly
(laws) involves the most basic rights of the parliamentary opposition]. "
In its judgment of 15 November 2011 sp. Nos. Pl. US 20/09 (N 195/63 SbNU
247; 36/2012 Coll.), The Constitutional Court stated that "in this case the draft
served actively legitimized the petitioner, albeit overlooked that the group
petitioner is partly composed of deputies who for the adoption of the contested
legislation in the Chamber of deputies voted. " In its judgment of 22 March 2011
sp. Nos. Pl. US 24/10, the Constitutional Court stated the following address
deputies forming a group of petitioners that "in addition, and not the Constitutional Court
left without critical comments, the vast majority of its
affirmative (!) Vote during the legislative
process for the adoption of the contested regulation directly involved. In such cases a
(mis) use of the Constitutional court was forced to proceed in the future to reject
following proposals submitted. ".
86th In the case now under consideration, the Constitutional Court overlooked that for two
postponement, from the 45th to the 46th session of the 46th and the 47th meeting voted
MPs, who see it as part of proposals fro unconstitutional
Procedure, and Alexander Black, Miroslav Grebenicek, Paul Hojda, Catherine
Final, Ivana Left, Nedvědová Marie, Marie Rusová, Karel punch, Sue
Bebarová-Rujbrová, George Dolejš, Stanislav Grospič, Gabriela Hubáčková ,
Vladimir Konicek, Sona Markova, Josef Nekl, Marta Semelová, Miloslav
sharp, Peter Gate, Vojtech Filip, Milada Halíková, Jan clans
Pavel Kováčik, Kveta Matušovská, Miroslav Opalka, Joseph Šenfel, Paul
Anthony, Peter Hulinský, Vaclav Neubauer, Miroslav Svoboda, Jerome
Tejc, Václav Klučka, Jiri Zemanek, Jaroslav Foldyna, Stanislav Hamster
Břetislav Petr, Dana Váchalová and Lubomir Zaoralek. One of the five
Members enrolled in various clubs, who proposed to postpone the discussion
from the 45th to the 46th meeting was also Lubomir Zaoralek.
87th The general curtailment of speaking time individual MPs was by
Constitutional Court in accordance with the provisions of § 59 para. 1 of the Rules of Procedure
Chamber of Deputies and in the specific case of Member Babak then
pursuant to the provisions of § 59 para. 4 of the Rules of Procedure Deputies,
and the Constitutional court in neither case did not find step out
confines of the Constitution or the Charter. The Constitutional Court examined the record
part of meeting the subject of Deputies (available from
and came to the conclusion that President of the Chamber of Deputies did not violate custodial words
deputies Babák no provision of the Rules of Procedure of the Chamber of Deputies,
still less any provisions of the constitutional order. Restrictions
rhetorical speech enshrined in the provisions of § 59 para. 4 of the Rules of Procedure of the Chamber of Deputies
applies to all Members (resp. Orators) and
even in the position of deputy speaker opinion of the parliamentary party.
Privilege deputy speaker of the Group of opinion is not
nature of the legislative process to apply to speeches Nevěčná,
because neither the deputies' club does not indicate the right to exploit the possibilities
publicly demonstrate their opinion "on the matter." (Cf. § provision 59 paragraph. 1
second sentence contrario). You can not leave unnoticed nor the fact that
deputy Babak was nevěcnost his speech several times by the presiding
alerted, and yet the lines of his original speech
not willing to budge. The adequacy of the aforementioned limitations can then be inferred from
advanced stage and the length of the legislative process that
clearly testifies to the fact that the opponents of the contested Act
have enough time and resources to demonstrate their views, because even the same day | || on the present draft expressed great number of Members of the opposition parties.
88th The Constitutional Court also does not concur with the objection of inadmissibility
the Chamber of Deputies at night and identifies with
interpretation of § 53 of the Rules of Procedure of the Chamber of Deputies, as
outlined in its statement the Chamber of Deputies.
The Constitutional Court therefore considered it constitutional for an interpretation of that provision, which
Deputies allows the emergency act and vote
even after 21 o'clock at night, since reversed, the right of Deputies
restrictive intepretace It does not stem from any provision of the constitutional order.
Ability of government MPs to indulge themselves and opposition leaders
enough rest is then just a matter of principle, again
political culture in the Czech Republic. As in its statement emphasizes
Chamber of Deputies, it was also such a procedure in the past several
practiced and not against it raised no objections. In this way it can
opinion of the Constitutional Court to speak on a constitutional settled
practice, which can be considered a legitimate part of the rules
legislative process [see. Point 38 of the Constitutional Court ruling of 15 February 2007
sp. Nos. Pl. US 77/06 (N 30/44 SbNU 349; 37/2007 Coll.)].
89th The Constitutional Court can not agree with the objection that the law was deliberately
adopted at the time of the break, which were already members of the opposition outside the meeting hall
. From the statements of Deputies follows that the vast majority
opposition deputies walked out of the conference room in a different context than
announcement breaks and before the vote on the objection raised against the proposed
break. Result of the vote on the objection or subsequent
vote on the law itself no. 428/2012 Coll. so could not be any errors
President of the Chamber of Deputies changed, as is clear from
Stenographic protocol of the relevant meeting of the Chamber of Deputies (the relevant text
is available from http: //www.psp.cz/eknih/2010ps/stenprot/047schuz/s047221.htm).
90th Equally irrelevant, the Constitutional Court considered the objection and the rapid dispatch
opinions president to the contested law, as
this objection also has no basis in fact. President of the Republic
nothing to prevent its potential to change the view and the fifteenth day
House passed legislation to return (Art. 50 of the Constitution). That it was his opinion
sent to Members of the fourteenth day of this period, this
his powers does not change anything. The Constitutional Court can not, so purely formalistic
reason to abolish the Law no. 428/2012 Coll., Especially in a situation where the president himself
against this practice apparently did not mind because it is endowed
itself under the provisions of § 64 para. 1 point. a) the Constitutional Court Act
locus standi to file a petition to annul the Act.
91st The Constitutional Court also can not agree with the plea in intervention
that MPs voted for approval under the Act depriving citizens
Czech Republic the right to participate directly in public affairs
through referendum. The constitutional order of the Czech Republic clearly
says that legislative power is vested in the Parliament (Art. 15 of the Constitution) and
decisions through referendums knows the so-called constitutional order.
Reservation in constitutional law (Art. 2. 2 of the Constitution). It is clear that the framers of the Constitution gave precedence
approval of laws through Parliament
Czech Republic. For the same reason, it is odd concern is that
vote for approval under the Law violation
92nd The Constitutional Court therefore approached the annulment of the contested Act
grounds of breach of the rules of the legislative process, since it did not find that
this process as a whole did not allow for rational discourse, hearing
parties and open debate between proponents of competing views, including | || minority views, supported by the possibility of active participation of participants
during it (cf.. Constitutional court dated March 1, 2011, file no.
Nos. Pl. US 55/10). In relation to other objections, the Constitutional Court observes that
is not entitled to review the constitutionality of aspects of the legislative process
such media interest (including the public)
about the views of the opposition, vows between the leaders of the (former) government || | coalition government's interpretation of the case law of the Constitutional court or the willingness of the government
respond to questions from opposition deputies. These are all questions particular
political culture in the Czech Republic, whose protector of the Constitutional Court is not
(Art. 83 of the Constitution contrario). Although the Constitutional Court condemns
moral decay of the background of the legislative process, Endeavor
two warring groups of deputies, can not, in the absence of a professional body for protection of constitutionality
become a moral arbiter and educator
political representation accede to the annulment of the contested Act merely because
disrespect one part of lawmakers to others.
List of relevant jurisprudence of the Constitutional Court examined the issue
IX / a
Constitutional Court jurisprudence in matters of restitution
93rd In assessing those parts of the proposals that affect the restitution
provisions of the contested law, the Constitutional Court primarily considers necessary
briefly summarize the principles and bases remind that
like a red thread pulled its large, for two decades
generated restitution case law.
94th The Constitutional Court since its first decisions in restitution matters
based ex favore restitutionis and countless stressed that the restitution
things must be considered with regard to the fact that those who
reconstituting, in the past caused a a number of grievances, including those
property. The Court has already, in its judgment file. . I. ÚS
597/92 dated 21. 12. 1992 (see Collection of Decisions of the Constitutional Court of Czechoslovakia
, vintage, 1992, judgment no. 16) concluded that the restitution laws
a democratic society trying to at least partially mitigate the effects of past
property and other injustices incurred in the period from 25. 2. 1948
1 1st 1990. the state and its institutions are obliged to follow
restitution Act in accordance with the legitimate interests of persons whose injury
caused by the totalitarian communist regime, should be at least partially
Compensated. The guiding principle must always be above purpose
restitution, whose fulfillment is necessary that the restitution laws were
interpreted in relation to the beneficiaries as nejvstřícněji, in the spirit
efforts to mitigate some injustices, which result in the
dispossession occurred [see. Finding sp. . I. ÚS 154/95 of 18 1, 1996 (N 7/5 SbNU
47), Finding sp. . I. ÚS 754/01 dated 23. 10. 2003 (N 123/31 SbNU
113), finding sp. Ref. II. US 2896/09 dated 29. 4. 2010 (N 97/57 SbNU
273) and others].
95th In the present case the church is generally known that wrongs were
committed not only to church legal entities, but also to the individuals
clergy. The Constitutional Court considers generally known
that has historians and art historians who publish in the first half
90th years of the 20th century were the circumstances very well aware. Only
demonstratively can choose an example of the Catholic Church: "The decision
Bureau of the CPC Central Committee in 1950, the National Institute for Religious Affairs was
for the Prime Minister Anthony Zápotockého drawn up a confidential 'material for disposal
church, especially Catholic orders in the Czech Republic. the night of 13 to
April 14, 1950 it is called, St. Bartholomew's nights' of the Catholic Church.
while the members of the state security police seized all 28
male monasteries (with the exception of Rule of the brothers of Mercy) to which
přináleželo 219 religious houses. a total of 2,376 monks have been brought
into five. centralized camps having the status of camps forced
work. Several hundred clergy was centralized 'prisons in Leopoldov and
Valtice. in August and September of the same year the State security secret
repeated action targeted at this time nunneries.
Řeholím was occupied by a total of 850 buildings with equipment and collections and
suffered for fifteen thousand monks and nuns. State was
also borrowed 1,227,970 books. Central Archives took monastic archival records
624 paintings and 249 sculptures were transferred to the National Gallery and
depositories castles. The National Museum in Prague gained valuable vestments
further acceptances Museum of Decorative Arts, specialized in administering care and
thousand liturgical art objects and priceless.. "(Cf. M.
Mžyková, Introduction, in: recovered treasures. restitutio in integrum. Praha:
Pragafilm 1994, p. 14.)
96th Constitutional court in its case reiterates that
restitution law is directed only to mitigate some property injustices
and that the intention zákonodárcovým can be when even the best will
removal of all illegal injustices done by the communist regime.
the Constitutional court emphasizes the will of the legislature in the sense that it
was up to him to determine the consequences which equity injustices will alleviate
97th from the previous consistent jurisprudence of the Constitutional court in restitution
matters is undeniable that as a negative legislature, in keeping with the aforementioned
favoris restitutionis as a negative legislator never
annul the provisions of restitution regulations to the detriment of individuals and legal entities
which the legislature by statute mitigate them
committed injustices possible. Derogational jurisprudence of the Constitutional Court was
always in principle in favor of people restituujících (permanent residence
national cultural heritage).
98th The Constitutional Court is aware that at the time his decision was adequately
possibilities legislature satisfy restitution claims
natural persons and selected legal entities and that the recovery of historic
assets reached and renewed community. Never in its case, the Constitutional Court
nod in restitution matters argument based on the fact that one
restituent should not restituted because the other person was not
legislature included among those to whom the legislator property and other wrongs
99th Also in the matter of church restitutions Constitutional Court has repeatedly ruled.
For the following case law is clear that accentuated
legitimate expectations and pointed to the inaction of the legislature. In such a situation would certainly
derogatory decision of the Constitutional Court shortly after it was
statutory regulation finally adopted, it was surprising and would generate
rightly feel that it is loaded with features of arbitrariness and unfairness.
100th The Constitutional Court is not called upon to make arbitrated a dispute over the meaning of Czech history
whose partial argumentative segment petitioners bring.
The Constitutional Court considers it appropriate to recall that as "the very nature of the problem
nepomucenského allows you to have lived side by side in different views and
led to dialogue without intolerance and demagoguery. If you can be in doubt about
holiness vicar General Joan, the locust and locust
cult legend are historical givens that question
not. " (Cf. V. Vlnas, Jan Nepomuk Czech legend. Praha - Litomyšl: Paseka
National Gallery in Prague, 2013).
One hundred and first The Constitutional Court, like ordinary courts, not only for www.adr.eu.
decisions in matters in which there is no consensus among participants, but also
court whose activities should lead to the prevention of conflicts and the search
friendly solutions. In the present matter it is the relationship between church and state, therefore
issue that has been, is and will be inextricably linked with the history of Czech statehood
. According to the preamble to the Constitution was adopted because
"We, the citizens of the Czech Republic in Bohemia, Moravia and Silesia, in time
Recovery of the Independent Czech State, true to all the sound traditions of the ancient statehood
Czech lands and Czechoslovak statehood, resolved
build, protect and develop the Czech Republic in the spirit
inviolable values of human dignity and freedom as the home of equal
free citizens who are aware of their obligations towards others and responsibility to the community
as a free and democratic state, based on
respect for human rights and the principles of civil society, as part of the family
European and world democracies, resolute
protect and develop their natural and cultural, material and spiritual | || wealth, resolved to heed all the proven principles of the rule of law
, through our freely elected representatives this
Constitution of the Czech Republic. " The Constitutional Court has held that application of the principle
minimizing interference, resulting in the rejection of the proposal,
opens space for mounting the consensus reached between the state and churches more
than would be the case if their activism again
opened problem finding solutions.
IX / b
Case law regarding the property claims of religious subjects
102nd Since at least 2005, the Constitutional Court began to create a judicature pronounced
line just to the issue of property claims of religious
legal entities, applied under the general regulations (action
ownership, determination). Development of this case was essentially
characterized by two competing approaches that differed in the extent
options judiciary to interfere in complex and sophisticated
social and political issues, the focus of responsibility for the adoption of legislation is primarily
103rd The idea according to which the provisional consisting merely in the adoption of Act No.
. 298/1990 Coll., On regulation of some property relationships of monastic orders and congregations and
Archdiocese, as amended by Act no. 338/1991 Coll
. (Hereinafter the "Act no. 298/1990 Coll." ) and the contested provisions of §
29 of the land Act, while at the continued lack of a law on historical
church property (the inaction of the legislature) does not preclude concurrent
protection of property rights of religious entities to which called. enumerated || | Act no. 298/1990 Coll. It turns out, before the ordinary courts [cf.. eg.
resolution dated November 24, 2004 sp. . I. ÚS 428/04 (in SbNU unpublished, available on http://nalus.usoud.cz
); Finding sp. Ref. IV. US 298/05 dated
8th 8. 2005 (N 156/38 SbNU 241); different viewpoints to the opinion of the Plenum
sp. Nos. Pl. US-st. 22/05 dated 1. 11. 2005 (ST 22/39 SbNU 515;
13/2006 Coll.)] Was overcome. The prevailing opinion the competitive, while stressing that the primary obligation
legislator to regulate the issue of so-called.
Church restitutions considered interference by the judicial power (
protecting individual rights) before the adoption of a special law to be inappropriate judicial activism
[judgment file. Ref. II. US 528/02 of 2 2, 2005 (N 23/36 SbNU 287);
Opinion of the Plenum dated November 1, 2005 sp. Nos. Pl. US-st. 22/05;
Resolution of 19 January 2006, file no. Ref. II. US 687/04 (in SbNU
unpublished, available on http://nalus.usoud.cz) and a number of decisions related
104th Already in that judgment no. Ref. II. US 528/02, the Constitutional Court
stated that "[general courts] during the proceedings failed to consider that the transition
church property is covered by the mandatory provisions of § 29 of the Act no.
229/1991 Coll., According to whom no assets whose original owner was
churches, religious orders and congregations, to transfer ownership to another
parties to the enactment of this property. Land Act
therefore assumed that agricultural property, which was previously owned by
church juridical persons, shall be settled by a separate law and by the time
issuance of this law is protected. On the property is therefore necessary
be covered by the restitution law, and therefore there is no room for
bringing actions to determine ownership of the absence of urgent legal
interest. It can not be inferred from the fact that the state was unable to issue a special
Restitution Act, although the Act no. 229/1991 Coll., Which came into force already
June 24, 1991, the issuance of such Act
assumed. However, the state must give its commitment to the Restitution Act,
resulting from the above-cited provisions of the Land Act, regarding Church property
meet, since they must meet the legitimate expectations on the part
church juridical persons, which is based on the statutory provisions. " .
This conclusion (in competition to judgment no. Ref. IV. ÚS 298/05) was subsequently confirmed by the opinion
sp. Nos. Pl. US-Wed 22.05, which is primarily expressed
the nature of the Act no. 298/1990 Coll., as the restitution Law, as it was filled
restitution purposes of this Act through an enumeration
authorized persons concerned (transferred) assets, even though it was only a provisional
. Furthermore opinion took over part of the reasoning of the judgment
sp. Ref. II. ÚS 528/02 in the district in which it is expressly stated obligation
legislature to issue a restitution law, since they must meet the legitimate expectations on the part
ecclesiastical juridical persons
based on a statutory provision. that, and especially the brief separate opinion
argument, it is clear that the purpose of the opinions
not conceive any other new legal conclusions, but to internalize one of
already expressed legal opinions and a dissenting opinion to judgment file.
Brand. IV. US 298/05 and the legal conclusion finding sp. Ref. II. US 528/02, which
featured in the competition of the legal opinion, judgment no. Ref. IV.
US 298/05. The statement obligations Legislator restitution
law and fulfill a legitimate expectation on the part of ecclesiastical bodies
is consistently reproduced in the subsequent case-law of the Constitutional Court [see.
Aforementioned resolution file. Ref. II. US 687/04; further resolution file. Ref. II.
US 230/05 of 16 March 2006; resolution file. Ref. IV. US 509/05 dated
19th June 2006; resolution file. . I. ÚS 679/03 dated 10 May 2007;
Resolution file. . I. ÚS 1652-1607 dated 18 July 2007 (SbNU
unpublished, available on http://nalus.usoud.cz); paragraph 29 of the judgment file.
Brand. IV. US 34/06 of 21 November 2007 (N 201/47 SbNU 597);
Resolution file. Ref. IV. US 158/08 of 6 May 2008; resolution file. zn.
II. US 2904/08 dated 7 January 2009 (in SbNU unpublished, available on
http: //nalus.usoud.cz) and many others; Judgment dated 24 June 2009 sp.
Brand. I. US 663/06 (N 149/53 SbNU 811)].
105th On the basis of judikatorního substrate was admitted finding sp.
Brand. Pl. US 9/07 of 1 7. 2010 (N 132/58 SbNU 3; 242/2010 Coll.), Which was rejected
petition to annul § 29 of Act no. 229/1991 Coll., Especially
however, he stated that "[d] louhodobá inactivity of the Parliament of the Czech Republic
consisting in the acceptance of special legislation which would deal
historic property of churches and religious societies is
unconstitutional and violates Art. 1 of the Constitution of the Czech Republic, Article. 11 paragraph. 1
4, Art. 15 paragraph. 1 and Art. 16 paragraph. 1 and 2 of the Charter of fundamental rights and freedoms
and Art. 1 of the Additional Protocol to the Convention for the protection of human rights and || | fundamental freedoms. " In this judgment, the Constitutional Court primarily to the absence
applicable law unconstitutional identified a gap in the law on which
basis of violations of those provisions of the constitutional order. About
unconstitutional inaction speaks Constitutional Court in the sense that on the part of the legislature
liability exists a range of legal relationships legally
adjust, and this obligation can arise either from a simple law,
where the legislature this obligation itself an explicit mandate or directly from
constitutional order, if not adjust certain circle of relationships raises
constitutional implications. In the case file. Nos. Pl. US 9/07
Constitutional Court found violations of the constitutional order in three dimensions. 1) Urgency
Public interest to remove the legal uncertainty arising from the temporary legal status
(Act no. 298/1990 Coll., In connection with § 29 of Law no. 229/1991
.) On the date of the decision of the Constitutional Court has already exceeded
tolerable and justifiable limit. Failure to adopt a special law
anticipated § 29 of Act no. 229/1991 Coll., Which the legislature
explicitly pledged for nineteen years, although the Constitutional Court on the
problematic tipped his inaction is unacceptable manifestation | || legislative arbitrariness and violates Art. 1, paragraph. 1 of the Constitution. 2)
The Constitutional Court stated that in addition to the explicit statutory basis in § 29
Act no. 229/1991 Coll. It has a legitimate expectation of churches and religious societies
basis and in the overall concept of the restitution process
since 1989 that neither individual restitution provisions, but neither
as a whole can not be interpreted to the detriment of entire groups of subjects. What
Constitutional Court in its case law indicates a legitimate expectation is undoubtedly
continuing and specific property interest falling under Art.
11 of the Charter and Art. 1 of the Additional Protocol to the Convention. Inability to implement
this property interest (resp. To achieve compensation) for nineteen years
(the date of the court's decision) and met aspect of unconstitutionality
consisting in failure to legislatively solve systemic and comprehensive
issue to the legislature, the Constitutional court has repeatedly alerted.
3) Finally, Article. 2. 1 of the Charter guarantees religious
pluralism and religious tolerance, or the separation of the state from specific religious denominations
(principle denominationally neutral country).
Principle of religious pluralism and tolerance is reflected in Article. 15 paragraph.
1 and Art. 16 of the Charter of Fundamental Rights and Freedoms. The central principle
denominationally neutral state is implemented co-op model
relationship between church and state and their mutual independence.
For consideration of the Constitutional Court was irrelevant whether and to what extent is the economic self-sufficiency
substantive prerequisite for the independent exercise of the rights guaranteed
particular Article. 16 paragraph. 1 and 2 of the Charter. The constitutional order of the Czech Republic
does not include only the imperative of state independence
churches and religious communities (as part of the ideological and religious neutrality of the state
), but also the requirement of independence of churches and religious societies
to the state in fulfilling their targets.
The Constitutional Court found that the state had continued in the absence of a reasonable settlement
historic church property, where the state due to its own
inaction remains the dominant source of income for the affected
churches and religious societies, moreover, without any obvious links revenues from
detainee historic church property and its consequences
violates Article. 16 paragraph. 1 of the Charter of the freedom to manifest belief in society
public action and traditional forms of religiously motivated
generally beneficial activities using relevant
historically formed economic resources, and in particular Article. 16 paragraph.
2 of the Charter, the economic component ecclesiastical autonomy. In
details Constitutional Court ruling cited references.
106th The conclusions of the plenary judgment file. Nos. Pl. US 9/07 are based
subsequent case law in specific cases. Finding sp. . I. ÚS
2166/10 dated 22. 2. 2011 (N 21/60 SbNU 215), the Constitutional Court broke
blocking clause (§ 29 of the Land Act) for the benefit of individuals, meet
her constitutional complaint, thus allowing transfer (transition)
ownership rights to "another person" within the meaning of the text blocking
section. He found that on the part of individuals existed
constitutionally protected interest stemming from an earlier faulty privatization process
while in this particular case it was necessary to favor the interest
complainant before the ownership right of the state and legitimate expectations
Church, to which the Constitutional court stressed that "
meet the legitimate expectations of the Church ... can be achieved by other means," not only
kind of restitution. Finding sp. Ref. II. US 2326/07 dated 31. 3. 2011
(N 58/60 SbNU 745), which is also directly related to the finding sp. Nos. Pl.
US 9/07, the constitutional complaint is rejected ecclesiastical juridical persons with
postscript that "the cited judgment file. Nos. Pl. US 9/07 there has been a substantial
pre- cise nature of the obligations of the legislature to enact a law
Estimated § 29 of the Land Act, in the form of an additive of discovered
statement. Under these new conditions may be a reasonable period for the adoption of the legislation
already considered only time that corresponds to the time
demands of a full-fledged legislative process. "Followed by the findings, which were
constitutional complaints of religious entities complying.
finding sp. Ref. III. ÚS 3207/10 dated 31. 8. 2011 (N 146/62 SbNU 263)
the constitutional complaint ecclesiastical juridical persons granted because
courts violated the right to due process if rejected
decide on the action to establish ownership of the assets of sampled in 1949 (on the basis
duplicate ownership). in its judgment.. I. ÚS 562/09 of 31
8. 2011 (N 145/62 SbNU 245) was constitutional complaint
ecclesiastical juridical persons and also upheld the constitutional court further stated that "
since the adoption of the provisions of § 29 of the land Act (ie. the blocking clause)
has been more than 20 years ... I deadline indicated finding sp. Ref. II. US
2326/07 ..., corresponding, full-fledged legislative process'
can already be considered as having been exceeded ... In this context, it is necessary to re
noted that under Art. 89 para. 2 of the Constitution are enforceable
decision of the Constitutional court are binding on all authorities and persons.
Parliament is not sovereign, who arbitrarily determines its agenda and serve only their
goals, but is bound by the Constitution, therefore, may use their skills only to
implementation of the Constitution, not to the contrary, [it is most strikingly evident in | || finding sp. Nos. Pl. US 27/09 of 10. 9. 2009 (N 199/54 SbNU 445
318/2009 Coll.)]. "Courts are obliged to conceptualize a situation such action
ecclesiastical juridical persons as" the action of its kind (impending action
restitution) aiming to achieve filling the gap caused by long-term
inaction of the legislature in breach of Art. 1 of the Czech Constitution, Art. 11
paragraph. 1 and 4, Art. 15 paragraph. 1 and Art. 16 paragraph. 1 and 2
Charter of Fundamental Rights and Freedoms and Art. 1 of the Additional Protocol to the Convention for the Protection of Human
rights and fundamental freedoms, and the procedure adequately
sense redress of grievances after 1989. "In the case of protection of fundamental rights
courts have an obligation to rule on actions by the general principles of law to be unconstitutional
bridge the absence of the law, and vice versa may not refuse
decide on fundamental rights referring to the absence of law.
107th Recently, the constitutional court judgment file no. Ref. II. ÚS 3120/10 dated 29. 8. 2012
granted the constitutional complaint ecclesiastical juridical persons in respect of claims
relating to historic ecclesiastical property that
constitutional court emphasized that stands as with the constitutional complaint sp.. I. ÚS 562/09
in a different situation than they were at the time of the award sp. Ref.
II. ÚS 528/02. A crucial role is played by just the passage of time.
legitimate expectation on the part of ecclesiastical legal entities reaching long ago
imaginary "majority". The legislature, although the Constitutional Court has repeatedly
advised of the obligation to fulfill the commitment based provisions
§ 29 of the Land Act, and thus fulfill the aforementioned legitimate expectation that their
so far failed to fulfill an obligation. The Constitutional Court also noted that it is known that
Czech Parliament is currently discussing a draft law on
property settlement with churches and religious communities, and the
legislative process is at an advanced stage. Due to the urgency
not been taken even though the substantive decision. Another procedure
Constitutional Court could lead to a further extension of temporary
constitutionally nonconformist legal status.
108th For this case, the Constitutional Court when assessing the Act no. 428/2012 Coll
. based, precisely with regard to the requirements arising from the constitutional order,
as formulated in its judgment. Nos. Pl. US 9/07.
Due to the content of all three proposals submitted is surprising that the proposers and
intervened with the existing case law and do not speak acquainted with
her or polemical or critical. A number of objections is probably also the reason
completely misses the basic paradigms of protection of constitutionality.
Substantive review of the content of the statute
X and /
109s. The applicant and the interveners in their proposals
speaks of "restitution", while this term is immersed in the sense that it
Promiscue used in several senses, without these semantic differences in their
Conclusions into account. Especially intervene 1) based on confusion
meanings of the word "restitution" makes its arguments for the key conclusions that
contested statute does not (at least in the case of the Catholic Church) to '
restitution (restoration) "whereby the rest is vital
(unconstitutional) difference under the law of
similar laws adopted since 1989 to date [paragraph. 10 the intervener 1)].
110th Intervener 1) does not take into account that
Restitutio in integrum in the strict meaning civilistickém was not and could not be objective
any of the laws that have been around for more than forty (now sixty) years
alleviated some of the property injustices. Such ambitions
none of the restitution laws and have not had since
Restitutio after such a long time is not possible to factual (things are subject to change)
nor the legal side (the law passed since 1948, and major changes
such a requirement would require after 1989 hardly conceivable application
principles of formal discontinuity so. socialist law). Therefore
undoubtedly in case any of the beneficiaries after 1990, and even
if any of the beneficiaries under the Act no. 428/2012 Coll., Is not a
Restitutio strict sense, but rather the restoration of property rights in the current legislation - and especially public
- ratios. In this Act no. 428/2012 Coll.
no exception, but is logically holds context
current legal order, especially the constitutional order. Such a procedure is in the prior restitution legislation
course, not scarcity.
Only in this sense, the term "restitution" or "restitution legislation"
doctrinal or a judicature used, while noting that none of
"restitution laws" that term in the title or text does not use, while | || obviously can not exclude that in favorable cases will also also include a
Restitutio in the narrow sense. Continue the Constitutional Court uses the term "restitution" and
"restitution law" in keeping with current case law, not
So in the importance they attach to this concept in these proceedings
applicants and interveners.
111th If the petitioners and interveners to be a key element of its argument
consider contemporary legalistic, juridical and doctrinal
definition of "Church assets" ignores the law no. 428/2012 Coll.
to apply the substance to the former "church assets", while in § 2
point. a) carries out its own definition of "original property," which represents
, as discussed below, another in the disputed extent, smaller than the property set
"church assets", notably excludes assets originally owned
State or other persons (by definition, circle mandatory
people is another question) which petitioners Act no. 428/2012 Coll.
Primarily criticize. Even in contemporary literature and case law prevails use
concept in the public sense, contemporary doctrine of the ambiguity of the concept
aware "of the Church is worth either file-serving purposes
canon, either belonging to the Church institute some (bona ecclesiastica
) "(K. Henner, name - the church. In Otto's
educational, Vol. 13th Prague: J. Otto, 1898, p. 572). This corresponds
narrowing the definition of the term "historic property of churches," as it carried
Constitutional Court in its judgment. Nos. Pl. US 9/07 dated 1. 7. 2010, paragraph 55, where it is expected
existence of a "substantive property rights," not only
public permission to use the thing.
X / b
Features Catholic Church property after the private
112th The petitioners submitted thesis that churches and religious communities
original property did not possess [paragraph. 29 a); paragraph. 47], respectively.
that there is "a change in the nature of ownership," and argues that churches and religious
companies were "full ownership" [paragraph. 29 k)]. Intervener
1) after a thorough analysis of the legislation in effect until October 31, 1949 and part
contemporary case law concludes that church property had
"public nature" (p. 5), respectively. was owned by churches and religious societies
(para. 11), referring to the two state
Anthony Hobza and the opinion of the President's Office in 1946
deems "meaty". Intervener 2) indicates that churches
And religious communities should, perhaps also the beginning of the relevant period,
status of "custodian" (Part VIII).
113th The Constitutional Court primarily based on the fact that none of the draft
not result in what would be in the context of this opposition group should consist
law was unconstitutional settlement with churches. Even if that
conclusions were correct, the draft is not alleged that the constitutional order
exclude hypothetical mitigate property injustices caused to other
property rights (utility ownership, right of use) than on the right of ownership
that the constitutional order excluding the adjustment of property
status of churches and religious societies in the future, or that
constitutional order excluding others dealing with the property of the state than
Restitutio in integrum strict sense
114 respectively. The Constitutional Court can not overlook the petitioners' argument
certain conceptual lack of clarity in matters of basic institutions of contemporary
- and contemporary - private and public law, in this case the issue
concept of ownership and effects of public regulation of the Catholic Church
(exclusively for her had specific objections weighs;-party non-Catholic churches
fall petitioners' objections and the interveners in
practice solely on the iconic building as a public affairs).
Genuine legal arguments in this respect, the proposal only a secondary participant
1), in the selection of authoritative references, however, very selective.
115th Party ownership rights on the part of religious organizations of the Catholic Church
Constitutional Court notes the following. The basic rules for
vesting date of 25 February 1948 constituted Act no. 946/1811 Coll. a.
s., General Civil Code (hereinafter referred to as "DDA") dated June 1
1811 that in § 353 et seq. edited Institute of ownership.
In the objective sense is understood the property summary
things belonging to a particular owner, in the subjective sense, then, was the approval "of the essence and benefits
things according to his will and dispose of any other
which ruled out." The provisions of § 355 are expressly stipulates that "
all things are all subjects of property rights and anyone
laws do not explicitly exclude, it is entitled to gain strength on its own behalf
himself or through another person." The provisions of § 357 is already covered if
Institute residual split ownership (and it seems that under this provision
downshifts legal relations of ecclesiastical legal entities
Catholic Church in "incomplete" - utility - owner).
Follow § 358 further stipulates that "all other kinds of restrictions
law or the owners will not disturb the completeness of ownership." The provisions of § 359
determine (among other things) that "according to the diversity of relationships that exist between the upper and
utility owners, they are called goods with
property is divided, feudal estates, estates and inheritance leasing | || hereditary lease. " Under § 362 owner may freely dispose
his property; however, within the limits prescribed by law (§ 364).
116th The right of ownership is a historical and contemporary legal doctrine is perceived as
elastic, ie. "Once the legal system constraints fall away ...
extend the owner's permission, and once the new restrictions arise, it
permission narrows (t., Vol. Elasticity property)" (Rouček, F., Sedlacek
J. Comment on Czechoslovak general civil Code,
another piece. Praha, 1935, p. 199, p. 228; similarly Randa A. the subject
ownership. In Lawyer 9, 1870, p. 687) . "The right of ownership reaches
everywhere where there is no special restriction. Ownership is there even in those days,
if any privileges impossibility, whether physically or legal, to get
; if it is a sign of freedom property owner, it is a
freedom within the rule of law, not outside the rule of law "(Rouček, F.,
Sedláček, J. Commentary, part two, 1935, p. 226). Taverner talks about
ownership tends to universality and exclusivity, because that obligation is extinguished
owner restrictive, or that the "cancel exempce of
obligation nenakládati things, the owner's position is automatically
improve resp. the owner's freedom to dispose of things become less
limited '(Taverner, J. civil law II. Rights in rem. III.
supplemented edition, 1946, p. 98).
117th "Symptomatic (not characteristic)
sign of ownership rights is the property disposition, because the owner may shalt have it (but
Or not). ... [O] imitation disposition appears to us in the form of inviolability,
namely either in the form of inviolability, which inheres in person (t., Vol.
, False inalienable ') or in the form of inviolability, which stuck
things in (t. vol., inalienable right ') "(Rouček, F., Sedláček, J.
Commentary, another piece. 1935, p. 229; Taverner, J. civil Right. 1946 s .
106, 115 et seq.). from the above it is clear that if the petitioners and interveners
of public restrictions on certain dispositions in the case of the Catholic Church
conclude "incompleteness" of property rights, its
another defectiveness or even absence, arguing totally inconsistent with
conception of the nature of property rights, as in the past two centuries
stabilized. Public ownership restrictions disposition contrary conceptually
requires the existence of property rights. the term "inviolability" then | || expresses nothing other than the above, in particular the right of property does
different "character", which would be in terms of current
rule of law and constitutional order
impossible restoration of property rights. Legal restrictions on alienation before the relevant period falls on
Catholic church property to churches Protestants and Jews, but also
range of other situations where the state because if the existing public interest
expressly stipulated a higher degree of interference (in detail Rouček, F.,
Sedláček, J. Commentary, another piece. 1935, p. 263).
Public that such a restriction is not expropriation is clear: "[...] § 364 to 364b
ownership does not shorten, but he just gives direction generally beneficial
" (Taverner, J. Civil law. 1946, p. 124). In other words, cases
Bored proprietatis remain the property within the meaning of OZO (even in terms of current legal
editing) for its ability to re-incorporate all previous partial rights
to the point after the termination of restrictions or possibly other rights, newly created.
Basic questions of ownership eligibility Catholic Church is governed by
oz. even at a time when the subsiding Josephine before 1848, "Die Kirche ist eine
moralische Person, vom STAA bestätigt, und gleich day
Einzelnen desselben bürgerlichen schutzes und derselben bürgerlichen
rechte teilhaftig. a) Sie erscheint ebony dadurch als eine erwerbfähig
Person, b) und muss eine Solchi sein, wenn sie, was doch der Staat will,
und gar Woran ihm ist sehr gelegen, ihren Endzweck erreichen soll.
Politische Anordnungen setzen indeß ihrer Erwerbung aus mehreren
Rücksichten Beschränkungen ... "[" the Church is a legal entity that is
recognized by the state and which receives, as well as individuals of the same
civil protection and civil rights. a) This manifests itself as
person with an ownership capacity, b), and must be so if he wants - which
wants to become a whereon it is very important - to reach its final
purpose. Political statements, however, impose its acquisition of several considerations | || restrictions ... "]. (Helfert, J. Von dem Kirchenvermögen und dem
Religionsfonde. Dritte Auflage. Prag, 1834, p. 49).
As in the second half of the 19th century and later: "Die Kirche steht hier Also
principiell auf dem Gebiete des Privatrechts wie goes andre physische
oder Juristische Person" ( "The church here so basically finds himself on
private land rights as any other person or entity. ")
(Schulte, JF Lehrbuch des katholischen und evangelischen
Kirchenrechts nach dem gemeinen Rechte, dem deutschen Rechte der Länder und
Oesterreichs. Vierte Auflage . Gießen, 1886, p. 461). "
Under Austrian law, there is no doubt that every corporation or
spiritual foundation and every ecclesial institution if it arose
lawful manner, and thus no legal spůsobilost in law
property is granted" (Rittner E. Catholic canon law, the second part
. Praha, 1889, p. 178). Eligibility to be the owner of the gas
eligibility for rights that "all persons are essentially legal, ie natural and legal
" (Rouček, F., Sedláček, J. Commentary, part two.
1935, p. 207).
118th The same is true in terms of state law (constitutional): "By recognizing
some religious society becomes the legal personality and
can then named its own acquisition of rights and obligations accomplish" (Prazak, J.
Austrian public law, part first. Praha, 1898, p. 64, referring to
law no. 68/1874 r. a. on the legal recognition of religious societies;
to do just on the edge cf. below indicated doctrinal dispute about personality
Catholic Church as a whole). If the law no. 142/1867 l. Of. On general
civil rights of citizens in the kingdoms and countries in the council imperial
represented, guaranteeing individual freedoms, protection of rights, "perhaps to
is in both the individuals and entities even when legal persons, use
is, these regulations also state the basic laws of cause
legal persons, unless the law apparently nevysvítá that that provision
concerns only the people ... the individuals Art. 5 (concerning
the inviolability of property) should also be proper sense, if it wanted
restricted to those indivi- "(Prazak, J. Austrian public law, part
first. Praha, 1898, p. 48). An exception must be expressly laid down
Act (§ 109 para. 1 of the Constitutional Charter no. 121/1920 Coll.,. N .:
Private property may be limited only by law). Such an exception, however, have not been established for
church or individual subjects of the Catholic Church
fixed rate, but only in specific cases:
excluded from the acquisition of property were such. Friars who passed the solemn vows of poverty
(even taking the oath poverty, however, the current ownership has not become extinct
) or the Capuchin order or minoritů (detail Rouček, F.,
Sedláček, J. Commentary, another piece., 1935, pp. 208-209).
119th Eligibility for that property rights in particular is immaterial whether
was a legal person, public or private law (which ranked
doctrine, except churches and Catholic orders, the State itself, interest
corporations, various associations, communities Tradesmen etc.) - Rouček, F.,
Sedláček, J. Commentary, part one. 1935, p. 261. The actual state recognition
such an entity, but it still fails to put the state in terms of legal
independence "Jedes von Staa anerkannte Institut ist mit eo ipso
juristischer Persönlichkeit begabt. Die Staatliche Anerkennung hat aber
lediglich einem öffentlichen, polizeilichen character "(" Each State
recognized institution is eo ipso endowed with legal personality.
recognition of the state, however, has only the public, police character ") - Schulte, JF Die
Juristische Persönlichkeit katholischen der Kirche und ihrer Institute
Stiftungen sowie deren Erwerbsfähigkeit. Gießen, 1869, p. 83.
"[t] he provisions of the civil code must use them for all the things
if the prescription that the legal system does not provide otherwise (principle
generality of the Civil Code). Therefore, if the matter
belong to any legal person, is regardless of whether that person is the 'physical or legal,
and whether a person of private law or public law "(Rouček, F.,
Sedláček, J. Commentary, second part ., 1935, p. 9).
The very nature of a public corporation, it still in any case does not coincide with
state, to which the appellants and the intervener 1)
arguments tend, on the contrary, the interests of the State and public corporations can completely
vary widely. Indecision private or public status
entity is to protect the property rights of other applicable principle
yet [sp. Nos. Pl. US 09/07, paragraph 97 in fine; ECtHR
The Holy Monasteries (Holy Monasteries) against Greece dated December 9, 1994, no.
13092/87, 13984/88, Series A no. 301-A, § 48-49;], even
churches and religious societies under Act no. 3/2002 Coll., on freedom
religion and status of churches and religious societies and
amending some laws (Act on churches and religious societies), in
as amended, can be seen even today public
elements (see Capricorn, K. legal entities of public law, Linde, 2006, p. 144 and
seq.), they enjoy the protection of property rights;
from a comparative perspective eg. in Germany and Austria recognized churches have explicit
status of corporations under public law.
120th What are the determination of the entity's ownership rights to individual
matters falling within the original property was based on the Austrian and later Czechoslovak
doctrine largely from the so-called. Institute's theory, in which case
(Catholic) church property was based on the fact that the owners | || are different - in today's terminology - ecclesiastical juridical persons.
Competitive opinion considered the owner of church property
Catholic Church as a whole, or within the boundaries of the state (with respect to
Concordat of 1855, for instance. Sternberg, Chr. Versuch einer Theorie vom juristischen
Eigenthum römisch katholischen der Kirche. Stuttgart, 1860
p. 6). "
Die Rechts- Erwerbsfähigkeit und der Kirche und kichlichen Institute
Ist in Oesterreich Stets anerkannt geblieben not bezweifelt worden, die durch
Thatsache feststehend, dass überall Grundbesitz, Kapitalien u.
Sw auf den Namen der Bisthümer, Mensa Episcopalis, Capitel, Kloster, Kirchen
, Benefizien usw in the day Grundbüchern eingetragen
sind "(Legal personality and property eligibility churches and religious institutions remained
always recognized in Austria and was never questioned,
demonstrated by the fact that everywhere is the ownership of real estate, capital | || etc. recorded in the land books in the names of the bishopric, mens
Episcopalis, chapters, monasteries, churches, benefices, etc. ") -Schulte J.
F. Die Juristische Persönlichkeit katholischen der Kirche und ihrer
Institute Stiftungen sowie deren Erwerbsfähigkeit. Gießen, 1869, p.
82nd "... [D] IESE und andre Gründe erfordern schon, dass die einzelnen
Institute und als Rechtssubjecte Eigenthümer des mit Ihnen verbundenen
VERMÖGENS anerkannt werden ... (... Diöcesen, Cathedral-, Collegiat-,
Pfarrkirchen, Kapitel, Pfarrbeneficien ... Kloster ...) "[" ...
These and other reasons require that the institutions have been recognized as legal
entities and owners of property that belongs to them ... (...
diocesan churches, cathedrals, collegiate churches, parish churches, chapter, parish benefice
... monasteries ...) "] - Schulte, JF Lehrbuch des katholischen
und evangelischen Kirchenrechts nach dem gemeinen Rechte, dem
Rechte der deutschen Länder und Oesterreichs. Vierte Auflage. Gießen, 1886, p.
467th "It is therefore the Church as a whole, give cause of church property, but it is
individual churches, corporations and institutions, which created the life of the Church
. It may be the papal throne or the episcopate, church or parish
cathedral chapter, monastery , foundation, etc. benefice. "
(Rittner, E. Catholic canon law, the second part. Praha, 1889, p. 178).
"The question of who owns the assets is not canon, although in theory yet answered
alike, although sources suggest a single legal opinion that it is
individual religious institute as a legal personality, which recognizes the right of Austrian
"(K. Henner. name - the church. In Otto's
educational, Vol. 13th Prague: J. Otto, 1898, p. 572). "As far as individual
ecclesiastical institutions (agencies, corporations), is a financial capacity: a)
either disallowed ... b) either is recognized ... c) either to property
competence attributed to each ecclesiastical Institute validly
resulting, as is the case for us. in Czechoslovakia, like previously
Austria and Hungary are regarded in terms of t. Vol.
Institute's theory (about which is discussed presently) for individual property rights bodies
religious institutes, but not the whole church, the whole is not with us any
property rights, why can not any part of t., Vol.
of church property to dispose of as its own thing. the whole Catholic Church is not
in Czechoslovakia legal entity whatsoever. This "patrimony" not today
property that the church "belongs" but property which serves
ecclesiastical purposes (under state law). when we speak of property rights
about the fact that the "church" now has such and such a law, we understand the church is only a summary
religious institutes on national territory, not for the whole Church
represented by the Pope and the Roman Curia. Acquisition t ...., Vol.
Church property, disposing of his and all the legal changes the laws governing
negotiations now with us exclusively civil law ... "(Hobza, A.,
with the contribution of Turkey, J. Introduction to Canon Law, II. edition. Prague
1936, p. 239). it should be noted that those words about the absence
right of disposal are related to the Catholic Church as a whole, because
as such has the character mimostátního Union existing alongside the State
beyond its control. As follows from another, it was not at this point
conclusions about challenging the ownership rights of the individual church
entities, but to emphasize that the church property on the territory of the Czechoslovak
State are not excluded from the Czechoslovak jurisdiction that
they could be referring to the international nature of the Catholic Church
exempt from the reach of Czechoslovak law: "However, regarding the recent period ...
escalating disposition state law in the Church property ...
What one has to understand disposičním state law? It has to be said that the state
was or is the owner of the property within the meaning of private law, but
so that a state whose laws determine the conditions for the emergence t., Vol.
Church property, regulate the property its laws, determined his
purpose, doing its distribution between the Church authorities and institutions, set
simultaneously measure their impact on the economy and issues such property
to decide on their courts after the event administrations.
The State argues in a new era opposite t., Vol. ecclesiastical property of their full sovereignty
"(p. 265). About these matters there is no doubt.
121st case law has repeatedly expressed in the sense that"
Catholic Church fortune not by force law summarized after the private property of one of
basically makes up the different legal entities "(Boh. A
4829/25; cf. also dřívějí Budw. 7397, Budw. And in 1243, according to Busek, V., | || Hendrych, J., Laštovka, K., Muller, V. Czechoslovak ecclesiastical laws.
Prague, 1931, pp. 373, 391). It is not clear what argument value has
for the intervener finding NSS God . and from 1537 to 1522, from which it cites,
because it does not indicate anything else than just theory institutes
guiding interpretation of laws on land reform.
122nd This applies to the basic outline for institutes
Evangelical Church, without the proposals the petitioners or the interveners objected
reported the incident to the non-Catholic churches in details
example. Schulte, JF Lehrbuch des katholischen und evangelischen
Kirchenrechts nach dem gemeinen Rechte, dem Rechte der deutschen und Länder
Oesterreichs. Vierte Auflage. Gießen, 1886, p. 469 et seq.
123rd As for the eligibility to acquire assets of the state basic law no. 142/1867
r. A. Article. 6 stated that "spůsobem Act and other causes
general good commits, would obmezilo right, dead hand goods || | the acquisition of immovable property and then hand them possess. " "Dead Hand" were
understood to all legal persons by limiting
dispositions of property pursue the objective of maintaining the property for his own purposes.
It is no doubt that these so called. Amortization laws were
to the detriment of Churches issued (or later Czechoslovakia) - cf. Rouček, F.,
Sedláček, J. Commentary, Part Three. 1936, p. 34; Hendrych J.
Catholic Church. In Dictionary of Czechoslovak Public Law, Volume II. Prague,
1929, p. 155; Hobza, A. Introduction to Canon Law, II. edition. 1936
similarly Prazak, J. Austrian public law, part of the first. Prague, 1898, p. 64
: "This Article shall, however, not restricted itself to the rights spůsobilost
religious societies, but was only allowed that they can henceforth be issued
laws outlined the contents, which are under ever known
behalf amortisačních laws. ". Intervener 1) and partly also
petitioners conclude impossibility (unconstitutional)
restoration of property rights of religious entities without regard to the fact that contemporary law
certainly did not include depreciation laws as the law known Institute
limiting the possibility of acquiring ownership to the detriment of ecclesial entity, and
arguments are based solely on the existence of public
protective and supervisory arrangements that ecclesiastical entity (rather)
hampered by theft and load already owned things. Such an interpretation is probably totally against the logic of contemporary
rights and attributes as layout constraints in terms
eventual restoration of property rights as vital effects, which could pose just
depreciation laws, that in both cases it would be
ownership rights, which could be restored.
124th The question of whether things belonging to the Church assets, especially things
qualified canon law as res sacrae (holy things, esp.
Churches, chapels, altars, liturgical utensils) might be subject to legal
trade, ie and the subject property, there was also
prevailing doctrine and practice, at least since the second half of the 19th century,
consensus. "Die Vermögensobjecte ändern ihre physische natur dadurch nicht,
DASS kirchliche sie werden, damit sich auch nicht Andert die Juristische
Beschaffenheit. Untersteht solglich das Es kirchliche Vermögensrecht an sich
day Grundsätzen des Privatrechts in derselben Weise als jedes
andre "(" Courses ownership does not change its physical basis by
become a church, it does not alter its legal nature. it is also very
church property right subject to the principles of private law in the same way
like every other ") [Schulte, JF Lehrbuch des
katholischen evangelischen Kirchenrechts und nach dem gemeinen Rechte,
dem Rechte der deutschen Länder und Oesterreichs. Vierte Auflage.
Gießen, 1886; cf. ex., also detailed treatise Wappäus, H.
Zur Lehre von den dem Rechtsverkehr entzogenen Sachen römischen nach und Recht
heutigen. Göttingen, 1867, p. 49 et seq., Who, however, "some sense
" extrakomercialitu found it, to understand the need to respect the purpose
things, "Innerhalb dieser Grenzen Daher sind die res sacrae in
Commercio" ( "Within these boundaries are therefore res sacrae
in commercio '), p. 64; Randa Wappäusovi and expressly alleges that uses the term
extracomerciality in a "step-sense" Randa A. Right
ownership under Austrian law. Prague, 1922, p. 20, note. 24].
Perceived duality of private and public law right of ownership (state, municipalities, churches,
any entity) has not ruled out the so-called.
Governance (Randa A. The subject property. In Lawyer 9, 1870 pp. 687;
explicitly for Serious res sacrae 1461), especially not for other things
belonging to the original church property. Extrakomercialita was
is related to cases in which the performance was conceptually property rights
excluded (eg. Air and other gases nepojaté into reservoirs) or where the law stipulates that
(Taverner, J. Civil Right, 1946 p. 136).
125th The status of public affairs should (not Catholic) churches and chapels
Quae sunt Communi Usui destinatae
, the public right to use covered the believers respective faiths
(Randa, A., 1870, p. 689). "Public" Chapel (
mutatis mutandis similar religious buildings Evangelical, Jewish), however, does not lie in its
"public ownership" or similar construct but in
fact that it takes place "publicly accessible service." (cf. God.
A 3140/24). In any case, regardless of the person owner (could it be
state, community, church or other entity), while the substance
ownership rights to such construction was not affected by public regulation.
Doctrine among things fully
In commercio expressly advised "[t] ECI services dedicated to God (res sacrae
as churches, church altars and tools. For these things are the property
Buds ecclesiastical institutions because freeholders, for instance.
home chapel (
capellae privatae) and not under Austrian law from the legal trade freeholders
excluded, although in fact the subject are not "(Rand, A., 1870
p. 691). "Nach den heutigen Rechtsbegriffen sind die res sacrae dh
die zum Christlichen Gottesdienst unmittelbare bestimmten Sachen
Gegendstand des Eigenthums; thighs sie sowohl im Eigenthum der Kirche und
betreffen day kirchlichen Institute als sie auch im Eigenthum von
privaten thighs können, wie z. B. bei Hauscapellen "(" on the basis of today
legal concepts are res sacrae, ie. the church worship
immediately for things subject property and may be in possession
both the Church and concern of religious institutions, so they can be
owned by private individuals, such as. domestic chapel ") - Unger, J.
System des österreichischen Allgemeinen Privatrechts, Erster Band
Vierte Auflage. Leipzig, 1876, p. 367; similarly Rittner, E. Church
Catholic law, the second part. Prague, 1889, p. 181. If neither
Res sacrae were excluded from the legal trade, making up about other things
church property (field, forest) was no longer in doubt at all.
Without meaning it is now truly a specific position relics, nor is it subject
X / c
Features Catholic Church property after the public
126th Public regulation presented in relation to the Catholic Church
Law no. 50/1874 row. Z. To whom are issued with the provisions governing the outward
legal relations of the Catholic Church. Details parties
Administration Catholic Church assets regulate particular Regulation
Ministry of Cult and Education no. 162/1860 l. Of. On alienation and charging
Catholic churches, benefice and ecclesiastical institutions, and regulation of the Ministry
justice no. 175/1860 l. a., regarding the alienation and encumbrance
Catholic churches, benefice and ecclesiastical institutions; Czechoslovak
law at recipována many other konfesněprávních regulations.
The provisions of § 38 of Law no. 50/1874 r. A. Was: "Regarding the management
fortune with the church, is the rule that the assets of the church enjoys the protection
state, which enjoyed talent is generally useful. Government
spiritual matters is of particular right, looks to be
Registered capital of churches and religious institutes preserve, to pave the
sure whether this is a fortune here, and if he finds that something is missing,
do what needed to make it replaced. For that matter, whose fortune is
mortuary and prebendní, and as for the other conditions of this fortune of growing private
rights, the rule is, what about
assessed in a general civil right; If it came to a dispute, a decision thereon
court. "A manifestation of that state protection was the principle that the alienation or
load of church property has been considering the amount contemplated disposition
need state approval, and the specific parameters and procedures for assessing
submitted questions now are not essential. Pages systematics
interpretation of the relationship, and DDA Act no. 50/1874 r. a., when
cited literature and case law, and later assumed by the Constitutional court preview | || periodic adjustment of church property through the DDA and
public regulations on exceptions through Law no. 50/1874 row. z.
may appear objection that the wording of § 38 of Law no. 50/1874 r. a. this
preview excludes, as OZO regime appears to be based just
public regulation, therefore, only within its boundaries, through
explicit reference and not as a rule. this may refer to the explanatory memorandum to the
law no. 50/1874 r. a., which explicitly states that
although it is a matter of course, that reference is expressly inserted in order to avoid an argument
Conversely, with regard to the adjustment of the patronage law, which is similar link
formulated. It is therefore clear that the reference to OZO was inserted because
legal certainty with regard to the specific design
other provisions of the law, not because they would just link this should be the basis for the application of OZO
(according Busek, V. and others.
Czechoslovak ecclesiastical laws, pp. 227-228).
127th The effects of public regulation based on the relevant date
primarily by law no. 50/1874 of. The. Incident to ownership relations
religious bodies (Catholic Church) can not but conclude that
contemporary doctrine nor the case does not indicate the end of the petitioners'
interveners and the conceptual absence of property rights, or vice versa
existence of a special "public property". A contemporary interpretation of the law
example. Dictionary Czechoslovak public law states the following:
"According recipovaných Austrian law not only that the state does not restrict
acquisition of Church assets, but rather through their ensures that assets
church was indeed their destination intact. On the issue of ownership
rights and other private assets ratios are ecclesiastical
exclusively the authoritative rules of civil law (§ 38 par. 2
Act. no. 50/1874 r. a.). Give cause property relations may be only a single institution
church as a legal person (ie the church, the parish benefice
, chapter, foundations, etc.) "- Hendrych J. Catholic church. In
dictionary Czechoslovak public law. Volume II. Prague, 1929, p.
156th This legal status is interpreted as a "right of supervision, in which moreover is also a certain
property protection and safeguarding itself against abuse" (p. 158
). "[K] dežto holy things often do not belong to the Church nor (for instance.
Castle chapel), beneficiální things as well as fabriční capital must be
the property of the respective ecclesiastical institution, although if they are to end their
dostáti" (Prazak, J. Beneficiální things. In Otto's encyclopedia, Vol. 3,
p. 745). "If you give the subjects of public worship, shall survive the
eligibility, be subject to private law. They continue to be in
owned by individuals or legal persons. They are over the dedication
subject to adverse possession, alienation and encumbrance in terms of private law.
If this dedication for purposes of worship takes, but this is the
limitations to the right of ownership. for even the owner of the objects must ensure
legal consequences arising from such dedication, if this obligation is not
canceled. that these objects such dedication became the sole
subject to public law, is not justified by applicable laws.
increased legal protection afforded to these subjects legislation guarantees (§ 174, 175, 122
Criminal Code. Code., § 15 250 ex. l.), does not mean that those things are exclusively
subject to public law "(Serious 1461).
128th On the above it is necessary to establish the notion that contemporary (public)
interpretation of the term "church assets" included things that ownership
Wield ecclesiastical bodies, but were ecclesiastical purposes only
dedicated, and it is this dedication, a special-purpose designation indicates
intensity of public regulation. "In this context due is poukázati
that the dedication of an object (tools worship, bells,
belfry building chapel or church) for the purposes of the Church and the adoption
this determination by the authorities of the Church may not change nastati
property rights, the owner of these objects cease but the loose
disposition and they can not without the consent of the Church odníti is for this purpose and the purpose
devote another "(Hendrych J. Catholic Church. In Dictionary of public
Czechoslovak law, Volume II. Praha, 1929, p. 161). In this spirit, even
Republic Supreme Administrative Court consistently
discern what kind of plane relations is a dispute on behalf of one
church: especially not decide ownership disputes, as well
from § 38 of Act No. . 50/1874 r. a. implied that his dispute
private nature (disputes over ownership) are competent to decide
courts (civil) if it were a thing of disposal
devoted to ecclesiastical purposes ( bells, chapel, etc.), limits public law
current owner, even though it was a non-denominational entity, in which case
regarding the disposition of the administrative bodies is given
(SSD random finding předlitavského of 19. 3. 1891 Budw. XV 5839;
findings NSS God. A 1661/22, 2865/23, 2866/23, 3140/24, 3448/27, 4231/24, 6491/27
, 7096/28, 7998/29 et al.). Similarly, in relation to the parish buildings:
"For this [canon] wealth goes not only for those items that
give benefits and are owned benefice, but also things that are
do not belong to the benefice ownership, However, based on its dedication
permanently associated with a certain spiritual place to the extent that they can serve to permanently
use and need holder parish office "(God. a 1246-1244).
Supreme Administrative Court took for granted that the individual things
(under the concept of Church assets) may be owned
religious subjects, but from the nature of things in its decisions, particularly those appearing
situation when a public authority testified
ecclesial entity in relation to matters of third parties. Therefore can not logically be
the conclusion that if the jurisprudence of the Supreme Administrative Court
usually includes a conflict of public authority ecclesiastical entity with
property right of another entity, it can also derive from this relationship
nevlastnický religious subjects as well as the rest property. The above
jurisprudence of the Supreme Administrative Court are complementary
Supreme Court case law (eg. Serious 1461, cited above). It must be stressed that if
intervene 1) to a number of Supreme Administrative Court
refers, it is not clear what the objectives of the argument are trying to achieve, because
thesis of conceptual absence of property rights of religious organizations to
original property from them in any case does not follow.
129th It is also no doubt that state approval of disposal of ecclesiastical property
not, in law or in accordance with the practice, the character that would become
entered the position of the owner (co-owner) and would therefore disposition of property depended on
autonomous will of the state (to the period
interpretation of the term "disposition of the state 's worth ecclesiastical see below). "[P]
latnost theft or load is dependent on the consent of factors, which itself is neither the owner nor
to represent the owner called" (Rand, A. Right
ownership under Austrian law. Praha, 1922 p. 73). This effect
establishing ownership position of the state (although it petitioners suggest
) is clearly eliminated contemporary jurisprudence (in addition to state approval
property disposition based on the existence of a third party property
definition): "In all pending cases
runs on the alienation of church property in the price of over CZK 200, therefore, a legal act
which according to § 51 of the Act. on May 7, 1874 no. 50 l. of.
a Ministerial Decree June 20, 1860 no. 162 r. a. require to be valid
state approval. already from the very concept approval 'means that the subject of his
may be just such a disposition of property of the Church, which
- if not of that limitation - it was about himself with that established
legal effects intended by it. One of the essential requirements for each
infringement whatsoever and therefore the market contracts, concerned what is
Declarations of intent of the persons involved, that such a discourse from which you can
judge, declaring that the person wants something (§ 1054, 869 DDA).
If there are no such backing, you can not even speak about the legal action and not
would however not qualified subject to any approval of the state
Administration in terms of surveillance neztenčeným preservation of church assets in
meaning of those provisions' (Boh. A 9981/32). Therefore, if there is no binding expression of will
thing alienated by the ecclesiastical entity is
approval from the state pointless, especially not the will of the owner
replace. "State supervisory authorities respect for the management of church assets only
superintendent right and they are not entitled to make
svémocně spot autonomous trusts separate administrative measures, namely
not those which have no legal basis. It is unacceptable that
state Supervisory Authority through a discount rents for the land against the will of the church
administrator fortune "(Budw. 10189, by Busek, V. et al.
Czechoslovak laws of the Church, p. 386). The then it is important from the viewpoint
opposition party interveners 'alleged lack of "private
autonomy' on the part of the Church (para. 11), which can be noted that
autonomy of the will is manifested by definition, always within the law (§ 364 paragraph. 1 oz
o), namely the fact that ownership can not be made available
contra legem is completely natural and rightly predicted. If intervener
1) attaches "special significance" finding God. a 12138 / 35, it is not clear in what
conclusion to intervene 1) points ( "purchase of property
Catholic Church that goes beyond the ordinary administration of church
assets subject under § 38 of Act no. 50 / 1874 r. a., and §
233 OZO approval of the State administration cult ") testifies to the absence
property rights on the part of religious organizations.
purely public controversy over the extent of public regulation is nothing about the nature and || | existence of private relations to the point. Even in this regard is therefore
ruled that church property were conceptually understood as property
130th Intervener 1) emphasizes the "finality" of Church assets, thus determining
its public to support the church (ie. The Catholic Church)
to be eliminated ownership of the various items (otherwise
this objection is irrelevant in this management sense). By approaching the concept
Church assets as a separate public fund (aggregate assets of the bonded
public purpose) ownership separate from the church.
The Supreme Administrative Court, however, this concept in its case expressly refused.
In general, Limited public funds just as "such a nature
property that Being valid laws designed to ensure that economic
treasure to carry out certain tasks that will take
public power they are subject to management bodies of the public, so that they have become
link in the organization of public administration. " At the same time, however, explicitly stated that
religious nature of such assets is not a public fund (Boh. A 3501/24) and
neither the Slovak Republic (Boh. A 3968/24) on church assets "applicable law || | not regarded otherwise than as subject to certain care and supervision organs
state. " In the case of Church assets is therefore not a mere summary
independent (public, "individually nevlastněného") assets
should be canonical entities tor only to support public
church movements. As stated by the Supreme Administrative Court, "law
public funds again being built in contradiction to the Church's assets."
It is therefore a fundamental difference between the assets of the church and religious funds, respectively.
Religious nut, as it really such a fund
separate property separate from the state, with its characteristic public ecclesiastical
purpose was and is. It is therefore now - which is true in relation to the objections
petitioners and the secondary part 1) - Incorrect apply to both sets
mentioned property the same regime, therefore esp. On church property
apply some sort nevlastnický mode driven only public ( canon)
purpose. Public funds are not even land ecclesiastical foundations (NSS of 2
5th 1924 no. 7070/23, according to Busek, V. et al.
Czechoslovak ecclesiastical laws, p. 396; ecclesiastical foundations should specific management regime §
set 47 of Law no. 50/1874 r. a.).
131st Certain "finality" of assets primarily been considered a specific
Just Church assets. The appellants and the intervener 1) neglect,
in the case of legal entities consisting property substrate, ie in the case
foundations in the broader sense, is not a state property purposefulness
"limitations" but the defining element, without which rule not a legal person
endowment-type base (it is possible to note that "
pursue some common purpose" doctrine, according to contemporary
essential feature of any legal person, including a corporation, Taverner, J. Law civil
I. Prague, 1946, p. 152). It should be noted that state oversight of the church
worth of de jure and de facto based on the principles of state supervision over charitable foundations
. Neither they deduced it was not owned by the state (which
not excluded that some foundations administered by the state, Hermann-Otavská, E.
Foundation. In Dictionary of Czechoslovak Public Law, Volume II. 1932
p. 718) . Apparently, in the case of state supervision of ecclesiastical possessions
not institute the law otherwise unknown or unique, founding
reason for special treatment. Current law no. 40/1964 Coll., Civil
Code, as amended, also in § 18 par. 2 point. b)
generally speaks of "Special-purpose Assets," which is to be distinguished
association of persons (corporations) or legal entities mixed.
Does it not be said that the "instrumental" caused the foundation
ownership rights (or some of its components) from the state. It should be emphasized
if it does not follow from the current interpretation that the vast majority of church
corporate Catholic Church consisted precisely in the asset
(foundation or mixed) basis. She "instrumental"
therefore not one imposed restrictions from the state, but the defining element (charitable or religious
) legal entities endowment type. Functionally viewed, she
finality of Church assets stemmed primarily from the interests of the Church itself
(specifically canon law), which the state accepted into law legislation:
"The religious character and the sacred purpose of church assets essentially asks the || | fortune undiminished Vězda it was preserved and served more pious purposes
donors established "(referring to kanonickoprávní standards Brychta, A. O
assets of the church and its management. Hradec Kralove, 1910, p. 586). Overall
kanonickoprávní defining the purpose of Church assets (not only defining the purpose,
but also its structure etc.) Accepted by Austrian law then
obviously reflected in case law: "[N] Elze did overlook that
the Constitution respectively. estate of them belonging among
not stop them legally linked and that therefore lose its special character and
property as an article around a large body of the church and that remain
therefore also in property legal relationship in his organism Church
based subordination [follow links to the books of canon law].
to this legal coherence also takes into account positive right that
especially § 53 and 54 of the Act of May 7, 1874 no. 50 imperial law on
adjustment of external legal relations of the Catholic Church emphasizes the principle of solidarity
religious interests and from it derives legal consequences, which codifies
as an objective legal norm (cf. § 53 of the cited Act, which introduces
institution escheat 'church assets in favor
religious nut, § 54, which normalizes commanding surpluses from one
assets of church assets for purposes other church).
The explanatory memorandum to this law (Annex 40 stenographic protocol
Chamber of Deputies, VIII. Session 1st Vol.) Explicitly states that due to
varying opinions about the ownership of the Church's assets can not for individual
ecclesiastical institutions be assumed such individuality
their legal entities and that neither such their independence in relation to each other
what occurs in other legal entities or individuals
, on the contrary, that the assets of each ecclesial institution is dedicated
the overall purpose of the church and that it is therefore for this common purpose
can be used "(Boh. a 4829/25). for the judgment is therefore
clear that public law accepted finality of church assets
was not no case be understood as weakening or even exclusion
property rights of religious entities against third parties (rušitelům
property rights), but they expressed a correlation
Individual owners of Church assets to one another, esp. For
situation where there were doubts about whether the Catholic Church makes
legal entity (acting as owner) within the borders of the state as a whole
. Other than the link viewpoint canon law did not know the purpose of the period, as
church activities were manifested in various forms, in
much greater extent than they are designed
religious legal entities under Act no. 3/2002 Coll. Indeed, neither the current law, it is not a legal concept
unknown because, for example. Church schools are not defined
legal form of the operator (usually not directly operated
registered church or religious entity), but its purpose derived from || | Article. 16 of the Charter. An apparent paradox can best be seen in the argument
culminating with the petitioners and the intervener 1) that churches and religious societies
respectively. their church juridical persons not within the bounds of constitutionality
current resume ownership of the property precisely because
that such property was used in the past for church purposes.
132nd The above is also permeates other rules and practices of Austrian and Czechoslovakian
when religious subjects were for individual owners
immovable considered and in accordance with Law no. 95/1871 r. A. On the implementation of the Act
on land books, which was authorized on deposit
property rights was in favor of specific religious subjects, and it
deposit just property rights within the meaning of OZO not
rights of others ( "iconic spongeware", etc .; this fact becomes
importance when taking into account the principle intabulačního). "The owner can register it physically
or entity, whether private law (association, etc.), Whether public
rights (town, country, state, etc.). ... [K] atolické churches, being || | separate legal entities [subscribing]
its sign (, Roman Catholic church at St. N ... in ... '), in non-Catholic churches, chapels and side
institutes religious community. ... in writing
is, however, care must be taken that it is not registered as the owner of a person incapable
acquisition of any goods at all (eg. monks, exercised the famous monastic vows, and their orders
) ... "- Rouček, F., Sedláček, J. Commentary, part two. 1935
133rd When it comes to land reform after 1919, and within the meaning of §
3 point. b) Act no. 215/1919 Coll., on the seizure of a large property
land, the property was public corporations excluded from occupation;
But not religious and endowment assets (Boh. A 3910/24). To claim that the church
conceptually assets were owned by the state, it should be noted that
"become their own property can not zabrati" (Kanka J. Land
reform. In Dictionary of Czechoslovak Public Law, Volume III . 1934
p. 341). Cf. also § 1 of the Act no. 318/1919 Coll., on land small
pachtýřům, as amended by Act no. 311/1920 Coll., as temporality
considered "property of any church or religious society
all (land church, mortuary, parish, obroční etc.). "
A judicature disputes worked mostly phrase, "like.": Serious 1528 (
application on the property of the parish of the Evangelical Church). Furthermore
see e.g. Serious 717 (plots of fund for the future establishment of the parish are worth
canon); Serious 1023 (by Act no. 318/1919 Coll., On property
134th It is not entirely clear where arguments are heading related citations in intervention
1) (p. 5), unless stated that when examining
occupation of church property was the question of whom belong to the property,
"ownership" is particularly important because this property was frequently Library
ownership attributed to a single entity, in fact, they formed a series of special purpose
fortune. This view, again suggesting
particularization of private property among the various religious institutes
- entities derive from it and the absence of property rights.
135th Of the other case the demarcation issues "public" and
"private" focusing on civilistické relation to matters falling within
Church assets see random Serious civ. 1461 (
dispute over the ownership of things Google public worship) , Budw. 8355 (
chapel on municipal land), Gl. U. 10722 (endurance church Churches), Gl. In 4715
XXXVI (disputes over property rights to things religious courts decide
) - Busek, the Czechoslovak laws of the Church, pp. 385, 386, 388. Further,
See also case law which (obviously) is not mentioned in the reports
konfesněprávních in which it is the protection of property rights
ecclesial entity, but addressing the issue is a problem purely
civilistický: Serious 11116 (dispute on common property benefits from a benefice);
Serious 5383 (dispute over the eviction of real estate owned by the religious order
); Serious 17806 (forced lien on the monastery Procedure); Serious
17845 (execution of compulsory administration on the benefits of church property); Serious
8986 (the action against the Olomouc archdiocese to pay cash
debts); Serious 1666 (dispute over the eviction of the parish building is a private dispute
136th From this it is evident that neither the legislation regulating legal practice
ambition not a matter within the "Church assets" excluded from the scope
private law (PQP), the courts (the authorities) administrative and civil jurisdiction
its strict distinction. In general, the definition of party affiliation
see eg. Prazak, J. Austrian public law, part two,
Administrative Law. Prague, 1905, p. 88 et seq., And the references cited therein.
X / d
The objection "incomplete" ownership
137th To a specific question whether the legal relationship of religious subjects for ecclesiastical property
relationship split, utility property (§ 357 et seq and
. PQP), corresponding to the Constitutional Court that the question in the first place
no constitutional relevance, because the constitutional order is not contained ban
mitigate property injustices which occur in a commercial property.
The second series is to be noted that the direction of this thesis petitioners have not intervened
1) factually not argue, only it implicitly
based. Disregarding historical trend that significantly strengthened the position
utility owner against the chief owner (until
full ownership situation), the contemporary doctrine or jurisprudence
Constitutional Court did not find support for the conclusion that it was related to religious subjects
original property should be owned by a commercial relationship.
Obviously not a "feudal estates, hereditary estates leasing and hereditary lease" and even
contemporary interpretation of this concept on the church property not spread.
The doctrine of the second half of the 19th century earlier theory of jus Supremi dominii, Dominion
eminens on the side of the ruler to classify the end of the 18th century,
however: "It would be useless to spread the word that the amount in question
theory is not even the slightest ground; it depends on the state, wants the Church to admit
spůsobilost acquisition of any property; but when this church spůsobilost
admits ownership must heed the Church like any other. this prevents goods
clergy can therefore be accepted only under such circumstances that
justify the violation of private property. Any theory in that respect
state greater rights against the property of the Church admits than
private property, is just a guise of lawlessness "(Rittner E. Church
Catholic law, the second part. Praha, 1889, p. 179). It may be noted
that the legal regime of the split actually part ownership of church property was
, the petitioners but overlooks the fact that in a completely different sense
. For the exclusive right to benefits, was considered the right beneficiantovo
(typically pastor) to spiritual beneficio, alias benefice, as
aggregate assets is permanently associated with spiritual authority (cf.. Rouček, F.
Sedláček, J. commentary, part two. 1935, p. 218; Taverner, J. Law
civil. 1946, p. 100). Act no. 428/2012 Coll. However, the former relations between
obročníkem and benefices ever does come, therefore, does not restore
earlier (only) commercial property obročníka, only because
this institute from the practice of the Catholic Church has disappeared and obročníků more
no. The assertion that the original church property was conceptually subject
split ownership (where the chief owner should have become)
petitioners do not connect a convincing argument, as cited
literature and jurisprudence refutes their claims.
X / e
The objection "public" ownership
138th Especially intervene 1) says that the church original property
"never as a private person did not possess" that the property had
"private nature." The interveners refer to the texts
A. Hobza and the opinion of the President's Office in 1946. The
Constitutional Court in the light of the above, adding that the intervener
1) no way to explain what the concept of 'private nature "or
"Public property" means especially overlooks the contemporary legal status
existing legal situation, historical and current case law courts, including the Constitutional Court
, and also contemporary, varied considerably
political context (see below ).
139th If in the case of "public ownership" is a theoretical construct
modifying ownership rights in accordance with § 353 et seq. OZO,
or directly competing with him, can point to the contemporary public and private
doctrine that rejected such a concept: "Indeed, however different
to the right of ownership of public corporations nor the cause of things
public use does zůstavených what's the essence of the property rights of individuals
private and some public property is not at all
"(Prazak, J. Austrian public law, part of the first part of the first Constitution
community. Praha, 1900, p. 355 ). "Civil Code. Act.
Correctly does not define ownership as a subjective right, which occurs very frequently in
doctrine. The definition of such a response are political ideologies:
either an individualist or socialist or corporation, or any other
"(Sedlacek, J. ownership right: comment. Praha, 1935, p. 23).
140th It is necessary to remind the applicants that right before the decisive period
not aware of the different kinds of property (apart from just
residual split ownership), as was the case after 1948
(socialist social ownership: state, cooperative, personal ;
private; to see. constitutions of 1948 and 1960, and both
civil Code). Tellingly, neither the current law does not recognize different forms of ownership
for various subjects, see Art. 11 paragraph. 1 of the Charter. In the single
introduced OZO property is a fundamental legal institution
which was quite essential for the modern legal systems and has continued to date.
141st Especially if intervener 1) refers to texts Anthony
Hobza, to testify to the conclusion that the nature of religious property
or character of religious subjects
precluding the existence of property rights, the Constitutional Court observes that the intervener 1) completely
ignores the context and confusing description of the legal situation with his critics. The referenced
Introduction to Canon Law (Hobza, A., with the support of Turkey, J.
Introduction to Canon Law, II. Edition. Prague, 1936) Hobza states - and in compliance with the foregoing
- that the property qualification in Czechoslovakia
like earlier in Austria, was awarded "every ecclesial institution lawfully resulting
" (p. 239). "It is owned by individual local church
Institute (office) or the respective religious corporation established
national territory, it is t., Vol. Theory institutes. ... Praks
Czechoslovakia, like the earlier Austrian Praks and Hungarian, based on the theory
Institute's "(pp. 262-263). After this statement then in the next subsection
after other theories summary states: ... e) Most
right view approaching antidominální theory that rejects all
application of the concept of private property on t., Vol. Assets church. ...
T. Vol. patrimony is a special type of public property and property
it is the property of the public. ... We
Although not officially recognized by the theory of public property (domaine public,
öffentliches Eigentum), which was built especially in French literature and
praksi, but it changes nothing on the knowledge that our || | positive law is not built on the principle of free disposition of
which the owner (within the meaning of private law), but on the principle
bound for some public purpose and in accordance with the principle of public administration
property under state laws and subsidiaries
state laws "(pp. 262-263). Needless to say, just Hobza was
radical supporter of separation of church and state after the French model, which
he even later appeared as" half-hearted and inconsistent "
in comparison with the" Bolshevik regime "(Hobza A. the ratio between church and state.
Prague, 1931, p. 158), the positions of these ratios strongly criticized the Czechoslovak
142nd Of HOBZOVÁ States thus clearly follows that neither he questioned
that Austrian later Czechoslovak law, considered the owners
individual things belonging to the church property just individual
church organizations (if not a google church assets, to which it was applied
reservation of ownership). This fact, however,
Criticizes and presents competitive "theory of public property." With her
however, explicitly acknowledges that the practice is not applied.
From this it follows that the cited theoretical (in the true sense of the word)
considerations could be the basis for changing the legal relationships (even before the relevant period, the less
today's applications mentioned theory backwards), especially when presented || | theory should be in the case of Church assets justified only on the existence
limited disposition owner. There is a free for
"characteristic" feature property Hobza apparently mistakenly considered (p. 260; see the previous interpretation
143rd Improper would then also be a preview that would "theory
public property" considered specific theory relating solely to the Church
fortune. Hobzí referenced essay (Genoa, J. Theory
public ownership. Prague, 1927), from which it comes, gets to the overall state
power, and to plan new ideas "cultural state", building on the idea || | state of law. However, if the "theory of public ownership"
showed in relation to matters directly serving the state power or the wider
public administration, or even to things deemed "public" (
sea shore, the water flow) from their natural essence, the harder it was possible
"public property" dovozovati to things pertaining to the performance of the cult
(churches), which was can hardly be considered (in the first Czechoslovak Republic
!) for the items used to perform basic
functions of the state. And even more complicated for it to be able to infer the existence
"public domain" in relation to those matters of Church assets that
not directly serve for the performance of the cult (of the property). In this regard
- if it ever went that theory into practice - it would
ecclesiastical capital of the marginal interest, not the essence.
144th The study Janovského is largely comparison of French and German
theories that viewed the field of public law forms
civil rights as inappropriate. Gradual publicizace law, according to the author
things necessary since the old forms of private law
not respond on issues of economic and social conditions for the development
"legal socialism": "The legal socialism is understood that one of the methods
socialism target for the reorganization of the company (in the spirit of socialist ideas
) through the legal system, ie its adaptation,
deformation "(p. 13). What then regard themselves "theory
public property", stated after a critical analysis of doctrine and practice French, German and Italian
that its goal is to create a genuinely public
Institute analogous to "private" property (s. 51 ). The assumption is
"full private extrakommercialita" public affairs (p. 61). But there
res sacrae, the less other matters falling under the concept of Church assets,
in Austria or later in Czechoslovakia, as already mentioned,
certainly not. Unique are even far less than the comparative
author's conclusions (Austria, Germany, France)
party ownership of public paths and water, which were also Austrian OZO declared
public good (apart from the name of church), and are therefore by their nature
main subject of study. Unmistakable obstacle to the conclusion that the Czechoslovak
rule of law, case law or the simple practice the theory
accepted public ownership, is - according to comparative conclusions
Janovského - the fact that the state or municipality has the "regular
cases "to get things first" private property "that only
then the matter could be devoted to a public purpose (Widmung). After the demise of public
determine the Cancellation Act (Einziehung, Auflassung, Entwidmung)
or in fact, gives rise to "directly (automatically) private ownership," which
But at the same time is not possible without a specific private title (p. 37 ,
41-42). Only in France is finding that the public domaine
applicable law, but should be a "just the first step towards a theory
public ownership". In the end the author in the Austrian legal order
optimistic identifies elements towards publicizaci
property, however, refers to a yet unfinished development process, in anticipation
"next, purely a public institution, summarizing and interpreting legal relations
public good. ".
145th Greater administrative science ten years later (Hoetzel, J.
Czechoslovak administrative law. Part of the general. Second Edition. Praha, 1937) was a
Theories of public ownership restrained, because "although it did not impact on
praksi, will always mean an enrichment great legal science" (p. 298).
Sticks to the classical doctrine of public affairs, that "
its substance directly serve the public purpose" (p. 297), apparently on the basis of existing doctrines of
its mixed character that referring to Janovského Hoetzel
notes that "our laws are increasingly approaching the concept
public property to the extent that it still clearly puts the background
owner substrate, public roads and getting to the scene manager, master
way. Cf. Act . no. 438/19 and no. 33/22. ". For this partial conclusion about
"approaching" can not, considering the crucial převratnosti
newly constructed institute, to make conclusions about the actual application indicated
theory in relation to public paths or Hoetzel do not do so, the less the || | relation to other things.
146th If perhaps the existence of "public property" should be
inferred from the wording of § 109 para. 1 of the Constitutional Charter no. 121/1920 Coll. a. a
n. "Private property may be limited only by law," based on the argument
contrario, it must be pointed contemporary interpretation that that sentence
gave meaning declarations in favor of "individualistic
economic order" as opposed to an eventual "collectivist
economic order "(detail Weyr, F. Czechoslovak constitutional law.
Prague, 1937, p. 255 et seq.), and thus not argued for in the sense that the constitutional charter
assumed other than" private "
ownership with a lower level of protection on the part of church (or other) subjects.
147th Especially if intervener 1) refers to the document no. 45, In
Janišová, M., Kaplan, K. Catholic Church and the land reform
1945-1948. Prague / Brno: Institute for Contemporary History / Supplement, 1995, pp. 100-104
does not take into account also that the said publication contains a total of 148
documents, in particular those ministries that the vast majority || | the opinion of the Office of the President do not correspond. The content of the published documents
first place that the central authorities
government and other state institutions in the years 1945-1948
ruler in professional or political consensus on whether
post-war presidential decrees apply to the assets of the Church
entities from the viewpoint that the first is not a German or Hungarian legal persons, respectively.
Person unreliable state if a second confiscation decrees relate to
public law legal person, whether a third in the case of churches
is a legal entity of public law, respectively. that church organizations for them
can be considered, whether or fourth in the eventual application of decrees to save
generally useful character churches and their tasks can be considered performance
public administration (registry office). Part of the discourse on the contrary, was the assumption that things would
owned by legal persons of public law was not legally possible to confiscate
at all, especially that this should be the case
church property on things already owned by the state. Opinion
President's Office into that discourse has brought only the above-mentioned
HOBZOVÁ thesis called. Public ownership, "although it is not our legal system
taken.". This, however, without any new arguments and conclusions
Supreme Administrative Court, the parties nature of public
churches and chapels (as governance) are manifestly unreasonable
related to the entire church property. The iconic use things (based on dedication)
as stated in the opinion, indeed derive from ownership, but its existence
ownership of things does not exclude, nor the church is not
destroying things (res nulius). The fact that "... the church property is worth
leveraged and can not be taken away from its purpose without the consent of the state" speaks about his public
"protection" under the Act no. 50/1874 r. A., Not | || conceptual absence of property rights to it (on the part of any entity
, and the state).
148th The conflict was within the government invoked the procedure
Agriculture Minister Julia Ďuriš (KSC), which began confiscating church property, despite
exclusively of government (especially to documents no. 38, 40, 44, 55, 59, 65, 70,
71, 72, 73, 74, 75, 77, 78, which illustrate the political conflict within the government
). The infringement procedure, cf. the Ministry of Agriculture.
judgment of God. And from 1689 to 1647, which the Supreme Administrative Court upheld the cassation complaint
religious order in the matter of confiscation under Decree no. 12/1945 Coll.
Confiscation and early allotment of agricultural property of Germans, Hungarians,
as well as traitors and enemies of the Czech and Slovak nation.
149th It is worth noting that even after a "public", respectively.
for the property in social, socialist property, was not considered
church property (ie. what was left of it) even after 1948 the retro
doctrine and case law that the assets were considered to be private (v || | opposed to socialist ownership).
Opinion of the General Prosecutor's Office dated 20 May 1954 no. T-282/54-ZO-33 shows that the property
churches and religious communities is not socialist property
personal and was never nationalized (which is necessary understand the property so
time nezestátněný). Ownership of churches and religious institutes takes
taking a stand on the property only supervise. Notes, therefore, that it is a
private ownership, which is supervised by a special state protection.
Supreme Court decision no. Ref. 1 Tz 30/55 stated that "
For assessing the conduct of the Church's property is determined by law no. 218/1949 Coll
. on economic security of churches and religious societies
state. According to § 10 of the cited Act state oversees assets
churches and religious communities, but the property owner does not happen. "
Secretariat for Religious Affairs in its opinion dated March 1, 1972
no. j. 5 345/72-C also said that the church property is owned by private
, based on the interpretation of the Supreme Court decision
Czechoslovakia, published in the Collection of court decisions and opinions as no. 47/1971
who nevertheless even some ecclesiastical property attributed
criminal law protection as socialist property (§ 139
150th This is finally noted that "
theory of public property", as previously discussed, is not the same doctrinal
term "public property" (especially in terms of the objective, ie in the sense
"property") as it is used in contemporary literature, which is again
emphasis is placed on the public use things, not the absence of substantive rights
him. A characteristic feature of the ownership restrictions in favor
public interest that such owners have a duty not merely to tolerate
general use, but also to ensure that the public good could be used.
"Public good is not necessarily either owned by public entities
- it is eg. The forests owned by private persons (§ 19 paragraph
. 1 Forest Act) - where it might not be owned as | || is the case of watercourses (§ 3 and 6 of the water Act), simply determines if it
for general use by law or public authority's decision "(Elias, K.
stability of property rights and its transformations. in legal advisor no. 4/2009
p. 4 et seq.). The right of ownership on the part of government (municipal, etc.)
So even today is not defining element of public affairs, public good, but feature
public is based on the character of public regulation, on
existence of public interest. Similarly, the current doctrine does not view
specifically to public corporations, although otherwise speak of "
public property" and "public property": "[...] local governments
[...] constitute a full-fledged property rights entities
a full-fledged subjects of property rights. So they have as owners [...] all
ownership privileges, and are also essentially the same way as other limited
owners. that is in some aspects to them ' public 'finish
stricter than for other owners is another thing "(Havlan, P.
public property. Brno, 2008, pp. 25-26).
151st It can not ignore that Article. 11 paragraph. 1 of the Charter provides
ownership right of all owners of the same content and protection. It is maintained even in the event of a reasoned
different degree of public regulation in different species or different
152nd If these theoretical conclusions, which in relation to
typical public goods (public way, water)
not note the consistency of Czechoslovakia (Austrian) law with the newly formulated theories, but especially
contradictions, founded Hobza, Inc. it the petitioners and the secondary participant
1) claims of "public" or "public ownership" to
ecclesiastical property (the original property), it is clearly unsuited for
conclusions. Historically, it is not impossible that the transformation of legal
relations at unchanged legislation was via facti long-term development
(Assets religious funds were still in the mid-19th century
regarded as assets managed by the state on behalf of the Church, but Busek, V., Hendrych,
J., Laštovka, K., Muller, V. Czechoslovak church laws. Prague
1931, p. 375, has already stated that this view "has not yet been abandoned," and this
assets is considered more religious). Such long-term development
to 25. 2. 1948 undoubtedly was time space, you can not understand it
utility sudden change of interpretation against the backdrop of political motivations.
Is no doubt that the institution of such "public property" within the meaning
above theory, which would cost as opposed to "private property"
which would mainly already existing legal relations can not be
recover, 25. 2. 1948 to the rule of law did not contain nor judicial practice is not accepted
X / f
The current doctrinal and judicial opinions
153 above. From the current doctrinal positions we can point to four
expertise, which were prepared by renowned scientific institutions.
It is a state: The issue of ownership of the Catholic Church and
restitution of church property (Masaryk University in Brno);
Assessment questions of church property (University of West Bohemia in Pilsen, Faculty of Law
); Expert opinion (Institute of State and Law of the Academy of Sciences of the Czech Republic
); Legal-historical examination of Charles University in Prague
legal status called. Catholic church property in the second half
19th and in the 20th century in what is now the Czech Republic; expertise are published in Annex
Assembly. print no. 858 "Report of the Temporary Committee Chairman of the Chamber of Deputies
for resolving property issues between the state and churches and religious societies
about the commission's activities during the period from 13 June 2008
31 March 2009".
154th Of all these examinations clearly show that the Church, respectively.
Various church organizations of the Catholic Church, the doctrine, jurisprudence and practice
considered owners of matters falling within the so-called. Ecclesiastical
worth (of course excluding those subject to a third person), and
it in terms of rights civil (DDA). Undoubtedly such refuting
objection of state ownership, or even a special kind of property.
Public Administration regulation of Church assets, especially conditionality
alienation and burdening property state sanction, loss of property could cause
155th From this comes as any practice of state authorities and the case
courts after 1989. In particular, reference is made to the fact that there was a question where
protection of property rights in the proceedings before the ordinary courts in proceedings
kvazirestitučních assessed objectively, the court concluded that
religious entities at the date of withdrawal of the right of property owners were
property concerned within the meaning of OZO [see.
random implicit or explicit bases conclusions on decisions or opinions sp. zn.
I. US 428/04; sp. Ref. II. US 528/02; sp. Ref. IV. US 298/05; sp. Nos. Pl.
US-st. 22/05; sp. Ref. II. US 687/04; paragraph 29 of the judgment file. Ref. IV. US
34/06; sp. . I. ÚS 663/06; sp. Nos. Pl. US 9/07; sp. . I. ÚS
2166/10; sp. Ref. II. US 2326/07; sp. Ref. III. US 3207/10; sp. . I. ÚS
562/09; sp. Ref. II. US 3120/10]. Stage
of the Constitutional Court dealt with the question of to what extent after the adoption of the "restitution
legislation" in the early 90s to provide protection for property rights
religious entities to assets odňatému after February 25, 1948 under || | common ownership or declaratory action.
Nenínaopak based on the finding that religious entities definition of property rights to their property
not eat again.
156th Regarding the substance of the existing case law kvazirestituční general
courts, the petitioners are wrong, if the judgment of the Supreme Court.
Brand. 28 Cdo 3318/2006 dated 31 January 2007 and in previous decisions
a dispute about the ownership of St.. Vitus, Wenceslaus and Adalbert in Prague
conclude that "the church ownership could not before an independent court of
demonstrate a lost court proceedings" (para. 47). In this punktu
courts are in fact exactly the opposite conclusion, since the ownership right
ecclesiastical entity at the beginning of the relevant period was in control
proved undoubtedly, the dispute was conducted on whether could be valid
expropriation, ie the transfer of ownership rights to the state based on
§ 1 of Decree no. 55/1954 Coll. dated 19 October 1954, on protected areas
Prague Castle. To do this, however, the Supreme Court said that on this
Question can not be decided on the basis of declaratory action by
Civil Procedure, as made by the applicants, but solely on the basis of special
restitution proceedings under a special law, which at the time
Supreme Court decision has been issued.
X / g
Effects of public regulation changes in the church at the time the property settlement
157th From a complex objections submitted by the petitioner and by
participants can extract alternatively two system
oppose the bill as a whole, to his sense of: (i) the Church, especially the Catholic Church
entities, should not be at all original property owner, ( ii)
Church, especially the Catholic Church entities should be owned
subject to public regulation, but the effective date of
Act no. 428/2012 Coll. It has been canceled.
158th (I) It is therefore essentially a principled objection that has to be
essence of the law is so confusing that it can establish ownership transfers
contrary to the principles of legal certainty, entirely beyond the intended scope of the Act. Does
be primarily on the argument that the "original property" as defined in §
2 point. a) Act no. 428/2012 Coll., is meant to represent the empty set.
Faulty conception of the law, respectively. its very existence, has cause to be
- as undesirable externalities Act - still based property right
or paid compensation, but only on the basis of a mistake as to the existence
ownership rights to the Church property before 1948. | ||
159 aircraft. This concept is basically Constitutional Court has in previous
parts of which implies that religious organizations as legal entities should
essentially full ownership eligibility, which resulted in a body
ownership rights to particular matters falling
church property (subject to the ownership of things belonging to third parties, except
specific religious orders). If, for example. "Legally-historical expertise
Charles University in Prague" in Part II speaks of "conceptual limitations
ownership rights of the Catholic Church opportunism, ie.
Determination of this property only to the objectives of cult activities, teaching and charity ,
not allowing him to pursue other objectives, for example. employment ", it is the conclusion
baseless, contrary to the analysis described above is evident facts.
Owned by religious bodies have been so routinely property
agricultural and economic (including eg. A brewery and a sugar refinery), where
is profitable (economic) nature obvious. Additionally, if this
"conceptual limitations" to flow from Art. 15 of Law no. 142/1867 row. Z.
It is also a baseless conclusion, because of the presence of the (constitutional) guarantees religious autonomy can not be
conclude that the property right holders
this law is "conceptually limited" only for the purposes of activities protected by the guarantees
internal autonomy. The same can not be inferred either from similar safeguards
internal autonomy under the present Article. 16 paragraph. 2 of the Charter.
160th If this is a reference to the "theory of public property"
emerged from the aforementioned literature, case law and practice that before
qualifying period should be to implement it in a way that would
conceptually removed the church property modification of ownership rights according oz
o. and entrusted it to the Church entities exclusively on the basis of public
title (exclusively the rights of iconic). In addition to the above theoretical analysis
we can point to quite practical examples that the validity of the theory
petitioners and interveners exclusive. It is generally known that
basically the only type of property whose ownership status has not been
unlawful acts of the communist regime affected (except for known exceptions)
were just churches, chapels, synagogues and other buildings serving performance | || cult, although currently these are subject to intense public regulation
as a public affairs. If it was a valid argument that the church
entities in respect of them were the owners (given the separate legal personality
church), but only owners, users, administrators, etc., Then
can not explain the fact that the rule of law and practice for owners of
during the vesting period, hitherto regarded and considered, although since the beginning of the relevant period
proved not to transfer (transition)
property rights to these entities (as was the case in relation to another
Land Act no. 298/1990 Coll.).
161st Therefore, in case of realization of beneficiaries' claims for release
Things according to the law no. 428/2012 Coll. talk in the true sense of
restoration of property rights, as envisaged by former and current OZO
Civil Code. Beyond this can be noted that
applicants and interveners have adduced no such arguments,
why the legislature pursues various aims and purposes, could (theoretically)
alleviate the injustices committed by the communist regime in the context of a broader adjustment | || status of beneficiaries in the future issuance of certain things that in the past
been owned by the entity concerned. It is possible, for example
point to Act no. 172/1991 Coll., On the transfer of certain items of property
Czech Republic to Municipalities, when the state in restoring the territorial government
transferred to the village property ownership in a much wider
extent than so formed. historic town ownership.
162nd (Ii) The second conceptual approach embodied in the proposals the petitioners and interveners
incorrectly assumes that the legislation
effective to 25. 2. 1948 was directed solely against churches itself,
their property interests that were such restrictions when the state had
's long-term in a certain way
poised to expropriate church property and its withdrawal churches, on the basis gradual
public acceptance. The intense public regulation
Administration Church assets and reduce general disposition of ecclesiastical property
appears to them as unfair (resp. Unconstitutional) that
Church in today's legal conditions argued for a more favorable legal position than to
February 25, 1948, when against them equally intense
public regulation is aimed. Completely overlooked, however, that in the contemporary context
she was a public treatment (especially regarding
property dispositions, but also in many other aspects)
viewed as a privilege (in the legal sense), which gave the churches now | || particularly the Catholic Church advantageous position. Law no. 50/1874 r. A.
Then explicitly in § 38 spoke of "protection", which should mirror the state's interest in maintaining
religious activity (which is penetrated
case law and literature). This of course is not to say that there was a time after
fact or in law the ideal relationship between church and state, but
even before 1948, the State recognized the essential elements vnitrocírkevní
autonomy. However, if the interveners 1) conclude that after 1. 11. 1949
a "new status of state property right of the Catholic Church ...
law differed from the Austrian and interwar only minimally, and his approach was his logic
closely linked to the previous development ", it is a rather cynical conclusion
given the current level of knowledge about the nature and practice
communist regime in Czechoslovakia, when a vnitrocírkevní
autonomy could be no question. The Constitutional Court has in the past suggested that
"called. Economic security of churches was conceived from the beginning as one of the instruments
elimination of the independence of churches and religious societies
, with direct intention not to fulfill
religious freedom, but be combated through direct executive control
religious life and economic oppression "(sp. Nos. Pl. ÚS 9/07, point
163rd Removal (in today's intensely restrictive view)
public regulation after 1989, then intervened 1)
considered as a fact that prevents the restoration of property rights,
respectively. establishes unconstitutional. To evaluate this second argument
concept is the first to be noted that with effect from 8. 2. 1991
been through the Charter of Fundamental Rights and Freedoms in the plane
constitutional rights breakthrough guarantee religious freedom and churches
granted Article. 16 paragraph. 2 internal autonomy, under which
jurisprudence of the Constitutional court and ECHR downshifts various aspects of church life, including
certain elements of autonomy (sp. Nos. Pl. ÚS 9/07, paragraph 104).
It also adopted Article. 11 paragraph. 1 protecting property, according to which every
has the right to own property. The ownership right of all owners has the same statutory content and
protection. The main elements of state control
churches and religious communities, as interpreted and applied before
1989, and got into a major conflict with the newly implemented idea
substantive law, a supporting element is respect for fundamental
Rights and democratic values, as in Western society shaped.
That adjustment of state interference in economic affairs
churches and religious societies to which intervene 1) after 1 November 1949
refers featured § 10 Act no. 218/1949 Coll., Under which the || | especially "[s] to melt oversees the property of churches and religious societies" and
"[j] akékoliv alienation or charging property of churches and religious societies
requires the prior consent of the government."
This provision, however, was a democratic legislature abolished by Act no. 165/1992 Coll
. Repealing certain legislation in the sector
culture, with effect from 15 April 1992 for the Czech Republic, respectively.
Federal law no. 522/1992 Coll., Amending Act no. 218/1949 Coll
. On economic security of churches and religious societies
State, as amended by Act no. 16/1990 Coll. with effect from 20 November
1,992th The preamble to the second step indicates that the application of the provisions cited
dropped, canceling therefore, should be an effort to "depuration"
legal system (presumably to comply with the new conditions of
text of the Act), with the that special monitoring the management of funds is necessary to introduce
. In view of the intervener 1) it is the right
annul § 10 of Act no. 218/1949 Coll., Ie the abolition of the "state
supervision," which was unevenly (unconstitutional)
property settlement with churches and religious communities. The explanatory notes to
Act no. 522/1992 Coll. But such an intention of the legislature, which should be
disabling future mitigation of property injustices, can not be found, and even
Constitutional Court said step this way be construed. When canceling §
10 of the Act no. 218/1949 Coll. legislature acted with the knowledge of a
blocking clause, anticipating the adoption of special laws
regarding Church property in the future (esp. § 29 Act no. 229/1991 Coll
.), while nowhere is detected no hint of reflection, according to which this would
blocking provisions became obsolete because
special restitution law (resp. another of property relations between the state and churches)
no longer after the abolition of § 10 of Act no. 218/1949 Coll. constitutionally permissible.
The removal of state supervision over the churches and religious communities
other hand, was making a specific constitutional guarantees Art. 11 and 16 of the Charter.
It should be noted that that view expressed by the Constitutional Court and in its case
when finding sp. Nos. Pl. US 6/02 dated 27. 11. 2002 (N 146/28
SbNU 295; 4/2003 Coll.) Annulled § 27 par. 5 of the second sentence in the "
and gained profits can only be used for fulfilling the objectives of the activities of churches and religious societies
"law no. 3/2002 Coll., as the purpose of the restriction
Church could not be subsumed under Art. 16 par. 4 and in terms
protection of property rights was also contravenes Article. 11 paragraph. 1
Charter. On another level, the constitutional relevance of the economic autonomy of Churches expressed
finding sp. Nos. Pl. US 9/07, paragraph 104. State Supervision on
church property in accordance with § 10 of Act no. 218/1949 Coll., As amended, effective
19 November 1992 (resp. In April 14, 1992) so undoubtedly
excluded guarantees of fundamental rights under Article. 11 paragraph. 1 and Art. 16 paragraph. 2
Charter. If nevertheless intervened this state supervision
invoke and make his absence fundamentally negative (and in terms
level achieved surprising law) legal conclusion in relation to the legitimate
churches and religious communities, receive their | || objection in direct conflict with Art. 3 paragraph. 3 of the Charter, under which
"[n] Ikoma may be caused detriment to her rights merely for asserting his
fundamental rights and freedoms.". The fact that the Charter represents the broadest
- and not just formal - a catalog of fundamental rights
these are under the protection of the courts and the Constitutional Court can not go into the question of restoration of property rights
authorized entities to the detriment.
In this sense, the Constitutional Court has indeed traktoval (sp. Nos. Pl. ÚS 9/07, paragraph 106) that
"[i] n unacceptable Constitutional Court considers that view, according to which it would (a || | historical perspective) broad-based freedom of thought, conscience and religion
clear from the Czech constitutional order and
international standards and how is protected
general courts and the Constitutional court, should justify some lower level of economic
Autonomy of churches and religious societies. So that perhaps
existence present a higher level of fundamental rights and freedoms in comparison with the previous state
(at 25th February 1948) could serve as an argument for denying
property settlement. ". In this context, therefore | || fabricated petitioners and interveners when
adoption of the Charter and the annulment of § 10 Act no. 218/1949 Coll., had rid the church
entities have the means to mitigate property injustices, rather paradoxical
just given the sense and purpose of the Charter and the guarantee of fundamental rights
164th Even at the level of ordinary law, esp.
restitution existing regulations is a requirement of the intervener 1) inapposite, because in | || relation to any authorized person (restitution) did not require recovery of the then
public restrictions (which are no longer part
legal system). the right of ownership has been renewed under current legal conditions
. intervener 1) (point 10) is therefore wrong to argue that
church organizations (beneficiaries) "are entitled to dispose of their property freely
'within the meaning of public regulation does not take into account
that all current owners (the natural or legal persons
, including church organizations) covers certain public
regulation limiting the exercise of property rights that correspond to the current
needs of society (cf.. totally random comprehensive set of standards rights
environment, cultural heritage protection intensity or extent of tax), with special
current public regulation is precisely
Act no. 3/2002 Coll., as amended, which regulates closely
defined purposes churches and religious societies and church
legal persons, including eg. business restrictions (§ 15a paragraph. 4, § 27
par. 5). Any restrictions on the fundamental rights guaranteed by Article. 11 and 16
Charter must fulfill the terms of public interest within the meaning
use floor clauses of the Charter, that in case the petitioners or intervene
1) feel the need for such a legislative procedure.
Fact that in relation to religious subjects is no longer possible renewal
unconstitutional state supervision because they confessed framers of the Charter
broader permissions, but can not go to their detriment.
165th Should public regulation, and especially its elimination,
should have any fatal consequences for the existence of property rights, which are
intervene 1) refers, it should be mentioned as examples
itself known. Blocking clause § 29 Act no. 229/1991 Coll., which after
for more than twenty years of restricted owners with any disposition of land
blocked, under penalty of nullity, and featured
exceptionally strong public regulation.
Repeal this provision, but the original owners of the acquired rights of disposal back without
this fact could be criticized as unacceptable acquisition of new rights by
state. It then does not matter whether the abolition of public regulation occurred
duration of ownership (the example of uninterrupted ownership
churches) or prior to acquisition of property under the Restitution Act.
Both cases reflect the disappearance of the public interest in such regulation (
will of the legislature).
X / h
Assessment of other objections
166th If the petitioners argue that the law on compensation with churches
"threatens the very foundations of the Czech Republic, defeating thoughts fathers
founding of the Czechoslovak Republic, creates an unreasonable
material base for right-wing political forces of all resources" and "undermines || | ... economic and legal stability of the Czech Republic, "says
Constitutional court ruled that the requirement to lack of funds churches and religious societies, and it
even in relation to economic assets, not the Czech constitutional order
included. The argument of "ideas" First Republic may have relevance only in the context
value ethos Preamble to the Constitution, which talks about
"good traditions ... Czechoslovak statehood". The Constitutional Court has
contrary, the expropriation of all economic assets
churches and religious societies, as it occurred after February 25, 1948, included
set good traditions clearly not the less it is a "foundation on
which would cost our country ". Claimant made to the contrary - constitutionally
Relevant - the doctrine of value discontinuity with the communist regime
which the Constitutional Court adopted in judgment file. Nos. Pl. US 19/93 of 21
12th 1993 (N 1/1 SbNU 1; 14/1994 Coll.), Which was rejected
proposal to repeal the Act no. 198/1993 Coll., On the Lawlessness of the Communist Regime and Resistance
167th If this is the concept for the interpretation section of Czech history in podkap. 5.4
draft, the Constitutional Court does not consider this passage for any legally significant
for assessing the constitutionality of the Act no. 428/2012 Coll., As it contains
interpretation of historical facts beyond the vesting period of
700 years, while should be pointed out the obvious fact that none of
restitution regulations after 1989 was not based on the restoration of the legal relationship
or remedy alleged wrongs arising deep in history, and
any judicial review of the facts is factually and legally completely || | excluded.
168th Also, the petitioners' claims of "strengthening right-wing forces" is not
for assessing the constitutionality of the settlement with churches decisive.
Parties objected economic destabilization of the Czech Republic, the petitioners do not translate
no evidence, according to which financial compensation in the accumulation of
contribution under § 17 of the settlement with churches, considering
mechanism installments should be constitutionally relevant influence on
state budget or state finances. The existing case law of the Constitutional Court, which touched
economic issues and the state budget, it follows that
constitutionally relevant national threat arising from the (aggregate) amount of expenditure
State pursuant to the settlement with churches is unthinkable, and it now
particularly in the context of the sums which had to pay the state 31 December 2012
under Act no. 218/1949 Coll., or amounts that become so-called.
economic security of churches and religious societies truly
disbursed. Immediate reduction of assets by the state is yet
defining element of the current restitution legislation, rather than
169. References to intervene 1) that the beneficiaries have
"subjective right" to property as fixed in § 2. a) Act no. 428/2012 Coll
., it should be recalled that the restitution claim is the nature of things
subjective right, which is based only restitution law.
This principle was established Arcita restitution
existing legislation. In this regard the Constitutional Court refers to the opinion sp.
Brand. Pl. US-st. 21/05, in which it explained its view of the effects which
adoption of restitution legislation had on the existence of any lasting
subjective rights to the original property. Seen through the lens of opinions
sp. Nos. Pl. US-st. 21/05 is because any release of stuff in the restitution process
terminology in intervention 1) "gift" So
gratuitous transfer of ownership of the goods (or. Replacement) from state ownership.
In this respect, therefore, it is the concept of a restitution legislation.
With regard to the purpose of restitution legislation in a historical context,
reasons and the broader intent of the Act to carry out the separation of ownership between the state and churches
can not speak of a "gift," because this character is no legally
from adjusted property transfers does. If perhaps the intervener
1) referring to the existence of property claims referred to in the case law
Constitutional Court and ECHR as a legitimate expectation applies to this objection
state before adopting the contested law and not the law itself.
In the Constitutional Court refers to its above-recapitulated case law.
170th Such an interpretation of Article. 2. 1 of the Charter (the religious neutrality of the state)
framers that the intention was to exclude property settlement between the state and churches
would be inconsistent with the guarantees arising from Art. 11 paragraph. 1 and || | Article. 16 paragraph. 2 of the Charter, as the Constitutional Court explained in its judgment. Ref.
Pl. US 9/07 and other findings.
171st The level of general objections to the law, which were based on
vouchers legislation of church assets to 25 February 1948, thus
Constitutional Court found that the opposition was based on wrong
bases. On vesting date 25. 2. 1948 legal order nor the case
not exclude the existence of property rights to objects falling
then the term "Church assets", the less the existence
ownership rights on the part of ecclesiastical legal entities. Restoration of property rights,
respectively. Compensation as a method of alleviating the property damage are therefore in
Case of Act no. 428/2012 Coll. legally or constitutionally excluded, as well as
were eliminated in earlier restitution law. If the proposals
emphasized that the subjects of property rights, the individual
religious bodies (institutions), not the church as a whole, the current legal
Index and practice, respectively. itself Act no. 428/2012 Coll.
of this concept undoubtedly based (also earlier laws, cf.
construction Act no. 298/1990 Coll., or judgment of the High Court in Prague. Ref. 3 Cdo
228/93 dated 4 5 . 1994 according to which the Roman catholic Church - its
branch legal personality, which has been withdrawn
title to the property in the manner specified in § 1 of law no.
403/1990 Coll., on the mitigation of certain property injustices
is a private legal entity authorized by this Act).
172nd At this level it is possible to make a partial conclusion that the system
objections to the law as a whole is not reasonable. Furthermore, it is again possible
concluded that the constitutional order does not prevent lawmakers
mitigate property injustices and other rights than the right of ownership or other
methods other than as restitutio in integrum in the strict sense.
Constitutionality kind of restitution (§ 1-14 of the Act on Compensation of Churches
XI / a
K § 1 (Subject Matter)
173rd From the submissions the petitioners and the interveners is not entirely clear that the objections
directly linked to the provisions of § 1 of the Law on Compensation of
churches. That provision defines the subject-matter and called.
174th In relation to the subject matter, which is
mitigate some property injustices and settlement of relations between the state and
registered churches and religious societies, namely the petitioners and the secondary participant
1) only general objections raised in that spirit that the
property wrongs not in relation to the churches, particularly the Catholic Church, conceptually
occur because the church name was not in her possession. To this objection
The Constitutional Court has already stated in the previous section. As far as the intervener's objection
1) that the law "obscures" the reasons for the legislation
Constitutional Court refers precisely to § 1, then also the Preamble
Law on Compensation of Churches, which speaks about an attempt to "settle
property relations between the state and churches and religious societies
as a precondition for full religious freedom and allow restoring
asset base of churches and religious societies
free and independent status of churches and religious societies," and also
extensive background report and parliamentary debate. In the context of the information, which the intervener
1) the content of the law could
during the legislative process gain, then seems no longer surprising that
law aims to "economic separation" between church and state, the normative | || defining the subject of the act that objective does not in any way (kind
restitution, financial compensation, the transition period, the repeal of Law no.
218/1949 Sb.). That would be just this purpose was to be unconstitutional
petitioners have not intervened 1) claim. If this should be
about the possible objection that "restitution law" must only follow the objectives
mitigate property injustices, and not the other objectives, the Constitutional Court refers to the broader purpose
eg. Law no. 229/1991 Coll., on proprietary
relations towards land and other agricultural property, whose aim was to "adjust
ownership relationships to land in accordance with the interests of economic development
rural areas and in accordance with the requirements for the creation of the landscape and the environment | || environment, "not only mitigate property injustices. Of
constitutional order does not imply that the Restitution Act could also modify the legal
relations in the future.
175th In terms of the actual objectives of the legislation is to be reiterated that
mitigate property injustices Constitutional Court has repeatedly assessed
constitutionally desirable and interpreted broadly in favor
authorized persons. That is Arcita reference may be made to the above principles
recap restitution case. If the next goal
settlement of property relations between the state and the church, it is a
meet the requirements arising from Art. 1 of the Constitution, Art. 11 paragraph. 1 and 4
Charter (sp. Nos. Pl. ÚS 9/07, verdict II, paragraphs 72-91). If then also
goal setting adjustments such (future) economic relations between
Church and the state, which creates a presumption full religious freedom and independence
churches and religious communities to the state through
renewal of their asset base, it is a form filling requirement
resulting primarily from Art. 16 paragraph. 1, 2 of the Charter (sp. Nos. Pl. ÚS 9/07,
verdict II, points 92-107). Act no. 428/2012 Coll. then in this sense - the relevant provisions
- parametric expression of those objectives.
A related objection in intervention 1) it should be noted that
is not true to say that the earlier restitution laws
alleviate only some of the injustices committed by the communist regime, while the Act no. 428/2012 Coll
. lessen all the wrongs committed against religious
entities. Access to restitution legislator was and is, in fact
limited by the existence of a state of affairs, which was caused by removing
property injustice (in relation to possible evidentiary situations etc.).
Regular part of the definition of restitution regulations is that
substantive jurisdiction is defined primarily in respect of immovable property, exceptionally
chattels. This principle is also satisfied by Act no. 428/2012 Coll. The concept
mitigation of certain property injustices, actually expresses a factual impossibility
mitigate undisputed and indisputable property and other injustices
further, beyond the substantive definition of the relevant laws (financial
cash, securities, receivables, but also the wrongs immaterial,
, reflected in human lives and destinies). This framework Act no. 428/2012 Coll
. and, of course, does not substitute for "all" wrongs
as the intervener claims 1), but only hurt property
in relation to immovable property, rather than to finance, loss of profits,
nevykonávaným patron obligations, etc., which stems from the extent
restitution titles in § 5, which corresponds with previous
176th Question definition so. Vesting period is not - as is also apparent from
existing case law of the Constitutional Court - constitutional relevance since
it is a political decision, and his determination not matter
constitutional review. In principle, the Constitutional Court in relation to
determination of the period stated in earlier findings [eg. sp. Ref.
Pl. US 45/97 of 25. 3. 1998 (N 41/10 SbNU 277; 79/1998 Coll.)]
"The statutory requirement is just the transition of things to happen in the so-called
. Decisive period in the contested legislative provision
Limited. Its onset appointed date 25. 2. 1948, the arrival
scheme which was already quite consciously, programmatically and persistently violated the principles
law. ". In the same vein see. opinion sp. Nos. Pl. US-st.
21/05, with neither possible "break" (meaning setting an earlier date
beginning of the relevant period) is not an explicit treatment in restitution
excluded by law (Act no. 243/1992 Coll., To regulate certain
issues relating to Act no. 229/1991 Coll., on proprietary
relations towards land and other agricultural assets, as amended by law no. 93/1992
Coll., adopted on the basis of the authorization contained in § 7 of Law no. 229/1991
Sb.). Specific objections to the determination of the period from 25 February 1948
1 January 1990 proposals do not. Suffice
therefore only point to exactly the same rules in earlier restitution and rehabilitation
laws: § 4 para. 1 of Act no. 229/1991 Coll .; § 1.
1 of Law no. 87/1991 Coll., On extrajudicial rehabilitations; § 2 para. 1
Act no. 119/1990 Coll., On Judicial Rehabilitation, etc.
XI / b
K § 2 (original assets)
177 cells. It is also not clear what specific objections relate to the provisions of § 2
as a whole. Regarding the definition of "original
property" churches and religious communities, is the substantive scope
also fully within the competence of the legislature, which is also authorized
despite this definition, even when the application calls for release of things if there
public interest to refuse a thing (§ 8). The period's concept of "church assets" and
its relationship to a different concept of "original property" The Constitutional Court has already expressed
178th The petitioners argue that the definition includes property, respectively. things that
ecclesiastical entities only that "belonged" by which he meant to be a different relationship than
property rights. The explanatory report and the observations of the state
that the definition of the original property includes not only things i 'property rights and
Other assets including co-ownership shares, "about which speak
legal terminology as the subject property, but so that
belongs to an organization. In particular, reference is made to the restitution title
according to § 5 point. g), and a rejection of the inheritance in probate proceedings
if the waiver was in distress. the specific argument
petitioners in the sense that the term has been included with regard to the alleged absence of property rights
side (Catholic) Church, has been settled above
179th Constitutional court can not overlook that the sentences mentioned in the provisions of § 2 point
. a) is semantically overloaded and enumeration in § 2. and ) includes under
relationship "stuffs" equal rights and things, without further differentiation.
the legislation of the former nor the current legal relationship does not know "stuffs", which would have been kind
| || 180th in the matter, especially eliminates the fundamental objection petitioners
interveners that church organizations could be conceptually
owners (public users only) a matter of the original property as
defined in § 2. a) Act no. 428/2012 Coll. The term "belonged" because
nor can it affect relations stemming from the "Public Property"
ecclesiastical property, because such an institute period right ignorant.
181st Nevertheless, it is conceivable that the interpretation of the cited provision may
appear in the application practice slurred. This is not about ambiguity
that could not be overcome interpretations, as estimated
explanatory memorandum. Therefore, the provisions of § 2. a) Act no. 428/2012 Coll
. It can only be interpreted as not including things that were
time property injustices demonstrably owned by third parties
(typically a private chapel, to which there was public
disposition on the side of the church). The term "belonged" then will be related only to
'property rights and other property values, including
fund units, "and no longer to" things. "
Restitution existing regulations are indeed based on the principle of recovery
property rights and not a recovery period of public relations.
Interpretation of § 2 point. a) in connection with § 5 of the Act no. 428/2012 Coll.
contrary to the concept of the original property must include even those things in relation to which the public authorities act
injustice caused property as defined by law.
The impact primarily on the general merits of restitution
based on unlawful disabling undertake
fact or in law, property rights, such as the provisions of § 5. g), under which the
for property injustice deemed refusal of inheritance in probate proceedings
if the waiver was in distress.
182nd That interpretation is then fully in line with the previous
restitution laws, according to which the substantive scope (analogous to the definition
original property) laws fall was even the case in relation to which the person was entitled
law defined property injustice, without
by these laws in this regard by definition a distinction between "law" and
"things". Construction of Law no. 87/1991 Coll., Which in § 6 para. 1 point. h)
contains eg. a similar restitution also the title ( "waiver of
probate proceedings, made in Need"), and did so without § 3 para. 1 of Act No.
. 87/1991. distinguish between things and rights (the "thing which passed into state ownership
"). The application practice inconsistent terminology
Law no. 87/1991. at this point does not cause problems. Similar applies to § 6
paragraph. Point 1. l) of the Act no. 229/1991 Coll. in conjunction with the words "whose
land and buildings belonging to the original farm, were transferred to the state
" in § 4 para. 1 of Act no. 229/1991 Coll. (
Pronoun "which" also implies ownership). In this regard, it is clear that
provisions of § 2. a) not to extend the scope of the Act
compared to earlier principles of restitution and was not found to be constitutional
reason for the derogation of this provision.
183rd The fact that § 2 of the Law on Compensation of Churches does not
broader definition of the original property, which would include assets intended for humanitarian purposes
other entities as required by the petitioners in the paragraph. 29
d) is completely irrelevant the constitutionality of the law and seems totally unrelated to the subject
legislation. Objection to in paragraph. 29 e)
which is based on the fact that Act no. 229/1991 Coll. He did not apply to the Church
And religious society ignores that it is a statement
generally known facts, which stems from the structure of the Act, particularly
provisions of § 29, which was the adoption of laws on property, originally owned
were churches, religious communities, orders and congregations,
anticipates. Convincing argument why in relation to '
undeveloped land "should be unconstitutional restitution in kind, that is what makes
its special constitutional status (public interest, special protection), for
which could not be released just ecclesiastical bodies are missing.
If this conclusion is only built on the premise that if the law no. 229/1991 Coll.
Respectively. any previous Restitution Act, has not made church organizations
authorized persons can no longer do any other law, this is the
interpretation beyond rational discourse. Regarding the objection that
other legal entities 'undeveloped land' has also not been issued, the petitioners
completely ignores the actual situation, when Czechoslovak Red Cross
or sports organizations are not comparable landlords
owners of agricultural or forest land or so were not designed.
184th It can not not be inferred that the release of one law
would be the intention of the legislature to mitigate property injustices consumed. In
otherwise would, for example, Act no. 87/1991 Coll., Issued
especially for individuals, such as indirect sequel in relation to Act no.
403/1990 Coll., On the mitigation of certain property injustices, as amended
, also have the nature of the law unconstitutional.
The same applies in relation to the objections 29 f), h), i) and j). The view that
adoption of the restitution law as everyone else "restitution"
(petitioner has, however, apparently referring to any other person beyond
persons authorized) unconstitutionally discriminated against, see the discussion as to whether
equality above. In this view would be unconstitutional any
Restitution Act. The legislature has never had in mind
intention to provoke him among selected by authorized persons, jealousy and envy
nor no intention of issuing the gradual restitution regulations "satisfied"
person entitled to bring into the camp of those who invoked
"restitution dots ". Ex favore restitutionis Rather, it follows the principle:
"Ask and it will be your wish." The alleged lack of "full ownership"
see above. Claimant does not explain what the reasoning is based, it is desirable
release only "a very small number of restituted objects"
because this has to defend "lawsuits potential
restitution." Experience justice from the 90s is exactly the opposite.
It is in a situation where a person has not been included among the beneficiaries (resp.
Desired thing did not fall within the material and temporal scope), the actions were
185th If a partial objection to the provisions of § 2. a)
petitioners argue that "religious organizations had been as the owner entered with a note
Sine presentato, with any other entity with such a remark the property
be silent, because it was not proven his property "[paragraph. 27 a)]
because it should be a "write without the written document" (para. 47), is inapposite
this reasoning at several levels.
Petitioners incorrectly reported that the note (correctly:
sine praesentato) labeled "Write without the written documentation." Thus arbitrariness
Austrian authorities (ie. Library courts) is not in principle excluded and
petitioners did not demonstrate it or anything. The affected line
entry in the land register is included "day and year of administration, as well as a number of his
exhibitní" (Čečetka, VJ General Library Act of 25 July 1871
No. 95 l. Of. The opinion practice. Praha, 1891, p. 26).
Data transmitted from the older provincial boards, which are otherwise similar data
structure, or other public records, but not
inserted on the basis of proposals by individual owners, but
transmission of such data. Initial enrollment into the box then mentions "
Sine praes. N. et Exh.
" Ie "without filing date and number of an exhibition." Registration was carried out just
solely on the basis of written documents (records, documents, reports
etc.), Which took into account de facto legal status, but not on the basis of a proposal
participant. It is then completely unsubstantiated allegations
petitioners that data terriers are not a conclusive indication of
Property, because it is obvious that the note sine praesentato
been designed specifically for religious organizations, and certainly testify
nothing about the content or "assurance" enrollee data. Finally
is not substantiated the claim that the beneficiaries under the previous
restitution laws should not be published property that was in the land
books written transfer data from older records, and it is not clear from what
Therefore it should be. In case of errors in registrations had
obviously beneficial owner of the possibility of legal protection, this procedure is not generally
be noted that objections should be raised before
more than a century ago, not now.
XI / c
K § 3 (beneficiaries)
186th The argument about the general challenge to the status of legal persons
restitution process, and that such persons authorized, the Constitutional Court refers to current
restitution laws, which legal entity this position should
without raising any constitutional questions . This is therefore
Act no. 428/2012 Coll. by no means unique (without limitation):
Act no. 403/1990 Coll., on the mitigation of certain property injustices;
Act no. 173/1990 Coll., Repealing the Act no. 68/1956 Coll., On
organization of physical education, and regulating some other relationships
concerning voluntary sports organizations, and related
law no. 232/1991 Coll., On the conditions and manner of restoration
property rights arising from the Act no. 173/1990 Coll., Repealing Act no.
68/1956 Coll., On the organization of physical education and laying
further regulate certain relations concerning voluntary sports organizations;
Law no. 298/1990 Coll., On regulation of some property relationships of monastic orders and congregations and
Archdiocese; Act no. 172/1991 Coll., on
transfer of some assets from the Czech Republic to Municipalities;
Act no. 126/1992 Coll., On protection of the emblem and the name of the Red Cross and
Czechoslovak Red Cross; Act no. 212/2000 Coll., on
mitigate some property injustices caused by the Holocaust and amending Act no. 243/1992 Coll
., to regulate certain issues relating to Act No.
. 229/1991 Coll., On the ownership of land and other agricultural property
, as amended by Act no. 93/1992 Coll., As amended
187th If it is a challenging position just religious subjects
(a religious nut, with regard to the listing in § 3) are not conceptually
mitigate property injustices nor the intention of the separation of church and state
implemented against persons other than just to the Church entities.
Not clear on what basis should be precisely those subjects excluded
precisely because of their legal position on the issue of settlement of historic property
bind standards from the early 90s (Act no.
403/1990 Coll., Act no. 298/1990 Coll., § 29 of Act no. 229/1991 Coll., § 3
paragraph. 1 of law no. 92/1991 Coll., on the transfer of state property to | || others) and complex case law of the Constitutional court (see above). If
paid petitioners conclusions (section 5.1), there would be these standards and
jurisprudence of the Constitutional Court within the bounds of constitutionality objectively fulfill, which
would be with this time lag somewhat surprising finding.
In principle, continue to apply previously expressed that "[p]
Constitutional Court is not competent to assess to what extent the scope of restitution defined
legislature perfect or complete, only emphasizes that this
the extent of the constitutional order of the Czech Republic is entrusted exclusively to the legislature, and not
constitutional court "(judgment. Nos. Pl. US 14/04 of 25 first
2006). In this regard, the opposition was based on the alleged inequality
regular part of the constitutional complaints of persons who for whatever reason did not suggest
restitution title (obstacle citizenship
grievance before the relevant date, etc.).
188th If it is a question of equality, as the appellants, on the one hand
authorized persons pursuant to Act no. 428/2012 Coll. and on the other hand
other "humanitarian legal persons", again, it is not clear what
people are thinking about what needs to be discussed and on what constitutional
reason should be included in the Act was to alleviate some
property injustice and in the process of separation of church and state.
The question of equality of authorized persons in the field of restitution to the Constitutional Court
Repeatedly expressed, eg. In cases of alleged discrimination on the basis of the conditions
citizenship. In its judgment. Nos. Pl. US 33/96 of
4. 6. 1997 (N 67/8 SbNU 163; 185/1997 Coll.)
Judged by the Constitutional Court for the annulment of the law on extrajudicial rehabilitations, and that the provisions of §
3. 1 "where the citizen
Czech and Slovak Federal Republic.". The proposal was rejected with that (except
else) is not inconsistent with the principle of equality and non-discrimination under Article.
Paragraph 3. 1 of the Charter. The Constitutional Court rejected an absolute concept of the principle of equality
while stated that "equality of citizens can not be understood as
abstract category, but as relative equality, as it has on the mind
all modern constitutions" [cf. Finding sp. Nos. Pl. US 36/93 of
17th 5th, 1994 (N 24/1 SbNU 175; 132/1994 Coll.)]. The principle of equality
thereby shifted into the area of constitutional acceptability of aspects
differentiating subjects and rights. He sees the first aspect while the exclusion
arbitrariness. The second aspect in evaluating the unconstitutionality
legal regulation which establishes inequality is that it affects
one of the fundamental rights and freedoms. In its judgment. Nos. Pl. US 24/98
on 22. 9. 1999 (N 127/15 SbNU 211; 234/1999 Coll.) On the proposal to repeal
part of the Land Act, the Constitutional Court also referred to its previous
case law, according to which the State is that in order to ensure its functions
decided that certain groups will provide fewer benefits than others.
May happen only with reference to the public good. Such public
value is undoubtedly the principle of legal certainty, since interventions in the newly created
legal relations would continue to change, and signaled to
future status of ongoing destabilization, despite
creating space for new and new disputes about rights already acquired. Also, in its judgment. Nos. Pl.
US 9/99 of 6. 10. 1999 (N 135/16 SbNU 9; 289/1999 Coll.), The Constitutional Court ruled
that the reasoning of the legislature, which distinguishes restituents
according to objective criteria citizenship meant
189th Generalized conclusions sides of the criteria for determining the beneficiaries of
(ie their differentiation from other entities) are now applicable to
submitted thing. Above all, it can not seriously argue that the definition of the original
church property, the intention of alleviating the property damage caused by deprivation of property listed
authorized persons, and in particular the intention to carry
economic separation of church and state, suggests even to entities other than
just those included in the list of § 3. Thus, there are still other
entities within these relationships were interchangeably position.
This is a separate legal and constitutional issues (except Art.
11 are in play Art. 2 paragraph. 1, Art. 15, 16 of the Charter) and there are
other entities, which would exist legally or constitutionally identical
position. In this way - that is a separate issue - it
Constitutional Court has systematically dealt with (starting decisions sp. Ref. II.
US 528/02, et al. Nos. Pl. US-Wed 05/22 and a number of other related ).
Question of settlement of historic property of churches since the early 90s
associated just with the need for overall treatment between State and Church.
Law no. 298/1990 Coll. this represented a mere stopgap (sp. Nos. Pl.
US-Wed 5.22). It is this fact, the Constitutional Court took into account when he
space legislators to adopt "legislation settling
historic property of churches and religious communities, which take into account the objective
specifics discussed the matter and § 29 of the soil
actually consumes "(judgment. Nos. Pl. ÚS 9/07, paragraph 25), knowing
complexity and political risk of the issue. Elects not
Constitutional Court has excluded from the above absolute understanding of equality, then
can only point out the objective facts that give
rational basis for separate legislation and not necessarily for legal
treatment that involves other types of legal entities.
Return of property to churches corresponds with their purpose, the traditional functions and organizational structure
[within which the intervener 1) incorrectly
merely accentuates the state administration], why is it being fulfilled
assumption that the law partially Tempered "damage caused by the State
in relation to the constitutional right to free exercise of religion, and not
(Primarily) for damage caused to property rights "(sp. Nos. Pl. ÚS 9/07,
paragraph 105). The constitutional relevance of these issues, see, eg. Decision Ref. No.. I
US 146/03 dated 18. 6. 2003 (N 115/31 SbNU 33); Decision Ref. Nos. Pl. US 6/02
; Decision Ref. Nos. Pl. US 2/06 of 30 10 . 2007 (N 173/47 SbNU 253;
10/2008 Coll.); decision Ref. Nos. Pl. ÚS 9/07, paragraph 98; and there
series of linked decisions of foreign jurisdictions. this further
compare (different) purposes other restitution laws, while
mitigate property injustices or in other laws is not the sole purpose, with respect to
which was determined by the overall scope of restitution and
circle of beneficiaries. "Historical the role of churches in society and the public
oriented nature of their activities is somewhat different from
other natural or legal persons (taking into account the nature of their assets
) while allowing their comparison - in terms of the requirement
independence of the state - with local governments (municipalities) that are
units as well as inseparable from the individual citizen's right to self-determination
(read: government) "- sp. Nos. Pl. US 9/07, paragraph 105.
The petitioners also overlooked the fact that the absence of legislation that would deal
historic property of churches, before the contested
Act no. 428/2012 Coll. reached the intensity of unconstitutionality (sp. Nos. Pl.
US 9/07, operative part II), and therefore the question of adopting legislation in relation to
ecclesiastical entities (in terms of their purpose)
become extremely urgent. And it must also be emphasized that the list of authorized persons and
construction bill is largely justified in order to adjust the property settlement through
future relationship between church and state
removal of economic dependence, which was abolished Law no. || | 218/1949 Coll., on economic security of churches and religious societies
state. In doing so, the possible continuation of some form of so-called.
Economic security in concurrence with partial restitution of property to
Although not appear to be politically sustainable, but not as legally
excluded. In relation to the future relationship between church and state legislature should
wider margin account than in relation to the partial mitigation of property injustices
, where the current restitution legislation offered a steady or
190th If this was true perspective The approach intervener 1)
would have to be abolished gradually all the restitution laws, since each of them
turned to a certain group of people, and all the remaining people
were not included. Which is now argued as unconstitutional.
It should be noted that neither the judgment file. Nos. Pl. US 9/07, respectively. His second statement
argument is not based on inequality of religious subjects in relation to the previous
restituents. However, the aforementioned should not be excluded
protect existing property rights and other fundamental rights
implied by "humanitarian legal persons" or other entities
if such a thing will be submitted to the Constitutional Court. These alleged claims of third parties
undoubtedly will be protected by removing the Act no. 428/2012 Coll
191st The individual parts of § 3 shall not be submitted to any constitutional objections
which would exclude those entities from relationships based
Act no. 428/2012 Coll. No provision of the constitutional order does not imply that the latter
operators could not be part of the legislation, especially
property relations, respectively. that would happen to them could lead
settlement of historic property of churches. Regarding the objection that
natural persons forming churches and religious societies today are no longer
identical with the faithful and the clergy on February 25, 1948, notes
Constitutional Court ruled that even in the decisive period, even today, not religious
assets owned by individual members of the Church (not for them
equity shares, particularly in relation to the spiritual cf. obročnictví character
explained above), and therefore is not a satisfying property claims
individual believers or religious or their heirs, while
contrary clear that the purpose and operation of churches and religious societies, as
traditionally manifested in society, beyond individual
private interests of individual believers. It is also an argument
extremely cynical considering that many members of the Church in the decisive period
died not exactly a natural death and churches in general
Difficult attributed to the detriment of not consist of the same persons as
sixty years ago.
192nd If the provisions of § 3. a) that ranks among the beneficiaries
registered churches and religious communities, including the Catholic Church
, for which a reservation intervene 1) states (p. 8, paragraph
. 9), that is about the "antithesis" called. Institute's theory failed
already noted that the provisions of the constitutional order theory enshrines and protects
. Such a constitutional provision does not, moreover, provision
does not apply only to the Catholic Church. This objection is therefore unfounded.
Nor the level of sub additionally hardened reservation is not tenable.
Act no. 308/1991 Coll., On freedom of religious belief and the status of churches and religious societies
confessed registered (recipovaným)
churches and religious communities, including the Catholic Church, have legal personality.
If this fact is considered intervening 1) unconstitutional
had a proposal to cancel the attack longer relevant provisions of Law no.
308/1991 Coll., Now Act no. 3/2002 Coll. In their arguments known.
Institute's theories, moreover, presents the wrong dichotomy.
Institutes theory in his time considered, in the case of the Catholic Church, for owners
various church organizations (religious legal persons), on the basis of contemporary
law, did not say, however, that the Catholic Church is not in || | borders, the legal entity ever happen. This theory lay in
contraposition to the proposition that owns church property on the territory of the State
Catholic Church as a whole, while its capacity is not for her
international dimension derived from the state, which feared the result could be
the idea that the church property on the territory of a State shall be excluded from its jurisdiction
(see eg. the repeated emphases A. Hobza in the publication cited above
). If, however, the Act no. 308/1991 Coll. assumed by the registered
(recipovaných) churches and religious communities, including the Catholic Church
legal personality, the Constitutional Court sees no reason why it could not do so
; In any case it is not about the "opposite" theory Institute's because
by Act no. 308/1991 Coll., now Act no. 3/2002 Coll., the Roman Catholic Church
, based Thákurova 676/3, Prague 6 -Dejvice, ID: 73632848
, legal entity under Czech law. These questions have been
subject to constitutional review in its judgment. Nos. Pl. US 02/06, where
Constitutional Court submitted a constitutional interpretation of § 6 para. 1 of Law no. 3/2002
., And then also overlooked the fact that the theory institutes in practice
maintained by religious legal
people with its own proprietary capabilities, registered pursuant to § 15a paragraph. 1
Law no. 3/2002 Coll., As amended.
Owner of church property in this country, then these separate legal entities
not exclude the possibility that the Church itself registered as a legal entity
owned property, however, is not considered the sole owner
of all church property in the territory State. Finally, if the subscriber side
1) argues that churches and religious communities are "purely
private bodies" is not here to see how there should consist
unconstitutional, and such evaluation is not doctrinal precision.
Special public regulation of churches and religious societies
represents to date the Act no. 3/2002 Coll., As amended
legislation, which has been repeatedly subject to constitutional review, and whose final appearance
over possible application problems
corresponds to the current level of fundamental rights and freedoms. It is not clear what should consist
private "genuineness" right of churches and religious societies, when in fact they are
doctrine defined as "legal persons of private law
- corporations sui generis, although current legislation
includes both private and public elements (this is called.
complex, mixed editing) "(Adámková, K. legal status of churches and religious societies
de lege lata. Journal for legal Science and practice, 2
/ 2000, p. 216; basically similarly Aries, K., op. cit.). The fact that
churches and religious communities enjoy the guarantees of Article. 2. 3 of the Charter
can not go to their detriment, since their incorporation in the State
prevent other provisions of the constitutional order. In terms of legal
continuity of these subjects Constitutional Court refers to the annex to the Act no. 308/1991 Coll
193rd Regarding the petitioners' claim that in case of realization
kind of restitution would be "the property of the Vatican" (para. 45)
Quite apart from the Constitutional Court also apparent confusion
Vatican with the Holy See, as a subject of international law
representing the Catholic Church worldwide, the Constitutional court refers to the character
churches and religious societies incorporated under Czech law, which alone has
provisions of § 3. a) in mind. The character and
consequences of registration under the Act no. 3/2002 Coll. see eg. Cross, J.
law on churches and religious communities. Comment. 1st edition.
Praha: CH Beck, 2011, 384 pp. The same applies in the case, if perhaps
objection pointed to alleged concerns about jurisdiction over the Czech Republic
property owned by the church juridical persons of the Catholic Church.
Purposefulness these considerations, it is apparent only from the fact that they appear only in the context of
now contested by Act no. 428/2012 Coll., Although
conditions of the current democratic law such entities commonly
enter into legal relations, including ownership rights, which relates how
property was left in the property even after 25. 2. 1948
such property which was acquired later (Act no. 298/1990 Coll., current assets | || transfers, etc.), without ever having been owned by "the Vatican" seriously
claimed. Evaluation of the Catholic Church as a "foreign power" (petitioners,
section 5.7) lacks any factual argument.
194 cm. If under the provisions of § 3, letter b), c) intervene 1)
particular objects (p. 8) that the original property "not belonging to current
authorized persons - registered churches and religious communities and
other legal entities listed in § 3. b) to d) not belonging
nor their legal predecessors, but [it is a] property, which often
belonged entirely different ecclesiastical entities ", that objection to the Constitutional || | court completely understandable. Be inconsistent with the provisions of § 2. a)
it is by definition excluded. The original property covered smacking law, it is
ex lege defined as property that belonged just appointed
entities. What other "religious organizations" whose property falls under § 2
point. a) who are not also listed in § 3. a) to d) has
intervene in mind, it is not obvious. If intervener 1)
wanted to again say only that the church property belonged to "another
entities" (ie state or third parties), ie that church organizations
been his "owners", it is necessary to refer to already 'interpretation.
The existence of legal continuity and legal succession is a matter
individual circumstances, which the Constitutional Court refers to its
previous case law. Essentially undisputed legal continuity
church juridical persons, moreover, was an intervener 1)
must be aware of regarding the procedure of the Ministry of Culture in 2001, when the
intent to avoid application of property claims by indigenous religious subjects
(today authorized persons) was under the command
Minister of culture no. 32/2001 repealed the relevant public register with
assumption that terminates the legal personality of these people.
Resolution of the Constitutional Court. Nos. Pl. US 2/04 of 19 8. 2004 (in SbNU
unpublished, available on http://nalus.usoud.cz)
subsequently identified this act as merely an "internal normative directive seeking to modify || | duties structural parts or employees of the Ministry of culture
, "from which" in no way entails control circuit
registered legal entities. ". In the subsequent judgment file. Ref. IV. US
34/06 of 21 November 2007 (N 201/47 SbNU 597) has been completely
particularly pronounced that "the Loss of legal personality as a general rule
that simply repealing certain modifications of the legal regime
kinds of legal persons, that these persons were expressly repealed
can not be restored state challenges to their existence, "that is neither
" [t] disturbance of general registration list thus not affect
the legal existence in him led by legal persons. ".
Interpretation contrary to the Constitutional Court seemed paradoxical, "the more that the previous case law of
during the Communist regime, or a period that was what do
trampling rights and justice in our history one of the darkest
in which the Communist Party and its associates do
Everything possible to limit the influence of the Church (not Catholic), but also
religions and beliefs on the general population, while one means
to achieve this was to weaken the Catholic Church economically [(cf.. | || Decision Ref. No.. II. ÚS 189/02 dated 3 8. 2005 (N 148/38 SbNU 175)])
never disputed the existence of such legal entities and the only condition for their legal
subjectivity was the general case law established
they must have the status of legal persons under internal regulations
Church. "to do this, see below. to § 563 paragraph. 1 of Law no. 141/1950
Coll., Civil Code, (ie. middle) and § 853 of Act no.
40/1964 Coll., Civil Code, as amended by Act no. 509/1991 Coll., and also
comprehensive law, in which the (whatever) discussed
on the property rights of these religious entities, without calling into question their
legal personality. on the issue of legal continuity of eligible persons pursuant to §
3 point. c) of the Act on compensation of churches see. in general
transitional provisions of § 19 of Act no. 83/1990 Coll., on association of citizens, or
§ 9 para. 1 of Law no. 68/1951 Coll., on
voluntary organizations and gatherings. It should be noted that now submitted
principles of continuity of legal persons in the context of the communist regime
are not just specific in relation to religious subjects, but
true in general, as it turned out well in its judgment. Ref. III. US 462/98 dated
11th 1, 2000 (N 2/17 SbNU 7), which is intervening party 1)
also undoubtedly know, because in principle a decision in his own
things. Regarding the ecclesial nature of the legal entities that
is conceptually mainly due to the ecclesiastical order of the entity rather
formally its legal form. The activities of the churches is commonly manifested in various forms
legal persons, since the law no. 50/1874 r. A.
Know special or even exclusive form of ecclesiastical legal persons, as
conceives current law no. 3 / 2002 Coll., as amended.
Nor the operation of churches not only limited to certain exclusive
legal forms, on the contrary, explicitly allows for treatment of registered churches and religious societies through
legal persons under other laws
(§ 15a paragraph. 2), which are registered churches bonded
order, respectively. the same focus on the implementation of the rights pursuant to Art. 16 of the Charter
(typically a school legal entity operating religious schools).
195th When it comes to § 3. d), the Constitutional Court refers
about the legal nature of Religion and its legal personality and continuity
attempt to abolish this body also, which, however, voiced finding
sp. Ref. II. US 189/02 of 3 8. 2005 (N 148/38 SbNU 175)
a judgment of the Supreme Administrative Court dated 2 November 2006, ref. No. 5 A
35 / 2002-73, and in relation to the objections of the intervener 1), in principle
adversely. The legal status of religious nut to 25. 2. 1948
reference may be made to the conclusions of the First Republic's Supreme Administrative Court
under which "neither constitutional nor any other law not assets
religious nuts declared capital of the State" ( God. A 2316/23).
XI / d
K § 4 (mandatory persons)
196th Regarding the amount of obligated persons, petitioners have not
minor parties do not raise any, much less constitutional objections.
Verbal expression provision fully corresponds with the intention to exclude from the scope
obligated persons natural persons and legal entities other than the state. In relation
to determine the range of liable persons by the Constitutional Court and the European Court of Human Rights
in the past expressed some corrective conclusions, but these are not applicable
now. In fact related to an earlier
restitution law which allowed for a wider range of people
mandatory. In such a case the Constitutional Court stated that the democratic
legislature when drafting regulations mitigating (especially)
property injustices generally limited by both the factual state of affairs affected
(their actual existence) while minimizing capped imperative
secondly, detriment to other legally protected interests (eg.
public interest), both on fundamental rights in relation to the emergence of new
property injustices, in relation to persons other than the State
which the property concerned in the meantime after the unlawful State intervention
eventually acquired in good faith (sp. Nos. Pl. ÚS 9/07, paragraphs 35 and 36). IN
Case of issuing asset that many states (see list exhaustively § 5)
is thus causing new wrongs to rights acquired in good faith precluded
because it was the state that was responsible for the unlawful intervention.
In the long view of the Constitutional Court is not restitution in relation to the compulsory
person (undesirable) expropriation, but removing the illegality.
XI / e
K § 5 (property injustices)
197th In general, intervened 1) argued that the Act no. 428/2012 Coll
. "Inappropriately" "creates a design property injustices" caused
authorized persons, which, however, in the decisive period, by definition, can not be
no "property injustice" caused. The Constitutional Court observes that legal structures
'property injustices "is a completely standard part
restitution legislation under which, for the purposes of restitution legislation
identified from today's perspective and period
illegal and extralegal acts directed state (especially) in the property sector
disabled. Said structure already contains such. § 6
Law no. 87/1991. or § 6 of the Act no. 229/1991 Coll. Especially in relation to
church juridical persons it is necessary to refer to the introductory sentence of Act no. 298/1990 Coll
. From the framework of freedom of expression, although it is possible diversity
political assessment, which might not even mentioned illegal practices
evaluated as undesirable. Such objections, however, can not succeed in their form,
much less in content, before the Constitutional Court, which is especially true for
some parts of the draft submitted by the petitioner (the concept of historical justice
performed "nation" of churches, esp.
Catholic Church). However, in terms of the rule of law and existing forms
restitution legislation in the case of construction of § 5 of the Act no. 428/2012 Coll
. not process any outlier. Conversely, if
Constitutional Court has urged the general courts to protect the fundamental rights
church bodies in the absence of the law unconstitutional [esp. Judgments.
Brand. I. US 663/06, sp. . I. ÚS 562/09, sp. Ref. II. US 3120/10 (see above
)], based on the principles of restitution
existing legislation, should mean, among other things. Just principles derived from those
provisions of the earlier acts.
198th Intervener 1) also overlooks the fact that "property injustice" is
according to § 5 by a separate title restitution, but that
is a collective term consequences that have brought only individual
unlawful practices, as they are specifically
provisions listed in point. a) to k). In this case, no matter what the collective name for these procedures
199th Regarding the objections to individual restitution titles
petitioners and the secondary participant 1) only vaguely talks about
"break" the reference period in relation to the inclusion property
subject the first land reform and revision of the land reform.
Question first land reform leaves completely aside the Constitutional Court because it is a reflection
completely passing the content provisions of § 5.
200th Regarding the provisions of § 5. a) that for property injustice
considers deprivation of things without compensation procedure under Act no. 142/1947 Coll.
Or the Act no. 46/1948 Coll., On the new land reform (permanent
modify the ownership of agricultural and forest land), the Constitutional Court refers to
completely identical provisions contained in the early 90s in § 6 paragraph. 1 point.
B) of the Act no. 229/1991 Coll., As one of the main
restitution regulations. To him there is already extensive case law, which has not disputed
never mentioned the restitution title in terms of relationship called.
Vesting period. In the case of individual titles in restitution
conjunction with návětím referring explicitly called for.
Vesting period is "breaking" the date February 25, 1948 excluded by definition (although neither
terms of defining the relevant period is not a constitutional question
meaning). The Constitutional Court sees no reason why it should just in case
religious bodies should be different. It seems that this objection that
found fertile ground especially in the Parliament, as the stenographic records
follows is based solely on ignorance of contemporary legislation.
Effects expropriation or proceeding under the Act no. 215/1919 Coll., On
prevent large property in land, as amended, and
Act no. 329/1920 Coll., On receipt of and Compensation for confiscated property
Land (replacement Act), as amended, or later
according to law no. 142/1947. a revision of the first land reform, as
amended, namely from happening directly from the law, the date of its
efficiency, thus differently before the decisive period. The transfer of ownership rights
even then there is no actual or annexation of note
intended takeover. "Stayed However, if the current owner occupied, but still nepřevzatého
state assets continue to be owned, even in limited
certain directions, it can not be said that the mere seizure by
Act no. 215/1919 Coll. state ownership acquired title to zabranému
property when ownership did not even legally to happen at this stage
záborového implementation of the Act has not yet been transferred, since both legal, and factual
owner remained current owner "(Case | || Supreme administrative court file. Ref. 3438/35 dated 15. 11. 1938 Boh.
F 9307/1938). "At the suggestion of the State Land Office indicating library courts
in mind confiscated property, noting that the property is seized under the Act
no. 215/1919 Coll. Note that does not constitute in itself no new legal
state, but is only registered measure for this purpose so that it externally
documented annexation, nastavší after the very law (Boh. adm. 1127/1922) "
- Hacha, E., Hoetzel, J., Laštovka, K. , Weyr, F. Dictionary of public
Czechoslovak law. Volume III. Brno: Polygrafia, 1938, p. 338.
Similarly, in relation to "the note revision" in accordance with Government Regulation no. 194/1947
Coll., On land property inventory for the revision of the first land reform and for its
marking books in public. Therefore, it is quite wrong to talk about conceptual
breaking the vesting date of 25 February 1948
just because they applied the law formally took effect (anytime)
before the decisive period.
Two hundred and first If the petitioners are seeking (instead of restitution) "
znárodňovacího complete the process in tabular compensation" (para. 30), this
purpose should accordingly have to § 29 of Act no. 229/1991 Coll., Is | || be only conclude that the appellants were typically overlooked
applicable legislation, as contained in the provisions of § 32 par. 1 of Law no. 229/1991
., according to which the effective date of the Act a
apply the provisions of the Act no. 215/1919 Coll., on the seizure of a large property
land, as amended, Act no. 142/1947 Coll., on
revision of the first land reform, as amended, and Act
No. 46/1948 Coll., On the new land reform. Even in the broader context of their request
rare, since the legal and political developments after 1989
obviously he went a different direction. About the purpose of § 29 is sufficient to refer to the judgment file.
Brand. Pl. US 9/07, part VII./a.
202nd In relation to the provisions of § 5. d) the appellants submit that
"does not solve the debts of the state," without, however, specifying the reason for unconstitutionality.
In this context, the Constitutional Court refers to current practice according to § 6
paragraph. Point 1. i) of the Act no. 229/1991 Coll. and § 6 para. 1 point. e)
Law no. 87/1991.
203rd Under the provisions of § 5. i), the reality in which
result occurred during the period of the property injustice nationalization or expropriation
done in contravention of the legislation applicable
or without payment of just compensation. In relation to § 5. i)
petitioners submitted peculiar argument that confuses compensation
according to rules implementing the first land reform, the amount and character
such refunds, on the one hand and on the other hand, the compensation provided
restitution regulations. Voucher to the first land reform is fully
inapposite, because it is a completely different legal and economic process, which
after 1989 is unprecedented.
204th Regardless of the objections submitted to the Constitutional Court considered the extent to which
is an adjective "fair" in that context
sufficient in terms of its clarity and certainty, a formal claim to be entitled to ask
. This is a vague term. There is no example. Obviously, if
'fairness' compensation is related to the period of expropriation or
present conditions and the level of protection of fundamental rights. While the question itself
payment of compensation varies in fact only plane in the position
paid / unpaid, the question of assessing the fairness, reasonableness and other aspects
may seem impractical,
if we consider that it is a fact that occurred 60 years ago, and
Range of evidence about the condition and value of the properties expropriations things would
should include a number of historical facts. This procedure appears as
objectively in practice impossible, regardless of the fact that
said time interval can be attributed only state.
205th Nor can prior restitution legislation did not include this condition
. Law no. 87/1991. used in § 6 para. 1
point. j) the term "expropriation without payment of compensation." Similarly, the Act no. 229/1991 Coll
. speaks in § 6 para. 1 point. n) o "
expropriation without payment of compensation." The interpretation of the disputed concept therefore
nor the case twenty years ago could take interpretative opinions, which would now be able to establish
206th In this context, therefore, the text of the contested provision raises fundamental
legal uncertainty about the content of the restitution title § 5. i) Law no.
428/2012 Coll., which seems inconsistent with Art. 1 paragraph.
1 of the Constitution (rule of law). In practice, the application would result in this
threatened diverse and unpredictable process various responsible persons and
foundation of inequality between authorized persons.
207th After derogation of the provisions in that range are verbal and
purpose of that restitution merits
identical with the corresponding provisions in the previous restitution laws, the interpretation of these provisions
has been stabilized by the Constitutional Court [judgment file. Ref. IV. US 126/97
of 9. 6. 1999 (N 91/14 SbNU 253); Finding sp. Ref. IV. US 8/2000
of 22. 5. 2000 (N 71/18 SbNU 127) etc.].
-208. In relation to the provisions of § 5. j)
apodictically petitioners argue that the provision "not applicable" to the so-called. Benes decrees without
would cite grounds of unconstitutionality. The solution should be repealing the provisions in
words "procedure violates the generally recognized principles of democratic
rule of law or human rights and freedoms". Neither one plane
petitioners considerations can be accepted. It is not clear why it is that
restitution merits-based "practices in violation ..."
be unconstitutional if the contrary is the reason property injustices
so blatant that it is understandable even without further legal interpretation.
Contrary is entirely characteristic of the current state that respects
generally recognized democratic and legal principles and human rights and freedoms
, including mitigation of the consequences of totally opposite
practices in the relatively recent past. The second level is to be noted that the application
restitution regulations to cases of property injustice caused
in the decisive period of unlawful application of presidential decrees to
Constitutional Court has in the past expressed, which the petitioners again some
reason overlooked. Confiscation under Decree no. 12/1945. there 's
immediate effect and without compensation "(§ 1 para. 1), so that the legal ground
confiscation decree itself is not until the subsequent administrative decisions
[judgment file. . I. ÚS 129/99 dated 13. 6. 2000 (N 87/18 SbNU 243)].
The same is true for confiscation under Decree no. 108/1945 Coll., On
Confiscation of Enemy Property and the Funds of National Renewal, as amended
[judgment file. Ref. II. US 317/96 dated 17. 12. 1997
(N 166/9 SbNU 425)]. From the jurisprudence of the Constitutional Court that legal
reason for the confiscation of the decree itself, whilst it is necessary to examine whether
during the relevant period to avoid its misuse.
The Constitutional Court also stated that it supports the tendency of the general courts examine whether
authority's decisions issued during the Nazi occupation was or was not the result of political persecution or
procedure infringing generally recognized human rights and freedoms
[judgment file. . I. ÚS 15/98 of 19. 1. 1999 (N 7/13
SbNU 45)]. When assessing whether there has been injustice in the so-called equity.
Decisive period, it is necessary to come out of it, when was the fulfillment of the conditions
according to Presidential Decrees from r. 1945 and decided whether they were satisfied
[eg . judgment of the Supreme Court. Ref. 28 Cdo 1136/2000 of 31
8th, 2000; Finding sp. Ref. IV. US 56/94 of 22 6th, 1995 (N 36/3
SbNU 267)]. This doctrine leads to the failure of those who apply
restitution claim, although the process was completed before the confiscation so. || | decisive period [eg. resolution file. . I. ÚS 1874/11 dated 21. 9.
2011; Resolution II. US 155/03 dated 24. 6. 2003; resolution file. Ref. III.
US 527/09 of 2. 4. 2009; resolution file. Ref. IV. US 671/06 of 17
second 2009 (in SbNU unpublished, available on http://nalus.usoud.cz)].
If there is an issue of confiscation decisions in the relevant period, ie. From
25th February 1948 to January 1, 1990, to be issued on the basis of the decree of President
[eg. Finding sp. Ref. II. US 156/95 dated 14. 2. 1996 (N 9/5
SbNU 63); Finding sp. Ref. III. US 39/95 dated 13. 10. 1995 (N 60/4 SbNU
101)], the court is obliged to deal with examining whether the administrative
decision was made in accordance with the then applicable legislation by || | rather, it is a matter of restitution, where the common denominator is
effort to alleviate the effects of certain other property wrongs caused
due date or specific use
certain legal provisions. Administrative authorities or courts are not entitled to direct intervention and interference
final decisions from the previous period. As regards the administrative acts adopted
called. Decisive period, those authorities are entitled to restitution in cases
management to assess the impact of these decisions from the point of view into account
coming restitution titles listed in
restitution legislation [judgment sp. Ref. III. US 225/96 of 20 second
1997 (N 18/7 SbNU 123); Finding sp. Ref. IV. US 738/01 dated 16. 6. 2003
(N 91/30 SbNU 375) and the other decisions cited therein]. That's because
"[i] n practice, the Constitutional Court has been more times proved that the confiscation
under Decree no. 12/1945 Coll., And Decree no. 108/1945. ... It was a totalitarian
be exploited to confiscation and disposal
class enemies, already in the reporting period after 25. 2. 1948 "[judgment file. zn.
II. US 70/99 of 2 11. 1999 (N 152/16 SbNU 129); Finding sp. Ref. II.
US 22/94 dated 4 10th, 1995 (N 55/4 SbNU 67)]. Thus, in general
not clear why should the Constitutional Court changed its case, even with
209th In relation to other facts of restitution
petitioners and interveners do not present specific arguments and
Constitutional Court did not find that the list of restitution matters in § 5
provisions contained surpassing the prior restitution legislation or even constitutional
XI / f
K § 6 and 7 (issuing obligated persons)
210th To § 6 and 7 can be applied petitioners' objections
specified in Section 5.8, which states that "the issue has" i estate, which was originally
owned by third parties, meaning apparently owned by other than
authorized persons or their predecessors, ie "non-owner". If
§ 6 and 7 impose mandatory obligation to hand over a person authorized
person and explicitly set in each of its paragraphs that
must be a thing that belonged "to the original property registered churches
and religious communities ", it is undoubtedly a reference to
provisions of § 2. a), which defines this concept.
As has already been explained, the definition of "original property" is narrower than contemporary
definition of "Church assets" does not include a case, although the Church's purpose
Google, however ownership belonging to third parties. Such things already
others could be in the past subject to restitution to former owners
(possibly transfer to municipalities). Besides, even if applicants should
truth, it would be necessary in this case to find the reason for such a procedure is unconstitutional
XI / g
K § 8 (exclusions from edition)
211th In relation to § 8 point. a) to g) of the Act on Compensation of Churches
applicants and interveners apply specific
objections. This provision constitutes an expression of the protection of the public interest against the interest
consecutively to mitigate property injustices, and it basically
similar way as it was done prior restitution laws (see eg. §
11 paragraph. 1 of Law no. 229 / 1991 Coll .; § 8 of Act no. 87/1991 Coll., etc.).
Exception is § 8 point. h) of the Act on Compensation of Churches, which is not
based on public interest, but obviously on a political agreement.
Still, the question remains available to the legislature and that provision does not establish
unconstitutional. If the petitioners allege was mentioned
provision that "declares the Benes Decrees as the source of injustice"
and "threatens the very foundation of the state", it suffices to note that the Constitutional Court has already
on this issue in principle voiced at assessment provisions of §
5 point. j), and it is not clear in what sense the Czech state
rest on foundations of presidential decrees, moreover now
Present context of religious property confiscated under
abuse of presidential decrees after 25. 2. 1948. Arguments
to this issue lacks any internal coherence as they themselves
petitioners also demand the abolition of the provisions of § 5 . j)
taking a "procedure violates the generally recognized principles of democratic
rule of law or human rights and freedoms" are considered just
decrees of the president, whose results so probably want to keep.
Contrary to the Constitution in the case of § 8 was found.
XI / h
K § 9-14 (issuing procedures)
212th If intervener 1) requires the abolition of § 9
(unspecified) parts, because the law no. 503/2012 Coll., On State
Land Office and the amendment of related laws, occurred with effect from 1
. 1, 2013 to 'amalgamation person liable and administrative office "
seeking, through and actually against the law no. 428/2012 Coll., which in no
its provisions, this process does not cause or do not predict, but towards
certain provisions of the Act no. 503/2012 Coll. It is not subject
application for annulment. If intervener 1) disagree with the reorganization
government (ie. If it deems unconstitutional) is not the way
axles cancel all previous laws, which include the definition
scope and competences.
213th If intervener 1) denies itself the entitlement method
restitution (p. 9, para. 12), as contained in § 9 and 10
Constitutional Court refers to the complex restitution case and its general courts
how the last two decades, formed on the basis of laws
which were based on the method being claimed. If deemed minor participant
1) The enumeration method for the better, it is unclear on what basis.
Is hard to talk about the reasons arising from the "historical context
relationship between church and state" as the Act no. 298/1990 Coll. (Albeit revised)
is the only case on which you can not make general conclusions.
The enumeration method, in which legislative and technical consideration of the Constitutional Court
leaves it to the legislature, but a higher risk for factual mistakes may not seem like
appropriate, as was proved in the past. Natural Solutions
restitution through an enumerated bill would require in practice annexes
range of tens of thousands of items which may appear to be already beyond
feasibility. Enumerated law, however, especially not in a legal state
quite obvious tool in the hands of the legislature. Thus the Constitutional Court to mind
constitutionally significant doubts about the fulfillment of demands on
generality of regulation just in case of an enumerated law, which can not be
proportionality test bridge other than to point
exceptional reasons for its adoption [sp. Nos. Pl. US 27/09 dated 10. 9.
2009 (N 199/54 SbNU 445; 318/2009 Coll.), Part VI./a; sp. Nos. Pl. US
9/07, paragraph 56].
214th Regarding objections to the procedure under § 11, notes
Constitutional Court that this is only one of the practical implications
principle arising from the Act itself (§ 18 par. 4, according to which the application of the law when
must be investigated its purpose, the public authorities
provide beneficiaries with synergies) and the case law of the Constitutional court, which
particularly in the case of restitution long sought to limit
formalistic procedures and interpretations. The provision is not in conflict with the constitutional order
Financial compensation and settlement agreement
XII / a
K § 15 and 16 (general points)
215th The amount of the financial compensation, as explained above, and not worth
not even stand on purely economic and mathematical basis.
It would indeed have been difficult to achieve because it would then be for example
include compensation for use of the state has withdrawn estate, for
time since their withdrawal, or at least for the period of the legislature unconstitutional inactivity
216th The Constitutional Court also for reasons of respecting the principle of minimizing interference and
analogy of the reasons for which can for example be subjected to constitutional review
law on the state budget, sees no circumstances founding
unconstitutional that the legislature set the amount of financial compensation
combined method based on several factors.
217th The relationship between the state and the individual churches founded
contested provisions of the Act and subsequent agreements, but having with regard to
Predominant element of consensus and political interference in nature particularly
MOU brings the transition to the new arrangement relationship of church and state.
When it comes to the settlement of financial compensation, based contractual relationship, which has become
position of the debtor and individual churches and religious societies
position of creditors.
218th Even from a historical perspective or in the context of the current
democratic and legal state Constitutional Court regards bilateral solutions
unconstitutional and considers that, on the contrary establishes a dignified
relations between the state and churches and that - in terms of the financial settlement -
should be an ideal starting point for eventual economic circumstances forced
steps, for example, to change the "rescheduling" or
adapt to circumstances, "inflation index" and the like. Even in the long term
can not be expected that the Church in the Czech Republic
disappeared, on the contrary, it is necessary to take into account the fact that the public authority is already in practice
governed thesis of historical or material cross
religion and its relict character, which was based on law no. 218/1949 Coll .;
Current legislation (Act no. 3/2002 Coll., As amended
law) contrary of churches and religious societies and anticipates the future
. In such a situation is extremely inappropriate concept that would
built state and churches in relations confrontational and controversial;
representation of both parties should instead encourage tolerance, understanding and mutual respect
XII / b
K § 15 and 16 (financial compensation and settlement agreement)
219th § 15 para. 1, 2 conditionally admits
exhaustively listed churches and religious communities conditional "lump
financial compensation" in the statutory rate, if not refuse to sign a contract
whose content requirements defined in § 16th the amount of financial
compensation for the individual concerned church and religious society is:
A) The Apostolic Church 1,056,336,374 CZK
B) Unity Baptist Brethren 227,862,069 CZK
C) Seventh Day Adventist Church 520,827,586 CZK
D) Church of the Brethren 761 051 303 CZK
E) Czechoslovak Hussite Church 3,085,312,000 CZK
F) Greek Catholic Church 298,933,257 CZK
G) Roman Catholic 47.2 billion CZK
H) The Evangelical Church of 2,266,593,186 CZK
I) Evangelical Church of the Augsburg Confession in the Czech Republic 118 506 407 CZK
J) United Methodist Church 367 634 208 CZK
K) of the Federation of Jewish Communities in the Czech Republic 272 064 153 CZK
L) Unity of the Brethren 601 707 065 CZK
M) and the Lutheran Evangelical Church of the Czech Republic 113 828 334 CZK
N) Religious Society of Czech Unitarians 35,999,847 CZK
O) Orthodox Church of the Czech Lands 1,146,511,242 CZK
P) Silesian Evangelical Church of the Augsburg Confession 654 093 059 CZK
R) Old Catholic Church in the Czech Republic 272 739 910 CZK
220th § 15 para. 3, 4 define conditions for the payment of financial compensation
in thirty installments, starting in 2013. The provisions of paragraph 5
contain inflation clause and paragraph 6 states that
financial compensation is not subject to taxes, fees or other similar
221st Follow the provisions of § 16 para. 1, 2 contain further formal and content requirements
"agreement on the settlement," paragraph. 3, 4 adapted for the purposes of the Act
agency questions, para. 5, 6 regulate the process of signing
contracts and their publication in the Official Gazette and paragraph. 7 allows
judicial protection for the government's inaction regarding the signing of contracts.
222nd The provisions of § 17 para. 1, 2, 3 govern
contribution to support the activities of the affected churches and religious societies that will, after three years
in full and then the regressive amount paid to the affected churches
for seventeen years , in relation to the amount that the state has paid out
of the titles by Act no. 218/1949 Coll. Paragraph. 4
determine the date of redemption and paragraph. 5 states that the financial compensation is not
subject to taxes, fees or other similar monetary performance.
223rd The matter is complex with regard to the opposition, which
submitted by the petitioners and in particular the intervener 1)
must first divide in relation to the constitutional provisions and principles that the matter
224 '. With this in mind, the purpose of the Act is contested
should be pointed out that not a single provision (or
individual institutes) Act no. 428/2012 Coll. apart and isolate
interpreted independently. According to § 1 is subject to the law on the one hand
mitigate property injustices committed by the communist regime, and secondly
settlement of property relations between the state and registered churches and religious societies
. This means ensuring "full assumption
religious freedom and allow renewing the asset base of churches and religious societies
free and independent status of churches and religious societies
" (see preamble of the Act). Similarly
explanatory report (according http://www.psp.cz, print no. 580, 6th season) states that
the legislature's objective was to address the situation of funding of churches and religious societies were
regulated by Act no. 218/1949 Coll., on
economic security of churches and religious societies by state.
This law was adopted in the context of persecution committed after 25 February 1948, when the church
totalitarian state deprived of material and financial base
as a condition of their independence and in its entirety was based on Law No.
. 218/1949 Coll. dependent on revenues from the state budget. "The state
through the institute of state approval to regulate the number of clergy
and paid their salaries. After 1989, the state declared
to protect religious freedom and the Charter of Fundamental Rights and Freedoms guarantees
churches and religious communities autonomy. Unlike the period before 1989
already become the number clergy regulated. the funding
spiritual state, however, remains in force since
churches and religious communities has not been returned to their property. as the number of clergy continuously
grows, the demands on the state budget
"(p. 18). The constitutional urgency of the problem also has been cited
conclusions of the Constitutional Court (file no. Nos. Pl. US 9/07 and the case
225th The explanatory notes (p. 34) also shows that when considering specific
form a legislative solution was considered only option
restitution in kind, based on Law no. 229/1991. This variant was
with regard to the entirely unsatisfactory implications for the regulation of relations between church and state
rejected: restitution in kind would basically only concerned
Roman Catholic Church (98% of assets). Other churches and religious
company would this process almost any property not acquired and remained
would remain dependent on funding from the state budget. Compensation for land-print
would be provided by the prices valid at the time of the adoption
law; current reality, however, the prices of 1991 totally unresponsive.
Lasting inactivity of the legislature for 20 years can not be attributed to the detriment
beneficiaries. According to the Act no. 229/1991 Coll. They are mandatory
parties, except for the state as well as municipalities and other entities with which indicated
time lag can create a new property injustices and
number of court disputes.
226th From the constitutional order does not follow prohibition adjust along with alleviating injustices
and certain relationships in the future. Restitution legislation in no way
neabsolutizovalo efforts to restore the property relations to the beginning of the relevant period
, but took into account the current political and public interest (in the legal sense
). The classic example of that is the realization of economic doctrines
liberal economic transformation in which restitution perform
Denationalization primarily a function of social wealth, see eg. Cepl, V.
The Transformation of Hearts and Minds in Eastern Europe. In Cato
Journal, Vol. 17, No. 2, Fall 1997: 'As for restitution, the practical
motivation for it was to jump start the economy would Placing
property into the hands of Citizens with That They could immediately Become
private economic actors "(" Regarding restitution, their motivation was practical
fast start the economy by the property
put into the hands of citizens, so that they could immediately become
private economic actors "), also finding sp. Nos. Pl. US 9/07, paragraph 95. These are then screened
in the specific parameters of the restitution law (delimitation
personal, material and time impact of legislation, the issue of exclusions things
227th This is a specific form of intention to withdraw direct funding
churches and religious communities to the economic separation from the state in
essentially a political decision. The extent determine the value nevydávaného
Assets and the distribution to the payment of financial compensation in installments
is an economical legislator with regard to budgetary possibilities
228th Subject to the following assessment of the principle of financial compensation (§
15), which has in relation to individual churches variable character
(different ratio between component replacement restitution and compensatory component)
and the principle of the transitional period regressive direct financing (§
17). Due to the nature of the opposition, which only in one case
applicants and interveners allege infringement of the fundamental rights
(Art. 11 paragraph. 1 of the Charter) and the other only in general terms
discrimination and inequality (non-accessory; due
arbitrariness of the legislature), moves to the Constitutional court only on the test plan
rationality legislation. Self-evaluation following question brings
religious neutrality of the state according to Art. 2. 1 of the Charter.
XII / c
Test rationality (general definition)
229th In relation to the laws governing economic issues (taxes, public
support the regulation of economic activity), the Constitutional Court has in the past
favor of maintaining the maximum level of restraint.
To assess the constitutionality of the law, then called repeatedly used. Rationality test (
rational basis test). Test the constitutionality of this effect goes through a statutory
treatment for which can be determined by monitoring a legitimate goal and that
doing so means they can be seen as a legitimate means to achieve
, which need not be a means the best, the best, the wisest and most effective
[see, eg. Constitutional court decision. Ref.
Pl. US 39/01 dated 30. 10. 2002 (N 135/28 SbNU 153; 499/2002 Coll.)
Constitutional Court decision. Nos. Pl. US 6/05 dated 13. 12. 2005 (N 226/39
SbNU 389; 531/2005 Coll.) Constitutional Court decision. Nos. Pl. US 83/06 of
on 12. 3. 2008 (N 55/48 SbNU 629; 116/2008 Coll.) Constitutional Court
sp. Nos. Pl. US 1/08 of 20. 5. 2008 (N 91/49 SbNU 273;
251/2008 Coll.)]. A regular part of the test of rationality then assess whether
contested provision is manifestly the result of arbitrary distinctions
(discrimination). The predominant feature of the matter on which the test was still
rationality applied, was concerned (the petitioner understood as a violation
) economic or social rights contained in the Charter
respectively. equality in those rights. For the test of rationality in the range
property settlement, the question remains whether the contested legislation is
rational relationship to a legitimate aim, and is obviously not the result of arbitrary distinction
(elimination of arbitrariness). With the increased effort that had
Constitutional Court to pay identify constitutional objections in broad
proposals with a diverse internal structure, it is possible to formulate
following problematic areas. We can say that a common feature of objections
is a question of equality, respectively. Discrimination between authorized persons
each other and in relation to third parties. The assessment was done -
with regard to the objection of inequality and discrimination on the basis of the amounts
paid in accordance with § 15 and 17 - at the base of the aforementioned test
XII / d
To § 15 para. 1, 2 (alleged inconsistency with Article. 11 paragraph. 1 in connection Art. 3
paragraph. 1 of the Charter)
230th One of the petitioners' objections and the intervener 1)
objection violation of equality in restitution relations, especially in terms of the amount of financial compensation
, which should be also violated Article. 11 paragraph. 1 of the Charter
[petitioners paragraph. 51 , 53; intervener 1) paragraph. 18-22, 27].
Particular, according to the belief in intervention 1) should be a
breach of accessory equality (Art. 3. 1 of the Charter).
231st Fundamental rights of third parties pursuant to Art. 11 of the Charter (alone or in conjunction with Article
. 3. 1 of the Charter) are not affected.
It should first be emphasized that financial compensation could be affected by a fundamental right or
economic and social rights of third parties, since financial compensation is only part
relationship between the state and registered church or religious society
. If intervener 1) says that the provisions of § 15 paragraph
. 2 is based violation of Article. 11 paragraph. 1 of the Charter ( "Everyone has the right to own property
. The ownership right of all owners has the same statutory content and protection
. Inheritance is guaranteed.") In relation "to persons
other restitution, which is of the same title (rectification of some property
Injustices caused by the communist regime) also received some compensation
for their original property, which was not under the restitution law, respectively.
Already could not be extradited "(para. 27) in conjunction with Art. 3. 1 of the Charter,
Constitutional Court finds that the violation of this fundamental right is conceptually
excluded. Article. 11 paragraph. 1 the second sentence of the Charter aims at
already mentioned the practice of the communist regime after 1948, when the legal system
(including the Constitution) knew various types of ownership for different groups of people
which then corresponded with varying degrees of legal (judicial) protection (
in this context, it should be remembered objections based on the so-called.
theory of public property). the right of ownership based procedure according to § 15 para. 1, 2
not bring any modification regarding the Institute's property or on the side
authorized persons or to third parties. in other words,
ecclesiastical entities on the basis of Act no. 428/2012 Coll.
founding same ownership rights as any other authorized person, respectively.
any other owner in the jurisdiction of the Czech Republic. Therefore, neither
eventual removal of § 15 para. 1, 2 there is no change in the content
protection and ownership on the part of third parties. For the correct use
argument based on Article. 11 paragraph. 1 of the Charter, second sentence, see eg.
Findings sp. Nos. Pl. US 24/08 of 17. 3. 2009 (N 56/52 SbNU 555;
124/2009 Coll.), Sp. Nos. Pl. US 48/06 dated 9. 12. 2008 (N 217/51 SbNU
697; 54/2009 Coll.), Sp. Nos. Pl. US 12/06 of 2. 7. 2008 (N 121/50
SbNU 31; 342/2008 Sb.). On the issue of non-accessory equality restitution
according to different restitution laws, see below.
XII / e
To § 15 para. 1, 2 (as well as financial compensation to churches without a restitution claim)
232 interface. § 15 para. 2 establishes a conditional entitlement to financial compensation
, in the tent flat (see table above). Given the purposes
Act no. 428/2012 Coll. has the financial compensation mixed character:
in the framework of financial compensation to be paid to the churches altogether 59 billion.
CZK in the course of 30 years at the division between the churches and religious communities in
ratio: 80% Roman Catholic Church, the other 20% churches and religious
company (explanatory memorandum, p. 37). Financial compensation under § 15 and
not purely compensation (restitution) character, but the legislature had watched
partially offset in the positions of the churches and religious
companies over the Roman Catholic Church. In this it should be noted that neither
§ 15 does not construct financial compensation in relation to market prices
single-print properties. Compensation and equalization
component of compensation is so obviously different for each individual
churches and religious communities: at the Roman Catholic Church is given full
compensation (restitution) component, with other churches can cache folder completely dominate
(all or part of the financial compensation will be paid
beyond the original property). Specific ratios of both components
financial compensation for each individual church is to assess the constitutionality
irrelevant. At this ratio compensation (restitution) and
cache folder compensation heading the intervener's opposition
1) - paragraph. 17 et seq., Which in relation to selected churches
denies the existence of the property damage as defined in § Yet subsequently fifth
quotes from the report that "the main principle of organizing property
relations between the state and churches and religious societies with the aim of progressively establishing
churches and religious societies and their full economic separation from the state. ". In this context
argues that the payment of financial compensation leads to a completely opposite
result, that is "tied to the state and registered churches endowed
financial compensation, together legal bond creditors (the church) and the borrower
23.3. In relation to the varying nature of the shares of the various churches in the
financial compensation, the Constitutional Court considers that the first partial redistribution
(modification) financial compensation between individual churches limited
There is a political legislator and the second
already spoken agreement concerned churches and religious societies excludes unlawfulness
respectively. constitutionally relevant inequality beneficiaries. On the issue
ad 1. The Constitutional Court added that if the legislature conceives relations between the state and churches
future, no formal historical justice (equality
Authorized persons) is the only criterion which is necessarily bound.
Especially if the relationship between church and state has undergone many major changes as in the 20th century
is political discretion with regard to the changed social and economic conditions
, and also with regard to adaptation to individual churches such
Recommendations of the Venice Commission in relation to the laws governing issues such as religion and belief.
Discussed in the context of current law in the property settlement with churches
about the need for a special "sensitivity" [Guidelines for legislative
Reviews of laws affecting religion or belief, CDL-AD (2004) 028, point
J.4]: "In many cases, State-financing schemes are
Directly tied to historical events, (such as returning property PREVIOUSLY Seized || | unilaterally by the State), and any Evaluations must be very sensitive
's proposition FACT Complicated issues. "[" In many cases, the rules for state funding
directly bind to historical events (such as returning property
formerly state unilaterally taken) and any assessment must be
to these complicated questions of fact very sensitive. "] If
question in itself contains a property settlement
end the current model of direct state funding appears to be the method of restitution
(natural, relutární), not as an end but as just one of the forms
to achieve this goal. Naznal If the legislature that the emphasis on purely
restitution principles in the property settlement might mean in terms of current
hardship that would impact negatively on
non-Catholic churches and religious societies, it may be justified to regard
trust these churches in Act no. 218/1949 Coll., which is a series of activities
churches in the absence of other perspectives necessarily adapt. The purpose of the Act no. 428/2012 Coll
. certainly not a sudden restriction or termination (usually
term) the activities of non-Catholic churches that were more important
owners of agricultural property to 25. 2. 1948. 2. Ad
should also be noted that the ratio of the partial redistribution of financial compensation
between individual churches and religious societies from the beginning was conceived as
(political) agreement between the churches and religious societies
(see annex to the Government, "sending a result of agreements
churches for distribution of financial compensation for the original unedited
church property "), which is not so important, but rather related to the fact that
subsequent legally relevant consent of the churches and religious societies
was given through contracts according to § 16, which is the question || | shares of the various churches and religious communities to financial compensation
stipulována (see contract settlement based on the government to file
upon request of the Constitutional court).
234th In relation to the alleged effect of creating even more dependent
churches in the state in installments must be emphasized that minor participant
1) not quite accurately captures the logic of the conclusions of the Constitutional Court. Of
finding sp. Nos. Pl. US 9/07 in fact implies that unconstitutional rests
of the state in a unilateral, and largely political decisions
amount of benefits under the Act no. 218/1949 Coll. while putting
settlement of historic property of churches: "[M] odel called.
economic security of churches and religious societies, if it were conceived as
credible alternative to the settlement of historic property of churches and religious societies
not enough to guarantee the freedoms arising from
Article. 16 paragraph. 1 of the Charter, especially the independence of the (concerned)
churches and religious communities to the state under Article. 16 paragraph. 2 of the Charter.
for a proper understanding of these considerations, it is necessary stressed that the Constitutional court has now
does not perform an economic analysis of legitimate claims arising from the church
Act no. 218/1949 Coll., in proportion to the actual performance of the state, but
speak generally about the mechanism when it is exclusively the state,
concerned that churches and religious societies Act confers a number of titles so.
economic security, but also de facto alone governs
total amount of these expenses will be spent, effectively
unilaterally determines the degree of economic depending concerned
churches and religious communities to the state "(paragraph 103). This is
financial compensation according to § 15 designed quite differently, especially payments are
- every year - dependent on the (political) spending priorities and
Creates for churches and religious communities a view, albeit a limited time
termination of direct payments. It should be stressed again that
unconstitutional dependence of church from the state was not in its judgment. Nos. Pl. US 9/07
formulated in relation to economic considerations about the real economic costs
churches and their actual performance state by
Act no. 218/1949 Coll. Although the total amount of titles according to § 15 paragraph
. 2 and § 17 of the individual Churches mean temporarily
higher or lower overall income from the state than it did
potential income by Act no. 218/1949 Coll., Is not a foundation based in the above-mentioned
sense. Similarly, the expiry of the transitional period according to § 17
respectively. payment of installments according to § 15 para. 3, does not create - even if possible
economic problems specific church -
unconstitutional dependence on the state.
235th In relation to the fact that the shares of individual churches to
financial compensation according to § 15 para. 2 do not correspond to their share in
original property, the Constitutional Court concludes that the test of rationality
stand as it leads to the elimination of depending on churches
state, respectively. eases (along with claims under § 17) effects of the immediate abolition of the so-called
. Economic Security under Act no. 218/1949 Coll., to a certain extent compensates
historically different financial circumstances
different churches and religious societies,
sudden minimizing the negative effects of acts of public authorities in the work of churches (and
religious freedom in general). Mentioned above also does not allow the conclusion unconstitutional
arbitrariness of the legislature. It should be noted that this argument
petitioners and interveners could even theoretically could lead to a flat-rate
annulment of the contested regulation in relation to all concerned
churches, but only in relation to those churches, the amount of financial | || contribution includes balancing component beyond purely restitution
236th It should also be noted that, in its judgment. Nos. Pl. US 9/07
nor in any subsequent finding of not requesting an immediate repeal
Act no. 218/1949 Coll. without further (without a transitional period, without
political considerations in organizing future relations), while
was emphasized (in the early 90s obvious), "objective needs [and]
adopt a comprehensive legislation whose preparation
due to the wider context of the relationship between church and state requires a conceptual approach "(eg.
sp. Nos. Pl. ÚS 9/07, paragraph 23). Now for the political aspect of the issue, which manifested itself
beyond pure ingredients restitution law, the Constitutional Court refused
after the plenary opinion sp. Nos. Pl. US-st. 22/05
activist interference of judiciary in that area.
XII / f
To § 15 para. 1, 2 (group of persons entitled)
237th Especially intervene 1) concludes that the arbitrariness
legislator is based criterion for the selection of financial compensation.
After a detailed analysis finds that the criteria are not the property injustices, but
right of the Church "to be funded under a special law
about the financial security of churches and religious communities" within the meaning of §
7, paragraph. 1 point. c) Law no. 3/2002 Coll. It refers to the fact that the
31 12. 2012 there were more registered churches, which
law "could be statutory regulation in force until the end of 2012
granted," but "about state funding is unstable and worth "
therefore not included in the circle of entitled persons under § 15 para. 2 included.
Constitutional Court is not clear what should consist unconstitutional inequality.
It should be noted that the granting of special rights of the state funding
according to § 7 para. 1 point. c) Law no. 3/2002 Coll. effective treatment, according to
31. 12. 2012 dependent on the submission by the church or religious society
within the meaning of § 11 para. 1 of Law no. 3/2002 Coll., as amended by Act No.
. 420/2011 Coll. Granting of special rights is therefore (subject to statutory conditions
) broadly available to registered churches and religious societies
, as these rights by law nenastupují
automatically. Therefore, there can be no unconstitutional discrimination against churches
that of "economic security" in the past were not interested unless
so only as a result of his own decision to remain outside the circle
eligible persons pursuant to § 15 para. 1 and § 17. considered criterion
Existence of a right to the so-called. Economic security has indeed already known
parameters of a previous bill (2008). The same would be unconstitutional
incidentally had seen intervening in the reality of economic security
to 31. 12. 2012 when coexisted same church
which was based on the draft special law recognized and registered Churches
that proposal on granting special rights did not, although they
. Incorrect preview interveners confirmed by the fact that
through the list referred to in § 15 para. 2 failed on their own volition, one of the affected churches
condition set out in § 15 para. 1 (non-repudiation
conclude a contract) which also can not be interpreted as establishing the fact
unconstitutional inequality between the churches and religious societies
238th It will be appreciated that the construction of the so-called. Special rights
přiznatelných upon registration II. degree (also accreditation), respectively.
Key provisions of Law no. 3/2002 Coll., Has been under review
Constitutional Court, in its judgment no. Nos. Pl. US 6/02. On the issue
cf. multistep registration. also eg. ECtHR
Religionsgemeinschaft der Zeugen Jehovas (Religious Society of Jehovah's Witnesses
) and another against Austria dated 31 July 2008, no.
40825/98, § 96. The construction of the so-called. special rights by law no.
3/2002 Coll., as amended, which is already without the right to be
funded by Act no. 218/1949 Coll. maintained even after 1. 1. 2013
therefore not in itself unconstitutional discrimination does not
239th The petitioners in paragraph 29 c) specifically argue that
financial compensation is provided (in terms of the original property), "non-owner"
therefore relevant church or religious society as a whole, not to individual
ecclesiastical entities. In this sense formal
the petitioners truth. At the same time, however, they adduced no argument
why - especially in the context of the legal status of churches and religious societies
by Act no. 3/2002 Coll. - Should be a procedure
unconstitutional. The petitioners in the level of sub mistaken in that
registered church that is in relation to individual church juridical persons
"foreign person". Pursuant to § 15a of the Act no. 3/2002 Coll., As amended
can ecclesiastical juridical persons (ie. "
Registered legal entity") created on the basis of a proposal to records filed authority of the Church and
religious society, the same applies to the proposal to repeal
records, and according to § 26 paragraph. 1 point. c) of the same Act expire
following cancellation of registration shall lapse if the registration of church and religious society
whose authority this legal entity designed to record.
Church legal entity "within a" registered church or religious
company is formally a separate legal entity, a
terms of their purpose, but only unit registered churches and
its existence depends. From this stems the practice and various
jednatelská restrictions, which authorities registered churches for church
legal entity set like. The Constitutional Court has in the past stated that
"specificity [in the current context of the property settlement] may - is
regard to the legislator - arise from the very essence of organizational
individual church or religious society where specific
form of settlement may not be directed against individual entities, but
according to the circumstances and to the church or religious society as a whole. ..
If the property injustices caused formally individual religious legal
person was, with regard to the organizational structure and internal relationships churches
intended and implemented as an illegal act of repression against the whole
(relevant) Church includes positive accountability legislature and
considers appropriate adjustments to these forms of relationships "(sp. Nos. Pl. US
9/07, paragraph 91). From the perspective of the ecclesial purpose and protection Art. 16
paragraph. 1, 2 of the Charter is therefore undoubtedly given a legally relevant connection between
registered churches and individual legal entities that are later
established under applicable laws already specifically
defined mission (parishes, congregations, charities, diakonia school social
institutes, medical equipment, etc.).
240th It should also be noted that the intervener's concern 1) a "destiny
Other registered churches and religious societies "(para. 18, p. 13
) can not compensate for the abolition of the Act no. 428/2012 Coll., As well as the cancellation of the Cancellation
§ 19 section 1 (to However, below) would be repealed
Act no. 218/1949 Coll., in the legislative sense, "neobživl", ie the eventual
further legislation is fully in the hands of the legislature. it is also possible over
framework objections noted that in political decision to abolish the system of so-called
. economic security is a critical determination
point in time, after which the special right is not granted,
inevitable. Act no. 428/2012 Coll., is mainly based on the general
state's obligation to take care of all the churches and religious communities
(which shall not affect the positive obligation of the state in the field of fundamental rights
), but on duty to cope with the current constitutional
terms of an historical heritage which, after legally
Act no. 218/1949 Coll., for a democratic legislature constituted.
241st If, therefore, a determination circuit concerned
churches and religious societies according to § 15 para. 1, 2 Act on Compensation
churches on the basis of criteria for the existence of special rights "
economic security," according to § 7 para. 1 point. c) Law no. 3/2002 Coll.
amended effective on the date 31. 12. 2012 and is not part of the legislature to advance
arbitrary but quite rationally that describe the current relationship between the State and Concerned
churches just under Act no. 218/1949 Coll ., which was
Act no. 428/2012 Coll. canceled.
XII / g
To § 15 para. 1, 2 (the amount of financial compensation)
242nd The appellants and the intervener 1) further essentially identically argue that the legislation
§ 15 para. 2 is unconstitutional with respect to the total amount of financial compensation
while questioning the link with the scope and
value of the original property. The interveners stated that "
nowhere in the law nor the explanatory memorandum" not given an exact list of property on the basis
which arrive at a valuation (para. 19). The intervener goes
1) it is not clear whether in the summary of the replaced property was taken into account
Act no. 298/1990 Coll., Assets issued so. Executive way
in the years 1996-1998 and the amount issued in respect of called.
economic security by Act no. 218/1949 Coll. Furthermore, the petitioners state that
"[t] he sum in compensation for the allegedly discriminatory unreleased Estate
(churches paid compensation for alleged market prices, all others
restituentům, but also to people who have been since 1919
occupied property on the basis of land reform, a price table) "- paragraph. 29.b similarly
section 5.9, para. 50, that there is no obligation on the state to replace anything, especially not
at market prices ( section 5.9, para. 49) that the ECHR "have accepted
very low pay, if so discussed.
pilot project against Poland in the matter of compensation for property left behind the river Burg" (correctly
"Bug"; section 5.9, para. 51) that during 1949 were spent at church
higher volumes than in previous years (section 5.9
paragraph. 52). Also, the petitioners question the scope of the original property
to be replaced. Churches should, in their opinion, "
pay compensation for the greater possession than them [after the revision of the land reform]
should remain" (section 5.10, para. 56).
243rd From the submitted objections it is not clear which of them should encourage
claim of unconstitutionality of the law, respectively. specific provisions.
From the point of view of the constitutionality of legislation is necessary to focus on the question above
total compensation according to § 15 para. 2 and equality on restitution, which was
according to one of the restitution laws also "
financial compensation" paid .
244th Regarding the overall scope of the original property (resp.
Range of assets being replaced by § 15), the Constitutional Court emphasizes that
subject of proceedings before the Constitutional Court can not be factual evidence sides
accurate assessment of the original property, since this does not
link to the constitutionality of the statute.
245th According to the explanatory memorandum formed (2nd to 25th, 1948)
size of the original property of churches and religious communities: Forest land 181,326 hectares,
agricultural land 72,202 hectares, water area of 3,611 hectares, built-up area of 600
ha, other areas 3,894 ha, 324 ha of the building.
Land administered by the Land Fund of the Czech Republic concerned the provisions of § 29 of Act no. 229/1991
., Registered 1. 5. 2011 consisted of assessment: Agriculture
Land (arable land, permanent grassland, hop fields, vineyards, fruit orchard
garden) 32,760 ha, 709 ha of water surface, other area 1995 hectares,
building and courtyard 127 ha, forest land (intended to fulfill forest functions
) 37 ha, kind of unlimited (without specifying the type of land) 12,784 ha,
total of 48,412 hectares. Forests of the Czech Republic, sp register
28 February 2011 in its original property management churches and religious communities
a total area of 151,777 hectares of forest land, 33.7 hectares of land
built-up areas and courtyards from the 11.7 hectares of built-up area of the building.
246th Statements of objections are twofold effort: a) the scope of the original property
includes real estate, which were covered by the Act no. 142/1947 Coll., On
revision of the first land reform, as amended, which were
data in the explanatory memorandum overstated by several orders of magnitude compared to reality;
B) the scope of the original property as contained in the explanatory memorandum, while
lack of other documents not accurate.
247th Both the opposition is to be noted that from the very Act no. 428/2012 Coll
. It does not imply that in the case of financial compensation according to § 15 paragraph
. 1, 2 should be the outcome of a particular economic or mathematical
method that has been applied to a specific set of assets, particularly with regard to
above purpose, financial compensation, which has a variable ratio
substitute ingredients in a buffer relation to each of the churches.
Of the Act therefore does not imply that it would require specific identification of the replaced
property and its assessment of the actual economic method
wherein the sum of the amounts would then constitute the total amount of financial compensation
. In terms of testing the constitutionality of the law with budgetary implications
it is crucial to what extent the amount of financial compensation elemental bond
on available data and pricing, therefore, whether the contested provisions of § 15 paragraph
. 1, 2 are not the result of irrational behavior legislator
random changes (errors) during the legislative process and the like. [Mutatis mutandis
finding sp. Nos. Pl. US 17/11 of 15. 5. 2012 (220/2012 Coll.)
Paragraph 72; Finding sp. Nos. Pl. US 17/10 dated 28. 6. 2011 (N 123/61 SbNU
767; 232/2011 Coll.), Paragraph 51; Finding sp. Nos. Pl. US 20/09 dated 15. 11.
2011 (N 195/63 SbNU 247; 36/2012 Coll.), Paragraph 25].
248th The objection sub a) it must be added that rests on an incorrect
assumption that the property under the Act no. 142/1947 Coll.
are (to be) excluded from restitution legislation on the grounds that the property
injustice had occurred before the vesting date 25. 2. 1948. Pro
inclusion in the applicable vesting period, which occurred property
injustice, not when the law came into effect. Act no. 142/1947 Coll.
was adopted July 11, 1947, with effect from 12 August 1947, however, was the extent applicable
realized until after February 25, 1948. Implementing
Government Regulation no. 1/1948 Coll., which implementing certain provisions of the
revision of the first land reforms go into effect until January 9, 1948.
Under this regulation must be given notice to the owner so that the soil
could be assumed always to 1st March or 1st October of the current year. In § 23 paragraph
. 1 of Decree-Law no. 1/1948 Coll., As amended by Decree-Law No.
90/1948 Coll., It was determined that termination of operations on real estate flashed
replacement pursuant to § 12 of the Act, ie. Act no. 329/1920 Coll
. zn should be accorded at least three months, so that the land takeover
could take place either on 1 March or 1 October of the current year, with the exception
that the takeover of the land on the date of March 1, 1948 just
one-month notice. In detail, the Constitutional Court refers to the interpretation of § 5
point. a) Act no. 428/2012 Coll. It is therefore also irrelevant hypothetical reasoning
petitioners, many real estate owner "should remain" after
land reform and its revision, if these considerations did not even
in relation to other restituentům according to § 6 para. 1 point. b) Act no. 229/1991 Coll
249th The objection sub b) is to be noted that the constitutional review is not
based on the verification and assessment of the original property. In view of the above
defined criteria is the task of the Constitutional Court to assess whether there are links
given notice to the data that the legislature and the Constitutional Court
available, ie whether legislation is not the result of irrational behavior
legislator or random changes (errors) in the legislative process.
In this case the requirement intervener 1) the precision
(Arising from a request for an itemized list of the original property)
significantly relativized in favor of the verification of data on the original property
especially given extent of forest land and 181,326 hectares of farmland
72 202 ha. But these were not the appellants, neither side
participants significantly challenged.
250th The government, in its observations particularly notes that in preparing
bill has reviewed the available archival materials to the extent
church property. As a result of the floods of 2002 are currently not
available data on the original ecclesiastical property of the review period the first
land reform. It was therefore based on data relating to the execution
first land reform, even with respect to quality, which officials
period 1 Republic compared to the period after World War II. World War II led away. This
Government in its observations, considers it necessary to add that the first land reform
apply only to large estates of agricultural land over 150 hectares
or any land over 250 ha. Temporality with smaller acreage,
example. Lots of parishes, smaller goods orders and congregations in these numbers
not included. Furthermore, it lacks the church property acquired in the second half of the 30th
purchases, donations and legacies, which was signed into
first land reform as a church. Also, any information on the property
registered to revise the first land reform do not include farms with smaller acreage
to which the first revision of land reform did not apply
(limit was 50 ha, resp. 30 ha), which is next to the parish
property concerns and property of non-Catholic churches and religious communities.
From the data provided by the Land Fund of the Czech Republic and the Czech Republic Forests,
sp, that only these two institutions have farmed in 2011
200 thousand. ha original church property. A considerable part of the original
church property is also located while in military districts, in
national parks and owned by municipalities, counties and
individuals and legal entities.
251st It is also clear that the state (none of his organs) in the past
did not even now does not separate list of Church assets nor
church property owned by the beneficiaries or their legal predecessors
not list the original property as defined in § 2. and).
According to available literature, which some refer to the explanatory memorandum
a statement of government, is subject, in the case of Catholic institutions annexation
during the first land reform in the historical lands of 58,964 hectares of agricultural
238 639.04 ha all soil (Otáhal, M. Roman Catholic Church and the first
land reform. in: Black, B. et al.
Church in our history. Praha: Orbis, 1960, p. 132). The sum is based on data from
Voženílek, J. Preliminary results of land reform. Prague, 1930, and
Červinka, E. How was carried out land reform farm estates
Roman Catholic Church. Praha, 1933. It was also stated that
implementation of the first land reform remained a landed property of the Church "in
remained basically the same" as the occupied land reform remained intact
84.59% (Otáhal, p. 133) . The total extent of land of the Catholic Church
belonging to annexation by another author was 235,441 hectares, that the State
takeover occurred in only about 10%, but this at an earlier date,
[Hoes, J. Manors church in our country. Prague, undated
(probably 1926-1927), pp. 42-43]. The scope of church property
falling into the first land reform include
website of the Ministry of Culture for more detailed information and copies of archive materials
(particularly the area of individual church estates).
Individual investigation and it was after the land reform
documented 118,327 hectares of land owned by all the dioceses of the Catholic Church and
67,515 hectares owned by the orders of the Catholic Church, a total of 185,842 ha
(document "Appendix . 11 table - documented a range of assets
church estates and parishes "in connection with scans
archival documents in the document" Annex no. 9, archival documents on the original
ecclesiastical property "on the website of the Ministry of culture || | (http://www.mkcr.cz/cirkve-a-nabozenske-spolecnosti/majetkove-narovnani
/default.htm), the Constitutional court had no reason for that information to further specify and
submitting evidence. In these acreages is also not included
ownership units that did not meet the size of a large estate of land
( "More than 150 ha of agricultural land (roles, meadows, gardens, vineyards, hop fields
), or 250 hectares of land at all"), a land smaller units.
Doing just stretch parish benefices in 1949 is estimated at 30,612 hectares
(document of the Ministry of Education Arts and Sciences, ref. No. P 2398/49-P / 6
at the website above). In these acreages drawn from the scientific literature or individually
substantiated then further assessments are not included
real estate acquired in the 30s and 40s of the 20th century, and especially the property
other churches (non-Catholic churches and Jewish communities) and
pious foundations and religious associations. If you are then further is the ratio between
issued and out of print (superseding) property, it is basically a deduction
published property on the basis of records of the Land Fund of the Czech Republic
and Forests of the Czech Republic, sp, from total assets .
Was 252. On the basis of the Constitutional Court states that consideration of the above-mentioned
it is clear that the area of the original property, on which relied
explanatory memorandum (and previous negotiations between the state and churches)
if it is to be a criterion rationality, respectively. constitutionality of § 15 para. 1, 2
Act settlement with churches, no signs of arbitrariness or error legislature
but it is reasonable and appropriate links to available historical data.
The Constitutional Court reiterates that this conclusion did not need any further
verify or prove the accuracy of the data.
253rd This is possible only on the sidelines to mention access to the Constitutional Court
implementation of restitution in the 90s of last century, when it was repeatedly
pronounced that public power, which by definition has to have
relevant documents, must act to eligible persons
formalistic and transfer them to a distance of forty, now sixty years
disproportionate burden in terms of assessing the overall burden of the situation.
It's not a question of how much is an exact list of the original property
numbering tens of thousands of items at a distance of sixty years
254th What do each objection, now it is sufficient to note that the
available materials (the contents of the file, transcripts of Parliament,
publicly accessible website of the Ministry of Culture) in any way
does not imply that in those quantities should be counted even assets issued
churches and religious societies before 31 December 2012. In terms
prior restitution legislation in terms of Act no. 428/2012 Coll
. then it is irrelevant to what area of real estate, land reform
"may apply", but only on what acreage is indeed related.
And 255. As in the original valuation of assets, which would be issued again, it needs
stressed that the criterion of constitutionality is the precision or accuracy of the estimate
value of the original property, although above considerations is supported
total amount contained in § 15 para. 2 . calculation of the original property prices
is contained in the explanatory memorandum and in greater detail in the government's brief, publicly available
are similarly detailed information on the website of the Ministry of culture
(cited above). The calculation is based on areas ranging
above and, where possible, using the usual prices. In the already cited
Assembly Print 585 is accompanied by a report by Ernst & Young
Ltd., entitled "Qualitative comment algorithm applied
side of churches and religious organizations to estimate the value of confiscated church property
" dated 8. 10. 2008. From it follows the conclusion that
"statistical algorithm, using the average price is rational
due to imperfections in the underlying market data and subject to the conditions
limited time for processing property valuation.". Intervener 1)
essentially disputes the method only in partial aspects,
example that should be used on the original property average price
referring only to transactions in agricultural land use (and not a non-agricultural
land use). But it is not clear why this should be so
when the formal principle (former)
classification of land as "agricultural" no longer corresponds to the current reality, as it is now
(after 60 years) in a row cases of land near buildings and
utilities and their price is close to the price of building plots
(see details of the government) and that "agricultural" land in urban areas are typically
already owned by municipalities, which are not among
256th The Constitutional Court found no reason purely economic aspects will be addressed
because it was not considered excesses of the legislature in terms
test of rationality founded unconstitutional. In detail, suffice
in intervention 1) The reference to the cited source.
XII / h
To § 15 para. 1, 2 (unconstitutional inequality of restitution)
257th The appellants and the interveners is not primarily focus on
fact that the set amount has been provided in full as
financial compensation, which thus has the market value of the original property nevydávaného
[petitioners section 5.9; intervener 1) paragraph.
27]. This should represent a "significant inequalities in access to
persons who have been restituted to their property," respectively. Discrimination "
to the detriment of the Czech Republic and the majority of citizens.".
258th On the issue of alleged discrimination against persons entitled under the former
restitution laws, especially the Constitutional Court refers to the above-defined
purpose under the Act no. 428/2012 Coll. as well as specific
status of churches and religious societies in the property settlement with
state, which distinguishes them from other natural or legal persons.
259th In the second sequence it is to be noted that neither the nature komparovatelná
"compensation" under the Act no. 428/2012 Coll. and "cash compensation"
by Act no. 229/1991 Coll.
260th For the basic method to mitigate property injustices (apart now
Constitutional Court from the broader purpose of the Act no. 428/2012 Coll.)
Considers the current restitution legislation and jurisprudence of the Constitutional Court
kind of restitution [sp. Nos. Pl. US 6/05 dated 13. 12. 2005 (531/2005 Coll .;
N 226/39 SbNU 389), part VIII / d; sp. Nos. Pl. US 9/07, paragraph 37].
Difficult yet applied comparability of financial (cash)
refunds, which require applicants and interveners, especially gas
Subsidiary of their nature (especially with regard to Law no. 229/1991
.). According to the Act no. 229/1991 Coll.
authorized person has a right to issuance of land, in which case there are grounds to refuse
plot is based subsidiary entitled to a free transfer to another
land owned by the authorized person (§ 11 para. 2, § 11a par. 1) .
Only for the land, which according to the Act no. 229/1991 Coll.
issued and for which they can not provide the authorized person other land, it enshrined
second subsidiary claim, which is entitled to financial compensation (§ 16 para. 1
261st In this regard, there is no doubt that the structure and purpose of monetary compensation
"prices prevailing on June 24, 1991" according to Act no. 229/1991
. are quite different from the financial compensation according to § 15 para. 1, 2
Law on Compensation of Churches, which is associated with the concept of gradual economic
separation of church and state, including the aforementioned matter
situation of non-Catholic Churches, which strictly restitution principles can not
historical reasons testify.
262. The election of a single criterion prices prevailing on June 24, 1991 in
Act no. 229/1991 Coll. and would serve primarily for direct payment
financial compensation, as it started up a second subsidiary claim
but primarily to determine the "value" of a restitution claim.
Authorized persons under the Subsidiary claim were transferred to alternative ( "other")
lands that have been formally identified as the equivalent of a restitution claim
prices in 1991. The price you therefore served mainly to determine an equivalent replacement
land, as well as to determine the order more
authorized persons, who according to the "amount of the claim" has been gradually
proposed contract pursuant to § 11a paragraph. 9 or determine forest land
"adequate acreage and quality," according to § 11 par. 2 Act no. 229/1991 Coll.
This, however, at a time when even these lands were valued at their fair market value
, in practice higher. If there were to be paid cash compensation
as a second Subsidiary claim such compensation should only completely
systemically "a satisfaction symbolic function" (sp. Nos. Pl. ÚS 6/05, Section VIII
/ f). The selected design calculation of property prices for 1991
is based primarily on an attempt to establish uniform benchmark for pricing
land for many years the whole process of restitution of agricultural land
. The main reason was the lack of market for agricultural real estate
whose creation had just allow law no. 229/1991 Coll.
Therefore impossible to determine usual price. On the described construction it is therefore
Be seen as a protective mechanism to authorized persons and
means for maintaining equal access to all restituents each other.
263rd This structure accepted by the Constitutional Court in its judgment. Nos. Pl. US
6/05, which was canceled so. Restitution full stop. It consisted in embedding
prescription of law on the transfer of state-owned land while maintaining
only entitled to monetary compensation, but where the authorized person
not have an economic interest due to the time gap of 15 years from the price level
in 1991. "the financial compensation in key
restitution laws, for which he must consider the Act no. 87/1991 Coll., and Act no. 229/1991
., from the perspective of the original intentions of the legislator did not fulfill the function
equivalent unreleased, respectively. Lot "(sp. Nos. Pl. ÚS 6/05,
part VIII / f).
264th The finding, which was - relatively - annulled the contested legislation
(ie. On claim preclusion issue of land), was primarily due to continued protection
pass a restitution claim by obtaining spare
( "other") property, which Unlike financial compensation fulfills the function
equivalent full restitution claim. In terms of equivalence
assets and beneficiaries of the Act no. 229/1991 Coll.
Not fundamentally different position. It is necessary to remind, that on the other side
Act no. 428/2012 Coll. does not include the construction of more
subsidiary claims, which is in no respect does not seem unconstitutional
265th In the second place, it is possible to mention the situation concerning Law no. 87/1991
., According to which the person is also justified under the circumstances
primarily has a right to release things. Only when it is full
one of the grounds for the issuance things started
subsidiary providing financial compensation (§ 8 para. 5). Financial compensation is determined by
price regulations for property valuation on the effective date of this Act
which occurred 1. 4. 1991. Not to be overlooked, that in relation to
this law in practice there are corrections above judikatorním
compensation (ie. the adequacy of the current, significantly different economic conditions
). Reference is made to the judgment of the Supreme Court. Ref. 28
Cdo 1603/2011 dated 16. 5. 2011, according to which interpretation of § 13 paragraph
. 1 and 4 (the refund amount) of Law no. 87/1991. may not be obvious
contradiction with the principles of reasonableness and, if possible, and Justice (
achieve conformity to meet the safeguards human rights and respect
civilistické principle of protection of property rights). In the interest of fair
solving things is not excluded by the court to award such compensation, which would
reasonably based on the value of property at the time of final
dismissal of the action for their release. The Supreme Court stated that
"passage of time (20 or more years from the effective restitution standards)
leadership in matters of restitution of compensation to increase the value of that order of magnitude, respectively.
Many times, represents such a change of circumstances which may
lead per se in specific situations to use a different legal solutions "
compared to current practice based on a calculation of the compensation mechanism in § 13
Law no. 87/1991.
266th From the above it is clear that the jurisprudence of the Constitutional Court and the Supreme Court
(and eventually lower courts) in practice corrects the issue
equivalence and adequacy of financial compensation in prior restitution legislation,
taking into account just a completely different economic
and social conditions (changes in real estate prices) compared to the early 90s. It is not clear
why this principle - nota bene in a law adopted in 2012 -
not testify and ecclesiastical bodies.
267th If intervener 1) seeks applications Decree no. 182/1988
Coll., On prices of buildings, land, permanent crops, payments for establishment
right of personal use of land and compensation for temporary use of land, in
as amended, and equal treatment in the application sees prices
to 24 June 1991 (para. 27) and even the petitioners refer to
"historical traditions" from "table of prices" in the land reform after
1919 [paragraph. 27 f); paragraph. 27 c); paragraph. 29 b)]
see the Constitutional Court in these statements, if given extra
presented as the only constitutionally conforming solution, a sustainable legal arguments.
268th In its judgment. Nos. Pl. ÚS 9/07, the Constitutional Court stated (in the context of
argument for the existence of legitimate expectations): "The European Court
Human Rights also admitted that in situations whose solution requires
adoption of the contested law with significant economic impacts for the entire state,
national authorities must have considerable discretion not only in choosing
measures for the protection and control of property relations, but also the choice
adequate time to implement them. The selection of these measures may include
necessary decisions to limit the amount of compensation for confiscated
assets to a level lower than its market price. Art. 1
Additional Protocol does not therefore entitled to full compensation for all
conditions (para. 182, referring to the judgment of James and others v
United Kingdom, dated 21 February 1986, no. 8793 / 79, § 54, Series A
no. 98-A). "From the above it can not be inferred that a significant reduction
compensation is only a constitutional solution." [V] MOUNT set
compensation [not be] in relation to the value of assets compensated
manifestation of arbitrariness of the legislature, but must reflect the principle of proportionality (resp.
fair balance) "(sp. Nos. Pl. ÚS 9/07, paragraph 91). in this context,
petitioners mistaken judgment of the Grand Chamber of 22 June 2004 in the case
Broniowski against Poland [GC], no. 31443/96 (resp.
probably the verdict on their minds without him specified; § 51)
conclude that the European court of human rights' rights
accept very low compensation.. "the opposite is true (Broniowski against Poland, § 186 in fine
) emphasized repeatedly the principle of "fair balance". Similarly, the Constitutional Court
talks about the need to weigh "the legitimate interests of all concerned
entities. Now, due to their (constitutionally protected) interests, as they
exist at the time of the adoption of a legislative solution, the legislature must choose a particular combination
methods of wrongs "(sp. Nos. Pl. ÚS 9/07, point
269th If the petitioners repeatedly cited the "threat of litigation" from the party earlier
restitution or persons who are not persons authorized by either of
restitution laws, does not specify what legal mechanism
to describe them (those third parties) in connection
the Act no. 428/2012 Coll. These demands create and especially why such third persons
successfully implemented the requirements already mentioned in relation to a number of previous
restitution regulations that do not necessarily have to establish the same
alleged unconstitutional discrimination and property claims beyond
270th Even in this regard was not found arbitrariness of the legislature that would
based unconstitutional inequality of different groups of restitution, since it was found
lack of objective reasons for adopting a different legal structure than
occurred in restitution legislation in the early 90
XII / i
To § 15 para. 1, 2 (deficit generality)
271. Although it is not subject to the analyzes contained within the proposals could
Constitutional Court overlooked that in the case of § 15 para. 2 shows
legislative procedure when the statutory provisions materially
approaching individual decisions. In other words, it lacks the features characteristic of generality
legal norms. As already mentioned, in the case
restitution matter is already in the past, the Constitutional Court said in that
sense that exceptional reasons justifying the constitutionality
enumerated (enum Act) [sp. Nos. Pl. US 27/09 of 10. 9. 2009 (N 199/54 SbNU
445; 318/2009 Coll.), Part VI./a; sp. Nos. Pl. US 9/07, paragraph 56].
These circumstances are evident even now in the present case, the extra treats
urgency of constitutional law (sp. Nos. Pl. ÚS 9/07, the operative part II).
XII / j
To § 15 para. 1.2 (the objections)
272nd If the petitioners argue that the State till 31. 12. 2012 provided
called churches. Economic security, without him, "for this financing
[was] given consideration" (para. 48), and the intervener 1) || | probably requires compensation to deduct the amounts paid to
economic security (para. 21), this requirement is not a legal basis.
Economic Security under Act no. 218/1949 Coll.
was not conceived as a return performance even as repayments of acquired assets and
Constitutional Court is not known if ever such an interpretation of the Act no. 218/1949 Coll.
Ever discovered. Quite apart from the Constitutional Court that none of the restitution
state returned, having received from any (public)
title before 1989, it should be recalled that the so-called.
Economic security has been created "Direct intention not to fulfill religious freedom,
But be combated through direct executive control
religious life and economic oppression "(sp. Nos. Pl. ÚS 9/07, paragraph 102). With that
also merged structure decisive component of economic security
ie. the so-called payment. personal spiritual benefits (salaries)
which was associated with the institute of individual state approval (§
1 in connection with § 2). Recipient of "personal benefit" was the right spiritual state
consent, not a church or religious society that
(except that the rule on who gets state approval for religious activities
) said funds neither formally nor in fact did not
available (see also wording in § 1 of Act no. 218/1949 Coll., as amended effective
11th to 19th, 1992, according to which state "... provides personal benefits
spiritual churches and religious organizations").
273. If the petitioners (para. 59) reported that churches and religious societies
been paid since 1948, increasing the amount of
state budget, it is not clear what the alleged "conflict" and what
session that assertion is the constitutionality of the law, while at the same time does not prove
(where it is said) that it should be the compensation associated with
revision of the land reform. For a copy of the document submitted by the Government (
draft government resolution on the settlement of commitments to agricultural property
reproduced in the first revision of the land reform and the new land reform
commenting procedure, 4. 3. 1954 with the Explanatory Memorandum), for example, follows:
"Valuation of acquired assets for the purpose of determining compensation to former owners
been carried out. the provision of compensation was contrary to the policy of pushing
capitalist elements in the country.".
XII / k
To § 15 para. 5 (inflation clause)
274th Intervener 1) argues that the payment of financial compensation according to §
15 paragraph. 2 will be increased legally prescribed mechanism for peace
inflation. Suffice it to refer to already lined
nature of the financial compensation of the laws of the early '90s, taking care to emphasize that
specified therein refunds were paid a similar mechanism in annual installments
. It is an objective difference between the legislation in
1991 and today.
XII / l
To § 16 para. 1 (a contract between the State and the Church)
275th Intervener 1) argues that through construction contracts
creates "forced patronage" of the affected churches and religious
companies, regardless of whether the church in the future
observe the law, or whether it will want to pay installments prematurely.
Although not connected constitutional arguments intervening 1)
probably points to the fact that the legislation constitutes an element of coercion when
duration of the contract is not available to the contracting parties (esp. The church).
The first row is to be noted that according to § 11 para. 1 of Act no. 218/1949 Coll.
Was "[a] ny private and public patronage of churches, benefices and other church institutes
" the state has already crossed the effect of that
Act. The constitutionally permissible range patronage was performed precisely
through Act no. 218/1949 Coll. 31. 12. 2012.
Now with respect to the content of the contracts according to § 16 para. 2 point. a) Act on Compensation
churches also sponsors the particular demands of the Catholic Church from him
flowing, subject to settlement. In the second row, watching if the opposition
aspect of "coercion" by the state, it should be noted that the construction
Act entails the obligation to contract pursuant to § 16 para. 1 to close, while
possibility not to conclude an agreement by publicly information available, one of the affected churches
used. As regards the interpretation of § 16 par. 1
terms of the alleged threat of forced acquiescence payment installments
financial compensation against the will of the current issue of the Church, see also attached to the interpretation of Article
. 2. 1 of the Charter. If it is a concern that repayments will be
paid out to those affected churches, which will be during that thirty-year period
violate the law, the Constitutional Court refers secondary participant
1) Law no. 3/2002 Coll. , as amended, which represents
relatively strict regulation of churches and religious societies as
registered legal entities, with particular § 5
sets out an extensive list of conditions under which the Ministry pursuant to § 22 of Act No.
. 3/2002 Coll., as amended, to initiate proceedings
Deregistration. Removal from the register then the church ceases to exist as a legal entity
, with the demise of the church in question is undoubtedly also connected with
termination of rights and obligations of the contract according to § 16 par. 1 of the
settlement with churches.
276th Interveners, however, wrong to argue that § 16 para. 1
constitutes state's obligation to provide the affected churches financial compensation.
The claim is apparently based § 15 para. 1, 2, ex lege, while
meet the conditions that the Church does not refuse to conclude a contract with the State of
compensation (§ 15 para. 1).
XII / m
To § 16 para. 2 (content of agreements on the settlement)
277th Intervener 1) Objector (para. 24) to the provisions of §
16 paragraph. 2 point. a), and they maintain that the Church can not be
bearers claims in relation to the original property, because in the past
never own any original property. In the Constitutional Court refers to the interpretation adopted by
above. If it is further argued that it is not clear what
private relationships are settled and how the legislature took into account
to § 2 of the Act no. 298/1990 Coll., It is clear that this objection
not associated with the statement unconstitutionality.
XII / n
To § 16 para. 3 (absence of government authorization under Article. 78 of the Constitution)
278th If intervener 1) says that the government is not in accordance with Article. 78
Constitution empowered to negotiate "to private agreements with normative
effects", it should be noted that it is not clear what is to be seen as
"normativity 'agreement pursuant to § 16 para. 1. If an intervener 1)
for this conclusion merely refers to § 16 para. 6, according to which a
contract announced in the Official Gazette, the Constitutional court refers entirely
generally on the list of § 2 of the Act no. 309/1999 Coll., on the Collection of laws and Collection
international treaties, as amended, pursuant to which the
in the Official Gazette announced a number of different acts, whereby the mere fact || | declaration does not make them normative acts. In another it is possible to identify
with an expression of the government, according to which objection is the lack of empowerment
targeted in the sense that the government has a number of acts for which no explicit constitutional
empowerment, including the disposition of state property without these acts were questioned
(ranging disposition of state property such.
decisions on privatization). In the case of contracts pursuant to § 16 Moreover, not "perform
law" but an act of application of the law, which in this respect is the
difference. The government does not act within the framework of decisions adopted
performance of the state, ie. public authorities, for which the reservation bill (Art.
2. 3 of the Constitution), but a decision issued in the so-called.
nevrchnostenské management, which includes deciding on the disposal of assets
when the state through their bodies acting as owner
executor and not as a public authority. Act no. 219/2000 Coll., On property
Czech Republic and its representation in legal relations, as amended
while several provisions expressly
gives the government discretion to decide on the management of state property.
Authority to conclude contracts on the settlement gives the government § 16 par. 3 of Law No.
. 428/2012 Coll., Which has the nature of lex specialis to the provisions of Law no. 219/2000 Coll
, as amended. Alone this law, moreover §
7, paragraph. 1 assumes that the name of the state acts is the leading
organizational unit to whom such legal actions relating unless special
law provides otherwise. "Otherwise," in this case provides
§ 16 paragraph. 3 of Law no. 219/2000 Coll., As amended. On
position of the government in this regard therefore do not reach conclusions or findings sp.
Brand. Pl. US 24/99 of 23. 5. 2000 (N 73/18 SbNU 135; 167/2000 Coll.)
Under which government decisions according to § 17 para. 5 of Law no. 48/1997 Coll., On | || public health insurance and amending and supplementing certain
related laws, as if effective, should be deemed
replacing the expression of the will of the parties to act of the state authority, which is
general, ie. a legally normative content .
K § 17 (transitional period)
279th § 17, founded seventeen years called. Transition period, after which the state pays
concerned churches and religious communities
contribution to support their activities. The contribution is derived from
amounts paid to each eligible Church in 2011, while in
First three years of the transitional period is paid the full amount
reference amount and in each subsequent year, the amount is reduced by an amount equal to 5%
amounts paid in the first year of the transition period.
Paper support is constructed decreasing scale, without indexation
not subject to taxes, fees or other similar monetary consideration and
is paid by 31 January of that year.
280th According to the explanatory memorandum, "[t] he talks about the form
settlement of property relations between the state and churches and religious societies emerged
need for churches and religious communities prepare for the time when
first time in over 60 years, depending on the state will finance its activities
separately. to move churches and religious communities
system of state contributions to the system of self-financing was possible
smooth as possible, an agreement was made on the introduction. the transitional period, when the state will
churches and religious communities for some time
pay a contribution to the salaries of clerics and to the operation as in the
currently. the amount of this contribution, however, will be fixed (ie. will not
valorize even increase in case of increasing the number of clergy)
and from a particular year onwards, support will gradually decrease until its payment
end pretty. the Institute transitional period of time creates a space in which it would
churches and religious communities should create sufficient
economic base, which allows them to self-finance "(p.
40). In other words, the purpose of the transition period "to allow
concerned churches and religious societies to adapt -
after more than 60 years of continuous ownership, depending on the state - a new economic
situation where the state no longer directly finance their spiritual It even
does not contribute to cover the additional costs. " (P. 62). Stated purpose is then
complementary to the purpose of § 15 para. 1, 2, which the legislature
watched mitigate the impact of natural restitution in connection with the termination
funding under Act no. 218/1949 Coll., In
extent proportional amount of financial compensation, which does not match the restitution claim (see above
281. Against the transitional period, objecting primarily intervene
1). Claims inconsistency with Article. 2. 1 of the Charter, to the extent
religious and confessional neutrality of the state. Challenges the circuit concerned
churches and religious communities with regard to the existence of the church, who
granting of the right to economic security 31 12. 2012 have requested
possibly arising in the future, further challenging the length of the transitional
period, argues the impossibility contribution to support withdrawn if the issue
church or religious society cease to fulfill commitments and starts
violate the laws.
282nd As regards the alleged inconsistency with Article. 2. 1 of the Charter, refers
Constitutional Court for further analysis made. Regarding the question of whether the institute
transitional period is a constitutional, ie whether
so. economic security by Act no. 218/1949 Coll., where
terminated must be terminated immediately, without a transitional period
Constitutional Court notes that at that point intervened 1)
forward no argument. The Constitutional Court, if in the past nor
raised the unconstitutionality themselves special rights according to law no. 3/2002
. in the version then in force (sp. Nos. Pl. ÚS 6/02, Part. VII.)
as neither the unconstitutionality of their (perceived materially)
gradual termination (specifically: the special rights to be financed in the form | || regressive performance in the interim period).
283rd There is no doubt that the contribution to support the follow-up just on the legal status of effective
12 to 31, 2012, on the basis of § 7 para. 1 point. c)
Act no. 3/2002 Coll., as amended on 31. 12. 2012, and Act no. 218/1949 Coll
. In relation to the Act no. 218/1949 Coll.
legislature was forced to respond, in terms of the current legal and political development
certain anachronism (comparatively speaking but not a fault)
caused by the change of legal and political conditions in Czechoslovakia after
year of 1989. Act no. 428/2012 Coll. therefore, not based entirely on the discretion
legislature, which would be adjusted any relationship between church and state, but his
to the processing of legal institutions and relations already existing
based in the relevant period.
284th The ruling circle of concerned churches and religious societies and their
true equality has spoken - the existence
granted special rights according to § 7 para. 1 point. c) Law no. 3/2002 Coll.
on the part of the Church's objective criterion which allows their differentiation
about other churches and religious communities. The proposal to return
special law for statutory conditions available
specific church, the utilization of that right can not establish
unconstitutional inequality. In this respect, we can not talk about discrimination
respectively. 'Privilege' of the Church, as the intervener states
participant 1). Intervener 1) in reference to the situation in the future
registered churches also silent about the fact that Act no. 428/2012 Coll.
range in derogation of Act no. 218/1949 Coll. and the establishment of a transitional period ending
only direct funding of churches and religious societies
state, but does not interfere with other so-called. special rights of churches and religious
company, which also involve direct and indirect support
churches and religious societies, or suspend elements of indirect state support, for example.
in tax relief. About those specific rights are understandably
new church can still compete, even with the consequences of the financial support from the state
eg., Typically under § 7 para. 1 point. d) of the Act no.
3/2002 Coll., as amended by Act no. 428/2012 Coll. (
Establishment of religious schools). The contested legislation (exit
direct financing by the state) does for the Church's newly created in the future
hostile or discouraging environment, even the legal and economic environment
indifferent, but only environment differing levels of state aid || | compared to the legal situation effectively 31. 12. 2012.
285th If it is a question of the length of the transitional period (17 years)
evaluate this parameter, the Constitutional Court in connection with degressive and
nevalorizovaným mechanism returns above specific amounts when
real significance temporarily disbursements in the amount of digressive
indefinable terms can still be described as stopping direct funding and not
for its continuation or even strengthening, as intervener argues
1), which accrue chooses words to introduce the concept of "state
churches." Review of assessing the suitability of a certain duration of the transitional period
to minimize negative impacts on the functioning of the affected churches
not review economic potential of the state is not on
Constitutional Court. On the funding of churches and religious societies
which arise in the future and fulfill the conditions set
legislature Constitutional Court can not a priori exclude the possibility of
new legislation in the future, which may represent a new model
forms of support to registered churches and religious communities.
Such legislation in relation to churches and religious communities
affected by Act no. 428/2012 Coll. Then eg.
also take into account the progress of the transition period.
286th Compared to financial compensation under Article. 15 paragraph. 1, 2, respectively.
its cache proportion, therefore, a contribution to support not designed
directly in close relation to the restitution part of the settlement of property relations
between church and state. The different nature of the contribution, which is already established on
directly Institute of Economic Security under Act no. 218/1949 Coll
., Represents a space for political reflection
legislator in the future. The essence of this contribution and secondly, this allows
extent possible justification for undermining the acquired rights of the Church
example. from the already mentioned the adoption of a new comprehensive legislation
support to registered churches and religious societies in the future
possibly also for reasons that suggests intervener 1) as
contained in § 21 para. 1 of Act No. . 3/2002 Coll., as amended
amended (the reasons for withdrawal of special rights) of the cases concerned the abolition
Church according to § 22 of law no. 3/2002 Coll., as amended
regulations not to mention (typically an activity in conflict with the law).
On the other hand, the objection shall be in intervention 1) add that
only political assessment "social relevance", respectively.
absence of "relevance" (para. 32) is a criterion for intervention in the rights-based
§ 17 of the Law on Compensation of Churches manifestly inadequate. This also applies
Case that the legislator had thought as suggested, based on
"Check the inhabitants of the Czech Republic to the data on religion,
resp. For belonging to a church or religious society according to the results
Census and housing from 1991, 2001 and 2011. ".
Is notoriously known that the said section of religion in the census, houses and apartments
not mandatory, which is reflected in the low number of responses and overall
limited value. At the same time mentioned section was not (nor
in theoretical considerations) given in connection with the financing model
churches and religious societies, that is not the respondents indicated
any weight data on religious affiliation, which should in turn have
affect the exercise of public authority. From this statistical data can not therefore be assumed
same way as the exact registration of membership in the Church
as it is conceived for example. Church tax
in the Federal Republic of Germany, or as a public vote sui generis
status of churches and religious societies.
287th The assertion of the intervener 1) that the financial compensation and contributions to support
form of "Churches economically very powerful entities that
then can promote a certain religion much more easily than was the case
without this support" possible after the constitutional added that
if they are "easy to enforce religion," the intervener
1) probably mean a fundamental right guaranteed by Art. 16 paragraph. 1 of the Charter, according
which everyone has the right freedom to manifest his religion or belief
either alone or jointly with others, privately or publicly, in worship,
teaching, practice or observance.
This fundamental right is subject to use floor clause in paragraph 4, according
which the exercise of these rights may be restricted by law, if it is a measure
democratic society for the protection of public safety and order
, health, or morals or the rights and freedoms of others. In light of the above
existing constitutional limits is not clear what should consist threat
constitutionality in case of phasing out direct state funding
when the "promotion of religion" as a negative phenomenon beyond
constitutionality could issue Church (theoretically) use already existing called.
economic security for about twenty years.
288th If perhaps intervene 1) militates against promotion activities
churches within Article. 16 paragraph. 1 of the Charter (the activity of the Church itself is not unconstitutional
), it must be emphasized that the Act no. 428/2012 Coll.
Builds on existing legislation and practice, and only in this context
it can be evaluated. Direct funding (some) state-registered churches
not particularly § 17 of the newly established to formulate their objections
intervene 1), but rather to an end. Furthermore, if the state
(as a constitutional threat) that the Church "may have legitimate
use external services (media agencies, advertising etc.)."
It should be noted that use the services of "media agencies "churches
legislation to allow even 31. 12. 2012 (though it is not clear whether
a concern of media activities in the area just
church restitution or informing the broader activities of churches). Yet intervener
1) does not specify any cases where this would happened in the past and unconstitutional
what effect it led. At the same time intervening 1)
taken into account the provisions of § 48 para. 1 point. d) of the Act no. 231/2001 Coll.
on radio and television broadcasting and amending other laws
, as amended by Act no. 132/2010 Coll., which operators
broadcasting prohibits ranking
broadcasting religious advertising. Furthermore, it is possible to say that in general (as seen
history of the modern state) public support of churches and religious societies by state
derive from state efforts to "promote certain
religion", but is based on the external valuation, cultural, || | social and generally beneficial, not necessarily kultového, action
church in society.
289th Lastly, if the intervener 1) argues that the cumulative amount of financial
(cache folder) pursuant to § 15 para. 1, 2 and contribution to support
according to § 17 of the affected churches create an "economically strong bodies'
Can only point out the approximate calculation presented by the Ecumenical Council of Churches
, the Federation of Jewish Communities and the Czech Bishops' Conference (amicus curiae brief
), according to which the resulting cumulative total income from state
compared to 2011 (excluding Church Roman Catholic, for whom the restitution
distinctive character of the financial compensation)
rises on average by almost 10% (at the two churches drops), thus in principle
this is not about a substantial increase over current revenues, when | || at the same time it is a transitional period which has affected
churches and religious organizations to help prepare the termination
direct state funding. If amici curiae in this regard also state that
"[f] or the participating churches and religious societies is a model property
balancing on the edge of survival" (p. 11) notes only
Constitutional Court ruled that or in the opposite direction obviously not legislation
regarded as unreasonable or unduly harsh.
290th After considering the above aspects allowance - precariousness of scale and
derive from previously granted special rights on state funding -
Constitutional Court found that the contested regulation was unconstitutional, in that sense
based on irrational or arbitrary discretion of the legislature .
Contested legislation does not cause unjustified inequality because
existence previously granted special rights on state funding by
Act no. 3/2002 Coll. is an objective facts on which to base
transitional allowance to support the affected churches and religious
291st If in relation to § 18 par. 1
petitioners object consisting of unconstitutionality "threaten [measurement] ownership [him] rights [and]
other persons who acquired the property from the state in good faith when such persons || | state does not provide protection ", this objection lacks any legal
292nd The provision allows, in short, that the beneficiary
filed a lawsuit to determine ownership rights of the state in relation to the original
assets transferred or has been transferred to the ownership of other persons in conflict with the so-called
. 'Defensive paragraphs. This objection invites Constitutional Court
repeat the following: "Unless the legislature provided that the transfer
(transition) of property whose owners were decisive date
church and religious communities, respectively. Their legal person is as an act
contra legem incurably void (in the case of going against the meaning
property settlement), followed by quite sensibly
purpose of the contested provision, in relation to the provision of material substrate
for a future law on the settlement of historic property churches, eventually.
broader legislative solution to the property settlement between the state and churches. This
purpose could be the absence of a blocking effect partially or completely
thwarted, because only legal disposition state of the property concerned may be
the basis for the adoption laws of such property 'while respecting the position
eventual new owners. " (Sp. Nos. Pl. ÚS 9/07, point
293 cells. Thus, the petitioners apparently overlooked that conflict with the law in these cases
causes absolute annulment of the transaction.
This fact is the existence of § 18 par. 1 meaningless, because
eventual repeal of that provision to this fact does not change anything.
Meaning of that provision can be seen mainly in the foundation of active
standing of the beneficiary, when the primary is invalid transfer
prejudice the right of ownership of the state and only secondarily a restitution claim
authorized persons. It is also not clear what the rest has denied protection to third parties
when each case should be the subject of legal proceedings, the courts will undoubtedly
decisions based on the individual circumstances of the case
. Thus providing protection for all rights that are at stake.
The existence of different blocking provisions (not only in relation to the Church
property) is also a regular part of the restitution law (§ 9.
1 of Law no. 87/1991 .; § 5 para. 3 of Law no. 229/1991 Coll., as amended
Act no. 93/1992 Coll., et al.), so you can refer to the petitioner
relevant case law.
294th The same could apply to the relevant provisions of § 3 of Law no. 92/1991
. and the intervener's opposition 2), which claims that this
blocking provisions in the past was "routinely violated", wherefore
Beneficiaries according to § 13 par. 5 of Law no. 229/1991.
received only a "ridiculous compensation." The question of the nature of financial compensation as the second
Subsidiary claim with the Constitutional Court has already stated. Also, the provisions of §
18a par. 2 Act no. 229/1991 Coll., As amended, on which the intervener
2) cited provisions of § 14a of Act no. 229/1991
., In as amended, refers to the replacement of
form (replacement) property counts. It should also be noted that the aforementioned §
13 para. 5 Act no. 229/1991 Coll., As amended, falls
to the specific situation of eligible persons not to January 31, 1993 or
September 1, 1993 to authorized persons only because they did not meet
residency condition, while this category legislature in 1991
counted because to problems intervened Constitutional court finding
sp. Nos. Pl. US 8/95 dated 13. 12. 1995 (N 83/4 SbNU 279; 29/1996 Coll.)
Which was a condition of permanent residence on the part of beneficiaries canceled
which inevitably led to tension between proprietary interests these people and reality
previous property transfers. This objection by the intervener 2)
is therefore entirely inappropriate, as well as a voucher for a "ridiculous compensation"
authorized persons, since this reservation on the part of the intervener 2)
now comes relatively late.
295th Intervener 1) further attacks (para. 24) § 18 paragraph.
8, under which "does not affect the right of authorized persons to judicial and other legal protection
against anyone who holds the original property registered churches
and religious communities. ". In relation to this provision, however, does not object
unconstitutional and does not join or indirectly constitutionally relevant
argument. Moreover, the contested provision does not further demands "
beyond the scope" of the law, as the intervener claims 1), as claims based
Act no. 428/2012 Coll. (Ranging restitution in kind) are
demands restitution and directed towards the current owner not only
holder. Their hallmark of the law of the Constitutional Court
is that they do not exist outside the Restitution Act. This conclusion is based on the proposition
that ownership of authorized persons under the restitution law arises
to the issuance of things. It follows that
unless restitution claims based just restitution law, not
can not provide them with legal protection. The clause
no restitution claim and does not constitute an intervener it does not claim.
296th Regarding the claims of others that do not compete with Title II of the Act no. 428/2012 Coll
., Can point to cases of so-called.
Duplicate registration of property rights, a situation which is already addressed in the Constitutional Court
Judgment file. Ref. III. US 3207/10 of 31. 8. 2011 (N 146/62 SbNU 263).
In finding that there was an urgent legal interest within the meaning of §
80 point. c) Rules of Civil Procedure in the event of duplicate ownership
even when it is a historic property of churches and religious societies
to which otherwise falls opinion plenum sp. Nos. Pl. US-st.
5.22. Given the exclusivity of ownership before determining
property rights in that case is built for sure who owns the disputed
things thus prevents the circumvention of the Restitution Act. Not in any case, the Constitutional Court
model other situations that could occur
nevlastnická possession of the original property (esp. In the case of non-compliance content
cadastral legal status) in accordance with § 18 par. 8, it is the task || | ordinary courts in a particular case, however, in relation to this provision
been found unconstitutional.
297th The relevant Constitutional Court does not consider the petitioners' request to cancel
§ 18 par. 9 ( "Rights and obligations of the founder of Religion
exercise effective date of this Act, the Roman Catholic Church
.") And the objection that this provision " cancels direct reform
Joseph II. and crossing the border in February 1948 ".
Petitioners failed to state that the provisions of the constitutional order protects any "reform
Joseph II". The constitutional order of the legislature not in any way modify or adjusting your position
Religious nuts (except for the addition of that
Josephine reforms were fundamentally overcome already
legal and political changes in 1848, in relation to the position of the Catholic Church in Austria
Concordat of 1855, after law no. 50/1874 r. a., etc.). Yippee
Now possible to overlook the fact that, over the last two hundred years
government is a major - economic - meaning religious nut
funding for the Roman Catholic Church only declined until its
current marginal status, while povadnutí
interest of the state to its management is not surprising. Religious parties legal status
matrix and its purpose, which is (since 1782) focused exclusively
in favor of the Roman Catholic Church, reference may be made primarily on the judgment of the Constitutional Court
. Ref. II. US 189/02 and the judgment of the Supreme Administrative Court
dated 2 November 2006, ref. No. 5 AND 35 / 2002-73.
Contested provisions of § 18 par. 9 In addition, no provision of restitution (cf. However
inclusion of Religion between the beneficiaries in accordance with § 3), in particular, it is not based
title transfer (transition) ownership from the state to
authorized person, that is not even clear in what way it would be possible
say "break" the vesting date of the restitution February 25, 1948.
contested provision also clearly not retroactive.
298th The petitioners party considerations Cathedral. Vitus, Wenceslaus and Adalbert
Prague (para. 47), it can point to § 18 paragraph. 10, according to which
Act no. 428/2012 Coll. on this and other properties in the area indicated
apply the Prague Castle, in consequence of which the authorized person, briefly
said can be a restitution claim by Act no. 428/2012 Coll.
to these properties based (cf. a different structure from the issue of exclusions at issue in §
8). The eventual repeal of the contested provision would in turn appointed
property within the substantive scope of the Act no. 428/2012 Coll. ranked, which
appears to be inconsistent with the purpose of the petition, and by
participants. It can thus conclude that relations nominated property
are not subject to property settlement and their specific legal
treatment in the future remains available in the legislature.
299th Beyond this we can add that to the impact of Decree.
55/1954 Coll., On the protected area of the Prague Castle, on the issue of transition
property rights have recently voiced finding sp. Ref. IV. US
822/11 dated 22. 4. 2013. In this context it may be noted that
it is a discovery of one of the chambers of the Constitutional Court, which has not been materially
decide the issue of transfer of title to real property
specified in § 18 par. 10 of Act no. 428/2012 Coll.
entities of the church to the state. Especially this judgment are not challenged the results of already completed
dispute on the determination of property rights (ie.
According to the general regulations), which sparked previous owners and has been in the proceedings before the Constitutional Court
completed resolutions to halt the proceedings on the basis of
withdrawal of the constitutional complaint [resolution file. . I. ÚS 1240-1209 of 13
7th 2010; resolution file. . I. ÚS 1240-1209 dated 26. 11. 2010 (in SbNU
unpublished, available on http://nalus.usoud.cz)]. Regardless
variety of different opinions should be reminded of supporting the conclusions justify
Plenary opinions sp. Nos. Pl. US-st. 21/05, under which "[t] lastnické
rights of the beneficiaries under the restitution law arises only at the time of issue
things. This is actually legalized transfer of property to the state
regardless of what it was the title for this transition, and only
cases which are explicitly mentioned restitution laws is
original title deed of the state, of course, for meeting others in the law
these conditions, the reason for returning things. the restitution laws
in fact legalized ownership of state property to which the state acquired
confiscation, nationalization and other property measures, regardless
that without their existence have been possible, in some cases
, exercise such property ownership rights under the general regulations
. this simultaneously excluded the possibility of applying these rights do otherwise
according to the general regulations, because this treatment is a special treatment for
general regulations ".
Repealing provisions and change
300th The Constitutional Court in its settled case stated that the amendment
legislation does not separate normative existence, it becomes
part of the revised regulation [judgment file. Nos. Pl. US 5/96 of
on 8. 10. 1996 (N 98/6 SbNU 203; 286/1996 Coll.) Resolution file. Nos. Pl.
US 25/2000 dated 15. 8. 2000 (U 27/19 SbNU 271), finding sp. Nos. Pl. US
21/01 dated 12. 2. 2002 (N 14/25 SbNU 97; 95/2002 Coll.), Finding sp. zn.
Pl. US 33/01 of 12. 3. 2002 (N 28/25 SbNU 215; 145/2002 Coll.) And other
], and as such is assessed and its constitutionality. In accordance with § 19 to 25
's proposal to repeal the Act no. 428/2012 Coll. manifestly unfounded and
Constitutional Court rejected it in accordance with § 43 para. 2 point. a) of the Constitutional Court
Three hundred and first Above and beyond that, in relation to § 22, which amended
Act no. 586/1992 Coll., On income taxes, as amended,
can further refer to Law no. 80/2013 Coll . amending Act no.
586/1992 Coll., on income taxes, as amended.
302nd The provisions of § 26 of the Act on Compensation of Churches adduced
petitioners have not intervened constitutional objections, while
Constitutional Court found no grounds for derogation.
The question of religious neutrality of the state in the sense of Art. 2. 1 of the Charter
XVII / a
303rd Under Article. 2. 1 of the Charter, which the petitioners and the secondary
participants repeatedly invoke, applies that "[s] to melt
is based on democratic values and must not be bound either by an exclusive ideology nor
304th The core of the cited provision is the expression of a secular foundation
state which does not derive its legitimacy from the religious justification (Will
force majeure), but from democratic and legal principles that are
also considered unrecoverable (Art. 9 paragraph. 2 of the Constitution).
It is an inherent characteristic of the modern state, but it still does not reflect
particular model of relationship between the state and churches and religiosity of the population.
In European terms, can be the beginning of that process of separation of state from religion
respectively. Churches attributable to experience
religious wars and the rising religious pluralism in society (in Czech translation
example. Böckenförde, EW emergence of the state as a process of secularization.
Prague Civic Institute, 2005, 19 pp.).
305th The secular character of the state but does not identify with the ideology
secularism, I understood as an active focus of public authority to exclude
religion from public life. In the current European discourse
can point to the judgment of the European Court of Human Rights and other
Lautsi v Italy [GC] dated 11. 3. 2011, Application no. 30814/06, in which the secular
base state (Secular nature)
distinguished secularism as a philosophical viewpoint that otherwise falls under Art. 9 of the Convention.
, 306. Key findings sp. Nos. Pl. US 6/02 stated that "[p] nder Article. 2. 1
Charter is a state based on democratic values and must not be
bound either by an exclusive ideology or religion. '
It is therefore clear that the Czech Republic must accept and tolerate religious pluralism
ie. Especially not discriminate unreasonably or contrary
favor any of the religions. For
cited article further indicates that the state must be separated from specific religious beliefs.
principle of religious pluralism and tolerance is also performed. in Article 15, paragraph
. 1 and Art. 16 of the Charter. " From the cited judgment goes further (due to
review the constitutionality of the Law on Churches), that the religious neutrality of the state
under Article. 2. 1 of the Charter does not command indifference (inertia)
public authorities towards religion, which the Constitution
not allow any consideration of public authority on religion, especially the regulation of relations
related to religion (the exercise of freedom of religion, legal status
churches and religious communities, etc.). At the same Article. 2. 1 of the Charter
does not contain a strict separation of church and state, thus interrupting
any link between the State and Churches (mur de séparation), within the meaning
unilateral negative definition of the state. Separation of state from
'specific religious beliefs "is then understood not identifying
state with religious doctrine choice of content, after
institutional then the impossibility of merging the state and religious organizations
. Exercise of public authority (aspect compulsion) led
particular religious beliefs would not necessarily worked toward adverse
towards other religious beliefs, and in particular should not be based on democratic values
, free competition of political forces like. As already stated,
of finding sp. Nos. Pl. US 6/02 or below does not imply that the concept of.
Special rights under the Act no. 3/2002 Coll., Of which one surety
Right of the Church "to be funded under a special law on
financial security of churches and religious societies" [§ 7 para. 1
point. c) as amended on 31. 12. 2012] was unconstitutional, esp.
not inconsistent with Art. 2 paragraph. 1 of the Charter.
307th In this regard, talks about the discovery of the principle of pluralism and religious tolerance
where the state does not take positions on the content of individual
religions (after the truthfulness, usefulness, etc.), But
assumes the role, where necessary, written
moderator to regulate the legal and factual environment for the exercise of a fundamental right.
Can be recalled here the same opinion of the European Court of Human Rights
: "The Court has frequently emphasised the State's role as the neutral and impartial
organizer of the exercise of various religions,
Faiths and Beliefs , and stated that this role is conducive to public
order, religious harmony and tolerance in a Democratic society. it Also
considers that the State's duty of neutrality and impartiality is
Incompatible with any power on the State's part it ASSESS
the legitimacy of religious beliefs or the ways in Which Those beliefs are
Expressed (see Manoussakis and Others v. Greece, Judgment of 26
September 1996, Reports 1996-IV, p. 1365, § 47; Hasan and Chaush v.
Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 XI; Refah Partisi (the Welfare Party
) and Others v. Turkey [GC], nos. 41340 / 98, 41342/98, 41343/98 and 41344/98
, § 91, ECHR 2003-II) "-" The court has repeatedly emphasized
role of the state as a neutral and unbiased
manager of various religions, faiths and beliefs and stated that his role is
in maintaining public order, religious harmony and tolerance in a democratic society
. Further notes that the state's obligation to provide
of neutrality and impartiality is incompatible with any powers of the state
assess the legitimacy of religious beliefs or ways of manifesting
(see eg. Manoussakis and others against Greece, judgment of 26
9th, 1996, Reports 1996-IV, p. 1365, § 47; Hasan and Chaush v
Bulgaria judgment of the Grand Chamber, Application no. 30985/96, § 78, ECHR 2000
XI; Refah Partisi (Page prosperity) and others against Turkey,
Grand Chamber judgment, application no. 41340/98, 41342/98, 41343/98 and 41344/98
, § 91, ECHR 2003-II) "- a judgment against Leyla Şahin
Turkey [GC] dated 10 November 2005, application no. 44774/98, § 107).
308th in the jurisprudence of the Constitutional court on the above findings followed sp. Nos. Pl.
US 9/07, which stated: "Article. 2. 1 of the Charter guarantees
religious pluralism and religious tolerance, respectively
separation of the state from specific religious denominations (principle denominationally neutral
state). The principle of religious pluralism and tolerance is reflected in Article.
15 paragraph. 1 and Art. 16 of the Charter of Fundamental Rights and Freedoms.
Central principle denominationally neutral state is implemented co-op model
relationship between the state and churches and their mutual independence. For the following considerations
[pages absence of a law that would deal historic property
churches] is immaterial whether and to what extent is the economic self-sufficiency
substantive prerequisite for the independent exercise of the rights guaranteed
particular Article. 16 paragraph. 1 and 2 of the Charter. The constitutional order of the Czech Republic
does not include only the imperative of state independence
churches and religious communities (as part of the ideological and religious neutrality of the state
), but also the requirement of independence of churches and religious societies
to the state in fulfilling their goals. "
309th From this also follows that the existence and operation of churches and religious societies
no constitutional perceived as a threat to the secular
state basis, if at the same time the same constitutional order recognizes
extensive religious freedom and religious autonomy, even to the extent
existing cooperation (coordination) between the state and churches in certain
traditional areas of social life.
310th Finally, it should be emphasized that the concept of religious
and ideological neutrality does not oblige the state to reject their values and historical roots
which had a religious experience significant influence. Philosophy, cultural and social heritage
, carried more than a thousand years, especially Christianity and Christian churches and
manifested in society remain, however, things are
fact, not religious beliefs.
XVII / b
Test religious and ideological neutrality
311th Assessment of an eventual conflict with the law Art. 2 paragraph. 1 of the Charter
manifested in three related components. Because it is a constitutional guarantee
objective, not subjective violation of fundamental rights
, this is a test different from the test of proportionality:
I. State ban on self-identification (positive or negative)
a certain world-view and religious doctrine that would lead to the abandonment
democratic legitimacy of public power.
Ii. Prohibition of such exercise of public authority affecting negatively or positively
to religious or world-view questions (
confessional neutrality), which would lead to an excessive interconnection state
any religious or philosophical direction or with any of the churches and religious
Iii. Prohibition of such exercise of public power, which would establish
unjustified inequality based solely on the criterion of religion or worldview
312th Ad i. In the first step, the Constitutional Court examines how occurred
removing elements of a democratic and legal state of the legal system (
practice or public authority) and replacing them with religious or other
philosophical justification. Can be regarded as unconstitutional a state
identification with a particular religion or worldview, which seeks to legitimize
exercise of public authority solely based on religious
argument. In this case, you can talk about the loss of the secular character of the state and
conceptual exclusion of pluralism and tolerance of other religious and world-view
directions by public authorities. In this regard
prejudice to the above guarantees, the Constitutional Court did not find, nor the petitioners and interveners
anything not object.
313th Ad ii. The subject of the second step is to assess whether
by the state (public power) is not a procedure that should have been a principal positions
delivering the content and practice of religious origins, doctrines and
(confessional neutrality). In this respect
regardless of whether it is a positive engagement state (preference) or
negative (restrictions). Constitutional prohibition applies to excessive interconnection
state with any religious or philosophical direction that would
resulted in the government indoctrination or other individuals coercion in matters of religion and worldview
(plane of human rights), and excessive
linking the state with any church or religious society towards the creation of mutual
(organizational, personnel and material) depending
church and state or directly to the creation of a state church (plane
institutional). The State further accepts and tolerates the existence of different
origins, and religions groups and their followers and supporters
for which creates a free environment for the exercise of fundamental rights
(the principle of religious pluralism and tolerance).
Excessive for such interconnection is not set limits to fundamental rights within the meaning of Article.
16 par. 4.
314th To the steps ii. and iii. is first and foremost necessary to add that the issue
mitigate property injustices (after 1989) is not in the jurisprudence of the Constitutional Court
conceived as a common standard legal institute
state, but as a kind of legal and political anomaly that
has historical reasons that predate the rule of law. The Constitutional Court
her looks with respect to formal legal continuity, but also clearly
declared value of the state discontinuity with the previous undemocratic regime
(judgment of 21 December 1993 sp. Nos. Pl. US || | 19/93), as a general commitment to democratic and legal state,
expressed in Art. 1 of the Constitution, and especially in individual provisions
Charter of fundamental rights and freedoms, "to ensure not only formal, but also real recovery
material guarantees the exercise of fundamental rights and freedoms, where
earlier - despite elementary lidskoprávnímu content in international
jus cogens - the state has failed. the adoption of the Charter of fundamental rights and freedoms and
login to other international instruments protecting fundamental
rights must not point zero, which would have started in the limit State obligation
if necessary, to actively create conditions for the realization of fundamental rights
. on the contrary, in relation to individual bearers of fundamental rights
can not disregard the historical context of the situation in which the current state and guilt
located. In other words, it would conflict with the concept
development and strengthening of fundamental rights, should lead social change
Repeatedly to introduce lower standards of fundamental rights on the basis
ignoring the historical causes of the current situation.
History of democratic and legal states may consist of a thick line under the past, but
lessons from past experiences must be reflected in
guarantees of non-repetition of past mistakes in the future "(sp. Nos. Pl. ÚS 9/07, paragraph 94).
In this regard, restitution, rehabilitation and general transformation
State acts after 1989 can not be assessed in terms of classical constitutional
criteria as an isolated manifestation of an unconditional intention of the legislature, but as
response concrete historical facts on which
democratic legislature did not deserve, but for which he is forced (under
formal legal continuity) followed. One of the most characteristic doctrines
corresponding with that being unloaded in judgment file no. Ref. Pl. US
16/93 of 24. 5. 1994 (N 25/1 SbNU 189; 131/1994 Coll.) and was last
reiterated in its judgment. Nos. Pl. US 33/10 from on 23. 4. 2013:
"while restitution is removing the illegality of the transfer of ownership
or wrongful interference in property rights, and it
returning things to their original legal relationship is forced expropriation of property by removing
rights in the public interest, on the basis of law and for compensation
. The reason for restitution is only illegality, while
reason for the expropriation of public interest, ie. The concept is different. Restitution
therefore not forced the withdrawal of property, but the responsibility to restore the original
legal status. "The satisfaction of property claims arising from the broader
(historical) justice through the principle
single acts of restitution, rehabilitation and transformation,
not bear comparison with the constitutional acts of the legislature functioning (in terms
bases and what the targets) entirely in terms of the rule of law.
that view is reflected in both the above-mentioned issues of equality of authorized persons, such as
. to assessment of the constitutionality example. enumerated restitution laws, which would otherwise
without substantial consideration of the above for the absence
generality legislation could hardly be in the abstract review of norms
stand [sp. Nos. Pl. US 27/09 from on 10. 9. 2009 (N 199/54 SbNU 445
318/2009 Coll.), part VI./a; sp. Nos. Pl. ÚS 9/07, paragraph 56]. These conclusions || | can only be made conscious that "at least partially redress past
determines the character of the further democratic development" (sp. Ref.
Pl. US 9/07, paragraph 32).
315th In the second row is to steps II. and iii. It must be stressed that the issue
religious neutrality is closely linked with the conditions for the exercise of religious freedom in the sense
subjective fundamental right. In the existing case law of the Constitutional Court
human rights into account in interpreting Article. 2. 1
Charter even prevails. A broader definition of the constitutional covered
church activities that are not limited to the performance of the cult, the Constitutional Court
already voiced repeatedly in the past [Judgment file. . I. ÚS 146/03 dated
18th 6th 2003 (N 115/31 SbNU 33); Finding sp. Nos. Pl. US 6/02 of 27
11th 2002 (N 146/28 SbNU 295; 4/2003 Coll.); Finding sp. Nos. Pl. US 2/06 from
on 30. 10. 2007 (N 173/47 SbNU 253; 10/2008 Coll.); Finding sp. Nos. Pl. US
9/07, paragraph 98, and there mentioned as examples of foreign jurisprudence].
In the previous case, the Constitutional Court had the opportunity to speak to the relevance
protection of property rights for the exercise of other fundamental rights:
"[V] lastnické right not to be conceived their own sake alone
facilitates the use of other fundamental and other rights "[judgment file.
Brand. Pl. US 39/01 dated 30. 10. 2002 (N 135/28 SbNU 153; 499/2002 Coll.)
Part IV in fine]. In relation eg. The primary protection of private and family life
pursuant to Art. 10 of the Charter, the intensity of interest in the protection of this fundamental right
exceeded only interested in protecting the rights
property is concretely expressed Finding sp. . I. ÚS 2477/08 of 7
1, 2009 (N 4/52 SbNU 27). Finally, in relation to the protection of fundamental rights
arising from religious freedom (also explicitly in the context of Article
. 2. 1 of the Charter) spoke judgment file. Nos. Pl. US 9/07,
in which it was uttered unconstitutional inactivity of the legislature in
settlement of historic property of churches and religious communities.
One of the main reasons for the judgment (Part XI./c) was just finding that in the absence of state
(lasting till 31. 12. 2012)
settlement of historic property of churches is called model. Economic security of churches and
Religious communities fully-fledged alternative, esp.
No guarantee of freedoms arising from Art. 16 paragraph. 1 of the Charter, especially the independence
(concerned) churches and religious communities to the state under Article. 16
paragraph. 2 of the Charter (paragraph 103). "This situation is the absence of a reasonable settlement
historic church property, where the state is a result of their own inaction
remains the dominant source of income for the affected churches and religious societies
... and its consequences in violation of Article. 16 | || paragraph. 1 of the Charter of the freedom to manifest belief in the company's public
action and traditional forms of religiously motivated
generally beneficial activities using relevant historically formed
economic resources, and in particular Article. 16 paragraph. 2 of the Charter and in
component of church autonomy '(paragraph 104). "In other words, the legislature
consequences of inaction are so manifest not only in the narrow sphere
property (historical) churches and religious societies (Art. 11
Charter, Art. 1 of the Additional Protocol to the Convention), but also
in the factual limitations of autonomy and independence from the state (religious autonomy)
guaranteed by Article. 16 paragraph. 2 of the Charter to the exercise of the freedoms guaranteed by Article. 16 paragraph
. 1 and Art. 15 paragraph. 1 of the Charter "(paragraph 106).
316th Interpretation of Art. 2 paragraph. 1 of the Charter, specifically his repeated invocation
in the proposals, but in themselves have included the assumption that this is what
provision prevents the state that the legal status of effective till 31. 12.
2012 struck a positive, thus narrowly perceived "zvýhodňujícím" law, which would
settled historic property of churches (sp. Nos. Pl. ÚS 9/07,
verdict II), in the broader context of the relationship between church and state (paragraphs 23, 38
) where they are necessary "complex political decisions" (paragraphs 86, 108).
Claimant and interveners advocated prism
necessarily implies that unconstitutional conditions outlined in principle not constitutionally
conforming solution. With this insight, however, the Constitutional Court does not concur.
More than twenty distance adoption of Act no. 428/2012 Coll.
from the main wave of restitution and transformational legislation does not alter this
specific character, although social awareness ethos and sense
restitution legislation after 1989 (but rather by its very existence
) now limp.
317th Especially the step ii. in this context, therefore, the Constitutional Court does not evaluate
Act no. 428/2012 Coll. as isolated - from
historical and constitutional perspective unconditional and unforced - an act which
derogates from the above-summarized approaches (under uvozením "first" and
"second row"). Taking into consideration these bases is necessary
reject the assumption that the Charter of the date of its effectiveness in the field of petrified
relationship between church and state status quo, and consequently has
any act of public authority in favor or against the Church
religious communities and the state is tilting one way or another, and therefore
is an unconstitutional violation of religious neutrality of the state. For
assessed the issue is contrary fitting that
abnormality (bias), both in terms of historical justice, and especially from the point of view of constitutional law
represented the state before January 1, 1990 (before
qualifying period); in relation to churches and religious societies, then
guarantees in terms of Art. 15 and 16 of the Charter and in terms of the state unilaterally
created depending churches and religious communities to the state (Art. 2
paragraph. 1 of the Charter) status to 31 . December 2012. Only Act no. 428/2012 Coll
. is one of the possible forms of mitigation past wrongs and edit
relationship between the state and churches within the constitutional order. Therefore, it is not a
excessive interconnection between church and state, since this concept of Art. 2 paragraph. 1
Charter would mean that churches and religious communities were the only
entities against which the constitutional order excludes restitutions | || or transformative act of the legislature. But it was not the intention of the Constituent Assembly, which, even
Constitutional Court challenged the Act no. 298/1990 Coll., Which explicitly
"preferred" Only a certain type of religious legal entities, and
only in relation to a single (Roman Catholic ) Church, on the contrary, it
ranked in other sets - standard - restitution laws (sp.
Nos. Pl. US-Wed 22.05). This assessment is not substantial in size and
value of the property, because he is destined
historical facts and not the free discretion of the legislature.
318th The question of whether it is the very purpose of the Act, ie.
End direct funding of churches and religious societies (economic separation)
a constitutional, the Constitutional Court notes that it is one of the forms of treatment
relationship between the state and churches within the limits of Art. 2 paragraph. 1 of the Charter.
This article contains separacionistickou proposition as an imperative, but it does not exclude
nor, indeed, even after the implementation of Act no. 428/2012 Coll. (
While maintaining other existing regulations konfesněprávních) will not
resulting condition characterized by strict separation of church and state, but only
moving closer to a (theoretical) state separation, undoubtedly
in comparison with the previous model of direct financing by the Act no.
319th The above conclusion on a wider range provided by lawmakers during
receiving restitution, rehabilitation and transition legislation
apply fully to closely restitution aspects of the law, and therefore in parts
restitution in kind and substitute ingredients financial compensation.
If it is a balancing component of financial compensation that should either be included in the concept
material correction of historical fact, that
lawmakers seemed excessive hardness acting in the future.
This regard should be the fact that the dominant owner of the property to
vesting date 25. 2. 1949 was the only one of the churches (Catholic Church
), with the election only a restitution model at the end of direct financing by
It meant a disproportionate impact on other
churches that have not been within the scope of the claims under Act no. 218/1949 Coll.
Directly funded by the state. Aspect confessional neutrality pursuant to Art. 2. 1
Charter, as interpreted by the Constitutional Court, however, is based not on
formal aspect, but on the material aspect (as indeed interpretation
number of other provisions of the constitutional order). This is therefore the Constitutional Court
appears redistribution of financial compensation for the non-Catholic churches and religious societies
procedure as the previous
extremely disproportional effects of the restitution component of Act no. 428/2012 Coll., And within the limits
material confessional neutrality of the state. Theoretically
opposite direction to think that only the implementation of the restitution component
Law no. 428/2012 Coll. would disproportionately (albeit indirectly) supported only one and the same time
largest church, with all the others, the effects of the law approached
material disposal. This procedure would undoubtedly
represented in terms of Art. 2 paragraph. 1 of the Charter
much more intense state intervention into the status quo that has long become actively unilaterally
generated (legislation relationship between church and state before and after the first 11 .
1949 and later in 1989). Zero option (rejection of the Act) would only deepen
previous unconstitutional state (sp. Nos. Pl. ÚS 9/07).
The same can be stated in relation to the transitional period when the so-called termination.
Economic security through temporary regressive
contribution can not be considered excessive interconnection with the state concerned
faiths or churches. All the more so that neither special right
"to be funded under a special law on financial security
churches and religious societies" [§ 7 para. 1 point. c)
Act no. 3/2002 Coll.] in terms of the basis of the claim to unlimited direct
funding was not the Constitutional Court with regard to the constitutionality of the challenged
when reviewing the constitutionality of Law no. 3/2002 Coll. (Sp. Nos. Pl. ÚS 6/02).
Contested § 17 of the Law on Compensation of Churches does
in this regard to the establishment of a completely new institute in the relationship between state and church
, but to its gradual elimination.
320th This undoubtedly Act no. 428/2012 Coll.
will eliminate unconstitutional according to church law, as has been previously defined:
"[It] irrelevant whether and to what extent is the economic self-sufficiency
substantive prerequisite for the independent exercise of the rights guaranteed especially Article. || | 16 paragraph. 1 and 2 of the Charter. Constitutional order of the Czech Republic is
does not only imperative of state independence
churches and religious communities (as part of the ideological and religious neutrality of the state
), but also the requirement of independence of churches and religious
companies in the country in achieving their goals "(sp. Nos. Pl. ÚS 9/07,
paragraph 93). "This situation is the absence of a reasonable settlement
historic church property, where the state is a result of their own inaction
Remains the dominant source of income for the affected churches and religious societies
who has no obvious link to the proceeds of the detainee
historic church property and its consequences in violation of Article. 16
paragraph. 1 of the Charter of the freedom to manifest belief in the company's public
action and traditional forms of religiously motivated
generally beneficial activities using relevant historically formed
economic resources, and in particular Article. 16 paragraph. 2 of the Charter, in
component of church autonomy "(sp. Nos. Pl. ÚS 9/07, paragraph 104).
For thus defined unconstitutional dependency is not applicable
actual economic situation of the particular churches and the actual amount of financial resources
but merely the fact that the state by its unilateral acts
(expropriation of all economic assets and the introduction of so-called.
economic security) caused this economic dependence and
maintained. this dependence unconstitutional by definition, can not be removed even through
significant strengthening of direct state funding of churches
(whether from the state budget or to the fund set up) or model
immediate cessation of direct financing (without more).
321st special consideration on the issue of religious neutrality but
requires construction contracts according to § 15 and 16 and the transitional period according to § 17 in the aspect
eventual state coercion. Steady preview
Constitutional Court and the European Court of Human Rights, the exercise of religious freedom
the state requires a certain degree of public regulation, typically
issue of registration of churches to obtain legal personality, without which
You can not enter into legal relations. At the same time, however, the adoption by the state
some form of public regulation, not its use
exercise of religious freedom conditional (eg. The introduction of mandatory registration
churches that do not interested). This aspect of the plane
religious neutrality of the state reflected in the prohibition of coercion by public authorities. Under
kind restitution is the construction of filing a restitution claim in full
available to authorized persons (cf. However, this aspect of the application of an enumerated
Act) construction contracts (§ 15 para. 1 "... the Church receives" )
however, allows disposal entitled only to the extent
decision on rejection or non-rejection of signing the contract and construction
transitional period (§ 17 para. 1 "state pays') are not available with the right
ever. The Constitutional Court emphasizes
constitutional interpretation of the provisions in the sense that neither the State nor in the case of signing the contract
within the meaning of § 15 para. 1 is not affected directly or indirectly by the Church "forcing"
receive supplies of which during the execution of claims under Act
lost interest, a fact reflected the state. The part of concerned churches and religious societies
So even after signing the contract must be a
demands interpreted as a whole and in parts completely on the issue
Church, with the mandatory provisions of the Act can not be interpreted as
fulfillment of the obligation to accept.
322nd Claimant and the interveners had not been alleged nor
demonstrated that the Act no. 428/2012 Coll., Respectively. one of his
purpose elements should be focused on religious pluralism and tolerance in the society
that the practical effects of the law meant discouraging or vice versa
motivational effect (incentive governments to profess a particular religion
). It should be noted that in this regard can not be assessed
effects of Act no. 428/2012 Coll. as payments to members of a particular church and religious societies
, therefore payments for economically empowering
practicing a particular religious direction, as this would be completely contradicted
sense of specific types of legal entities governed by Act no. 3/2002 Coll
., as amended, that are based on the basis
member shares. Even in terms of the purpose of the church and religious people
beyond the private interests of associated individuals.
323rd In this step, thus not the reasons mentioned above found
excessive interconnection between church and state in the sense of imperative
religious neutrality of the state.
324th Ad iii. State in the exercise of public authority provides material
equal treatment of all religious orientations and world views, ie.
Not discriminate unreasonably or contrary to favor either of
religious orientations or worldviews to the extent that it would establish an exclusive (or
Fiduciary vice versa) access to certain groups (direction) to public power and public resources
(equality and non-discrimination).
325, respectively. On the issue of equality Constitutional Court refers to the conclusions already lined
nature of the Act no. 428/2012 Coll. as a rule restitution, rehabilitation and transformation
and the conclusions reached on constitutional
nature of equality with regard to § 15 para. 1, 2.
326th Just to recap the constitutional concept of equality can be made to the definition
earlier case, when the Constitutional Court rejected an absolute
understanding of the principle of equality, and further stated: "The equality of citizens
not be understood as an abstract category, but as relative equality,
as it is understood by all modern constitutions "(sp. Nos. Pl. US 36/93).
Principle of equality that moved into the area of constitutional acceptability of aspects
differentiating subjects and rights.
Sees the first aspect while the elimination of arbitrariness. The second factor follows from
legal opinion stated in its judgment. Nos. Pl. US 4/95 of 7. 6.
1995 (N 29/3 SbNU 209; 168/1995 Sb.): "Inequality in social relationships,
if it is to affect fundamental human rights, must reach an intensity ,
at least in a certain direction, the very essence of equality.
it usually occurs when, if violation of equality is connected to violation
another fundamental right, eg. the right to own property under Art. 11
Charter, one of political rights under Art. 17 et seq. of the Charter
like. " [Consistently finding sp. Nos. Pl. US 5/95 of 8. 11. 1995 (N 74/4
SbNU 205; 6/1996 Coll.)]. The second aspect in evaluating the unconstitutionality
legal regulation which establishes inequality is therefore based
that one of the fundamental rights and freedoms. Finding sp. Nos. Pl.
US 33/96, which was then considered the issue of inequality in restitution
relations, pointed out that even from a comparative perspective, the inequality
upon as conditions for eliminating arbitrariness, respectively. if this
based on reasonable and objective distinguishing characters (
reasonable and objective criteria).
327th In this respect the Constitutional Court finds that the issue
distinction between individual churches and religious communities and beneficiaries
by Act no. 428/2012 Coll. and according to previous laws, the legislature
objective and reasonable criteria chosen. These include especially the existence
ownership rights to things, which was caused by the withdrawal of property
injustice, and the existence of so-called granted. Special rights under § 7 para. 1
point. c) Law no. 3/2002 Coll. as amended on 31. 12. 2012. Neither
this second criterion does not appear formal or purposeless because
autonomous public regulation of churches and religious communities
exists in the Czech lands, in principle, for centuries, the "Historical | || role of churches in society and the community-oriented nature of their activities
is somewhat different from other natural or legal persons
[...] and also allows for their comparison - in terms of the requirement of independence from the state
- local governments (municipalities) that are
units as well as inseparable from the individual citizen's right to self-determination
"(sp. Nos. Pl. ÚS 9/07, paragraph 105).
328th The so-called objectivity criteria for granted. Special rights under § 7
paragraph. Point 1. c) Law no. 3/2002 Coll., as amended on 31. 12. 2012
, it should be recalled that neither the registration nor the Church as such
procedure of granting special rights under the Act no. 3/2002 Coll., as amended
are not controlled by the principle of assessment or approval
religious doctrines State. Especially these proceedings
subject to judicial review and constitutional review, which is
granted court protection from possible
unconstitutional discrimination on religious grounds (in terms of performance and in terms of fundamental rights Art.
2. 1 of the Charter as objective guarantees).
329th In particular aspects of the law to those "
objective and reasonable" criteria approach also repeatedly spoken constitutional
urgency of the case and the substantial transformation of social and economic relations
compared to 1991 (esp. The question of the amount of compensation in connection with a shift | || price level), which the Constitutional court considers this a matter of common knowledge.
330th If the Constitutional Court will consider the above criteria, it must be concluded that the petitioners have not
interveners vice versa showed their relatively
general assertion that the legislature has favored a religious direction towards
Other religious and philosophical doctrines in breach of the right
religious neutrality in a situation where the previous restitution,
rehabilitation and transformation processes in relation to natural and legal persons other
were already on the order of two decades ago and | || mainly derive from the Act or indirectly preferences of a particular religion
direction (for example, through arbitrary nature of formal
fictional criteria). If the petitioners have in mind economically
significantly different position of the Catholic Church, it is not a position
inequality in the constitutional sense, but a reflection of actual historical and contemporary
position in society. Now some correction mutual
status of churches and religious societies is given
equalization component of compensation according to § 16, which performs in
favor of non-Catholic churches. If this is the position of other
registered churches and religious associations or communities in 31. 12. 2012
did not request the granting of special rights under applicable Law no. 3/2002
., Is an expression of disposition this claim, which does not create inequality
(whereby this situation could not be changed otherwise than state coercion
). Regarding the status of churches and religious societies
which will be registered in the future
at which time will no longer be able to apply for the granting of special rights
to economic security, it should be added that this issue remains
remain available in the legislature, while that at the end of
economic security is the essence of the act was completion of existing and future
exclusion of direct payments from the state. In this also can not be
finds discrimination in terms of violation of religious neutrality.
331st On the contrary, was not shown that the purpose of the Act was to be one-sided advantage
any church or religious society, and on the basis of certain evaluation
legislator attitudes towards different religious
orientations or world views. It should be emphasized that the issue of church and religious society
ended up in a constitutionally relevant relation
strength to stand only on the basis of Act no. 428/2012 Coll., But on the basis
legal relationships before, Act no. 428/2012 Coll.
Does not increase the intensity of these relationships (much less a step change
or permanent), but rather the opposite.
332nd We can thus conclude that the Act no. 428/2012 Coll. constitute unequal and discriminatory treatment
state with certain religious and philosophical
directions, because the resolution (determination of the ambit of the Act) was used
objective and reasonable criteria, and vice versa been applied criteria
preference or rejection of any religious movement or worldview.
333rd The request to submit questions to the Court of Justice of the European Union
whether registered churches and religious societies and church
legal entities are now within the meaning of Art. 107, paragraph. 1
Treaty on the Functioning of the European Union (hereinafter " TFEU ") notes the Constitutional court
that this issue is outside the scope of review of the constitutionality of Act no. 428/2012 Coll
., especially the review procedure, adoption of a law along the lines of whether
was the adoption of the law constitutionally prescribed way (§ 68 para. 2
the Constitutional court Act). To the relationship between European law and constitutional order
Czech Constitutional Court has repeatedly expressed to the effect that
'Community law can not be a benchmark assessment
constitutionality of national legislation "[judgment file. Nos. Pl. US 36/05 of
16th 1, 2007 (N 8/44 SbNU 83; 57/2007 Coll.), Paragraph 35; furthermore, for example. Finding sp.
Brand. Pl. US 50/04 of 8 3. 2006 (N 50/40 SbNU 443; 154/2006 Coll.);
Finding sp. Nos. Pl. ÚS 19/08 dated 26. 11. 2008 (N 201/51 SbNU 445
446/2008 Coll.), Paras 84-86; et al.]. Broad interpretation of the constitutional order
is completely excluded, however, the Constitutional Court to interpret
previously been inclined not in relation to European law, but
in relation to ratified treaties on human rights and fundamental
freedoms [judgment file. Nos. Pl. US 36/01 dated 25. 6. 2002 (N 80/26 SbNU
317; 403/2002 Coll.)]. The above amounts to the Constitutional Court concluded that
abstract constitutional review is not subject to the interpretation of European law
Court of Justice of the European Union. European law, even primary, when
Respect to its significant formal or informal influence on the activity
Constitutional Court, the constitutional order, thus no reference
measure of constitutionality.
334th Beyond this, it is necessary to emphasize that
property settlement between the state and churches is based on facts long before
Czech Republic's accession to the European Union, the system of direct time
unlimited state funding of churches there were 12 to 31 .
2012 on the basis of Act no. 218/1949 Coll., without being specific, and in the case of single
property settlement, the issue was the subject of regulation
European law, respectively. It was even questioned in terms
conformity with the obligations stemming from the Czech Republic's membership in the European Union
. The national legal status of churches
is regulated by a special law no. 3/2002 Coll., As amended, under which it is possible
church or religious society to establish solely "for the purpose
confess certain religious belief" [§ 3 point. a)], in which case
registered churches, the scope of business and other income
activity must be defined in the basic document of registered churches and religious societies
ie. subject to the registration process. "
Business and other gainful activity of church and religious society can only be
its complementary gainful activity" (§ 27 para. 5). In the case
church legal entities subject to the same restrictions arising from provisions
§ 15a. Church legal entity may be established "for the purpose
professing religious beliefs" [§ 15a paragraph. 1 point. a)] or "
for providing charitable services" [§ 15a paragraph. 1 point. b)]. Entrepreneurship is:
"Business and other gainful activity ... can only be their
ancillary activities" (§ 15a par. 4). All this under penalty of cancellation of the registered church
according to § 22 paragraph. 1 point. c) develops if the registered
church activity "in conflict with the law," cancel or religious
legal entity established by the Ministry, provided that such person is
"inconsistent with the definition of its scope. .. or in violation of legal regulations
"[§ 26 par. 1 point. b)]. From this perspective, therefore, the effects
Act no. 428/2012 Coll. in conjunction with purposeful limitation which represents
Act no. 3/2002 Coll., as amended,
completely misstates the purpose of regulating public aid under European law.
It should be emphasized that the issue of tax adjustments (to which were at the hearing
cited judgments of the Court of Justice of the European Union)
related to the settlement of property was not subject to substantive review by the Constitutional Court
, regardless that the criticized part of this tax relief
was subsequently repealed by Act no. 80/2013 Coll., amending Act no.
586/1992 Coll., on income taxes, as amended.
Similar rules, including restrictions finally goes for other forms of association with the so-called.
Ideal targets (political parties, associations), unlike the associations with
335th Furthermore, it was not possible to leave in this context unnoticed Art. 17
paragraph. 1 of the Treaty on the Functioning of the European Union, according to which "the Union recognizes
status under national law of churches and religious
associations or communities in the Member States, and does not touch him." This provision was
Lisbon Treaty (as Art. 16 C - The Union
RESPECTS and does not prejudice the status under national law of churches and
religious associations or communities in the Member States
) situated between principles and secondly it implies command respect
special status of churches and religious societies in general and with
into account the specificities of their relationship with a particular Member State
. Simultaneously, this provision is also inferred ban
interference (touching), which applies not only to the region's own
their work, but also in other areas. R. Streinz in the commentary on Article.
17 of the Treaty on the Functioning of the European Union states eg. Provision of services
employment or positions of any organization [closer Streinz,
R. (eds.): EUV / AEUV. Vertrag über die EU und Vertrag über die
Arbeitsweise der EU. 2nd Aufl., CH Beck. Munich, 2012, pp. 393, 395-397
]. In the same spirit interprets this basic provision J. Syllová
in the commentary team of authors to the Lisbon Treaty (Praha: CH Beck,
2010, p. 242), which states that the legal regulation of the status of institutions
Religious nature can not be affected or "
using powers provided for in other articles of the TFEU".
336th Finally, the Constitutional Court in this context refers to the greater
context of this issue, to which attracted strong opinion
Federal Constitutional Court eg., In paragraphs 251 and 252 of the Lisbon judgment of 30 June 2009
(sp. No. . 2 2/08 BVE 2 BVE 5/08, 2 BvR 1010 to 1008, 2 BvR
1022-1008, 1259-1208 and 2 BvR 2 BvR 182/09). According to him, in terms of capabilities and options
self-assembly is a democratic constitutional state
when substantive definition of transfer of sovereign powers to the European Union, one of the five basic
a particularly sensitive issues, especially culturally important decisions
eg. Law family, in education and training systems or
the treatment of religious communities (Als sensibel besonders für die
demokratische Selbstgestaltungsfähigkeit eines Verfassungsstaates
gelten seit jeher ... kulturell besonders bedeutsame Entscheidungen
etwa im Familienrecht, Schul - und Bildungssystem oder über den Umgang
mit religiösen Gemeinschaften).
337th Beyond this, the principle of precaution, while not
first time, the Constitutional Court on the basis of the conduct of the hearings
recalled that the proceedings before the Constitutional Court is not intended for any
strengthening the legitimacy and credibility of their political opinions || | capture the media monitored proceedings and is not a forum for political discussion
. Proceedings for an abstract review of the constitutionality of the Act is intended to protect
objective of constitutionality, not to protect or even mere popularization
subjective interests or opinions
actively legitimized persons.
338th The Constitutional Court after it in the aforementioned intentions
dealt with the question of the constitutionality of the Law on Compensation of Churches, with
regard to the legislative process of adopting the law and what the law
as a whole and its individual provisions in particular, He concluded that
proposals petitioners and interveners to annul the Act
are partly justified.
339th Regardless of the objections submitted to the Constitutional Court considered the extent to which
is an adjective "fair" in the provisions of § 5. i) of the Act on
settlement with churches in that context sufficient in terms of its
clarity and certainty, a formal claim, which must be at
right to ask. This is a vague term. There is no example. Obviously, if
'fairness' compensation is related to the period of expropriation or
present conditions and the level of protection of fundamental rights. For these reasons
left over that part of the provisions of § 5. i) Act on Compensation
340th The Constitutional Court acceded to annul the Act because
violation of the legislative process, since it did not find that this
process as a whole did not allow for rational discourse and hearing parties
open debate between proponents of competing views, including | || minority, supported the possibility of an active participation of the participants in the course
(cf. Constitutional court dated March 1, 2011 sp. Nos. Pl.
US 55/10 (N 27/60 SbNU 279; 80 / 2011 Sb.)]. However, the Constitutional court
condemns the moral decay of the background of the legislative process, and it
endeavor of both warring groups of deputies, can not, in the absence of
professional body for protection of constitutionality become a moral arbiter and || | educator political representation, proceed to the annulment of the contested
Act solely because of disrespect for one of the lawmakers to others.
341st Constitutional court since its first decisions in restitution matters
based ex favore restitutionis and countless He stressed that the restitution
things must be considered with regard to the fact that those who
reconstituting, in the past has caused a number of grievances, including those
property. The existing consistent jurisprudence of the Constitutional Court
restitution matters is undeniable that as a negative legislator
never abrogated the provisions prescribed in restitution
detriment of natural and legal persons, which the legislator in the form of alleviating them
Act committed injustices possible.
Derogatory jurisprudence of the Constitutional Court was always in principle in favor of people restituujících
(permanent residence, national cultural heritage). The Constitutional Court nod in restitution
things argument based on the fact that one would restituent
Not restituted because the other person was not
legislature included among those to whom the legislator property and other injustices slackened. Also in the case
church restitution Constitutional Court has repeatedly ruled. His
cited above, it is clear that accentuated the legitimate expectations and
pointed to the legislature inaction. In such a situation would certainly
derogatory decision of the Constitutional Court shortly after the statutory
treatment finally adopted, it was surprising and could legitimately raised
impression that it is loaded with features of arbitrariness and unfairness. The Constitutional Court when deciding
is fully aware that it is not competent to
arbitrated a dispute over the meaning of Czech history, the sub-segment of argument
342nd The Constitutional Court on the basis of legal history analysis set out the reasons for which
find well-founded arguments of the petitioners and by
participants that churches and religious communities did not possess original property
respectively. that there is "a change in the nature of ownership," and that
churches and religious societies are not "full ownership" and that
church property had a "public character", respectively.
was owned by churches and religious societies. The Constitutional Court concluded that
religious organizations as legal entities were essentially full ownership
capability, which resulted in a body of property rights
individual matters falling church property (subject matter
ownership belonging third parties, with the exception of specific religious orders
). From the literature, contemporary case law or practice can not be traced
that church property was conceptually excluded from treatment
property rights according to the DDA and ecclesiastical bodies entrusted solely on the basis of public
title (exclusively the rights of iconic). In addition
said a theoretical analysis can point to completely
practical examples. It is generally known that, in principle, the only type of property ownership
whose status was not unlawful acts of the communist regime
affected (except for known exceptions) were just churches, chapels, prayer
and similar objects used performance Cult although these very
been subject to intense public regulation as a public affairs. If
would have been a valid proposition that religious entities related to them were
owners (given the separate legal personality of the church), but only
owners, users, administrators, etc., Then you can not explain
that is the law and practice for the owners during the vesting period
hitherto regarded and considered, although since the beginning
vesting period (after February 25, 1948) demonstrated no transfer (transition)
property rights these entities (as was the case in relation to other
Land Act no. 298/1990 Coll.).
-343. The Constitutional Court took into account that financial compensation worth and even
not have to stand on purely economic and mathematical basis.
It would be indeed difficult to achieve because it would then be, for example, include
compensation for use of the state has withdrawn real estate, the time of their
withdrawal, or at least for a period of unconstitutional inactivity of the legislature.
The Constitutional Court also due respect for the principle of minimizing interference and
analogy of the reasons for which can for example be subjected to constitutional review
law on the state budget, sees no circumstances founding
unconstitutional that the legislature set the amount of financial compensation
combined manner, based on several factors. Financial compensation (§
15) has in relation to individual churches variable character (
different ratio between the replacement component restitution and compensatory component).
Constitutional Court reviewed the principle and the transitional period regressive
direct financing (§ 17). Due to the nature of the objections affecting
a violation of fundamental rights (Art. 11 paragraph. 1 of the Charter), and in another
only generally worded discrimination and inequality (non-accessory;
result in arbitrariness of the legislature), the Constitutional Court has rationality test
legislation that passed this test.
Independently evaluate and question the religious neutrality of the state according to Art. 2. 1.
344th For the foregoing reasons, the Constitutional Court annulled the provisions of § 5.
I) the words "fair" Act no. 428/2012 Coll. according to § 70 para. 1
Law on the Constitutional Court, it is found inconsistent with Art. 1, paragraph. 1
Constitution. The proposal in part directed against the provisions of § 19-25 of the Act no.
428/2012 Coll. The Constitutional Court rejected under § 43 par. 2 point. a)
Law on the Constitutional Court as the action is manifestly unfounded.
Remainder of the Constitutional Court for the annulment of Act no. 428/2012 Coll. dismissed according to § 70 paragraph
. 2 of the Constitutional Court as unfounded.
Chairman of the Constitutional Court:
JUDr. Own hand
Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took the decision of the plenum judges
Jaroslav Fenyk, Vojen Güttler, Jan Musil and Pavel Rychetský.