In The Matter Of An Application For Annulment Of The Second Section Of The Act No. 231/2001 Coll.

Original Language Title: ve věci návrhu na zrušení části druhé zákona č. 229/2001 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=57929&nr=278~2F2004~20Sb.&ft=txt

278/2004 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 9 April. March 2004 in the plenary on the proposal of the district

the Court in Příbram to abolish the "part two" of Act No. 231/2001 Coll.,

called "change of the Civil Code article. (II) ",



as follows:



Part two of the Act No. 231/2001 Coll., entitled "Amendment of the civil code

article. (II) "is hereby repealed on 31 December. December, 2004.



Justification



Příbram District Court handed the proposal to repeal part of the second Act.

231/2001 Coll. (article. II.), amending the Act No. 219/2000 Coll., on property

The United States and its representation in legal relations in the text of the Act

No 492/2000 Coll., conflict with the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution").



He did so in the context of ruling on the application of the cooperative (J) (hereinafter referred to as

"the applicant"), against the defendant to the Czech Republic, represented by the

the Government representation in property Affairs, located in Prague 2, Rašínovo

42, on the waterfront, the determination of ownership of the building plot no. 99-

built-up area with an area of 361 m2 in the municipality and cadastral authority. J., administered by District

the Court in Příbram under SP. zn. 7 C 139/2001.



The essence of the dispute is the fact that the plaintiff, as owner

building No. 26 (mixed goods store) in the village of j. feel at the same time

the owner of the above indicated building site, which is partially

located under the building. As the owner of the land is on a worksheet

ownership of the # 98, maintained for the municipality and cadastral authority of j., entered into the Czech Republic

with the right of permanent use in favour of the plaintiff. The applicant seeks the determination

ownership of the land, because the above is of the opinion that the

He became its owner in accordance with Act No. 101/2000 Coll.-specifically under section

879c paragraph 1. 1 of the civil code (hereinafter "the Regulation"). In accordance with this

the provisions of the right of permanent use of the land, pursuant to section 70 of the economic

the code, developed the building or structure owned by a person, in

for whose benefit it was established and which takes on the date of entry into force of this

of the Act (i.e. the date of 1.7.2000), is changing the expiry of one year from the

the effectiveness of the law on the ownership of a legal person in whose favour it has been

established. Whereas the applicant has applied under section 879c paragraph. 4 of the German civil code,

within the time limit set out herein, the State on the change of the law on the right of economic management

There was a change in ownership, the right of permanent use of land

the right of ownership. It does not change the fact that § 879c German civil code was

cancelled parts of the other article. II. Act No. 231/2001 Coll., because this

provisions is the norm of retroactive, which could not be taken into account.



The District Court in Příbram (hereinafter referred to as "the applicant") is identified with the legal

the opinion of the plaintiff and said that the day was given to operators, 1.7.2000

referred to in § 879c German civil code, the right to apply for conversion to a right relation to the

This right of ownership, and it took until 30.6.2001. The fact that with

effect from that provision was repealed 30.6.2001 parts of the other article.

II. Act No. 231/2001 Coll., although there has been a withdrawal of the reservation of title

the said entities (that would be established from 1.7.2001), but with feedback

Finally they were withdrawn the right to apply for conversion of usufruct on

the right to ownership. It was a right already acquired within the meaning of

the provisions of article. (l) of the Constitution of the United States. This change in the legislature

made, in the opinion of the applicant, constitutionally impermissible in the form of so-called.

retroactive, which is in breach of article. 1 of the Constitution of the CZECH REPUBLIC. All subjects

that meets the conditions of § 879c German civil code were the abolition of this provision

at a disadvantage, because they have been withdrawn once the law law

granted, i.e.. the right to the creation of the right of ownership. Cancellation of part of the second

article. II. Act No. 231/2001 Coll., will not be denied their right to other entities

(in particular individuals, which have been converted into flats and non-residential premises

pursuant to Act No. 72/1994 Coll.) on the emergence of the ownership of the land under the

building or House in their possession pursuant to section 60a et seq.. Law No.

231/2001 Coll., on the contrary, restores only the State based the provisions of § 879c

German civil code, and under section 879 d and 879e the same law.



The Constitutional Court first considered the formal requirements for application.

The petition was filed by the District Court in Příbram in connection with its

the decision-making activities in the case of the plaintiff against the defendant to the Czech Republic, the

the determination of the title to the land. When the solution of the case is to be used

Act No. 219/2000 Coll., on the property of the Czech Republic and its representation in

legal relations, as amended by Act No. 492/2000 Coll. and Act No.

231/2001 Coll., so the proposal was filed by the applicant and authorized meets

the conditions of article 95 para. 2 of the Constitution of the Czech Republic and § 64 para. 4 of the law

No. 182/1993 Coll., on the Constitutional Court, as amended by later regulations (hereinafter referred to

"the law on the Constitutional Court"). The proposal also complies with the conditions

admissibility pursuant to § 66 of the law on the Constitutional Court.



In accordance with the provisions of § 69 para. 1 of the law on the Constitutional Court's Constitutional

the Court has requested representation of the Chamber of Deputies and the Senate of the Czech

of the Republic.



According to the Chamber of deputies of the Czech Parliament, it was the intention

the legislature upon the adoption of Act No. 231/2001 Coll. delete interpretation

problems that occurred in practice when applying § 879c German civil code.

The discussion focused on the question whether the land ownership is transferred as

is registered under the number parcelním in the land registry, or

confusion in the land to which the parliamentary right easement

pursuant to § 21 para. 5 and 7 of the law on the ownership of flats. Also, it was the

the question of the advantage on some of the subjects within the corporate group

people who have used the land to 1.7.2000 in State ownership and

irregularities, consisting in the transfer of the ownership of the whole non-exclusion

the plot, although with the operation of the building is related for example. only a very small part of it.

The adoption of Act No. 231/2001 Coll., to allow for a relatively wide range of

operators take advantage of favouring method to obtain the land into ownership of

in the form of obligatorního conclusion of a deed from the State.

The subject of the presentations are so uniformly state that land that make up the

functional whole to named objects. This is the definition of the wider than

pursuant to section 879c German civil code. Ownership of the land would, pursuant to section 879c German civil code,

established on 1 January 2004. July 2001, so that the abolition of the provision

the right of ownership has not been withdrawn.



On the issue of retroactive bequeathed to the Chamber of Deputies, in particular, to find

The Constitutional Court of the CZECH REPUBLIC of 4. 2.1997, promulgated under Act No. 63/1997 Coll., and

the award of 13 April. 3.2001 promulgated under no. 128/2001 Coll., the legislature was

guided by the pursuit of a fair and balanced solution, providing a higher level of

of legal certainty, a wider range of subjects. The legal effects of the contested

the provisions may therefore be characterized only as a mocked-up the retroactive effect.

The legislative provisions which have this character do not conflict with

the principles of the rule of law. Act No. 231/2001 Coll. has been the legislature

approved on 14 June 2005. 6.2001 in the belief that it is in accordance with the constitutional

policy and the legal order of the Czech Republic, was signed by the competent

constitutional factors and duly promulgated in the collection of laws.



Senate of the Parliament of the Czech Republic in its statement said that the proposal

the contested act had been referred to the Chamber of Deputies on 28. may

2001. The Senate discussed the Bill on 14 July. June 2001, and in the presence of

53 senators and senátorek the draft law approved by 29 votes for, 14 votes

It was against. In the discussion that the cancellation of voices rang out § 879c et seq. German civil code

just before the end of the one-year period mentioned can lead to polemics about

legal certainty, confidence in the law and on the retroaktivitě. Finally prevailed

the view that the right of ownership has not yet over and the Senate has expressed its support for

approval of the law.



With regard to the retroactive effect of the said provisions, the representation of the Senate

States that the provisions of part two, article. II. Act No. 231/2001 Coll.

does not associate any legal effects with any legal reality which

occurred prior to its effect. The effective date of this Act, IE. to 30.

June 2001, no person there is an individual right, or the right to

the ownership. Therefore, the abolition of section 879c or not, and not have to

intervention in the so-called. acquired rights. Acquisition of ownership was, pursuant to §

879c German civil code, conditional on how the competent authority request,

and the passage of time. The second condition, i.e.. the expiration of the time, was not at the time

entry into force of Act No. 231/2001 Coll. met, even if only on a single

day. It is apparent from the provisions of § 122 para. 2 German civil code, according to which the end of the

time limits specified by year falls on the day having the same name or

the same number as the day on which the event from which the period begins,

Thus, in a particular case on l July, 2001.



In this context, the Senate pointed out the fact that the provisions of § 879c and

seq. German civil code, even if it is marked as transient within the meaning of the findings

The Constitutional Court No 43/2001 Coll. and no 128/2001 Sb.

inkorporovaným to the civil code and as such can be considered as well as its

the cancellation. Therefore, you can hardly recognize the independent existence of the provisions

Part II of Act No. 231/2001 Coll., as the cancellation of the § 879c et seq. German civil code

became part of the civil code. From the case law of the Constitutional Court

in General, it follows that the abolition of certain provisions of the constitutional

the Court cannot occur to the "obživnutí" of the provisions in force on the day


before the announcement of the repealed provisions in the statute book. In this

context, the question arises, whether from the formal procedural reasons is possible

the proposal, on the basis of which the Constitutional Court should "Cancel" "cancellation

the provisions ". It is the negation of the negation, the result of which could lead "to the

the positive ", i.e. to restore the previous edit, which, however, would not be possible

having regard to the above.



The Senate pointed out in its observations on the fact that the Constitutional Court

be decided according to article. 87 para. 1 (b). and the Constitution of the United States of)

repeal of laws or their individual provisions, if they are in conflict with the

the constitutional order. The result of his decision is the vacuum of space, respectively.

for the eventual decisions of legislative power, and not a positive legal

Edit. It is also appropriate to take into account, that the legislature of its intention to

to deal with the property of the State after the repeal of § 879c et seq. German civil code, has already expressed

amendment to the law on property of the State by inserting section 60a and 60b and provisions

point No 1 c article. IV. Act No. 231/2001 Coll.



The Constitutional Court referred to in article. 87 para. 1 (b). and the Constitution of the CR)

repeal of laws or their individual provisions, if they are in conflict with the

the constitutional order. In this procedure, the Constitutional Court shall examine the content of the law

or other legislation from the point of view of their compliance with the constitutional

to determine whether the laws have been adopted and issued within the limits of the Constitution of the United

the Republic established competence and constitutionally prescribed manner (section 68

paragraph. 2 of the Act on the Constitutional Court). Therefore, the Constitutional Court first dealt with the

the question of whether a law, on whose part the appellant argues

the unconstitutionality, was adopted and approved under the conditions set out in section 68

paragraph. 2 of the Act on the Constitutional Court.



From the report on the course of the 36. a meeting of the Chamber of deputies of the Czech Parliament

Republic of 25 June. in May 2001, the Constitutional Court found that the House

the House approved a resolution on that date, which agreed with the

Zdenka Horníkové and members of the design more on the issue of the law

amended Act No. 219/2000 Coll., on the CZECH property and its representation in legal

relations, as amended by law 488/2000 Coll., and some other laws, according to the

House print 828, as approved the amendments. In

vote sequence number 491, 171 members present for the vote

168 Members, against no one.



Of the communication shows that the Senate Bill has been delivered to him the date of 28.5.2001

and the Senate approved a 14. 6.2001.



President of the Republic, the law was delivered to the signing date of 15.6.2001.

The President signed the law day 26.6.2001. The approved law was delivered to the

the signature of the Prime Minister of the day and announced the date of 26.6.2001 29.6.2001 in collection

laws, the amount of 85, under number 231/2001 Coll., effective on 30 April 2005. June

2001. it is therefore established that the contested act was adopted and issued within the limits of

The Constitution of the United States set out competences and constitutionally prescribed

way.



After this initial discovery approached the Constitutional Court to assess the content of the

the contested provisions of part two, article. II. Act No. 231/2001 Coll., of the

with regard to its compliance or conflict with the constitutional order of the Czech Republic and

It concluded that the proposal is reasonable.



The applicant contested provision reads as follows: "in the Act No. 40/1964 Coll.,

the civil code, as amended by Act No. 58/1969 Coll., Act No. 132/1982

Coll., Act No. 94/1988 Coll., Act No. 188/1988 Coll., Act No. 87/1990

Coll., Act No. 106/1990 Coll., Act No. 116/1990 Coll., Act No. 87/1991

Coll., Act No. 509/1991 Coll., Act No. 264/1992 Coll., Act No. 266/1994

Coll., Act No. 103/1995 Coll., Act No. 118/1995 Coll., Act No. 89/1996

Coll., Act No. 94/1996 Coll., Act No. 227/1997 Coll., Act No. 91/1998

Coll., Act No. 167/1998 Coll., Act No. 159/1999 Coll., Act No. 363/1999

Coll., Act No. 27/2000 Coll., Act No. 101/2000 Coll., Act No. 227/2000

Coll. and Act No. 367/2000 Coll., in § 879c, § and § 879e, including 879 d

Mark heads and titles be deleted. "



The provisions of section 879c of the civil code has been incorporated in article VII.

parts of the fifth (Amendment of the Civil Code), Act No. 103/2000 Coll., dated

April 4, 2000, and the provisions of § 879 d and section 879e of the civil code is to

his amendment, made by Act No. 367/2000 Coll.

14.9.2000. paragraph 879c was part of the Civil Code of 1.

July 2000 (IE. from the effective date of Act No. 101/2000 Coll.) to 30.

June 2001, i.e.. to the effective date of Act No. 231/2001 Coll.



Succinctly, from the text of the civil code was deleted

the provisions of § 879c, § 879 d and § 879e. For a better understanding of the problem

seems like the quote the exact wording of the desirable cancelled § 879c to 879e

German civil code, from which the problem depends on:



§ 879c



(1) the right of permanent use of the land under section 70 of Act No. 109/1964 Coll.

economic code, developed the building or structure owned by the

the person in whose favour it was right of permanent use, set up, and land

subsequent, if such land is associated with the operation of this

building or construction that takes on the date of entry into force of this Act,

changes to the expiration of one year from the effective date of this Act, the

the ownership of a legal person in whose favour it has been established that right.



(2) the provisions of paragraph 1 shall apply mutatis mutandis to the right of the loan or

the lease, which was replaced by the right of permanent use of land, if

It was established in favour of housing cooperatives, or in favor of it, who

has been converted to a dwelling or non-residential premises ownership pursuant to § 23 of the Act

about the ownership of flats.



(3) if the right of permanent use of land together to one established

more persons, pursuant to paragraph 1, these persons are the co-owners of the

equal shares.



(4) if the legal person in whose favour it was established this right,

Neither the State of this right of ownership within one year

from the effective date of this Act, to change the law under paragraph 1or 2

of ownership does not occur and the right of permanent use of expires the expiry of

one year from the effective date of this Act. "



§ 879 d



The person in whose favour it was right of permanent use of established, for the

purposes of § 879c shall mean (i) Housing Association of citizens, or associations of citizens,

that was or will be deemed to arise under the Act No. 83/1990 Coll.

about the Association of citizens, as amended, if such

Housing Association, or Association of citizens, the right of permanent

use set out in § 879c para. (l).



§ 879e



Paragraph 879c paragraph. 1 shall apply mutatis mutandis to the right of the loan or

lease under § 879c para. 2, set up by 31. December 2000 on the

favor of it who has been converted to a dwelling or non-residential premises

ownership pursuant to § 23 of the Act on ownership. Changing such a right

loan or lease ownership occurs on January 1. July 2001.



The claimant's argument lies in the fact that the provisions of the German civil code § 879c

recognition of the bodies here referred to the right to apply for conversion to a right relationship

the right of ownership, and this right, as already acquired, they were contested

the provisions of Act No. 231/2001 Coll., withdrawn. This was done, according to the

the complainant, an illegal form of retroactive, which is contrary to the

Article 1 of the Constitution of the CZECH REPUBLIC.



The issues dealt with by the Constitutional Court is retroactive in a wide range of their

the findings. Perhaps the most extensively dealt with this issue in the report No.

63/1997 Coll., on whose grounds can be used in this context, refer to.

The Constitutional Court here. comment the postulate that the basic principles,

defining a category of law, include the principle of protection of trust

citizens in the law, and the related principle of non-retroactivity

legal norms. Prohibition of retroactive legal norms for the field of law

the criminal is specifically regulated in article. 40 para. 6 of the Charter of fundamental rights

and freedoms, his tenure for another area of law have to be inferred from the article. 1

The Constitution of the United States. Legal standard can be considered as retroactive

If it provides for legal consequences for such factual conditions, to

which occurred prior to the effective date of this standard.



In the present case can be considered responsible for these factual conditions those that §

879c German Civil Code established for the transition of ownership of 1.7.2001. The acquisition of the

of ownership pursuant to section 879c German civil code was linked to the fulfilment of the two

conditions (article 879c, paragraph 1, 4). The first condition was the submission of the request to

the competent national authority and the other was the expiration of the time, IE. time limits

one year from the effective date of Act No. 101/2000 Coll., i.e.. from the 1.

July 2000. This period would be filled on 1 May 2004. July 2001. To do this,

However, because the fulfilment of this second condition has been ruled out of parts

Second, article. II. Act No. 231/2001 Coll. of the declared on 29. 6.2001 in

The collection of laws, in the amount of 85, with effect from 30 April 2007. June 2001, jamming

MJ. the German civil code § 879c. The legislature thus managed to eliminate the legal

consequences, foreseen in § 879c German civil code for the case once the time limit of one

of the year, before the end of this period. It was a procedure that, however,

any of the entities, which signify benefits § 879c German civil code, title

the right to neodejmul, since its inception. Right to a land plot

the property, which was established by the provisions of § 879c et seq. German civil code

on 1 January 2004. July 2000, would be established on 1 January 2004. July 2001. By clearing the


those provisions of the civil code the contested parts of the second law

No. 231/2001 Coll., i.e. the right of ownership has not been withdrawn.



In a dispute that addresses in Příbram, District Court, it was found that the plaintiff

the request was made by. Has fulfilled the first condition, but he was not

the second condition being met, because the law no 231/2001 Coll., he parts

Second, article. II., effective from 30. 6. in 2001, the meeting did not allow. In

this context, it is necessary to conclude that the custom application is lodged within the meaning of §

879c paragraph 1. 4 of the German civil code, within the period provided for therein, the plaintiff's right of ownership

nezaložilo. The Constitutional Court therefore, the contested provisions of the Act for the

retroactive shall not be considered.



From the facts set out above, it is apparent, however, that at the time of the effectiveness of the

Act No. 101/2000 Coll. (i.e. from July 1, 2000) was all

bodies that meet the conditions of § 879c, which was referred to by law

incorporated into the civil code and act in accordance with it,

the legitimate expectations of the end of one year,

i.e.. from the 1. July 2001, become owners of the land covered by the scheme

section 879c to section 879e German civil code. The mentioned procedure to the legitimate legislator

expected hit just one day before the expiry of the period in which to

acquisition of ownership has occurred. It means that the entities that Act

in terms of the official in charge of the predetermined, were a mere day before

the expiry of the said period confronted with totally different procedure

State.



In this context, the Constitutional Court refers to the jurisprudence of the European Court of

for human rights in Strasbourg (ECHR), concerning the application of

Article 1 of the additional Protocol No. 1 to the Convention for the protection of human rights and

fundamental freedoms. According to this article: "any natural or legal

the person has the right to the peaceful enjoyment of his possessions. No one can be deprived of his

of your property, with the exception of public interest and subject to the conditions fixed by

the law and the General principles of international law. The preceding provisions shall not prevent the

right of a State to enforce such laws as it deems necessary, to control the

the use of property in accordance with the general interest or to secure the payment of taxes and

other contributions or penalties. "



The concept of "property" contained in the first part of article 1 of Protocol No 1, has

autonomous scope, which is not limited to the ownership of tangible assets, and

does not depend on formal qualifications in national law. (see the decision of the

The ECTHR in the case of j. Broniowski against Poland, z. 2002). May include

how ' existing assets, "so the assets, including accounts receivable, the

the basis of which the complainant may claim that at least has "legitimate

expectations "(ésperance légitime/control a positive expectation) to achieve

effective use of property rights (see case Gratzinger and Gratzingerová

against the Czech Republic from 2002 Zvolský and Zvolská or the thing against the United

Republic of 2001).



The object of protection under the said article is thus not only acquired, i.e..

an existing property, but also the legitimate expectations of the acquisition of such

asset. It is common ground that, in that the legitimate expectations of all

bodies governed by the scheme of section 879c German civil code, until 30.6.2001. To the acquisition of

asset not just indiscriminate procedure of the legislature that

changed the rules of the day before the expiration of the said one-year period.



Here, it appears useful to point out the specifics of development of ownership of

land in the former Czechoslovakia after 1948. State in order to achieve

socialization of land gradually created various "institutes" to

the land, which had the crowd out private property, ideologically

considered to be historically obsolete. For land owned by the State were

These institutes, in particular, use the "provisional national

property "," right to management of national assets ", also known as

"the national property management", "the right of permanent use of the immovable

national property "or" right to personal use of the land ".



The interim national property management is governed by Decree No. 61/1986 Coll.

The right management of national assets, or its management,

the provisions of § 63 et seq.. Act No. 109/1964 Coll. (the economic code) and

the implementing decree to this Act No 119/1988 Coll.



The right of permanent use of the immovable national property also modifies

the marketing code in section 70 para. 1, according to which they can be part of the

national property disposed of free of charge to the persistent use of other

organizations other than the State, in particular the cooperative or civic association.

The right of personal use land was regulated in § 198 et seq.. Law No.

40/1964 Coll., i.e.. German civil code.



Although these institutions were called owns, basically it was

about the institutes corresponding proprietary or ownership

the replacement. This is especially true on ' the right of permanent use of the immovable

national property "and the" right to personal use of the land ". It was

aware also of the legislator, because one of his first steps in restoring

Classic proprietary institutes was the amendment of the civil code,

carried out by Act No. 509/1991 Coll., already existing right of personal use

the land was transformed into the ownership of a natural person (section 872 German civil code).



In the area of real right of permanent use of national property under section

70 economic development was somewhat more complex code and lasted

significantly longer. Regarding this property established by § 876 (1) German civil code,

that brought his amendment made by Act No. 509/1991 Coll., that

relations of permanent use pursuant to section 70 of Act No. 109/1964 Coll.

economic code, shall be assessed in accordance with the existing legislation until

the time of the release of a special law.



Here, too, the legislature brought the possibility of transformation of this law on the right to

the ownership Act No. 103/2000 Coll., on the fifth, already has changed the civil

code that it incorporated and the provisions of § 879c. To further refine the

then helped the law No. 367/2000 Coll., which incorporated into the civil code

two new provisions, i.e.. § and § 879e, 879 d with effect from 1.1.2001.



As has already been stated above, the right to the issue of land ownership,

which was established by the provisions of § 879c et seq. German civil code, arising from the

on July 1, 2001. The abolition of those provisions of the civil code

the contested parts of the second Act No. 231/2001 Coll. ownership withdrawn

It was not, therefore, about the deprivation of assets there. On the other hand, bodies,

which benefits 879c German civil code § spoke, lived up to the 30. 6.2001 in

a legitimate expectation that the next day will become free of charge to the owners of the

the land concerned. This expectation was not real, completely legitimate and

very thick, which among others. It also supports the above overview of the transformation

some of the exploitation relations to land ownership relations.



On the basis of the above considerations, the Court concludes that the said procedure

the legislature was interference to the legitimate expectations of the above

entities within the meaning of article 1 of the additional Protocol No. 1 to the Convention on

the protection of human rights and fundamental freedoms.



Under this condition, IE. If there is any intervention, it is necessary to examine whether it was

This intervention on the existence of public interest. Any interference with the

use of the right or freedom conferred by the Convention, must watch

legitimate objective. The principle of a fair balance that is art. 1 of the Protocol

# 1 custom, assumes the existence of the general interest (see case Beyler

against Italy from the year 2000).



According to the Chamber of Deputies was the purpose of the adoption of law No.

231/2001 Coll. delete interpretive issues that occurred in practice

When applying § 879c German civil code. The discussion focused on the question of whether to

land ownership is transferred as is registered under number parcelním in

the land registry, or confusion in the land to which the 1.1.2001

was the right of easement pursuant to § 21 para. 5 and 7 of the law on

ownership of the flats. Also, it was the preference of certain bodies in the

a group of legal entities that used to land on 1.7.2000

State ownership and irregularities, consisting in not excluding the transition

ownership to all land, although with the operation of the building is related for example.

only a very small part of it. During the said period, the legislature's annual

realized some problems linked to the transfer of land pursuant to section 879c German civil code

and the whole issue of the transformation of the land in permanent use

legal entities incorporated in the law on property of the Czech Republic its

the amendment, made by Act No. 231/2001 Coll. It is also clear from the explanatory memorandum

message to the second (Amendment of the Civil Code) of the Act No. 229/2001

Coll., according to which the aim of the adaptation, the effects will occur to

on 1 January 2004. July 2001, cancel and the free transfer of land deal

comprehensively in the amendment of Act No. 219/2000 Coll., on the property of the Czech Republic and

the State and its representation in legal relations.



Act No. 231/2001 Coll., however, "comprehensively free transfer of land" should be handled by

so that one group of selected subjects to obtain return of land

allowed other groups to make this acquisition substantially. This law is,

According to their designation, amendment of the law on property the United Kingdom no.

219/2000 Coll. in fact regulates the acquisition of land from a particular

State ownership to ownership of housing cooperatives, owners, family


houses, apartments, garages and owners of non-residential space in houses, where a

These objects on State land.



While the provisions of § 879c German civil code allowed the acquisition of ownership

all non-State legal entities, which have the State land in permanent

use pursuant to section 70 of the economic code, Act No. 229/200 l Sb.

This acquisition is retained only the entities referred to in the preceding paragraph

from the top. The remaining bodies, i.e.. in particular, consumption or production cooperatives and

civil unions, by repealing section 879c German civil code this option and have lost their

the legal position in relation to land which they used were very

weakened. While the effectiveness of § 879c were all subjects receiving

the land in the mode section 70 of the marketing code in a flat position, change,

that brought the Act No. 229/2001 Coll., caused their essential

inequality.



Act No. 231/2001 Coll., namely in part four (transitional provisions) in the article.

IV. in paragraph 1(b). 1 and 2, provided that the existing relations of permanent use pursuant to

section 70 of the marketing code, which have not changed to the loan in accordance with § 59

paragraph. 1 of Act No. 219/2000 Coll., on the Czech Republic and its assets

in legal relations, the effective date of this Act,

changes to the loan for a fixed period of up to 1. January 1, 2004.



This loan is according to the contract of loan modification in § 659 et seq..

German civil code is free, but only for a time-defined period of time, i.e.. 1. January 2004,

as indicated above. The opportunity to acquire a plot of land free of charge to the ownership have

These entities according to § 59 paragraph 1. 2 of Act No. 219/2000 Coll., but

only if the conditions of section 22 paragraph 1. 2 of the same law,

According to which free of charge can be converted only in the public interest, or

If the free transfer more economical than another method of disposition of things

or, if provided for by a special regulation.



The adoption of Act No. 231/2001 Coll. has substantially worsened the position of

the bodies, found in the legitimate expectations under § 879c of the identity,

as pointed out above. Not only have not acquired a right of ownership, but of the mode

permanent use in a given mode, a temporary loan and option

not getting the land they significantly impeded by the fact that it is bound by the

in particular, on the public interest, which, however, is not sufficiently defined.



From the constant case law of the Constitutional Court, although it follows that it is for the State,

to decide that one group will provide fewer benefits than the other, but must not

do any of his decision and it must be demonstrated that they do so in

the public interest and not for example. Therefore, to conceal the shortcomings in the administration of

of public affairs. (see find SP. zn. PL. ÚS 17/99, published under no.

3/2000 Coll.). Ultimately, itself a representation of the Chamber of deputies confirmed that the

the aim of the amendment was to mj. the solution to the interpretative problems related to

the future application of section 879c German civil code, adopted a year ago at that time.



The amendment thus changed gender challenged of the bodies concerned, which lasted

until 30.6.2001, in inequality between different groups of

subjects. This inequality is not responding, according to the conclusion of the Constitutional Court

any public interest. Interested in a benefit to one group of subjects and

the current disadvantage groups of the second, in a situation where all subjects

they stood on the same starting line laid down by the provisions of the German civil code § 879c,

such public interest can be. The following loading of the inequality, which

It cannot be held that would correspond to the public interest, the constitutional

the Court as a violation of article 6(1). 1 of the Charter of fundamental rights and freedoms,

expressing the principle of the equality in rights.



In the matter of Beyler against Italy from the year 2000, the ECtHR for interfering with the rights of the

peaceful use of property referred to in article. 1 of Protocol No 1.

said that: "in order to be compatible with the general norm, as referred to in

the first sentence of the article. 1, such interference to ensure "fair

a balance "between the requirements of the general interest of the community and the imperatives of

the protection of fundamental rights of the individual. In addition, the need to assess questions

fair balance comes only when it is shown that

the alleged interference with the principle of legality and not

arbitrary ".



In the same case, the ECTHR reminded that legality is a basic condition

compatibility of the measures, which are experiencing interference with article 1

Protocol No 1. It requires the intervention of a public authority to

the right to the use of property was lawful. The principle of legality also means

the existence of a sufficiently accessible, precise and predictable standards

national law (see case Heinrich against France 1994).



In the light of the above-mentioned principles governing the case-law of the ECTHR,

the Constitutional Court has come to believe that the provisions of Act 229/2001 Coll.

which are designed to cancel, do not match the above criteria

the legality, in particular the principle of predictability. The intervention of the legislature

shows a strong character of arbitrariness. Doing so undermines the right to,

that is one of the fundamental attributes of a rule of law. Procedure

the legislature did not fit the basic principles of the rule of law,

include the principle of foreseeability of the law, its clarity and the principle of

its internal control.



According to the conclusion of the Constitutional Court therefore, the procedure described above

the legislature, to the violation of article 1 of the additional Protocol No. 1 to the Convention on

the protection of human rights and fundamental freedoms. Stakeholders, in

accordance with the legislation laid down in § 879c German civil code, from 1. July 2000

up to 30. June 2001 assumed that the next to them, IE. on July 1,

2001, the right of ownership to land, which until now has permanently

have taken. The day before the date of expiry of the said period of year, however, the amendment to the Act

brought a completely different solution, as pointed out above.



The amendment of the civil code, carried out part of the other article. II. Law No.

231/2001 Coll., as described above, also violated one of the basic

the principles of the rule of law, and that the principle of legal certainty and confidence in law,

as is apparent from article. 1 (1). 1 of the Constitution of the CZECH REPUBLIC. The fact that the legislature has changed

virtually rules the day before the expiry of the period laid down for the purchase of the right,

He resigned from a moral obligation to be exemplary in respecting the

rights.



After taking into consideration all these reasons, the Constitutional Court upheld the design and

the contested legal provisions set aside pursuant to section 70 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, conflict with the provisions of article 1 of the supplementary

Protocol No 1 to the Convention for the protection of human rights and fundamental freedoms,

Article 1 (1). 1 of the Constitution of the CZECH REPUBLIC and with article 1 of the Charter of fundamental rights and

freedoms.



In proceedings for review of the standards he performs the Constitutional Court. negative

the legislature authorized in the case of compliance with the design of the contested legal

prescription only derogovat. (see find SP. zn. PL. ÚS 21/01-published

under Act No. 95/2002 Coll.). Therefore, the abolition of the contested regulation may occur

exclusively to "dispose" of the legal order of the Czech Republic, and not to

effective establishment of the new arrangements in the form of "ožívání" of the already

the previously cancelled.



In the present case, however, this is a cancellation of the derogačního provisions of the

Act No. 231/2001 Coll., in this context, the Constitutional Court notes

your find SP. zn pl. ÚS 5/1994-published under no. 8/1995.

referred to the Constitutional Court to annul the award section 198 of Act No. 293/1993 Coll.

which has been modified and supplemented by Act No. 141/1961 Coll., on criminal court proceedings

the Court (code of criminal procedure). Section 198 of the act out of the criminal

the order of the provisions of § 324, which governed the decision to change the way

enforcement of the sentence. The said derogation provisions of section 198 of the Act derogačního

No. 292/1993 had resulted in "rehabilitation" provision of section 324

the criminal procedure code, which is a part of it until these days. Therefore, you can

regard to the opinion of the applicant, that the abolition of the second section of the article. II. the law

No. 231/2001 Coll., restores the State based the provisions of § 879c, §, and § 879 d

879e German civil code.



This would give rise to considerable legal uncertainty

not only in the rights of subjects, which have benefited from the scheme of section 879c to section

879e German civil code, but also for the rights of third parties. Therefore, the Constitutional Court postponed

the effectiveness of the annulment of the contested provisions of Act No. 231/2001 Coll. the

31, 2004, in order to provide Parliament sufficiently in the Czech Republic

for a long time for the adoption of adequate legislation.



The President of the Constitutional Court



JUDr. Rychetský v.r.