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 (II) "is hereby repealed on 31 December.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.
