In The Matter Of The Application For Revocation Of § 13 Para. 6 And 7 Of The Act No. 229/1991.

Original Language Title: ve věci návrhu na zrušení § 13 odst. 6 a 7 zákona č. 229/1991 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60730&nr=531~2F2005~20Sb.&ft=txt

531/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 13 November. December 2005 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří

Nykodým, Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael

On the proposal of the Group of Senators April Senate of the Parliament of the Czech Republic and

a group of members of Parliament of the United Kingdom on

repeal of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., on the adjustment of ownership

relationship to the land and other agricultural property as amended by Act No.

253/2003 Coll., and the provisions of article. VI of part three of the Act No. 253/2003 Coll.

amending Act No 95/1999 Coll., on conditions for the transfer of agricultural

and forest land from State ownership to other persons and on the amendment of Act No.

569/1991 Coll., on the plot of the Czech Republic, as amended

regulations, and Act No. 357/1992 Coll., on inheritance tax, gift tax, and

real estate transfer tax, as amended by later regulations, as amended by

Act No. 254/2001 Coll., and some other laws,



as follows:



The provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

Act No. 253/2003 Coll., and article. VI of Act No. 253/2003 Coll., if

apply to authorised persons, which was the right to land under section

11 (1) 2 of the Act No. 229/1991 regulating ownership of land

and other agricultural property as amended by Act No. 182/1993 Coll., and

their heirs, shall be abolished on the date of publication of this report.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 7. February 2005 served the Group of 24 Senators

Senate of the Parliament of the Czech Republic, on whose behalf is authorized to act

Senator Mgr. j. s., and a group of 57 members of the Chamber of Deputies

Parliament of the Czech Republic, on whose behalf is authorized to act

Member Ing. V. n., both represented by JUDr. P. W., lawyer,

repeal of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., on the adjustment of ownership

relationship to the land and other agricultural property as amended by Act No.

253/2003 Coll., and the provisions of article. VI of part three of the Act No. 253/2003 Coll.

amending Act No 95/1999 Coll., on conditions for the transfer of agricultural

and forest land from State ownership to other persons and on the amendment of Act No.

569/1991 Coll., on the plot of the Czech Republic, as amended

regulations, and Act No. 357/1992 Coll., on inheritance tax, gift tax, and

real estate transfer tax, as amended by later regulations, as amended by

Act No. 254/2001 Coll., and some other laws.



After the plaintiffs to recapitulate the progress of adoption of the contested act in

Parliament of the Czech Republic, refer to the explanatory memorandum to its proposal,

According to which it was conceived as a response to past experience when selling

the State of the soil in accordance with Act No 95/1999 Coll., its main aim should be

enable the completion of the process of settlement of the restitution of rights under the law

No. 229/1991 Coll. (hereinafter the "law of the land") in the foreseeable future, and

adaptation should for this purpose to reconcile disposition permissions according to the

Gazette No. 229/1991 Coll., no 569/1991 Coll. and no 95/1999 Coll. in favour

the adoption of the relevant legal provisions, efforts were cited for speeding up and

streamlining state sales of agricultural land and the speedy settlement of the

restitution claims, while it was pointed out the need for

to realise the maximum land transfer in a seven-year transitional period after

entry into the European Union.



According to the beliefs of the appellants had referred to the objectives, which should be

achieved the revision of the provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll.,

It appears at first glance to be correct, but in fact these provisions

preferováním interest on State land conversion suppress and restrict

restituentů rights, including those of their rights, which has already gained

the past. The impugned legislation did not distinguish between soil, which

as the owner and the party become a private relationship translates to

the other person, and the soil, which the State must give eligible persons-

restituentům-on the basis of restitution legislation. Maximum

simplification of the procedure of the State of the soil was then achieved

by removing the issue of the outstanding restitution. Restitution but according to

a group of Senators and members of the Group should be understood not as an obstacle to the

privatisation, but also as one of the forms of privatization.



The purpose of the law on a particular plot of land is restituentům and only

exceptionally, if the circumstances provided by law, the

If the land issue cannot, the Land Fund of the Czech Republic (hereinafter referred to as

"Land Fund") to the beneficiary free of charge to the ownership of converts

other land owned by the State according to § 8 para. 4 of law No.

283/1991 Coll., if possible in the same village, in which the vast

part of the land of the original, and with the consent of the entitled person.



According to the beliefs of the plaintiffs ' amendment to the soil made by law No.

253/2003 Coll. significantly affected the enforcement phase of the restitution process,

deteriorated position restituentů-creditors of the State-in comparison with the

other natural and legal persons in the position of the creditors of the State

as well as in relation to several tens of thousands of beneficiaries, which is

in the past, in this or that form of satisfaction of their claims, in domohly

as fro the violation of one of the fundamental principles of the rule of law, and

This principle of legal certainty and confidence in the law, as is apparent from article. 1 (1). 1

The Constitution, as well as the principle of equality under article 5(2). 1 of the Charter of fundamental rights and

freedoms ("the Charter").



Recalling the findings of fact contained in the Constitutional Court sp.

Zn. III. TC 495/02, the appellants are considered to be well founded,

the Land Fund before the adoption of Act No. 253/2003 Coll. progressed

incorrectly when the management of entrusted property of the State and also

He proceeded incorrectly even in carrying out the obligations arising from the restitution

laws. In that finding, while the Constitutional Court stated the following:



"The Constitutional Court utilized the legal options, and he publicly available

the audit concluded the Supreme Audit Office of the Czech Republic (hereinafter also

"SAO"), from which they derive conclusions about the misconduct of the Fund in application of the provisions.

§ 11 (1) 2 the law of the land. The Sao, on the basis of the checks carried out from August

2002 to March 2003, stated that: ". In the case of rights of authorized

people-original owners on another free transfer of land pursuant to §

11 (1) 2 of the Act No. 229/1991 Coll. remained (31 December 2002) deal 44.9

% restitution claims, which have been finally decided. In doing so, from

Act No. 253/2003 Coll., amending Act No. 229/1991 Coll. and some

other laws, it is concluded that the decision of the Land Office has

the legal force of 6. 8. in 2003, the deadline for the transfer of land will expire on 31 December 2006.

December 10, 2005. This law also regulates the two-year time limit for the new

the right to a free transfer to another land, and thereby determine the time limit for the so-called.

"restitution". When exercising the right of free transfer of another

the plot is dependent only on the menu restituent PF the CZECH REPUBLIC, which is in the

connection with the sale of State land considerably limited. The Fund has been converted with the

referring to the provisions of § 11 (1) 2 free of charge to other land to persons

that do not have under the Act No. 229/1991 Coll., the status of the persons concerned.

The transfers have been implemented even in municipalities where they are not yet settled

all of the redeemed restitution claims beneficiaries, and even beyond the so-called.

the public offer. Fund on the sale of State land violated the obligations

Manager of real estate owned by the State, when it exceeded the permissions

as defined by the law in a public offering, he sold the land in

the ownership of the State parties on the basis of priority to be applied by them

the rights for which those persons, however, failed to meet the legal requirements. Fund

preferred sale of State land prior to the settlement of the claims of legitimate

people in the context of restitution. The authorised person can log on and within the

the sale of the land to the menu or the competition, however, when selling land

restituenti status of the applicant, not the lender. The price of land in

sale determined by another price regulation than with restitution, where

depends on the price of the prescription effective to 24.6.1991. State

through the Fund sold farmland at the minimum price,

though the State commitments resulting from the restitution laws are not

satisfied. " (amount 3 Journal of the Supreme Audit Office, 2003: "02/14

Immovable property of the State in the management of the Land Fund of the Czech Republic ";

page 218-219, "control"; obtained from the

URhttp://www.nku.cz/kon-zavery/K02014.pdf).) ".



The plaintiffs further argue the content of the letter of the Chairman of the Executive Committee

The Land Fund Ing. J. m. of 9 June. 4.2004 no PF 14294/04-1064/me

addressed senátorce RNDr. J. S., but the Constitutional Court

and they did not provide its content did not design the finding as evidence, from which

They said it appears that the date of 31. 12.2003 still has not been settled

at least 39% of all of the restitution claims of a total of 2,709, 6


million CZK. From that conclusion, it was then, according to which the contested

statutory provisions affecting quite a wide range of restituentů.



They are aware of the fact that the Land Fund are about four times a year

make an offer, but there is not considered to be addressed, according to them, is not directed against

specific restituentům, but it is only a kind of State enumerated lists

agricultural land at a specific moment Land Fund offers to

the transfer of the property of other people, no matter what

the title of this conversion will take place. Pronounced in the belief that even the

restituenti, who is a replacement land bidding, not from different

reasons, in particular because of an absence of deals in a suitable location,

or due to improper land deals, or due to the fact that the

Land Fund transfers land prefers people who offered

land is claims arising from other titles.



The appellants point out further inequality between a group of restituentů,

whose claim is manages to satisfy, and the second group, which are eligible to

fails to satisfy, even in cases of objective difficulties beyond the control of

Neither the borrower nor the lender (State) (authorised person).



Accentuate the fact that applies to the debtor in general obligation

refrain from hearing the owners satisfaction of the creditor, then from the constitutional

the principle of equality implies that the State as the debtor also shall not obstruct

satisfaction of creditors ' claims, the existence of which was confirmed by the

by a public authority. Note that this is their nature of

private-law relationship, while constitutionally contradictory to State in this

context assumed the preferable position than what it is for

all other borrowers in the private area. Critically on

point on the concept of the law of the land, from which alone offer fulfillment

the commitment is not even addressed to the creditor, i.e. the beneficiary, but the State

leaves on it, whether it will offer their land to another circle of people. will

search for lands suitable for the satisfaction of his claim.



The change, which brought about the amendment of the Act No. 229/1991 Coll. made

the provisions of the article. In and article. VI of Act No. 253/2003 Coll., however, according to the

the appellants ' significantly worsened the position of persons who qualify for

gratuitous transfer of other land-creditors, and unduly favouring the

State as the debtor, by that time-limit his responsibility to

transactions regardless of whether the State has failed to fulfil its obligation as a result of

their inactivity or improper functioning of the institutions, that the fulfilment of their

the tasks entrusted. The time limitation of the obligation of the State, which the appellants

They liken to the barring, challenged the law according to

their view, neakceptovatelně connect with the possibility of his inactivity.



The provisions of § 11 (1) 2 the law of the land, from which they are to be converted

land, if possible, in the same village, in which the majority of the land

the original, and with the transfer of the land must be the person entitled

agree, according to the plaintiffs, the authorised person prior to alternatives

acceptance of any, though unsatisfactory, land or financial

the refund. Moreover, the contested provisions necessarily divides the beneficiaries to whom

qualify for free transfer of land into two groups, and that the

the group, whose claim will be satisfied within the time prescribed by law, and

those who, in the final period of satisfaction of their claims do not reach. In doing so,

According to the plaintiffs, their inclusion in this or that group will not be eligible

a person in a position to directly influence, therefore, the State will treat

individual citizens residing in the same position to the differing

in a way, without these differences somehow justified by objective considerations.

This procedure, according to their beliefs, the hallmarks of arbitrariness is

a violation of the constitutional principles of equality and the rule of law, in particular

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

control.



The contested provisions of the law on land then by a group of Senators and groups

members of the legitimate expectation of release withdrawing assets, which is protected and

The additional protocol to the Convention on the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention"), and the financial performance of the prices

24.7. 1991, at prices that do not match or the prices, according to which the

It was possible that the assets were expropriated, thus nor is it

expropriation for compensation, but the deprivation of property and replacing it completely

disproportionate financial refund. The provisions of § 13 para. 6 and 7 of the law on

soil and article. VI of Act No. 253/2003 Coll., according to their belief

the prejudice to the rights resulting from the Protocol to the Convention.



For the Group of 24 Senators Senate of the Parliament of the Czech Republic and

a group of 57 members of Parliament of the United Kingdom

proposes the provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

Act No. 253/2003 Coll., and the provisions of article. VI of part three of the law No.

253/2003 Coll., amending Act No 95/1999 Coll., on conditions for the transfer of

agricultural and forest lands from State ownership to other persons and

Amendment of the Act No. 569/1991 Coll., on the plot of the Czech Republic, in the

as amended, and Act No. 357/1992 Coll., on income tax, inheritance

the gift tax and real estate transfer tax, as amended

the regulations, as amended by Act No. 253/2001 Coll., and some other laws,

Cancel.



II.



Recap the essential parts of the representation of a party to the proceedings



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, posted by the Constitutional Court of the present proposal

The Chamber of Deputies. In its observations of 15 June. March 2005, the President of the

The Chamber of deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek

notes that in the explanatory memorandum to the draft law no 253/2003 of the

States that its purpose is to allow the process to complete in the near future

settlement of the restitution claims pursuant to Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

amended. According to him, there were no time constraints to reduce the

authorised persons to their property rights, and not be based

their unequal status, as the appellants argue. Problem

the existing extensive discontent claims beneficiaries to spare

the land also sees in the other aspect, than that State promoters, and

in fact, that the interest in land is offered despite the improvement

conditions and approaching the term "restitution". Of great interest is the

According to him, only the land within the municipality or on the land, which can be used in

expected non-agricultural use, with some

beneficiaries of the Land Fund on the menu does not reflect the long term,

others are interested in have, yet their claims for various reasons

have not been met, for example, because they pick an attractive

the plot, which is interested in more of the beneficiaries.



Furthermore, the current procedure shall inform the Land Fund, which has processed

menu of spare land so that the structure offered by the land

match the structure of the claims, and the authorised person could use their

an absolute priority. Notes that, nevertheless, that the refund is to be granted for

agricultural land, an interest in many of the beneficiaries is concentrated only on the

the land on which it is possible having regard to local conditions and other

the circumstances to expect the non-agricultural use, and is due to the

the scope of the claims. Many beneficiaries from him give

prefer cash, and his claims are sold, others are waiting for better

menu. Notes, further, that a large percentage of claims they have the person

which restitution claims they have bought, with these persons, whether legal

or physical, are interested in the issue of the very lucrative plots of land.



The purpose of the introduction of a time limit as of the President of the Chamber of Deputies was

get the person substantially greater activity, so that it can be

restitution process completed as soon as possible and that the outstanding restitution

the claims were not an obstacle to the development of economic relations and the links and nevnášely

the uncertainty of the ownership relations. The contested provisions of the law on soil

given the need to establish a time frame for the completion of the restitution

requirements and to create a transparent environment on land market as it

seems well founded. Advocates for the presumption that the current

Edit in this area, constitutes a sufficient framework and scope for preferential

satisfaction of the beneficiaries, and for solving the situation

does not consider the cancellation of provisions introducing the so-called. "restitution

a period ", but correct and fast claims of beneficiaries

The Land Fund.



Based on these reasons, pronounced the party landed

the belief that the conditions laid down in the contested provisions of the Act

ensure adequate protection of the legitimate rights of the people and do not

inequality in the satisfaction of various subjects according to the extent of their

claims. Points to the fact that certain specifics of land fund

as the borrower and the authorized persons as creditors should be seen as just

on the issue of the restitution of specificity.




The President of the Chamber of deputies also confirmed, in accordance with the requirements of

contained in the provisions of § 68 para. 2 Act No. 182/1993 Coll., as amended by

amended, law no 253/2003 Coll., which provides in section

the third amendment of the Act No. 229/1991 Coll. and article. (VI), was approved by the required

a majority of members of the Chamber of deputies of the Parliament of the Czech Republic, was

signed by the respective constitutional factors and properly declared in the collection

laws. In conclusion, the expression then notes that, for this state of affairs

not express an opinion, that the law in question was adopted and published in the

the limits of the Constitution laid down the competence and constitutionally in the prescribed manner,

as well as the opinion that the legislature acted in the belief that

the adopted law is in accordance with the Constitution, the constitutional order and international

treaties by which the Czech Republic is bound, the Constitutional

the Court, in the context of the examination of the proposal to assess the constitutionality of this

the law and issued the appropriate decision.



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech

of the Republic. At the outset of his observations of 18 August. March 2005 by its Chairman

Mudr. Přemysl Sobotka recalls the purpose of the Act No. 229/1991 Coll., which was

above all, mitigate the consequences of certain property injustices that occurred

against the owners of the agricultural and forestry assets in the years 1948 and

1989, restore the original ownership to the land, and to improve the care of

agricultural and forest land and adjust the ownership relationships to the land, in accordance

with the interests of the economic development of the countryside and with the requirements for the formation of the landscape

and the environment. Unlike the law No. 87/1991 Coll. on

extrajudicial rehabilitation, mitigate the consequences of property wrongs

did not consist in the publication of stuff, but in restoring the title to zabraným

things that the owner could have the freedom to realize their right of ownership.



The main goal of the promoters of the Bill No. 253/2003 Coll. was to allow

the completion of the process of settlement of the restitution claims process more efficient

sale of land by reducing its administrative workload and establish

the criteria for applying the advantages of the acquirers of the land so that the first in

the order was a person entitled to replacement land in the locality where the

He was the original unedited piece of land, and on the next spot in the order was

the tenant with limited entitlement to conversion.



Submitted the proposal of the Group of Senators and members of the group in the

observations that the draft law regulating the termination of the time-limits for

the settlement of the ownership of land and other agricultural property

in the Senate, has been the subject of wide discussion especially in committees, which

He was assigned to hear the Bill, also during the plenary session

meetings of the Board, which took place on 26 April. and 27. June 30, 2003. It was

particularly noted that a considerable part of the conversion of agricultural land

has already been implemented through restitution, transfer to the

municipalities and other institutions, where appropriate, the sale without binding to restitution

claims. At the same time, it was pointed out that at the time of the hearing of the draft law

are not settled on the issue of land restitution claims pursuant to law No.

229/1991 Coll., with the introduction of the so-called. "restitution" was perceived

as an expression of commitment to end the process of land transfer beneficiaries,

While at the same time limiting the claims of a group of authorized persons only on the financial

the settlement while the withdrawal options release of spare land. On

the other hand, according to the President of the Senate, sounded serious concerns that the introduction of the

"restitution" will be affected by those who do not have legal

the reasons are entitled to return to their original land, but have expressed interest in

replacement land to them, however, without their fault could not be issued

-eg. Therefore, the demand for certain replacement land

exceeded the offer. I have been made the claim, according to which interfere

the proposed law on the way to the attic is dangerous in terms of

rozkolísání of the State at present has already settled interpretation of the law

and the case-law of the Constitutional Court. In some appearances subsided concern about

violation of equal rights in the access business, as in their opinion

the adoption of the so-called. "restitution" greatly favors and favors

the tenant against those who do not have leased the land, and although they

buy it cannot, if the renter with a priority right not to declare that the

on the ground are not interested in. In this context, mention the requirement to

reassessment of the terms of the sale of State land to tenants in order to find

a more balanced relationship between the groups interested in buying the land

so, in order to avoid discrimination.



The above reasons then, according to the President of the Senate led the detailed

debate to the submission of the amendment of the draft law

deleted the part of the provision amending Act No. 229/1991 Coll., i.e.. "restitution

dot ".



In the comments, then notes that the Senate Bill, amending

Act No 95/1999 Coll., on conditions for the transfer of agricultural and forest

land from State ownership to other persons and amending Act No. 569/1991

Coll., on the plot of the Czech Republic, as subsequently amended,

and Act No. 357/1992 Coll., on inheritance tax, gift tax and tax on

the transfer of real estate, in the wording of later regulations, as amended by Act No.

254/2001 Coll., and some other laws, on July 27. June 2003 on its 7.

the meeting of the resolution No. 150 returned the Chamber of Deputies with the EP amendments,

proposals, in voting no 38, in which from the present 64 senátorek and

Senators rejected the proposal for 60 and no one was against.



III.



A decision-making basis for according to § 48 para. 2 Act No. 182/1993 Coll.



On the basis of the provisions of § 48 para. 2 Act No. 182/1993 Coll., the Constitutional

the Court of the Land Fund has requested information relating to the current overview

settlement of claims for the unreleased land according to the law of the land, as well as

an overview of litigation between the likely beneficiaries of the claim

According to § 11 (1) 2 the law of the land and the Land Fund.



According to the communication from the President of the Executive Committee of the Land Fund Ing. J. M.

28 June 1999. November 2005 No. 2258/PF 05MI-64297 from the total amount of claims

for the unreleased land from the decision of the district land offices in the value

7.346.154, 44. To date, 18. November 2005 shall be the balance of the

unsettled claims for unreleased land 1.872.183, 08. , Of which

the balance of direct claims represents the 660.432, 31. And the balance of the

the ceded claims 1.211.750, 77. CZK. In 2004, the settlement

direct claims with a value of 115.833, 02. CZK, ceded claims in

the value of 395.606, 98. CZK, in 2005 (the date of November 18, 2005)

There is then a direct settlement of claims with a value of 108.892, 17. CZK,

the ceded claims with a value of 465.212, 03. CZK. So in 2004 amounted to

amount with settled claims ceded share of 77.35% of the total

amount with settled claims for the period from 1 January 2005. January 2005 to 18. November 2005

the proportion was 81.03%.



In 2004 and 2005, he introduced the so-called "Land Fund. structured menu,

i.e.. He offered land in the villages of origin of the still unsettled

claims for unreleased land, which, with the exception of Prague and some large

cities offered in all municipalities a larger amount of land than claims

authorised persons. So according to the communication menu is structured Land

the Fund represented the value of the 1.495.200 in 2004. CZK, in 2005

the value of 3.035.210. The offer of moving through this targeted

the interest of the beneficiaries of the plots in 2004 to a level of approx.

24% and in 2005 at the level of approximately 26%.



According to the communication from the President of the Executive Committee of the Land Fund was

satisfaction of the claim under section 11 (1) 2 of the Act No. 229/1991 Coll., as amended by

Act No. 182/1993 Coll., is lodged against its land fund, a total of 360 claims

9 actions to 31. December 1999, 28 lawsuits from 1. January 2000 to 30.

April 2005 and actions from 323 1. May 2005 to 24. November 2005. In

disputes initiated in 2005 has not yet issued a final

the decision in the case concerning the dispute started in the past and finally

concluded, the communication refers to the case-law of the Supreme Court, according to the

which claim to provide a spare land does not include the right to legitimate

the person on the selection of spare land (2 Cdon 522/96, 26 1478/2000 and Cdo

For more).



In order to provide the possibility to express to him eventually, was

communication from the President of the Executive Committee of the Land Fund Ing. J. m. of

November 28, 2005 No. 2258/PF 05MI-64297 delivered to the appellants and

a party (article 60, paragraph 3, of Act No. 182/1993 Coll.).



This option to take advantage of the plaintiffs and in the Administration delivered to the Constitutional Court

on 9 April. December 2005 indicate that however do not intend to question the

the statistical data reported in the statement of the Chairman of the Executive Committee

The Land Fund, consider it necessary to point out the fact that the allegation of

substantial excess supply of suitable land above the volume of claims may

accept only from the perspective of national statistics. In nationwide

the comparison is located next to each other as the cadastral area, where it was

offered much more land than the extent of the outstanding


claims in this area, there are also included in the cadastral territory of, where

failed to offer any land at all. The claim to illustrate the

the appellants on the example of several areas in the former district

Nový Jičín, where land fund did not offer any land as

refunds, and note that there are territories where land fund

or any suitable land not available. At the conclusion of his observations

pronounced in the belief that if the decision of the Constitutional Court

the case of a communication from the President of the Executive Committee of the land

the Fund to rely, it would need to be advanced substantially, in particular,

It must instead of General statements, relating to the whole territory of the Czech

States, to submit a picture of the status of the settlement of claims for the unreleased

land in the smaller Territories, preferably from the former counties.



IV.



The abandonment of an oral hearing



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., the Constitutional Court may be

the consent of the participants of the oral proceedings, to refrain from it cannot be

expect further clarification of the matter. Due to the fact that both participants, i.e..

the appellants, through their legal representative, in a filing delivered

The Constitutional Court on 30 November. November 2005, as well as through people

authorized to act on their behalf in a filing delivered to the Constitutional Court of the day

December 2, 2005, and a party for President of the

the Chamber of deputies of the Parliament of the United Kingdom delivered to the Constitutional Court on 1 May.

December 2005 and President of the Senate of the Parliament of the Czech Republic delivered

The Constitutional Court on 8 June 1998. in December 2005, have expressed their consent with the

abandonment of the oral proceedings, whereas, Furthermore, that the Constitutional Court

It considers that, since the meeting cannot be expected to further clarification of the matter, it was from the

the oral proceedings in the case dropped.



In the.



The diction of the contested legislation



According to the provisions of § 13 para. 6 of the Act No. 229/1991 Coll., as amended by Act No.

253/2003 Coll.: "the person concerned has the right to transfer the land in

owned by the State within 2 years from the date of the decision of the land

the Office. In the case that on the right to transfer a parcel of Land in the zoning

the authority, the person concerned has the right to transfer the land owned by the State

within 2 years from the time when she could be entitled to transfer applied to Land

the Fund for the first time. ". According to paragraph 7 of that Statute: "

expiry of the period referred to in paragraph 6 of the law on the transfer of land in the

the ownership of the State. ".



According to the article. VI of Act No. 253/2003 Coll.: "If a decision of the land Office

has the power or right to transfer was filed before the effective date

This law, the deadline for the transfer of land will expire on 31 December 2006. December 2005. ".



Vi.



The conditions of the locus standi of the applicant



The proposal to repeal section 13 paragraph 1. 6 and 7 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

Act No. 253/2003 Coll., and the provisions of article. VI of part three of the law No.

253/2003 Coll., amending Act No 95/1999 Coll., on conditions for the transfer of

agricultural and forest lands from State ownership to other persons and

Amendment of the Act No. 569/1991 Coll., on the plot of the Czech Republic, in the

as amended, and Act No. 357/1992 Coll., on income tax, inheritance

the gift tax and real estate transfer tax, as amended

the regulations, as amended by Act No. 253/2001 Coll., and some other laws, the

filed by a group of 24 Senators Senate of the Parliament of the Czech Republic, which the

is authorized to act on behalf of Senator RNDr. J. s., and a group of 57

members of the Chamber of deputies of the Parliament of the United Kingdom, on whose behalf the

is authorized to act Member Ing. In n. on the part of the appellants ' can be

Therefore the fulfillment of conditions of the locus standi to the

control standards according to the provisions of § 64 para. 1 (b). b) Act No. 182/1993

SB.



VII.



Constitutional competence and conformity of the legislative process



The Constitutional Court in accordance with the provisions of § 68 para. 2 Act No. 182/1993

Coll., as amended, is in proceedings for review of the standards required to

assess whether the contested act, its individual provisions. another

law or its individual provisions was accepted and published in

the limits of the Constitution laid down the competence and constitutionally prescribed way.



Of Council publications and těsnopiseckých reports, as well as the observations of the participant

proceedings, it was found that the Chamber of Deputies approved the proposal

the law in question 3. reading on their 16. meeting on 22 November. May 2003

resolution No. 505 of the 192 members of the present MPs, and for its

the adoption of 118 MPs voted in favor, and members voted 63.



The Senate on 27. June 2003 on its 7. the meeting of the resolution No. 150 the

law returned the House of representatives with amendments, in

vote no. 38, which from the 64 senators are present and senátorek

they rejected the proposal for 60 and no one was against.



On the proposal by the Senate returned the law voted in the Chamber of deputies to 198.

meeting on 22 November. July 2003, with 124 out of the 196 votes present

MPs and MEPs, as against 57 voted, the text of the draft

the Bill passed the Senate (resolution No. 621).



The law was signed by the respective constitutional officials, and was under the

No 253/2003 Coll. properly declared in the amount of 86 of the laws that has been

circulated on 6. August 2003, and according to the article. (VII) came into effect on the date of

publication, or on the day of dispatch of the relevant amounts of the laws.



VIII.



Content compliance of the contested statutory provisions with the constitutional order



VIII/a



The meaning and purpose of the law of the land



Sense and the purpose of the law on the land according to its preamble, is to mitigate the effects of

some property-related injustices that have occurred against the owners of the agricultural

and forest assets in the period from 1948 to 1989, the improvement of care for

agricultural and forestry land by restoring the original ownership

soil, as well as the adjustment of the ownership of land in accordance with the interests of

rural economic development and in accordance with the requirements for the formation of the landscape

and the environment.



The law on out-of-court rehabilitation, in comparison with the law of the land

the second key "restitution laws", in the preamble, defines its purpose

more closely. Considered the mitigation of certain property and other

the wrongs which have occurred in the period from 1948 to 1989.



The difference in the difference of the legislative purposes of the mechanism

alleviating the grievances of the Communist regime.



According to the law on out-of-court rehabilitation physical person has

entitlement to the assets, if it satisfies the conditions to be an entitled person (§

3), if the matter is in the possession of the debtor (section 4), the following are given the legal

the conditions of issue of the case (section 6) and finally, if they are not given legal grounds for

no need to stuff (§ 8 paragraph 1 to 4). If there are grounds for refusing

compliance with the previous conditions of restitution, secondarily, is enshrined

the granting of financial compensation (section 8, paragraph 5).



According to the law of the land is a natural person has the right to release the land,

If it satisfies the conditions to be an entitled person (§ 4), if the land is in the possession of

mandatory of the person (section 5), the following are given the statutory conditions for the release of the land

(section 6) and finally, if they are not given legal reasons for refusing the land (§

11 (1) 1). Since the purpose of the law is not only mitigate the grievances, but also

the rural recovery, in the event of the existence of grounds to refuse a land banking

It is based on a free transfer to other land ownership

authorised persons (§ 11 para. 2). Only for land, which according to the

This Act shall not be issued and for which you cannot provide an authorized person

another plot of land, the law of soil enshrines the second subsidiary claim

which is the claim to financial compensation (article 16 (1)). In cases where compliance with

the conditions for the issue of the original. the replacement of the land law

Alternatively, establishes the possibility for the persons concerned, the settlement of

the transfer of property rights to real estate in State ownership and management

The Land Fund [§ 18a, § 17 para. 3 (a)) of the land].



VIII/b



Design points



The design point is the first opposition inequality based hacked

the legal provisions, and that inequality inequality on the one hand the threefold:

the absence of a reasoned distinction between soil, has already become as the owner and

participant of a private relationship translates to other persons, and the soil, which

the State is required to issue to authorized persons-restituentům-on the basis of

the restitution legislation and, secondly, inequality between the Group of restituentů,

whose claim is manages to satisfy, and the second group, which are eligible to

fails to satisfy, as in the cases of objective problems

beyond the control of either the borrower or lender (State) (authorised person),

so even in cases caused by the procedure of the Land Fund, and finally

inequality between the price of the replacement of the land and the amount of any financial

the refund.



The second design point is then the objection concerned the constitutional principle of

of the protection of legitimate confidence of the citizen in the law (protection of legitimate expectations)

seen from the perspective of both the principle of the prohibition of arbitrariness and of legal certainty

(resulting from the principle of the rule of law), as well as from the perspective of rights arising under

the additional protocol to the Convention (protecting and property claim).



VIII/c



In terms of the review of the constitutionality of the time-limits




The subject of the proposal under consideration on control standards are statutory provisions

dealing with forfeited the time limit for exercising the right to issue the replacement

the land according to § 11 (1) 2 the law of the land.



In finding SP. zn. PL. ÚS 33/97 [collection of findings and resolutions of the Constitutional Court

(hereinafter referred to as "the decision"), Volume 9, finding no 163; promulgated under no.

30/1998.] The Constitutional Court on the most general level the concept of deadlines as

Law said: "the purpose of the Law Institute of the deadline is

reduction of entropy (uncertainty) in the exercise of its rights, powers, respectively.

time limitations the State of uncertainty in legal relations (which plays, in particular,

an important role in terms of the taking of evidence in cases of disputes), speeding up

the decision-making process in order to achieve the intended objectives of the real. These

the reasons have led to the introduction of time limits already thousands of years ago. ".



Defining the scope of the legal opinion of the constitutional review of the statutory

the provisions of zakotvujících of the deadline then the Constitutional Court expressed in finding sp.

Zn. PL. ÚS 46/2000 (a collection of decisions, Volume 22, finding no. 84; announced

under Act No. 279/2001 Coll.) in the context of assessing the constitutionality of the deadline for

claims arising from the law on judicial rehabilitation (section 6 of the Act

No. 119/1990 Coll.): "the Constitutional Court's mission consists in checking the

the constitutionality. In this context, this Court may only interfere with the unconstitutional

regulations, or their parts, but it is not its task reparovat

the consequences that arose from the fact that the plaintiff has not exercised its right in

the prescribed time limit. Cancellation time limits violates the principle of the rule of law, as

significantly interferes with the principle of legal guarantees, which is one of the

the fundamental elements of contemporary democratic legal systems.

The time limit cannot of itself be unconstitutional. You may, however, appear as follows, with the

in the specific circumstances. The petitioner's claim that he had the confidence to

Czechoslovak courts and did not even have the necessary information and, therefore, within the time limit

established by section 6 of Act No. 119/1990 Coll., on the judicial rehabilitation, their right

in time, it has not exercised shall not relieve the obligation to abide by applicable laws

standards. ".



The tenor of that opinion is, in fact, that the period of prima

facie evidence without further does not and cannot have the characteristics

unconstitutionality, these can then be given only "specific

"the circumstances of the present case, in other words, the assessment of the constitutionality of the period

It is an assessment of the kontextuálním.



These "specific circumstances", i.e. aspects of contextual assessment

the constitutionality of the deadline according to existing case-law of the Constitutional Court are:



1. the inadequacy of the (disproporcionalita) the time limits in relation to the time it

the limited scope for constitutionally guaranteed rights (right),

as defined by time constraints of a subjective right. From

the view of the Constitutional Court in finding SP. zn. PL. ÚS 5/03 (collection

the decision, volume 30, finding no. 109; promulgated under no. 210/2003 Coll.)

set aside the provisions of § 3 and § 6 of the law no 289/2002 Coll., which represented a

a disproportionate restriction of property rights, infringement of article 81(1). 11 (1) 1 in the

conjunction with article. 4 (4). 4 of the Charter (a constitutionally compliant Court considered in

rozhodovaném the context of such legislation, which would limit this

was based only in very necessary time range, which you can understand

only the minimum time, and clearly the prima facie "transitional" period,

but not a time limit of 10 years);



2. the arbitrariness of the legislator when determining time limits (its anchoring or

cancellation). Within the meaning of this perspective, the assessment of the constitutionality of the period

the Court in the matter proceeded to TechCrunch.com. PL. ÚS 2/02 (ECR, volume

32, finding no. 35; promulgated under no. 278/2004 Coll.), in which unconstitutional

called the cancellation of the provision of section 879c to section 879e of the civil code (hereinafter

whether or not ". Cust. ") made by Act No. 231/2001 Coll., which the legislature

the legitimate expectations of the exact circuit operators only

one day before the expiry of the period within which an acquisition of property

the law, with the result that the bodies which act in trust in advance

the conditions laid down by the State, were just a day before the expiry of the said time limit

confronted with arbitrary State procedure, which the Court found conflicting

with the article. 1 of the additional protocol to the Convention (and with reference to the

the case-law of the European Court of human rights in the Broniowski against kause

Poland 2002, Gratzinger and Gratzingerová against the Czech Republic.

Zvolský and Zvolská, 2002, against the Czech Republic from 2001);



3. the constitutionally unacceptable inequality of two groups of subjects, which is

the result of the cancellation of certain legal conditions for the application of the law

the unconstitutionality, while cancellation for the operators

as a result of the expiry of the time limits already as a result of derogation without further option

application of the law. On the basis of the following specific harvesting "

the circumstances "in the findings, SP. zn. PL. ÚS 3/94 (a collection of decisions, volume

1, finding no 38, declared under no. 169/1994 Coll.) and SP. zn. PL. ÚS 24/97

(A collection of decisions, Volume 11, finding no. 62; promulgated under no. 153/1998

SB.) The Constitutional Court of the abolition of provisions providing for the beginning of the period for

the application of the restitution claim opened the possibility of their use and for those

eligible persons who as a result of the conditions of residence within the time limits

the original claims successfully assert could not. The Court in this context

the Court held that "these individuals were therefore de facto excluded from the circle of

authorized persons may seek financial compensation, and were therefore

-compared to other authorized persons-unconstitutionally handicaps

and they found themselves in an unequal legal status ".



The task of the Constitutional Court in the case in question is, therefore, an assessment of where they are

also on the statutory provisions will expire time limit for zakotvujících

application of the law on the issue of the replacement of the land according to § 11 (1) 2 of the law on

soil made "specific circumstances", resulting in their conflict with the

the constitutional order, or it is not. The "specific circumstances" sub

1. and 2. can be considered as adequate test nepřípustností extreme

disproporcionality (rational basic test), sub 3. then the test procedure

arising from the principle of proportionality (suspect classification) [k

see resolution referred to the Constitutional Court SP. zn. PL. ÚS 7/03

(A collection of decisions, volume 34, finding no 113; promulgated under no. 512/2004

SB.); from sources such as doktrinárních. W. Brugger, Einführung in das

Öffentliche Recht der USA. München 1993, s. 116 et seq.; J. E. Nowak,

R. D. Rotunda, Constitutional Law. 4. Ed., St. Paul, 1991, p. 568 and

seq.].



VIII/d



The legal mode of land replacement



The law about land achieve its purposes, which, as already noted,

are mitigation of certain property injustices that have occurred against

the owners of agricultural and forest property in the period from 1948 to 1989,

improving care for agricultural and forest land by restoring the original

the ownership of land, as well as the adjustment of the ownership of land in the

accordance with the interests of rural economic development and in accordance with the requirements of

on the formation of landscape and environment (preamble), monitors and

application of the principle of the return of the original priority of land and other

real estate to the beneficiaries and the principle of the priority of compensation in kind

in the case of impossibility of such issue. These principles are reflected in the

the provisions of § 11 (1) 2 of the Act No. 229/1991 Coll., as amended

regulations, according to which, where the land issue cannot be "Land Fund

authorized person converts to other land ownership free of charge in

State ownership according to § 8 para. 4 of the law of the Czech National Council

No 283/1991 Coll., on the land and the land registry offices, as

amended, and preferably in the same village in which it is located

most of the original land, unless the person entitled

agrees. ".



If the person entitled to the transfer of the replacement land offered

the consent of the Land Fund is obliged to this naturálnímu compensation. From

the provisions of § 8 of the Act No. 283/1991 Coll., according to which the replacement

land grant, it follows that this land has the answer

to land acreage and the same quality. Replacement land

It is therefore determined by the generic-generic way.



Issue of the replacement of the land law, therefore, combines with the mechanism of land consolidation

Edit menu, diskreci restricts the condition of subsidiarity (according to which menu

in a different site are possible in the absence of corresponding menus

in the original), as well as the consent of the persons concerned.



On the question of the relationship between transfer of land by the State as the owner of the

Converts to other persons, and the transfer of land, which the State is obliged to issue the

eligible persons-restituentům-on the basis of restitution legislation,

the Constitutional Court delivered its opinion on the report SP. zn. III. TC 495/02 of

March 4, 2004 (collection of decisions, volume 32, no. 33): "Claims

arising under the Act on land have priority, which is apparent both from ratia

Nothing in the law about land and diction of its section 11 para. 2 (cf. the word "converts"),

and § 19 para. 1 of the law on the transfer of land. If the Fund applies the opposite

interpretation, is outside the scope of the privileges that the law confers on him (cf.

article. 2 (2). 2 of the Charter). Such an interpretation of the systematic interpretation

cannot succeed. The law (article 2, paragraph 1, of Act No. 569/1991 Coll., on Plots


Fund of the Czech Republic, as amended) directs the Fund

do acts only within the framework of the law of the land, whose purpose is to satisfy the

rights of the beneficiaries. Later taken to edit in the Act on the transfer of

land on this legal status, taking into account the principles of the protection of

legitimate expectations and legal certainty, could not change anything. Otherwise,

said, the Fund may not effectively prioritize the procedure under the law on

transfer of land prior to meeting the obligations of the State pursuant to § 11 (1) 2

the law on the ground that the State has recognized, because it is in conflict with his

in the framework of the fulfilment of the obligations imposed on the State by the law of the land.

The purpose of the law on soil cannot be omitted reference to the specialty of law No.

95/1999 Coll. in force as amended by § 1 (1). 2 (a). and) Act No. 95/1999 Coll.

(according to which this Act regulates how the Land Fund in

the conversion of agricultural land to the beneficiaries) is likely to be

interpreted taking into account the principles of the protection of the tangible interest (article 1

paragraph. 1 of the additional protocol to the Convention) and of legal certainty and in the light of

§ 19 para. 1 of the law on the transfer of land, which declares the guarantee

the law of the land. ".



The basic question, which of the abovementioned legal opinion follows is the question

instruments that properly authorized person to ensure its

the claims against the Fund to its land, especially to ensure their

advantages of the.



According to the same opinion of the case-law and doctrine of transfer of spare land

There is no decision in administrative proceedings, the relationship between the Land Fund and

by an authorized person is not power, but the relationship is characterized by the

equality of both entities is private, it is the relationship of the borrower

and creditors (cf. judgment of the Supreme Court of 10 October 1995. 5.2000, SP. zn.

Cdo 24 212/2000, a special resolution of the Senate pursuant to Act No. 131/2002 Coll.

the decision of some conflicts, of 24 September. 11.2004 sp.

Zn. Msg 80/2003, l. M. K., j. Švestka, reasoning over the conversion options

restitution of rights to agricultural land, Právní rozhledy, 6, 1995

p. 224). According to the judgment of the Supreme Court of 10 October 1995. 5.2000, SP. zn. 24

CDO 212/2000 on the legal relationship between the beneficiary and the Land Fund

spare land conversions cannot be applied directly to the law on the

land.



According to settled case-law, the Court by a person of the civil action

but it cannot seek the release of a specific piece of land that's chosen

(cf. judgment of the Supreme Court of 29 June. 1.1997, SP. zn. 2 Cdon

522/96, the resolution of the District Court for Prague 8 on 2 December. 8.2000, SP. zn.

8 C 165/2000 judgment of the regional court in Ústí nad Labem from 29 April. 2.

2000, SP. zn. 35 What 4/2000; in its judgment of 18 May. 1.2001, SP. zn. 26 Cdo

1478/2000 the Supreme Court explicitly said: "the right to provide

replacement of land does not include the right of a competent person to Land

the Fund of their choice. The plot is that the reported that

land owned by the State land can be made available as

replacement. This notice cannot be considered a proposal for the conclusion of the Treaty on

the transfer of the replacement land.).



If the lender is not given the option of selecting a specific option, so

the definition of the claim, then the remedies must be to answer the question out of the claim

can the lender in that private relationship to seek judicial action.

The doctrine has responded to the problem the following legal structures:

"If the beneficiary wants from the Land Fund of spare land, may

Sue about the obligation of the Land Fund with her contract on the transfer of such

the land to be closed. Act No. 229/1991 Coll. lays down the obligation to take out

the Treaty does not provide for the funds, how is its conclusion to be enforced.

Hence ... the general regime. According to the provisions of § 161 para. 3. in the row.

then a final judgment requiring the Declaration of will this statement

replaced by ... When the absolute lack of specific provisions in the Act

No. 229/1991 Sb....... we ever get to the civil code as

more general private-sector regulation, and to the fact that the law or anything

another does not save its land fund, which from the land in the same village

(if more than one of them) has the duty of an authorized person to convert.

However, if the obligation can be fulfilled in many ways, has the right to choose under section 561

paragraph. 1. Cust. the debtor. ... In this situation, then petit claims must

necessarily be an alternative and include (with or) all in the mind

coming in the land of the village "(m. Kindl, restitution in

judicial practice. Prague 1997, p. 20).



On the basis of the opinions delivered by the District Court of doktrinárního,

Děčín in case SP. zn. 19 C 155/2000 held conclusion, according to which the

eligible persons can claim their claim against the Land Fund to the

provision of replacement land in the form not of transfer, if the

attested that in an acceptable time period their justified claims have not yet been

satisfied or not at all if you started with their handling, and

"a claim for the replacement of the expression of will of the Treaty in respect of the transfer

the plot is based on the entitlement of the beneficiaries to provide replacement

land, then-in terms of accuracy, certainty and

clarity of claim (remedies)-you need to instantiate a

the writ, which cannot be achieved otherwise, than the corresponding

the land, which may be the subject of not converting to the legitimate

of the person. The Court is then bound to a range of compensation, which the claimant justified

the person in the control exercised, while on land, in his statement of proposal

(remedies) specified, will take over the land, which will be made

conditions to their free transfer to the complainant of an authorized person, and

in an aliquot of the range (Awards) unreleased land with the expectation that the defendant

It is eventually. entitled to (Alternatively) issue on the applicants and other land in the.

uu., of the same municipality, which would in that case came into consideration. Alternative

Petit so at the initial stage of action, attack, when an authorized person

they do not know whether to do that or not redeemed land restitution

claim, or for other legal reasons it cannot be issued, meets the

the criteria to ensure that the Court could rule to discuss this thing, that in

the appropriate stage of the proceedings (after appropriate verification made by the land

may be the subject of compensation, or not authorized)

persons may claim your talk. the layout of the Act still

modify (§ 95 o. s. l.). The use of alternative remedies so displaces

Reflections on the fact that the plaintiff beneficiaries claimed without substantive legal

the title only a specific piece of land (land), but that implementing the performance

their rights under their entitlement to the free transfer of land

According to § 11 (1) 2 Act 229/1991 Coll. ".



In the already-cited finding SP. zn. III. TC 495/02, the Constitutional Court assessed the

the merits of the claim of the title of the release specifically designated land

authorized persons according to § 11 (1) 2 the law of the land. The Court held that

"the complainants are entitled to the issue of the replacement of the land was not in the long term

satisfied. The courts were required to examine whether this condition is not the result

arbitrary or even arbitrariness of the Fund in fulfilling the law on soil. In doing so,

should deal with the objections that the Fund does not have an interest in the issue of land,

as it has from their beneficiaries, and that his offer to the public is not

able to satisfy the legal requirements of the beneficiaries, which are as follows

in fact, forced to give up their claim to the benefit of the financial settlement.

This Fund is a clear violation of article. 2 (2). 2 of the Charter,

or article. 2 (2). 3 of the Constitution. ". He stated further that however is the relationship

The Land Fund and authorized persons according to § 11 (1) 2 of the law on soil

private relationship (i.e., controlled by the principle of equality), you cannot have

aware that the Land Fund is "a public institution, because it fulfils

public purpose ", and therefore" they are to live up to its constitutional courts

the obligation to provide protection for the interests of the law, must be used when

the assessment procedure of the State, or by authorised users (filling

the obligations of the State) to examine whether there is the will. ".



In this context, the Constitutional Court delivered its opinion on the present and

the relevant case law of the general courts: legal opinion of the Supreme

the Court contained in the decision of 18 February 2004. 1.2001, SP. zn. 26 Cdo

1478/2000, according to which "the right to the grant of replacement land shall not include

the right of a competent person on the selection of spare land, "and" notification

The Land Fund of the Czech Republic, that land may be granted

as land replacement, it is not a proposal for concluding a contract, "the Constitutional Court

He stated that "this legal opinion is to be applied and interpreted to be constitutionally

Conformal manner ", the decision of the Supreme Court (who took over the

his earlier legal opinion from the decision of 29 January 2004. 1.1997, SP. zn. 2 Cdon

522/96) "clearly based on the assumption that the Fund carries out its statutory

obligations and limits the right to redress a particular spare

the land just to the allocation of land was fair. A reference to the

the legal opinion of the Supreme Court cannot serve to the legitimation of such

the procedure for the allocation of spare land, which would (as seen from the

an objective point of view) was arbitrary or discriminatory. The arbitrariness or

inertia in the allocation of land is illegal and unlawful


negotiations cannot be granted legal protection. The lawsuit seeking release of the

a particular plot of land may represent the only means of defense against

arbitrage. The Constitutional Court also notes that the constitutional prohibition of refusal of

Justice implies the obligation to fill in the gaps in the general courts

the laws where it would otherwise lead to a factual claim unenforceability.

Indeed, another judgment of the Supreme Court of 22 March. 2.2002, SP. zn. 28

CDO 1847/2001 shows that even the Supreme Court is aware of the obligations of the

to ensure the enforceability of a claim according to § 11 (1) 2 the law of the land. ".



At the end of that finding, the Constitutional Court expressly emphasized the limitations of your

review on questions of constitutionality, respecting the maximum of not replacing the function

General courts in the interpretation and application of a simple law, therefore

He stated the following: "at the conclusion of the Constitutional Court notes that even if the

General Courts later on the view that the claim cannot refer to a specific

the land must take into account its obligation (taking into account the prohibition on

denial of Justice, respectively. to the obligation to provide protection

the legitimate expectations of the complainant to edit) the remedies so that in

If successful, the complainants were meant to save the Fund to issue in

a particular period of time specified by the Court of the land, so that its value

resulting from the size, location and quality, determining the best

the present value of the original property. This requirement stems from the diction

§ 11 (1) 2 of the law on land which presumuje the consent of an authorized person with

offered by the site. It should also be recalled that, for the administration of the State

the assets of applied rules that are now expressis as

expressed in the Act on property in the Czech Republic, according to which "property

they must be used efficiently and economically for the performance of functions of the State and to the enforcement of

set out the activities; Another way you can use the assets or

load up only under the conditions stipulated by special legislation or

This Act. " (article 14, paragraph 1, of Act No. 219/2000 Coll., on the Czech property

Republic and its representation in legal relations which bind and

Fund-§ 2 (2). 2 of the Act). The Fund cannot ignore

the existing obligations of the State, which has taken in section 11 (1) 2 of the law on

soil. ".



VIII/e



Ratio decidendi



Case-law of the general courts in the matter of the claim of the title is ascertained

authorized person for exercising the right to the issue of the replacement of the land according to §

11 (1) 2 of the soil can be therefore generalize by saying twice:

relevant and consistent, it can be considered only in so far as it defines the

title negatively (i.e., does not constitute a transfer of spare land for an

decision-making in the administrative procedure and rules out the claim beneficiaries in

provision of replacement land to its land fund in the form of their

the selection); define the general courts in some previous decisions

claim the title of an authorized person for the time being, you cannot speak positively about

It is settled case-law, and predictable.



According to the provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., as amended by law

No 253/2003 Coll., the authorized person properly entitled to the transfer of land in the

owned by the State within 2 years from the date of the decision of the land

the Office; does not act on the transfer of Land to the authority, within 2 years from the time when

could be entitled to a transfer of the Land Fund, which for the first time

the deadline is the deadline will be forfeited.



If the decision has the legal power or authority of the land are entitled to

the transfer was filed before the effective date of Act No. 253/2003 Coll., i.e.. prior to the

day of the 6. in August 2003, according to the article. (VI) of this Act, the time limit for conversion of land

until 31 December 2006. December 10, 2005.



Article. VI of Act No. 253/2003 Coll., therefore, established for the realization of the right to

issue of the replacement land for cases in which the decision of the Land

authority, such as a title for the release, came into effect before the date of the acquisition of

the effectiveness of Act No. 253/2003 Coll. (i.e. the date of August 6, 2003), as well as for

cases for which was given another title for release day actionis nata

also before the date of entry into force of Act No. 253/2003 Coll. (i.e. day 6.

August 2003), a minimum period of two years, four months and 25 days (i.e., the date of

December 31, 2005).



The provisions of § 13 para. 6 and 7 of the law on land then set a time limit of two years

for those cases in which the decision of the land authority, such as a title for

the release will take legal force after the effective date of Act No. 253/2003

Coll., and for those cases for which it is given a different title for the release date

actionis nata also after the date of entry into force of Act No. 253/2003 Coll.



To be at this point to remind the senators and design group points

a group of MPs, and this objection first, given the absence of inequality

reasoned distinction between soil by the State as an owner, and

participant of a private relationship translates to other persons, and the soil, which

the State is required to issue to authorized persons-restituentům-on the basis of

the restitution legislation and, secondly, inequality between the Group of restituentů,

whose claim is manages to satisfy, and that their group, which are eligible to

fails to satisfy [as in the cases of objective difficulties beyond the control of

Neither the borrower nor the lender (State) (authorised person), as well as in

cases caused by the procedure of the Land Fund], as well as the objection

prejudice to the constitutional principle of protection of legitimate expectation of citizen in the right

(protection of legitimate expectations), both from the perspective of the principle of the prohibition of arbitrariness and

legal certainty (arising from the principle of the rule of law), as well as from the perspective of

the rights arising from the additional protocol to the Convention (protecting and

property claim).



The objection of both first and third Constitutional Court fully accepted already in finding SP. zn.

III. TC 495/02, for the constitutional assessment of all three objections are valid

the following maxima:



Without calling into question the claim of the Land Fund of the adequacy

"structured" to satisfy the legitimate claims of persons according to § 11

paragraph. 2 of the law on soil (see communication of the President of the Executive Committee

The Land Fund Ing. J. m. of 28 June. November 2005 No. PF

2258/05MI-64297) and also questioned the claim of the appellants without the

the principle of vigilantibus iura by authorised persons, the constitutional

the Court is of the opinion that there is evidence which would

allow for statements in proceedings for review of the standards to verify.

Such verification is conceivable only under conditions of effective

cause of action for the protection of the law, the purpose of which is to verify

the adequacy of the menu for the particular qualifying person. Such a process

a resource can be both an explicit legal have been incorporated and based his

the corresponding application practice, or can be developed and fixed itself

the case-law.



Analysis of the relevant adjustments contained in the law on land, as well as the analysis of the

the current relevant case-law of the Constitutional Court and ordinary courts cannot be

than to conclude that it is not populated, or one of the listed alternatives.



A similar opinion in this context, the legal doctrine: "the whole

the process of providing other land is-in addition to the legal, organisational and

the technical difficulty of the territorial-connected with significant subjective effects,

that can, in effect, give rise to doubt about the objectivity of the

procedure specific territorial departments of the Land Fund of the CZECH REPUBLIC. From marketing

all of these-and in many respects even beyond the analysis of the applicable legislation,

consecutive-considerations can draw one conclusion to me. The idea of

the legislature, that there is nothing easier than for nevydávaný land

provide an authorized person to another land, apparently shows as

at the very least naive. However, if the valid legislation on this principle

substantive compensation costs, it is necessary to know and legal procedures,

that has to happen, appropriate attention. And this is according to me in

relation to the process of providing other appropriate land so far (over

all the hitherto more or less successful amendments to the relevant

the provisions of the law on the ground). " (I. Průchová, restitution of property

According to the law of the land. Prague 1997, p. 194.)



For the authorized persons according to § 11 (1) 2 of the law on soil stems from that

the conclusion, according to which, for the application of the law on the issue of the replacement of the land

There is no effective remedy (in other words, at the level of

the simple rights of the embedding of a subjective right without the right, without

the procedural possibility of recovery). For the Constitutional Court in proceedings for review of

standards (review of the constitutionality of the provisions of § 13 para. 6 and 7 of law No.

229/1991 Coll., as amended by Act No. 253/2003 Coll., and the provisions of article. (VI)

Act No. 253/2003 Coll.) from there, it follows the finding, according to which the period

enshrined in the provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., on

amended by Act No. 253/2003 Coll., and the provisions of article. VI of Act No. 253/2003

Coll., the time-limit the exercise of the right of the beneficiaries in accordance with § 11 para. 2

the law on soil on land, i.e. the issue of the replacement. the law, which does not indicate

an effective legal remedy, so from the perspective of the criteria

Contextual assessment of the constitutionality of the time limits it is the arbitrariness of the legislature,

standing in conflict with the constitutional principle of protection of legitimate expectation of citizen

on the right, which is a component of the rule of law (article 1, paragraph 1, of the Constitution), in

rozhodovaném in the context of the breach of the principle of protection of legitimate expectations

When applying the property rights arising under this article. 1 Additional

Protocol to the Convention.




Conversely, therefore, at the same time the constitutional conformity with reasonable notice

limited options exercise the right beneficiaries (restituenta) on

issue of the replacement of the land according to § 11 (1) 2 of the law on land, but at the

conditions for validity of an effective legal remedy to protect this

rights.



The Constitutional Court in this regard, reiterates that such a procedural

a resource can be both an explicit legal have been incorporated and based his

the corresponding application practice, or can be developed by itself

the case-law of the General Court. The premise of the Constitution the acceptance

its Foundation is the certainty of a judicial definition of the subject-matter of the action,

stabilization of the cause of action for the protection of rights in the decision-making

the practice of the courts and then the predictability of their decisions.



VIII/f



Functions of financial compensation



The financial compensation in key laws for which restitution should be

consider the law No. 87/1991 Coll. and Act No. 229/1991 Coll., from the perspective of

the original intention of the legislature did not meet the function equivalent of the unreleased

things, or land.



You can confirm this fact and content performance in common newsletters

committees of the House of the Federal Assembly of Deputies Vaclav Benda at

discussion of the draft law on extrajudicial rehabilitation on the common

the Chamber of deputies of the people and of the House of peoples of the Federal Assembly of the CZECHOSLOVAK FEDERATIVE REPUBLIC day

February 19, 1991, in this context, he said: "we, the members of the

most of the committees and of the initiative of the group that worked on the proposals,

We supported the principle of restitution in kind wherever possible,

but we didn't want to introduce in a wide range of financial or

even as it was in the original draft, monetary restitution. ".



By analogy with the law of the land was its Rapporteur on the issue of the financial function

the refund is kept the same intention, as was the case of the law on extrajudicial

rehabilitation. The explanatory memorandum to the draft law on land in this context

States: "For land and buildings, which will not be able to return, it will belong to the

a refund of the money provided by the original owners of the competent

the central authority of State administration of the Republic in the same extent and under the

similar conditions under which refunds are granted in the non-judicial

rehabilitation. ".



The principle of the priority of restitution in kind before the financial compensation for

both of these restitution laws result in construction, according to which the

financial compensation has not fulfilled the purpose of the ad valorem equivalent per unreleased

thing, or land, and had only a symbolic function satisfakční. This

the design was based on the limited options of the State economically after the year

1989 in the form of financial compensation to mitigate some of the wrongs caused by

the Communist totalitarian regime.



The Constitutional Court on this point refers to its large and steady

the case-law, in which the standpoint of constitutional law formulated the assessment

category of equality [see in particular findings SP. zn. PL. ÚS 16/93 (collection

the decision, volume 1, finding no. 25; promulgated under no. 131/1994 Coll.), sp.

Zn. PL. ÚS 36/93 (collection, volume 1, decision finding no. 24; announced

under Act No. 132/1994 Coll.), SP. zn. PL. ÚS 4/95 (ECR, volume 3,

finding no. 29; promulgated under no. 169/1995 Coll.), SP. zn. PL. ÚS 5/95 (collection

the decision, volume 4, finding no. 74; competition no 6/1996 Coll.), SP. zn.

PL. ÚS 9/95 (ECR, volume 5, finding no 16; declared under no.

107/1996 Coll.), SP. zn. PL. ÚS 33/96 (ECR, volume 8, find

No. 67; promulgated under no. 185/1997 Coll.), SP. zn. PL. ÚS 15/02 (collection

the decision, volume 29, no. 11; promulgated under Act No. 40/2003 Coll.), sp.

Zn. PL. ÚS 33/03 (collection of decisions, volume 35, finding no. 151; announced

under no. 585/2004 Coll.), SP. zn. PL. ÚS 47/04 (promulgated under no. 181/2005

And will be published in volume 36 Collections decision)]. In understanding

the constitutional principle of equality is particularly identified with the conclusion expressed by the

The Constitutional Court of CZECHOSLOVAKIA (find SP. zn. PL. ÚS 22/92, a collection of resolutions and

the findings of the Constitutional Court of the CSFR, finding no 11, page 37). The Constitutional Court of CZECHOSLOVAKIA in the

It conceived the equality as a category a relative, which requires the removal of

unjustified differences. The principle of equality in the rights should therefore be

understand the way that legal distinction in the access to certain rights not

be the result of arbitrary power, it does not follow, however, the conclusion that each had to

be granted any right. The content of the principle of equality, the Constitutional Court by

in the field of constitutional law, the concept shifted the aspects of differentiation

bodies and rights. The first considers the exclusion aspect of arbitrariness.

The second consideration when assessing the unconstitutionality of the legislation

the founding of the inequality is his concern to one of the fundamental

rights and freedoms. In other words, the Constitutional Court in its case-law

interprets the constitutional principle of equality in the sense of incidental and

neakcesorické equality. Certain legislation that favors one

a group or category of persons from other, cannot therefore be without further

marked as violating the principle of equality. The legislature has some room to

the consideration whether such preferential treatment will mandate. Must ensure

to favouring access was based on objective and reasonable

the reasons for (a legitimate objective of the legislature) and that between this objective and

the means to achieve it (the legal benefits) existed the relationship of proportionality

(see for instance judgments of the European Court of human rights in matters of

Abdulaziz, Cabales and Balkandali of 1985, section 72; Lithgow of 1986, section

177; Inze from 1987, § 41).



A lot of these aspects of the Constitution assessment categories

equality, since the differentiation of subjects and the rights in the subject matter of the

the parties of the legislature based on objective and reasonable considerations, cannot be

regard to the objection of plaintiffs, according to which it is a contradiction of the contested

statutory provisions with constitutional order seen in unconstitutional

inequality between the price of the replacement of the land and the amount of any financial

the refund.



VIII/g



Modification rationis decidendi: legal status and permitted assigns



To interpret the provisions of § 11 (1) 2 the law of the land already in progress

the 1990s, intrigued by the legal doctrine of opinion (see l. M. K., j.

Plum, the reasoning above of the restitution claims of conversion options for agricultural

land, Právní rozhledy, 6, 1995, p. 224), according to which the claims according to the

the law of the land "are the law on the execution of the contract legal relationship

that generally governs the civil code (§ 488-section 852) "and, therefore, is

"to advance on the basis of § 524. the Act.; This does not preclude the assignment of

the above reasons, the provisions of § 525 paragraph. 1. Cust. ", where" after

the assignment of the claim becomes not only mentions the right to fulfil the obligation

required by the person, but also all the rights that the assignor at the time had

referral (section 524 (2) CIVC.). To these rights is the right to

the choice of an alternative transaction when this option already taken place

the assignor. ". Finally, the "right of replacement land under section 11 (1) 2

the law on soil cannot be considered a claim that is subject to §

33A, as cit. provisions of § 33a applies only to claims which

the subject is the provision of adequate financial compensation. Claims for refund

restituovaného of the land or the release of spare land, however, is to be

be regarded as a claim under section 488 of his/her identity. Act. ".



This interpretation was subsequently confirmed by the amendment of law No 95/1999

Coll., made by Act No. 253/2001 Coll., on the article. I (5) provided:

"In section 1 (1). 2 letter a) is added: "and how the Land Fund) when converting

agricultural land to the beneficiaries, which is entitled to another

land under section 11 (1) 2 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

amended, (hereinafter referred to as the "law of the land") and the physical or

a legal person to which this right is passed or was transferred (hereinafter referred to as

"authorized person"), ".". Referred to legal provisions in the overall set of

marked the legislative shortcut "beneficiaries" thus ranks among a subset of the

beneficiaries under section 11 (1) 2 the law of the land, a subset of the

their heirs and, finally, a subset of assigns.



The explanatory memorandum to the interpretation of the provision stated

the following: "the adjustment is confirmation of the assignment of claims to other options

land. ".



The basic question to be answered in this context, it is

the question hit a derogatory reasons in favour of the abolition of meaningful

the provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., as amended by Act No.

253/2003 Coll., and the provisions of article. VI of Act No. 253/2003 Coll., not only on the

the authorized persons according to § 11 (1) 2 the law of the land, but also assigns.

In other words, if the reasonable grounds for the unconstitutionality of contextual

the deficit in the legal time-limits laid down in those provisions,

the absence of an effective legal remedy for the protection of

rights, apply to the authorized persons according to § 11 (1) 2 the law of the land,

and assigns, or it is not.



The consistent practice of the general courts in a comparable context [and when

the assessment of the reasons for exemption from income tax according to § 4, paragraph 4. 1 (b). (g))

Act No. 586/1992 Coll., on income taxes, as amended

the regulations in the case of income from the sale of real estate issued] distinguishes


the rights of indigenous restituentů, and assigns of: "from personal income tax

people cannot exempt the income from the sale of real property acquired pursuant to the Act

on the adjustment of the ownership of land and other agricultural property,

If the taxable person has acquired these properties based on succession

of the restitution claim made under the provisions of the civil code-

the tax entity had not become a person authorized under the provisions of

the Act on the adjustment of the ownership of land and other agricultural

asset. " (judgment of the municipal court in Prague, dated June 10, 2003 sp.

Zn. 28 Ca 709/2002, the judgment of the regional court in Brno on 2 December. September 2003

SP. zn. 29 Ca 415/2001, the judgment of the Supreme Administrative Court of 27 June.

October 2004 No. 5 Afs 29/2004-74). The reasons for this distinction then

The regional court in Ústí nad Labem in the judgment of 27 June. March 2003, SP. zn.

15 Ca 201/2001, States: "a common feature of the income is exempt under the Act

the income tax is the fact that the exempted income, which, in

the facts do not constitute assets of the tax subject magnification, because

It is the compensation for the property taken in the past, the income achieved

the sale of the issued property. ".



That case-law of the general courts, distinguishing in the implied context

the legal status of indigenous restituentů and assigns, was subsequently

confirmed by the Constitutional Court (resolution SP. zn. I. ÚS 406/2000, SP. zn. IV.

TC 439/04). The Constitutional Court stressed that the distinction is

justified by the fact that "the concept of ust. section 4, paragraph 4. 1 (b). (g)) of the

income taxes shows a clear intention of the legislature to grant an exemption from

the tax previously affected persons to whom the assets were returned, and not

other persons; for the real estate, issued according to the specific rules, so

How has in mind that provision, must be regarded as real estate

issued to authorized persons on the basis of the facts established

in order to delete caused by property-related injustices, rather than

real estate released from another, already derived the title "(SP. zn. IV. TC

439/04).



Sense and purpose of legal construction, according to which the claims according to the law of the land

are the right to execution of the contract law of the legal relationship, which generally

Adjusts the civil code (§ 488-852), and therefore can be used to refer to the

pursuant to section 524 of his/her identity. Cust, was a fan of alternatives satisfying the

claims restituentů. But it cannot be inferred, according to which the purposes of the

the law on land, as enshrined in its preamble, and rained down on the

assigns. Applies, therefore, in this context, the same reasoning, what were

guided by general courts in the assessment of the reasons for exemption from income tax

According to § 4, paragraph 4. 1 (b). (g)) of the law on income tax. Claims are eligible purposes cese

in the case of affiliate companies, different from the purpose of the issue of the replacement

the land according to § 11 (1) 2 of the law on the soil of the original restituentům. When

the assignment of the claims had to be aware of not only the assignees

the possible benefits, but also the risks of such a relevant with regard to the way the menu

and the allocation of spare land the Land Fund, therefore on their

When assessing the constitutionality side § 13 para. 6 and 7 of the Act No. 229/1991

Coll., as amended by Act No. 253/2003 Coll., and article. VI of Act No. 253/2003 Coll.

You cannot say the discrepancy referred to legal provisions with constitutional

the principle of the protection of legitimate confidence of the citizen in the right, which is a component

the rule of law (article 1, paragraph 1, of the Constitution), or in the rozhodovaném context

contradiction with the principle of protection of legitimate expectations in the application of the securities

the rights arising from article. 1 of the additional protocol to the Convention.



VIII/h



The wording of the operative part of the award derogačního



The ratio decidendi of the award therefore falls just on the part of the

overall the categories of persons covered by the provisions of § 13 para. 6 and 7

Act No. 229/1991 Coll., as amended by Act No. 253/2003 Coll., and article. (VI)

Act No. 253/2003 Coll., and this part are beneficiaries of

§ 11 (1) 2 the law of the land (i.e., the original restituenti) and their heirs,

and they are not their assignees.



Repeal of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., as amended by Act No.

253/2003 Coll., and article. VI of Act No. 253/2003 Coll. in their entirety should

but turned out even to persons, for which the derogatory reasons

they do not tell.



In finding SP. zn. PL. ÚS 24/94 (collection, volume 3, decision finding no.

19; promulgated under Act No. 80/1995 Coll.), which was then followed by the case-law in the

proceedings for review of the standards, the Constitutional Court had defined the notion of legal

provisions by means of any portion of the text of the legislation with the

the normative content, i.e. an expression containing any language

the funds, whose purpose is to express the rules of law or one of the

the components of its merits (e.g. circle of subjects or situations),

or legal effect (i.e., legal obligations or sanctions).



The provisions of § 1 (1). 2 (a). and) Act No. 95/1999 Coll., as amended by law

No 253/2003 Coll., introduced a legislative shortcut "beneficiaries"

for the person who is entitled to the land in accordance with § 11

paragraph. 2 the law of the land, and, secondly, for natural or legal persons, the

covered by this law passed or was transferred.



The provisions of § 13 para. 6 and 7 of the Act No. 229/1991 Coll., as amended by Act No.

253/2003 Coll., and article. VI of Act No. 253/2003 Coll. contains therefore implicite

the definition of both a subset of the set of its addressees authorized persons according to the

§ 11 (1) 2 the law of the land, and their heirs and, secondly, a subset of the

assigns.



The Constitutional Court in derogačních findings, SP. zn. PL. ÚS 34/04, SP. zn. PL.

TC 43/04 (promulgated under no. 355/2005 Coll. and under no 354/2005 Coll. and both

will be published in volume 38 Collections decision) in comparable

set aside a specific statutory provisions in cases only for well-defined

a subset of the total set of its recipients, and it's a subset of for which

gave evidence of derogatory reasons.



On the basis of the above reasons, the Constitutional Court of the divorced conflict with the constitutional

the principle of the protection of legitimate confidence of the citizen in the right, which is a component

the rule of law (article 1, paragraph 1, of the Constitution), as well as conflict with the principle of

legitimate expectations in exercising property rights arising from the

article. 1 of the additional protocol to the Convention, the provisions of § 13 para. 6 and 7

Act No. 229/1991 Coll., as amended by Act No. 253/2003 Coll., and article. (VI)

Act No. 253/2003 Coll., as they relate to the eligible persons to whom

a right to the land under section 11 (1) 2 of the Act No. 229/1991

Coll., as amended by Act No. 182/1993 Coll., and their heirs, set aside.



According to the provisions of § 58 para. 1 of the law on the Constitutional Court are the findings,

which the Constitutional Court has ruled on the application for annulment of the Act or other

legislation or their individual provisions under art. 87

paragraph. 1 (b). a) and b) of the Constitution, be enforceable on the day of their publication in the

The collection of laws, if the Constitutional Court decides otherwise. In the present

If the Constitutional Court ruled that the award shall become effective on the date of its

publication [likewise did so in SP. zn. PL. ÚS 13/05 (find was

promulgated under no. 283/2005 Coll. and will be published in volume 37 Collections

decision)], and because of the protection of constitutionality in the races

things.



The President of the Constitutional Court:



JUDr. Rychetský in r.