On The Proposal That The Repeal Provision. Section 22 Par 4 Of Act No. 72/1994 Coll.

Original Language Title: On The Proposal To Repeal The Provision. § 22 Par. 4 Act No. 72/1994 Coll.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=44508&nr=280~2F1996~20Sb.&ft=txt

280/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided to 9 June. October 1996 in plenary in the things

the proposal to repeal the provisions of section 22, paragraph. 4 Act No. 72/1994 Coll., which

adjusting some of the co-ownership to the buildings and some

ownership of the flats and non-residential spaces and added some

laws (the law on the ownership of flats), as amended by Act No. 273/1994 Coll., and

the provisions of section 7 (1). 3 of the law of the Czech National Council No. 102/1992 Coll.,

to regulate certain issues relating to the release of Act No.

509/1991 Coll., which amends, supplements and adjusts the civil code, the



as follows:



1. On 1 January 2005. November 1997 repealed the provisions of section 22, paragraph. 4 of law No.

72/1994 Coll., as amended by Act No. 273/1994 Coll.



2. The proposal to repeal the provisions of section 7 (1). 3 of the law of the Czech National Council No.

102/1992 Coll. refuses.



Justification:



(I).



The appellant filed a constitutional complaint against the decision of the Ministry of Defense

The Czech Republic (hereinafter referred to as "the Ministry") of 15 November 2004. November 1995 No.

j. 316/4-60/Kr, dismissing the application for the grant of consent to

the sale of the flats of the armed forces in houses owned by the city of

Kroměříž. In the denial of consent by the Ministry (section 22 (4) of law No.

72/1994 Coll., as amended by Act No. 273/1994 Coll.) sees both violations of the

the constitutional right of self-government according to the article. 8 and 104 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution"), and the rights of ownership of a guaranteed article. 11

The Charter of fundamental rights and freedoms (the "Charter"). Asked at the same time

The Constitutional Court, to turn down a constitutional complaint because of all the main

procedural means which the law provides for the protection of rights, and in

the meaning of section 75, paragraph. 2 (a). and Act No 182)/1993 Coll., on the Constitutional Court.

The latter proposal, the complainant justifies the fact that this complaint with your

the content and design of the cancellation provisions of cited laws affecting the rights of

all municipalities in the Czech Republic, which are the owners of houses with apartments

the armed forces, with the result that its significance substantially exceeds the

the complainant's own interests.



The Constitutional Court of 21 June. February 1996 invited the applicant to supplement the constitutional

complaints within the meaning of the fulfillment of the conditions required by the provisions of section 75

paragraph. 2 (a). and Act No 182)/1993 Coll., in the annex to its submission dated

22. in March 1996 the city Kroměříž has submitted a memorandum to the Constitutional Court

Chief of Military accommodation and construction administration of Brno no j. 55911 dated

23 January 1995 addressed to the municipal office in Kroměříž, in which

that Ministry was adopted measures restricting the release of

Agreement for the conclusion of a Treaty on the transfer of ownership to the flats of the armed

components, with the exception of crews, which are cancelled and the flats are released in

benefit the civilian sector. To the submission of 22 November. March 1996

Furthermore, the complainant attaches to the representation of the town of Vyškov of 19 December. March 1996

and the representation of the city of Prerov of 21 June. in March 1996. The expression of both cities

the owners also houses with apartments of the armed forces point to a fundamental

the importance of resolving the disposition options with these apartments in the next administration

the Housing Fund of the municipality. The constitutional complaint is accompanied by a communication from

Deputy Mayor of the town of 20 December. in March 1996, in which it is

contained an opinion, according to which the qualification of bytes according to section 8 of Act No CNR.

102/1992 Coll. allows their privatization without the consent of the Ministry of

(the cited provisions of the legal regime of the apartments, which have the character of

business flats temporarily).



The Constitutional Court's constitutional complaint requested pursuant to § 42 paragraph. 3 of the law

No. 182/1993 Coll. and the Secretary of Defense.



The Minister of defence in its comments of 26 March. in March 1996, in the first place

has delivered a negative opinion to the possibility to interpret the consent or

opposition to the sale or lease of the flats of the armed forces according to law

The CZECH NATIONAL COUNCIL No. 102/1992 Coll., respectively. Act No. 72/1994 Coll., in the sense of the intervention

of the public authority. In that venue sees dispositive behavior

the addressee the legal standards anticipated by the Act, and points to the article. 11

paragraph. 3 of the Charter, under which the ownership of the undertaking, as well as to section 128

of the Civil Code governing the conditions for intervention in the title.

Consent to the transfer, or lease of flats in the armed forces

comments considered the statutory restriction of ownership rights in

the public interest (which is the security of the defense of the State), and

highlighted the fact that this happens for the replacement. In the context of

with the fulfillment of the conditions contained in section 72, paragraph. 1 (a). and Act No.)

182/1993 Coll., therefore, the Minister of defence, are negative opinion

i.e.. the opinion according to which the conditions of that provision in the

things have not been fulfilled. Further points to the fact that, in the case of

the success of the proposal to repeal the provisions of section 22, paragraph. 4 Act No. 72/1994

Coll., as amended by Act No. 273/1994 Coll., and the provisions of section 7 (1). 3 of the law

The CZECH NATIONAL COUNCIL No. 102/1992 Coll. without corresponding compensation for the legal and economic

disappearing from the possibility of legislation to ensure the soldiers of the occupation (and civil

employees) corresponding to the standard housing (with respect to the soldiers of

the profession as to the obligation of the military administration of the edited paragraph in section 28. 3

Act No. 76/1959 Coll., on certain service conditions of soldiers, in the text of the

amended). In the opinion of the Secretary of Defense is rejected

the appellant's argument in opposition to the transfer of spatřující bytes

the armed forces of limiting the right to self-government of municipalities according to the article. 100, 101

and 104 of the Constitution and is accepted only on the granting of consent to the inspection

the transfer of the apartments of the armed forces within the meaning of the restriction of ownership rights.

The Defense Minister on the explicit request of the Constitutional Court in its comments

States that similar applications from villages and towns to permit privatisation of the staff

the Housing Fund have not been submitted to the Ministry.



II.



The constitutional complaint of the town Kroměříž has been made with reference to section 72, paragraph. 1

(a). and Act No 182)/1993 Coll., and in her justification is submitted

In addition to the other and the infringement of the territorial self-governing unit on

self-government. In terms of the content of the constitutional complaint can therefore be inferred that the

was made with reference to section 72, paragraph. 1 (a). (b)) of Act No. 182/1993

SB.



The condition of the constitutional complaint pursuant to section 72, paragraph. 1 (a). and)

Act No. 182/1993 Coll. public authority intervention is violative of basic

the right or freedom. The question is whether the approval or disapproval

the competent authority or the competent Ministry of the armed forces with

the transfer of ownership of the apartment of the armed forces, pursuant to section 22 paragraph 1(b). 4 of the law

No. 72/1994 Coll., as amended, may be considered as intervention

the public authority referred to in article. paragraph 87. 1 (a). (d)) of the Constitution and in accordance with section 72

paragraph. 1 (a). and Act No 182)/1993 Coll.



Public authority intervention in accordance with the cited provisions of the law on the Constitutional

the Court may take the form of a decision, measure or other intervention.

The Ministry of State administration authority (article 79, § 16 of the Constitution, the law No.

2/1969 Coll., on establishment of ministries and other central bodies of the State

the management of the Czech Socialist Republic, as amended), and

as such by the public authorities (the resolution of the Constitutional Court of the CSFR SP. zn.

Even TC 191/92, published under no. 3 collection of resolutions and findings, 1992). According to the

§ 244, paragraph. 3. s. l., the decisions of the administrative authorities shall mean

the decision, issued by them in administrative proceedings, as well as other decisions

which, amended or revoke the privileges and obligations of a natural or

legal persons. Doktrinární interpretation of the provision of service in the

in this context, stresses that "it is not important, as the Act of an administrative

body is marked (decisions, appointment, grant, measures, agreement,

resolution, Bill, order, establishment yield, confirmation, circular,

warning, challenge, command, statement, notice, consent, receipt, cancellation

and others). It is essential that the administrative authority such act authoritative and

the legal way to be able to capable of hitting the legal realm of the physical or

legal persons. It is always the decisive material content of the Act and not its

the formal designation. " (J. Bures, l., m. Mazanec, civil

order Comment, 2. Edition, Prague, 1996, p. 661).



In the case in question there was an expression of disapproval of the Ministry from June 15.

November 1995 No. 316/4-60/Kr, which was referred to in section 22, paragraph. 4 of the law

No. 72/1994 Coll., as amended, rejected the request for

the granting of consent to the sale of apartments in houses in the armed forces

the ownership of the town Kroměříž, to the issue of the administration of the Act, which was

the authoritative and legal power capable manner restricted the ownership right

the town of Kroměříž. From the point of view of its subject, therefore, the constitutional complaint

fulfils the condition required by article. paragraph 87. 1 (a). (d)) of the Constitution and section 72

paragraph. 1 (a). and Act No 182)/1993 Coll., because it is directed against the

the final decision of the administrative authority.



Under section 75, paragraph. 1 of the law on the Constitutional Court is the constitutional complaint

If the complainant has not exhausted, all the procedural

the funds, which act to protect the law provides. For such in

the matter should be considered as corruption pursuant to section 61 of Act No. 71/1967

Coll., on administrative proceedings (administrative code), and to subsequently (article 247, paragraph 2.
s. l.) an action against the decision of the administrative authority according to § 247 et seq.. about.

with the line.



However, the constitutional complaint, the complainant relies on section 75, paragraph. 2 (a). and the law)

No. 182/1993 Coll.



The Ministry's decision of 15 October. November 1995 No. 316/4-60/Kr,

under section 22, paragraph. 4 Act No. 72/1994 Coll., as amended by

amended, rejected the request to grant consent to the sale of

the apartments of the armed forces in houses owned by the city of Kromeriz, it was

delivered on 21. November 1995, and acquired the authority of a waste

the expiry of the deadline for the submission of the decomposition of 15denní. The constitutional complaint has been

The Constitutional Court is made personally, 16 December. January 1, 1996.



In compliance with the period required by the provisions of section 75, paragraph. 2 (a).

and Act No 182)/1993 Coll., the second condition for the adoption of the constitutional

the complaint, which does not meet the prerequisites of admissibility referred to in paragraph 1

the cited provisions, is the fact that its significance substantially

exceeds the own interests of the complainant. This fact is to be found in the

the requirement of general decision on the matter, the generality

range condition is not sufficient. In the legal merits of the contained

in the provisions of section 75, paragraph. 2 (a). and Act No 182)/1993 Coll. is anchored

a substantial character overreaching its significance to the complainant's own interests.

An assessment of its fulfillment depends on the accent, which the Constitutional Court puts on

General implications of the decision on the basic law, or freedom.



In the case decided by the Constitutional Court to the conclusion of the preceding

characters of the provisions of section 75, paragraph. 2 (a). and Act No 182)/1993 Coll.



Generality of the reach case stems from a proposal to repeal

the provisions of section 22, paragraph. 4 Act No. 72/1994 Coll., as amended by Act No.

273/1994 Coll., and the provisions of section 7 (1). 3 of the CZECH NATIONAL COUNCIL No. 102/1992 Coll.,

of annexes supplement the constitutional complaint of 22 May. in March 1996.

Since the release of the paper of the Chief of Military accommodation and construction

administration of Brno no j. 55911 of 23 December 2003. in January 1995, in which it is told,

that Ministry was adopted measures restricting the issue of consent to

the conclusion of a Treaty on the transfer of ownership to the flats of the armed forces, with the

the exception that is deleted and the flats are released in favour of

the civilian sector, does not justify a finding of the Secretary of defense in the

observations of 26 July. in March 1996, that the request for authorisation of villages and towns

the privatization of the service have not been submitted to the Ministry of housing,

the opposite conclusion. Finally, the reality of the constitutional complaint by his overreaching

the importance of the interests of the complainant, the Constitutional Court sees in the importance

the determination of the boundaries of the permissible restrictions constitutional ownership rights in

a democratic legal State, based on respect for rights and freedoms

of man and of the citizen, and by on the principle in the area of economic market

the economy.



In view of the above conclusions, to which the Constitutional Court, in assessing the

the constitutional complaint, as well as with regard to the fact that

together with the constitutional complaint was filed by the applicant, in accordance with section 74

Act No. 182/1993 Coll., and the proposal to repeal the provisions of the legal

Act, the Constitutional Court under section 78, paragraph. 1 cited law resolution

of 24 June. April 1996 proceedings on constitutional complaints.



III.



According to § 42 paragraph. 3 and section 69 of Act No. 182/1993 Coll. posted by Constitutional Court

the present proposal from the Chamber of Deputies. In its observations of 4 December. June

1996 (Constitutional Court registered as received 10 June 1996), the President of the

The Chamber of deputies of the Czech Parliament Milan Uhde

confirmed, in accordance with the requirements contained in the provisions of section 68, paragraph.

2 Act No. 182/1993 Coll., that both the contested laws have been approved by the

required majority of members of the Czech National Council Chamber, respectively.

the Chamber of deputies of the Parliament of the Czech Republic (the CZECH NATIONAL COUNCIL Act No. 102/1992 Coll., on 5 July 2004.

March 1992, Act No. 72/1994 Coll., on 1 May 2004. May 1994), signed

respective constitutional factors and properly announced. In the comments of the Chairman of

The Chamber of deputies of the Parliament of the Czech Republic contained an opinion,

that legislature, in adopting the contested laws acted in

beliefs about their compliance with the Constitution and the rule of law. It is further

It states that the mentioned laws prevent unauthorized intervention in the

ownership already, therefore, that a condition of a written recommendation from the authorities

the armed forces and the relevant ministries to the conclusion of the Treaty on

a condition of the lease and the prior consent of the competent authorities of the armed

ingredients or relevant ministries to the conclusion of the contract on the transfer of

ownership has established by law, which is considered to be in conformity

with the Constitution and the rule of law.



IV.



The proposal challenged the provisions of both acts recognize the limitations of ownership

the right to housing of the armed forces for the purpose of housing security

persons working in the resorts guarantee the defense of the State and protection of the

the public order. So, under section 22, paragraph. 4 Act No. 72/1994 Coll., in

amended by Act No. 273/1994 Coll., Treaty on the transfer of ownership of the apartment

the armed forces may be made only with the prior consent of the competent

authorities of the armed forces or of the competent ministries. According to the provisions of the

§ 7 (2). 3 of the CZECH NATIONAL COUNCIL No. 102/1992 Coll. on the lease contract the apartment armed

folders can be closed only on the basis of a written recommendation from the authorities

the armed forces and the ministries referred to in paragraph 1 (b). (c)) and in section

8 of this Act.



As already mentioned, the proposal to repeal the provisions of section 22, paragraph. 4 of the law

No. 72/1994 Coll., as amended by Act No. 273/1994 Coll., and § 7 (2). 3 of the law

The CZECH NATIONAL COUNCIL No. 102/1992 Coll. is based on violations of the constitutional rights of objection

Self-Government pursuant to article. 8 and 104 of the Constitution and the rights of ownership of a guaranteed

article. 11 of the Charter.



Because according to the article. 11. 1 of the Charter has the proprietary right of all

the owners of the same statutory content and protection, in the context of with infected

the legal provisions regarding the appellant's argument was prejudice

the right to self-government pursuant to article. 8 and 104 of the Constitution, the Constitutional Court found

irrelevant.



The constitutional framework of the possible restriction of ownership rights is contained in the

the provisions of the article. 11. 3 to 5 of the Charter. Restriction of privileges

the owner of the referred legal provisions cannot be accommodated under paragraph

3 and 5 of the cited provisions of the Charter, since it is not a tax adjustment and

fees and even the protection of legally protected interests before the General

misuse of ownership. The provisions of section 22, paragraph. 4 Act No. 72/1994

Coll., as amended by Act No. 273/1994 Coll., and § 7 (2). 3 of the CZECH NATIONAL COUNCIL No.

102/1992 Coll. is therefore to be considered with regard to the article. 11. 4

Of the Charter.



To the restriction of the rights or freedoms in a democratic legal State

can occur in two cases (see Constitutional Court SP. zn.

PL. ÚS 4/94).



The constitutional fundamental right or freedom of adjustment in some cases

expressly empowers the legislature, under certain conditions, or from

the perspective of constitutionally defined the objectives of the basic law or the law of freedom

restricted (e.g. Article 12, paragraph 3, article 14, paragraph 3, and article 16, paragraph 4, article 17

paragraph. 4, article. 19 paragraph. 2, article. 20 (2). 3 of the Charter) or set its

content (article 41, paragraph 1, of the Charter). The constitutional space of this procedure

the legislature is determined by the nature and purpose of the investigation request

the lifting of the basic law or vymezovaného, or freedom (article 4 of the

paragraph. 4 of the Charter).



To restrict fundamental rights or freedoms, even if their constitutional modification

restrictions on does not assume, can occur in the event of a collision or in

the case of a collision with other constitutionally protected value, which does not have the nature

the basic rights and freedoms (public good).



The constitutional position of the adjustment of the individual in society provides protection

individual rights and freedoms, as well as the protection of public goods. The difference

between them lies in their distributivnosti. For public goods is

typical, that benefit from them is indivisible, and people cannot be excluded

from his enjoyment. Examples of public goods are national security,

public policy, healthy environment. A public good is therefore

a particular aspect of human existence becomes a condition when it is not possible to

Conceptually, factually and legally break down into parts and assign these individuals

as shares. (To the concept of public goods in the economic literature, see for example.

P. Samuelson-w. Nordhaus, economics, Prague 1991, 770-771,

982; in the legal literature eg. J. Raz, Right-Based Moralities, in:

Theories of Rights, (ed. j. Waldron), Oxford 1984, s. 187; R. Alexy,

Recht, Vernunft, Discourse. Studien zur Rechtsphilosophie, Frankfurt a.

M., 1995, pp. 239 et seq.)



For fundamental rights and freedoms is, unlike public goods, typical

their distributivnost. Aspects of human existence, such as.

personal freedom, freedom of expression, participation in the political process and the associated

the right to vote, the right to hold public office, the right of Association in the

political parties, etc., can be conceptually, factually and legally break down into parts

and those assigned to individuals.



In case of collision it is necessary to lay down the conditions under which has

the priority of the one fundamental right or freedom, and for the fulfilment of which the other

or the public good. The base is in this context, maxima,

According to the basic law or freedom can be restricted only in the interests of another
the basic rights and freedoms or the public good. Mutual consideration

conflicting fundamental rights and freedoms or public goods is

the following criteria:



The first is the criterion of suitability, IE. the assessment of whether the Institute

restricting certain basic law allows you to achieve the objective sought

(the protection of other fundamental rights or the public good). The second

the criterion of mutual consideration of fundamental rights and freedoms is the criterion

necessity of comparing legislative resource

restricting the fundamental right or freedom with other measures

that enable it to achieve the same goal, but nedotýkajícími is

fundamental rights and freedoms or affecting them in lesser intensity.

The third criterion is the comparison of the severity of the two conflicting fundamental

rights or public goods. These basic rights, public goods, respectively.

prima facie, are equivalent. Comparing the severity of conflicting

fundamental rights, or public goods (when a condition of suitability

and neediness) consists in considering the empirical, system,

context and value arguments. Empirical argument can be understood

de facto the gravity of the phenomenon, which is associated with the protection of a specific base

rights. The system argument means considering the meaning and classification of

the basic rights and freedoms in the system of fundamental rights and freedoms.

The context argument, you can understand the other negative effects of the restriction

one of the basic rights due to a preference for another. Value

the argument represents a positive consideration of conflicting fundamental rights

given the accepted hierarchy of values.



Part of the comparison of the severity of conflicting fundamental rights is also

considering the use of legal institutions minimalizujících arguments

underpinned by the intervention of one of them.



In the case of the conclusion on the merits of one priority before the second of the two

conflicting fundamental rights, or public goods is a necessary

the condition of the final decision also use all the options

minimizing intervention into one of them. This conclusion can be derived from

the provisions of the article. 4 (4). 4 of the Charter, namely in the sense that the fundamental

rights and freedoms must be examined not only in the application of the provisions of the

the limits of fundamental rights and freedoms, but also by analogy in the case of

their limitations as a result of their colliding.



When considering the proposal for the control of standards should be answered in the first place

the question of whether the restrictions of ownership rights under the provisions of section 22, paragraph. 4

Act No. 72/1994 Coll., as amended by Act No. 273/1994 Coll., and § 7 (2). 3

the CZECH NATIONAL COUNCIL Act No. 102/1992 Coll. falls under compulsory restrictions, to which

the legislature empowers the constitutional adjustment in the article. 11. 4 of the Charter (and therefore

must comply with the conditions contained in it), or it should be assessed as

restrictions based on collision with another Constitution protected a public good

(the defense of the State and the protection of public order).



The forced restriction of ownership rights, which must meet the conditions of article 81(3). 11

paragraph. 4 of the Charter, is of two kinds:



The first is the obligation to tolerate the use of owned things in a State of emergency or in

of urgency, in the public interest, and that the necessary time to the extent necessary,

If you cannot achieve the purpose of the restrictions of ownership differently. (The legal

Edit this first alternatives forced restrictions of ownership rights in

the meaning of the article. 11. 4 of the Charter is contained in section 128 paragraph. 1 of the code of

Code).



The second of the options of compulsory limits ownership according to the article. 11.

4 of the Charter of such restrictions, whose purpose is identical with the purpose of

the expropriation. [The legal adaptation of this forced limitation of alternatives

within the meaning of article ownership. 11. 4 of the Charter is contained in section 128

paragraph. 2 of the civil code and article 109, paragraph. 1 and section 110, paragraph. 3 of the law

No. 50/1976 Coll., on territorial planning and the building code (the building Act),

in the wording of later regulations. According to the cited provisions of the construction

the law: "the aim is to achieve the transition of expropriation or limitation

ownership rights to land and buildings, or the establishment, abolition,

where appropriate, limitation of easement rights to land and buildings "

"If the purpose can be achieved only by restricting the rights of expropriation cannot be

the right to withdraw in full. "]



Restriction of ownership rights under the provisions of section 22, paragraph. 4 of law No.

72/1994 Coll., as amended by Act No. 273/1994 Coll., and § 7 (2). 3 of the CZECH NATIONAL COUNCIL

No 102/1992 Coll. is not associated with the State of emergency and its intended purpose

Security for the public interest cannot be regarded as urgent. This purpose

Furthermore, it is not consistent with the purposes of the expropriation. For these reasons cannot be restrictions

ownership rights under the provisions of section 22, paragraph. 4 Act No. 72/1994 Coll.

as amended by Act No. 273/1994 Coll., and § 7 (2). 3 of the CZECH NATIONAL COUNCIL No. 102/1992

SB be assessed from the perspective of article. ". 11. 4 of the Charter (and therefore in it

contained conditions) and to qualify from the aspects of the admissibility

the restrictions of the basic law, or freedom in the case of his or her

collision with another fundamental right, or freedom or with the public

the farmhouse. The criterion of suitability, IE. the assessment of whether the Institute

restricting certain basic law allows you to achieve the objective sought

(security housing needs of persons working in the resorts guarantee

the defense of the State and the protection of public order) the provisions of section 22, paragraph. 4

Act No. 72/1994 Coll., as amended by Act No. 273/1994 Coll., and § 7 (2). 3

the CZECH NATIONAL COUNCIL Act No. 102/1992 Coll. meets.



The criterion of necessity of comparing legislative

restricting the fundamental right of the resource, or the freedom of other

measures that enable it to achieve the same goal, but nedotýkajícími

the fundamental rights and freedoms or affecting them in smaller

the intensity of the challenged provisions do not. Residential security needs

persons working in the resorts guarantee the defense of the State and protection of the

public policy can be achieved and other procedures than the procedure under section

22 paragraph 1(b). 4 Act No. 72/1994 Coll., as amended by Act No. 273/1994 Coll., or

According to § 7 (2). 3 of the CZECH NATIONAL COUNCIL No. 102/1992 Coll. (eg. by virtue of a

burden, an adaptation of the appropriate real estate owned, buying

bytes into State ownership or the construction of flats for the purpose of housing

members of the armed forces, etc.).



Since the provisions of section 22, paragraph. 4 Act No. 72/1994 Coll., as amended by law

No. 273/1994 Coll., does not meet the conditions of the restrictions of the basic law, respectively.

freedom as a result of his collision with another fundamental right or freedom

or a public good, the Constitutional Court came to the conclusion about his conflict with the

article. 11. 1 of the Charter and therefore decided on its cancellation.



In order to provide time for lawmakers and the Executive Branch for constitutionally Conformal

solution of the problems of housing security of members of the armed forces,

in conformity with the provisions of section 70 paragraph. 1 of law No. 182/1993 Coll., shifted

The effective date of statement, the Constitutional Court abolished by the provisions of section 22, paragraph. 4

Act No. 72/1994 Coll., as amended by Act No. 273/1994 Coll., on day 1.

November 1997.



Because under section 74 of law No. 182/1993 Coll. is a condition of submission of the proposal on

the cancellation provisions of the Act, associated with constitutional complaints, his

application, as a result of which the occurrence of the event which is the subject

constitutional complaints, which in the case of section 7 (1). 3 of the CZECH NATIONAL COUNCIL No. 102/1992 Sb.

was not met, was left to the Constitutional Court, than the proposal to repeal the said

the provisions of section 43 paragraph refuse. 1 (a). f) of Act No. 182/1993 Coll.

as inadmissible. In this situation is to remove the contradiction in the law,

resulting from the cancellation of only one of the two statutory provisions that

are inconsistent with the constitutional law, or international treaties according to the

article. 10 of the Constitution, the job of the democratic legislature.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



The rights to bring different opinions to the point 1 of the award in the Protocol on the

negotiations and on its connection to the decision, stating his name under section

14 of Act No. 182/1993 Coll., on the Constitutional Court, the judge used the constitutional

the Court of the Czech Republic. Ivana Janů:



Made of evidence found by the Constitutional Court that the restrictions of ownership

the rights referred to in the contested provisions of section 22(2). 4 of the Act. No. 72/1994 Coll., in

the text of the Act. No. 273/1994 Coll., cannot be assessed from the perspective of the article. 11. 4

The Charter of fundamental rights and freedoms and to be characterised in terms of

the admissibility of the restrictions of the basic law in the event of a collision with another

the basic law or with the public good. From this perspective, it considers the

The Constitutional Court considers important that the chosen resource limitation does not meet the

the criterion of necessity, when it was possible to achieve the intended objective and

other procedures. According to the majority opinion of the Constitutional Court is

the means chosen by the legislature in breach of article. 11. 1 of the Charter

fundamental rights and freedoms.



I am convinced that the contested provision meets the criterion

neediness in the concept, as defined in the grounds of the award. Public

interest in the security of the country's national security, defence and public

the order is so intense, that it must be provided with adequate

legal resources. Under the specified public interest undoubtedly falls and

ensure the housing needs of persons working in the resorts guarantee

the defense of the State and the protection of public order.
Constitutional Court recognises the existence of public interest, to ensure the

housing needs for a particular audience, admits, however, lower the intensity of the

and proposes means to its realisation. In such a situation, I believe,

that the role of the Constitutional Court should also be based on the evaluation of the proposed

measure from the constitutional point of view, IE. in examining whether the proposed

solutions will not mean interference or restriction of fundamental rights and

freedoms (to the same extent, or even on a larger scale) and so

prevent any further submission to the Constitutional Court.

The procedures proposed in the grounds of the award, that should the public interest

realize, without intervening to constitutionally guaranteed rights are partly

economic nature (adaptation of appropriate real property owned by the State),

in part they have legal character (Institute of easements). Neither of these

the legal procedures are considered, the nature and intensity of the intervention too

different from the current state of the ownership restrictions. The eventual

legal easement would-unlike the current restrictions

layout permissions-constitute a significantly broader intervention, since it would

make it impossible for the owner to exercise of the right thing to use in a far greater degree than

yet. The majority decision of the Constitutional Court has been removed

formálněprávní restriction of the right to dispose of the apartment (in the sense of to sell apartment

previous tenants or possibly another buyer), however, the implementation of the

the recommended statutory easement would be for the owner for his

lawn and into the future and has complicated the possibility of flat

proprietary way to use (eg. If you end up renting and not

concluded new lease). The right of the owner of the thing to use is one of the

the permissions that make up the ownership structure of the triad, as the content of the subjective

ownership rights. The exclusion of any of the permissions can lead to

the distortion inherent in the ownership and in the most extreme case

to create the so-called. bare ownership. On the other side of the structure,

which to implement one of the permissions it requires additional legal fact

(in this case, the consent of the third person with the dispositions), saves the essence of

This law, because the law is maintained, it is only a limited possibility

his performance (the granting of consent by a third party-is not out of the question,

refusal to consent was deemed in conflict with the law enforcement

good manners, and by the refusal of consent should not invoke the law

the intended legal effects-section 3 (3). 1 identity. Code No. 40/1964 Coll., in

as amended).



Necessary to take into account that the restriction of the permission of the owner

enshrined in section 22, paragraph. 4 of the Act. No. 72/1994 Coll., as amended by the Act. No. 273/1994

Coll., concerns only the situation where the owner of the building shall decide each

apartments (non-residential). units under the Act. No 72/1994

SB. Vlastníkovo decision is entirely free decision (it is fully

respected by one of the basic principles of regulation of private-

the autonomy of the will), with the exception of housing cooperatives does not exist for the owner

the law imposed a duty to conclude a contract on the transfer of the

ownership. Therefore, the owner has the choice whether he decides to dispose of

ownership to the entire building. the spoluvlastnickým share to

This building (no restriction on the disposition does not apply-not counting

the statutory pre-emptive right when converting a co-ownership share), or whether the

Decides to sell units separately (in this case, however, must

calculate with the legal terms and conditions of sale of units to the ownership,

including restrictions on consent-bound third-interested

bodies).



I consider the public interest in compelling the selected binding implementation

disposition approval permissions of the body (as well as in the

other cases, which enshrines the section 22 paragraph 1(b). 5 (a). 7 of the Act. No.

72/1994 Coll., as amended by the Act. No. 273/1994 Coll.) is adequate to the present

situation of the company, which is still going through a transformation stage, when

still did not create the market for flats and apartments are not widely available (or

for resorts to ensure the defense of the State and the protection of public order).

The preferences of the public interest is a necessary "taxes" associated with the transition from the

the totalitarian system to a sovereign, unitary and democratic

the rule of law. The majority decision, which from these circumstances

prices, is not consistent with the finding of the TC of the CZECH REPUBLIC in the matter of Pl. TC 37/93 (collection

the findings and resolutions, volume 1, Prague, c. h. Beck, 1994, pp. 61 et seq.).



Inadmissible, I consider the argument of the alleged violation of article.

11. 1 of the Charter of fundamental rights and freedoms. This provision contains in

the principle of the three basic rights:



and the right of everyone to own property),



(b) ensure the same) the right to legal protection and content ownership

rights of all owners,



(c)) the right to guarantee inheritance rights.



The contested provision obviously restricts the right of everyone to own property and

violations of the basic rights of that sub c) also clearly does not come in

account. Therefore, you can only deal with the objections, whether the limitation of disposition

interferes with the same statutory content and protect the ownership rights of all

owners. The Constitutional Court finding in case II. TC 190/94 applies

the construction of the ownership of the triad and pointed out the crucial place of the rights

the owner of the goods. While rightly pointed out, that the disposition

the right of ownership may be exceptionally limited by law, however,

such restrictions must apply equally to all owners

(A collection of findings and decisions, volume 4, Prague, c. h. Beck, 1996, p. 317).

I note that the restriction of the rights-based the contested

the provision affects all of the owners, that is. as all legal persons,

so all the natural persons who opt for the procedure under the Act. No.

72/1994 Coll., as amended by the Act. No. 273/1994 Coll., therefore, in the above restrictions

nespatřuji instrument, which would create an inequality in the content and

the protection of ownership rights. Due to the historical situation was arising in the

need to emphasize the text and meaning of article. 11. 3 of the Charter of fundamental rights and

freedoms, from which it follows that ownership must not be misused to the detriment of the rights of

of others, or in violation of the law protected the general interests. This

the principle should be an essential guide in the assessment of the constitutionality of

the contested provisions (cf. find pl. ÚS 38/93, a collection of findings and

resolution, volume 1, Prague, c. h. Beck, 1994, p. 65).



For all the above reasons, in my opinion, should the Constitutional Court

on the repeal of section 22, paragraph. 4 of the Act. No. 72/1994 Coll., as amended by Act No.

273/1994 Coll., reject.