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 November 1997 repealed the provisions of section 22, paragraph. 4 of law No.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.
