In The Case Of A Proposal To Repeal The Law On Churches And Religious Community.

Original Language Title: ve věci návrhu na zrušení zákona o církvích a náboženských společ.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=54635&nr=4~2F2003~20Sb.&ft=txt

4/2003 Coll.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled June 27. November in plenary on the draft group

Senators on the repeal of Act No. 3/2002 Coll., on freedom of religion

of religion and the status of churches and religious societies and amending

Some laws (the law on churches and religious societies), or

on the repeal of certain provisions of the Act, as follows:



I. the provisions of section 6 (1). 2, § 21. 1 (a). (b)), section 27, paragraph. 5 phrases

the second section, "and achieved a profit may be used only for the fulfillment of the objectives of the

the activities of churches and religious societies ", and section 28, paragraph. 5 of law No.

3/2002 Coll., on freedom of religion and the status of churches and

religious societies and on amendments to certain acts (the Act on churches and

religious societies), the date of publication of the finding in the journal of laws

shall be deleted.



II. In other parts of the proposal is rejected.



Justification



(I).



The Constitutional Court has received 13 June. 2. the 2002 proposal for a group of 21 senators Senate

The Parliament of the Czech Republic to repeal Act No. 3/2002 Coll., on freedom of

religion and the status of churches and religious societies, and about the

change some of the laws (the law on churches and religious societies)

-(hereinafter "Law No 3/2002 Coll.). If the Constitutional Court this proposal

fail, a group of Senators proposed repeal of certain provisions

Law No. 3/2002 Coll., and either the provisions of section 6 (1). 1 and 2, section 11, section 16,

section 20, section 21, section 22, paragraph. 1 (a). (d)), section 26, section 27, paragraph. 4 and 5, § 28 paragraph. 4

and (5) and section 29 in part "and the register of religious juridical persons" (the so-called.

cancellation in the wider range), or, where appropriate, without delay, the enforceability of the

abolished by the phrase-the provisions of section 6 (1). 1, § 6 (1). in part 2 "

the purpose of the Organization, the confession and the dissemination of religious faith as a legal

persons ", section 11 (2). 1 (a). (b)), and (c)), section 16. 2 to 5, § 20 (1)

(a). (f)), § 21. 1 (a). and (b))), section 22, paragraph. 1 (a). (d)), section 26, paragraph.

1 (a). b) to (d)), paragraph 26. 2, 4 and 5, § 27, paragraph. 4 and 5, § 28 paragraph. 4 and 5

and section 29 in part "and the register of religious juridical persons" ("cancellation

in a narrower range). The appellants consider that the contested act as

the whole, or of its individual provisions, as was mentioned, contrary to the

the provisions of the article. 4 (4). 4, article. 15 and article. 16 the Charter of fundamental rights and

freedoms (the "Charter"), article. 18 of the International Covenant on Civil and

political rights (hereinafter referred to as "the Covenant"). 9 to the Convention for the protection of human

rights and fundamental freedoms (hereinafter referred to as "the Convention") and the article. 1 of the Constitution of the Czech

Republic (hereinafter referred to as "the Constitution").



Introduction the appellants point out that Act No. 3/2002 Coll., compared

the current legislation reduces the standard of protection of freedom of religion

religion and the private citizens of excess State ingerenci.

Already in the phase of preparation of the draft law has a number of reservations on the part of

political and religious bodies and the adoption of the Act in the legislative

the process did not go smoothly, as it was rejected by the Senate, and after his

repeated acceptance of the Chamber of Deputies it returned to the body

the President of the Republic. The contested law in section 4, paragraph 4. 3 inaccurately paraphrases the

article. 16. 1 of the Charter, a reference to the Charter mentions in a footnote and

vacatio legis does not provide any, although significantly amended the obligations and

the permission of the State administration, as well as the legal status of a number of bodies. This

In addition, the change occurs to break the legal continuity, which can be

These bodies have adverse consequences.



The plaintiffs in its proposal are based on the fact that according to the article. 15 and 16

Of the Charter State cannot restrict the freedom of religion and to intervene

in it, if its performance does not affect the rights of others, but it must only

protect, which is a typical example of the concept of the Statute of the negative, when

the realization of these rights may not become active activities to assist, not

However, for her to intervene. It follows that the claims of the Church and

religious society (hereinafter referred to as "the Church"), a State may, in principle,

ask only if at the same time, churches and religious societies from

State to receive something. From this concept, however, challenged the law not quite

based, because does not respect the sovereign status of churches, which is

different from other legal persons governed by private law, with regard to the

the historical reasons for and importance of the major Churches and religious

the company, whose activities cannot be reduced to acts associated with the

vyznáváním of a certain faith, because these institutions perform many other tasks,

which are, in effect, an inalienable and irreplaceable in terms of

the State and society, and even the part standing outside them. Therefore, it would

According to the plaintiffs, the State had the churches and religious communities

disclose certain privileged status, which, however, does not make and vice versa is

Unlike other legal persons at a disadvantage. Effective action

churches and religious societies requires diverse organizational forms,

which the concept of informal associations of professing a common faith

does not meet the. In the opinion of the plaintiffs, these institutions should have the right to

create different organization with legal personality, as is apparent from the article. 16

paragraph. 2 of the Charter, according to which the Church and religious society may

to establish religious institutions, which equips the Church the right to legal

personality according to their rules and not according to the rules laid down

State. The State cannot be determined, the legal personality of churches

or that religious institutions can have legal personality granted by the

them to the Church and religious society and which are not. The provisions of §

6 (1). 1 of Act No. 3/2002 Coll., however, expressly provides that the Church

legal persons become legal person registration under this

the Act (or similarly, under section 28 of Act No. 3/2002 Coll. fiction that have been

registered). Even when talking about the register of such legal persons,

in fact, their registration, as it introduces terms

ecclesiastical legal persons. And certainly not by the plaintiffs

to state these legal persons could deprive the legal

personality, as permitted by section 26, paragraph. 2 of Act No. 3/2002 Coll., Also

could not agree with the powers of our State grant and abroad properly

resulting from the churches legal personality, because this adjustment is much

more stringent than business of foreign entrepreneurs in the Czech

of the Republic. This ultimately leads to the infringement of article 81(1). 16. 2

Of the Charter, because the law makes the emergence of religious juridical persons

by decision of the public authority, thus limiting the said freedom far above

constitutionally permissible.



A group of Senators further argues that the diction and the meaning of the article. 16

Of the Charter is that the freedom of the churches and religious communities to create

religious institutions cannot be reduced only to the establishment of institutions that

do not have legal personality, but in refers to the institution of the gifted

competence to legal capacity, which results from the Mission of these institutions,

whose meaning is not comparable with a normal private law

the Association. Due to this fact it is striking comparison of Act No.

3/2002 Coll., Act No. 83/1990 Coll. on Association of citizens, as amended by

amended, which the civic association-unlike the Church and

religious societies-allows you to set up by the so-called. organizational

drive as a secondary legal persons which have their own legal

personality, although dependent on the legal existence of the Association. Although the article.

16. 4 the instrument allows you to restrict the Church and religious society in the

the creation of religious institutions, law No. 3/2002 Coll. of constitutional kautel

referred to in this article is not based, as if the legal formation of

religious institutions were not subject to registration (registration), could this

be compromised to protect public safety and order, health and morality

or the rights and freedoms of others. For this reason, the contested adjustment is

the violation of the prohibition of arbitrariness on the part of the public authorities. Is not respected

the principle of self-limitation of the State interference in the freedom of religion, according to the

which must be to limit the fundamental rights and freedoms investigated their

the essence and the meaning and limitations cannot be abused for purposes other than

for which it was established (article 4, paragraph 4, of the Charter).



The plaintiffs also challenge the section 6 (1). 2 of Act No. 3/2002 Coll., which

limits of the Church and the Church of the company of the Church constitute a legal person

only for the purpose of the Organization, the confession and the dissemination of religious faith, because

with this adjustment does not remember on a wide range of activities, such as activities

charitable, humanitarian, health, etc., that these legal

the person has not yet performed. By limiting the scope of their activities to the Church in

Basically, they are excluded from society. The Group shall be deemed unconstitutional

Senators and legislation contained in section 26, paragraph. 4 of law No. 3/2002 Coll.

According to which the obligations "of the Church legal entities" vouch church or

religious society, which she proposed to register, as strongly

the creation of these persons at a disadvantage compared to the establishment of legal persons

According to the commercial code, as well as the establishment of the derived legal

persons civil associations.



The appellants also point to section 27. 4 and 5 of law No. 3/2002 Coll.
which restricts the autonomy of churches and religious societies, guaranteed

article. 16. 2 of the Charter. In addition, this provision is internally contradictory,

because under section 27. 5 of law No. 3/2002 Coll., churches and religious

companies can do business, but at the same time, this provision

the business of preventing, as it provides that the achieved profit may be used only

to fulfill the objectives of the activities of the Church and religious society. All

both depreciable fixed assets, it is possible to buy only from profit

legal persons, and, therefore, to acquire the assets of the Church to the business,

must it take a profit. Cannot continue to do business and take

the means of production, when all the profit is forced to use to populate the

its objectives and therefore not to further business.



Finally, the Group of senators considered unconstitutional legislation and section 11

Law No. 3/2002 Coll., which makes the granting of permission for the performance of

the special rights of the Church and religious society that must properly

to fulfil the obligations towards the State and third parties, and publish an annual report,

which effectively establishes a State oversight of private financing of the Church and

religious society, and even at a time when getting any State

posts. With regard to § 21. 1 (a). and (b)) of the Act) and no. 3/2002 Coll.

that sets the conditions for the cancellation of this authorization, if the Church

seriously or repeatedly violates the obligations to the State or other

persons or if not be published each year an annual report, the appellants

such adjustment shall be considered as a violation of the principle of proportionality, and that, therefore,

because of the financial debts, the State may restrict the financing of Church and

the religious community, but cannot prohibit the exercise of other rights (eg.

teach religion, marriage) or cancel their legal

personality. In addition, that the adjustment is based on the possibility of arbitrariness

decisions of the competent authority, since the initiation of the procedure in these matters

It is sufficient for a claim of the administrative authority of the existence of some obligations, without

There would be for example. their final declaration by the Court. This adjustment

the Church and religious society discriminates against business

bodies and civic association. Similar applies to the provisions of section 22 of the

paragraph. 1 (a). (d)) of the Act No. 3/2002 Coll., according to which the Ministry will initiate

the procedure for cancellation of the registration, if not for a period longer than 2 years

designated authorities or those authorities ended the term and avoid

to establish a new, because commercial or civil code for such

breach of any sanction is not expected. On the basis of the reasons given

a group of Senators proposed to repeal the whole of Act No. 3/2002 Coll.,

due to its overall concept of limiting rights guaranteed

nadzákonnými standards and reducing the standard of protection of religious freedom

against the previous edit. If the Constitutional Court has not complied with this proposal,

a group of Senators proposed to repeal the offending provisions of the law No.

3/2002 Sb.



II.



The Constitutional Court found that brought on the proposal meets all the legal process

requirements and conditions, and nothing to prevent discussion and decision of things

the same thing. Therefore, pursuant to section 69 of the Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, (hereinafter referred to as the "Law No. 182/1993 Coll.) has called on the

the participants in proceedings-Chamber of Deputies and the Senate of the Parliament of the Czech

Republic-to make this proposal.



The Chamber of deputies by its President in its comments

stated that, as can be inferred from the article. Article 9 of the Convention. 15 paragraph. 1 and article. 16

Of the Charter, the State cannot in any way interfere with the internal beliefs and

religion of the individual. However, the State may lawfully

intervene in speech (IE. the external forms of) this belief or religion,

If it is carried out in the prescribed form, that is. worship, teaching

the implementation of the religious celebrations and rites of conservation. A form is defined by

fix and no other. business, charity,

health activity, but not with the freedom of belief and religion

religion nothing. In the context of non-intervention and protection provided freedom

In addition, the State is obliged to protect, inter alia, the rights and freedoms of others. From

for the protection of ownership rights, or the rights derived from it to the body,

who enters into a private relationship, has to have such a body

the ability to know, on what basis and as a legal entity was established, which has

capacity to acquire rights and obligations, and since when has this capability,

What is her name, where it has its registered office and who is entitled to a legal person

Act. This can occur in the case of legal persons, if they are

the legal form of a registered. It can therefore say that the registration requirement in

anything does not limit any rights associated with freedom of belief, and

religion, because it is necessary to distinguish the boundary between the public

interest and the sphere of private law relations. In this connection, points out

on the decision of the European Commission of human rights of 2 July. 4. the 1990

a similar case (complaint No 13712/88 Serbisch-Griechisch-Orientaliche

Kirchengemeinde zum Heiligen Sava in Vienna against Austria).



For each objection then the Chamber of Deputies indicated that, in General, cannot be

Note that the law provides for more stringent editing than the law

the previous, because in a number of points it is not. Above all, however, the measure of

for comparison, can only be the constitutional order. International Treaty

According to the article. 10 of the Constitution, and not the earlier law. The allegation of a privileged

status of churches or even the dovozování of such a constitutional principle

does not match the State of de lege lata, and is unable to pursue the path of

judicial control of the constitutionality of the authority. It is also not excluded that the

such position of the Church was not in accordance with the constitutional order, in particular,

with the article. 2 (2). 1 of the Charter.



To the objection that it is contrary to article. 16. 2 of the Charter, if the law gives

the right to equip the church institutions of legal personality, in accordance with

The Chamber of Deputies as a misunderstanding of the relationship of the Czech legal order to

the legislation of individual churches. This provision is not a receptionist

standard, on the basis of the laws of the Church to become an autonomous

part of the Czech legal order. Ecclesiastical laws are only

the internal rules of the Church, which from the standpoint of the Czech legal order

only by facts, that are respected in the range with

itself compatible. From the article. 16. 2 of the Charter also shows that

focused on internal activities of churches and religious societies, not

the activities outside the Church. On the contrary, it cannot be inferred from that

State churches and their institutions conferred immediately position

legal persons. In connection with this, the Chamber of Deputies underlined,

that the authorities of the State should not and do not acquire the status of legal persons

sui generis no jurisdiction discretionary, it is a mode of

registration and not the authorisation. Law No. 3/2002 Coll. has effects

only in the context of the Czech legal order, does not apply to legal

personality of churches according to church rules, including the rule of law

the Catholic Church as a body of international law, sui generis, or

in accordance with the laws of the foreign States. The reason why the Czech law provides for

conditions, the minimum protection is guaranteeing the other participants

private property relations. For this reason, the Church cannot

themselves to fit your institution's legal personality in the legal order of the State,

but it must do so only to the rule of law. Even though it is conceivable a different model

the legislation, for example. public corporation status to churches

or the reception of religious norms to Czech law, it is for the

the legislature, what method of editing.



When the promoters that Act No. 3/2002 Coll. prevents churches and

religious institutions operate health care facilities and equipment

social services, it is not so, because the rights of this kind of Act at all

It does not regulate. The Church and religious institutions that have earned the status of

legal persons are considered as private corporations, for which

applies the principle of "allowed is everything that is not prohibited", and may indicated

the activities implemented under the same conditions as they are entitled to other

bodies. In addition, the enumeration of activities of registered churches is according to § 6

paragraph. 3 of Act No. 3/2002 Coll. only demonstrative.



As regards the restrictions or disabling business activities of churches and

religious institutions, the provisions of section 27. 4 of law No. 3/2002 Sb.

also, demonstrative, and so the Church can have revenue that there

are not listed. The provisions of section 27. 5 of law No. 3/2002 Coll., namely

provides that the profits of the business or other gainful activities may be

used to fulfill the objectives of the activities of the Church, which, however, does not mean that it

cannot be used for further business, but it is necessary that thus obtained

the investments were used to fulfil the objectives of the activities of the Church. In relation to the

that Act No. 3/2002 Coll., indirectly-through section 11 and section 21

paragraph. 1 (a) and (b)))-establishes the State supervision over the financing of the Church,

The Chamber of Deputies stated that the cited provisions with respect to the granting of

permission to exercise specific rights, i.e.. to return the privileged
the position in relation to other churches and at the expense of the State, which correspond to the

the increased requirements for the granting of such status.



The Chamber of deputies also States that article. 18 of the Covenant and article. 9 of the Convention, the concept of

religious freedom as a right of the individual, and therefore there is no reason

reply to their inconsistency with Act No. 3/2002 Coll., where this law

regulates the rights of churches as a collective entity. In addition, the date of

the effectiveness of Constitutional Act No. 395/2002 Coll., to be a contradiction of the international

the Treaty shall henceforth be addressed only by law an obstacle to application of the law,

not a legal reason for its cancellation. On the edge of this participant

the management of that proposal is challenged by law No 218/1949 Coll., on

economic security of churches and religious societies the State, in

as amended, but this law is not designed to cancel, and

nor is it stated what its unconstitutionality lies. Furthermore, if the

points out that the reference to the Charter is in the footnote

Law No. 3/2002 Coll., this note does not have a normative character and its

the aim is to help clarify the law. As regards the namítanou inaccuracy

the text of article citations. 16. 2 of the Charter, in section 4, paragraph 4. 3 of Act No. 3/2002 Coll.

This is only an indication of the apparent fact that follows from the logic of things.



In conclusion, the Chamber of Deputies notes that in case of cancellation

the act as a whole would once again began to pay the repealed law No. 308/1991

Coll. on freedom of religious belief and the status of churches and religious

companies, and no 161/1992 Coll., on registration of churches and religious

companies, thereby diskontinuitě the registration of churches. In

If compliance with any of the proposals on the partial cancellation provisions

Law No. 3/2002 Coll., this law would have been deformed to the point of

usability, which would imply a contradiction with the principle of the rule of law.



The Senate proposal for a group of Senators expressed through its

of the President. He stated that when discussing the Bill in Committee, was the

the legislation has been criticized, in particular, on the part of churches and religious

companies. Representatives of the so-called. traditional churches believed that the

limit the level of protection of freedom of religion and rights

to decide on its internal matters in relation to the appointment and

the interference of their organs, and that, with the implementation of administrative measures and

the checks are getting the Church to the role of the organizations subordinate to the State. The main

reservations were made against then edit the so-called. ecclesiastical legal persons,

with regard to their activities in the field of social and charitable, and modifying the

the business activities of the Church. The leaders of the so-called. the smaller the Church then

pointed to the limitations of the possibility of obtaining special rights under section 7 of the

Law No. 3/2002 Coll., These opinions were applied by some of the

the senators. Against the opposition of the petitioner was the law

argued that the law is fully retained exclusive competence of churches and

religious communities and guaranteed freedom of religion, that the

the law addresses the adjustment concerning the legal status of churches and

established by the entities in the form of registration of churches and religious

companies, or. registration of religious bodies in the relevant

registers, in order to ensure legal certainty for third parties and that the performance of the

special rights, when the Church enters into the public domain, may be granted

After a certain period of time after registration and after fulfilment stated conditions.

Representatives of the petitioners further pointed out that the legislation is

without prejudice to the rights and obligations that have or can get a church on

the basis of the fulfilment of the conditions in accordance with special laws, which provided for the

terms and conditions apply to all legal and natural persons. Whereas,

that, when hearing of the contested act in the Senate, it was found that with him

a number of major operators do not match which is the legislation

addressed, and that adaptation is more appropriate, the opinion prevailed that the

the Bill is rejected.



The Senate finally points out that, in the event of a repeal of the law Constitutional

the Court would be necessary to provide sufficient time for the adoption of a new

statutory adjustments, since it would not for example. the petition, which the Church or

religious societies are registered with the Institute

based on a number of specific laws. A similar situation occurred in the case of

cancellation of only some of the contested provisions regardless of whether the

It was a narrower or wider variant, as due to the close coherence

the various provisions of the law would become dysfunctional and hardly

the.



The Constitutional Court also requested the opinion of the Ministry of culture. This

the State pointed to the principle of sovereignty and the sovereignty of the State in

relation to the churches and religious societies, from which it follows that

the internal regulation of these institutions cannot compete with the legal system of the State.

The democratic foundations of the State. the principle of equality and the rule of law,

the privileges granted would be hated by some churches, which do not constitute

Neither the majority of the population, and even most of the aspect does not justify

to grant these privileges. The Ministry of culture building on it

draws attention to the fundamental difference between the protection of individual rights and freedoms

enshrined in article. 15 and 16 of the Charter and by modifying the churches and religious

companies on the basis of Act No. 3/2002 Coll. in addition, interventions, respectively.

check the State of the churches on the basis of this law is to substantially

a lower level than is the case in other countries of Western Europe.



See if the plaintiffs a threat to freedom of religious belief in limitation

the various activities of religious institutions, and compare edit churches

with the status of foreign business entities, according to the Ministry of

culture of the legislature does not look at Church as business entities

for the difference in their activities and, therefore, a different approach is legitimate.

Furthermore, the appellants are based on a flawed understanding of the concept of legal person

When combined with the emergence of the emergence of the Church as a legal person;

in doing so, are based on the idea that the existence of the Church, its authority or

the institution is dependent on it, if it has the status of a legal person. So

It is not and the formation of the Church, its religious activities and internal organisation

are not subject to State authority, as is clear from section 4 of Act No. 3/2002 Coll., Compared

the legal personality is the Institute of private law, securities,

that a social unit allows you to acquire the rights to its name and

duties. The granting of legal personality, that is in relation to the churches

a maximum of friendly, in addition, not only of such a body, but

all participants in the private law relations which the legislation must

to guarantee the minimum legal protection, for example. According to the article. 11 of the Charter.



The Ministry of culture also points out that in the design of the mixing occurs

the concept of "religious institutions" with the term "religious legal person".

Church institution is under the article. 16. 2 of the Charter of the institution of the emerging

inside the Church, for which Act No. 3/2002 Coll., or does not provide for the obligation to

their evidence, as is apparent from its section 6 (1). 2. In this article

However, it says nothing about the fact that the establishment of the institution in the Church produces legal

the person in accordance with Czech law. In contrast, "the Church's legal

the person "is a term introduced by Act No. 3/2002 Coll., for churches,

that are recorded in the Ministry, and this special registers

the State respects the different organizational forms of Church, and accommodates

churches that, in addition to the usual legal forms in accordance with the rule of law

allows you to create other legal persons. It is not true,

that the Church cannot for the validity of Act No. 3/2002 Coll., to establish for example.

hospital or charitable establishments, only in the case referred to in article 12(2).

16. 2 of the Charter and section 6 (1). 2 of Act No. 3/2002 Coll., not

religious institutions, or "ecclesiastical legal persons" because they

not given a direct link with the exercise of religious freedom; It rather

apply for business cases. Therefore, if it comes to activities,

that the exercise of the right to freedom of religion and the right to freedom of

to manifest their faith, must apply the General and the same legal

mode. For particularly dangerous is the considered opinion of the Ministry of culture,

that the State cannot be allowed to grant legal personality under their

the law of churches resulting from abroad. This is, therefore, that the

the territory of the Czech Republic could create dangerous religious groups,

whose activity meets all the characteristics of section 5 of Act No. 3/2002 Coll. and State

He could not intervene against them would be, and so the adoption of this opinion, threatens

the sovereignty of the State and can lead to disruption of the constitutional order of the Czech

of the Republic.



The Ministry of culture also points out that Act No. 3/2002 Coll. in

fully preserves the high degree of religious freedom, which is given by

By the Charter, and the appellants themselves do not mention any example of its

the actual restrictions. On the contrary, liberalizes access to registration for a few

numerous churches and ensures the protection of the rights of third parties. For these reasons,

the Ministry of culture believes that the Constitutional Court had a proposal from the

reject.
The Constitutional Court also requested the opinion of the Ecumenical Council of churches in the Czech

Republic. From her observations showed that the Bill permits

the creation of specific institutions, but at the same time the State through section 6

paragraph. 2 and 3, § 27, paragraph. 4 and 5, and section 26, paragraph. 1 and 2 of Act No. 3/2002 Coll.

can specify what religious institutions are and what they can and cannot do, in

the framework of supervision can provide what the Church can use your profit and

even the Church and its institutions, on the initiative of the Ministry.

At the same time the Church limits that may register as a legal person

the only institution that is based for the purposes of the Organization, the confession and the dissemination

religious faith, which excludes the effect of the Church, which from the beginning

form their integral filling, which is also non-members of the Church. In

as a result, it is unclear legal status, for example. Diakonie Protestant

Church or Catholic Charities, which may be compromised

service to the needy fellow citizens. In addition, the Czech legal order does not provide

other appropriate legal status allowing an integral spiritual and material

service as if these institutions have become a civic association or

generally beneficial companies, the legislation does not allow the churches to their

the establishment of the. Law No. 3/2002 Coll., extends into the vnitrocírkevní structure,

According to which the Church has not yet been recognised by the State, as is the case for example. u

Evangelical Church, which basically leads to interference

components of the Church konstituované its internal regulation. Furthermore, in the

comments points out that the liability for the obligations of the Church as a whole

Church legal persons constitutes a new element of collective responsibility

and this then brings problems, where the basic unit are

religious communities which have banded together for the purpose of mutual cooperation, as

It is for the unity of the Brethren Baptists. This prevents the possibility of

organise according to their own internal rules. For intervention in the

vnitrocírkevní structure is to be considered as well as the obligation to record the data

and their changes of members of statutory bodies, which represents an increase

the Administration, because for each of several hundred Parish Councils can be

up to 24 people, for which notification is required, and such persons are often

changing. As a result, the State forces them to change the internal rules of the Church, according to the

which has not yet legally to work.



Law No. 3/2002 Coll., also compared to the previous edit in the opinion

The Ecumenical Council of churches in the Czech Republic reduced on the basis of § 2

paragraph. 1 standard protection of believers, does not provide the possibility of unions of churches

suggest to register the Church legal entity and does not allow the existence of

unions, Church legal entities at the local level, which reduces the

Ecumenical cooperation. Also to the disadvantage of churches compared to other

operators as a result of restrictions on business activity, since the profit must not

be used for gainful activity. The Ecumenical Council of churches

in the Czech Republic points out also that, in the exercise of special rights is

a condition of publication of annual reports, whose content is not

set. Also the penalties provided for in Act No. 3/2002 Coll., no equivalent in other

bodies, establishing control over the churches, which stand on the basis of their

administrative measures may cause the demise of the Church legal persons

in the case of socially dangerous action, instead of it

It was solved by criminal law. The area is under-resolved

labour-law relations with regard to problematic link to law No.

218/1949 Coll., quaint is also editing, when the Minister may grant a

permissions to specific rights under section 7 of Act No. 3/2002 Coll., outside

the conditions referred to in section 11 (1). 4, IE. outside the provisions of no. 3/2002 Coll.

the law. Due to these reasons, the Ecumenical Council of churches in the Czech

Republic of the proposal of the Group of Senators supports it.



The Constitutional Court also requested the opinion of the Czech Bishops ' Conference

expressed the view that the contested legislation is compared to the previous step

back and leads to the restriction of fundamental rights and freedoms. In its opinion,

There is no reason to build a larger Church under State supervision and control

and limit their scope to resolve internal affairs. Law No. 3/2002

Coll. even prevents the Church act-under the legal form of ecclesiastical persons-

in the area of social, charitable and health. While these services

have always been an integral part of the life of the Church, when a series of voluntary

workers and financial donors supporting these activities, precisely because

These are the activities of the Church, and not of the federal or any other. The withdrawal of the Statute

ecclesiastical legal persons charities will lead to the flood of interest

work with them and support them, and also because the Church over them

lose control if they have to rise to a new place in General

beneficial to society or civic associations. This extra step charities

both drains funds that could be used to

social activity and reduced their prestige in the Czech Republic

abroad. Czech Bishops ' Conference also argues that the State when

registration of the Roman Catholic Church accepted the basic document and

Code of Canon law as its internal standard that assumes

the creation of charitable and other organizations. The new law got into

direct conflict with this internal standard, as well as with previous administrative

the acts of the Ministry of culture.



Law No. 3/2002 Coll. on State administration and withdraw, giving legal

personality the Church legal persons, which can be considered

unnecessary and unfounded effort to State about excessive regulation

civil society. To the question of the position of Canon law in our

the legal order of the Czech Bishops ' Conference, said that the Church only

requires that the competent national authority, to respect the internal regulations

the Church, and if any provisions against these internal regulations

objections, then it is intended to incorporate into the upcoming International has a contract between the

The Czech Republic and the Holy See. In a statement also points to the

that the legislation of Western European States you cannot directly equate to

the new law, since it is the older legislation and the Church should

the ability to adapt to the requirements of the State without any negative impact on the

their activity.



Czech Bishops ' Conference also reported that State on the basis of Act No.

3/2002 Coll. may increasingly intervene in the life of the Church. This is

all about the obligation to issue an annual report in the performance of specific

rights, on the introduction of a supervisory and punitive role of the State in breach of the obligations

the Church against the State and third parties, where the State can penalize the entire

the Church for the mistakes committed by some of the religious bodies

persons, of withdrawing the special rights, the introduction of the celocírkevního liability for

the obligations of religious juridical persons, which in combination with sanctions

under the law on heritage preservation could lead to the bankruptcy of many parishes

the unwilling to finance repairs to their churches, and ultimately to the

the oppression of the whole Church of economic sanctions. Increases are also

administrative burden eg. When writing data and changes

statutory bodies. Furthermore, the contested law restricts the Church when disposing of

the profit, which may not be used for investing in employment,

which leads to economic discrimination and allows the authority control

the management of the Church. Expression of the problematic formulation

some of the manifestations of religious freedom within the meaning of section 2 (2). 3 of Act No.

3/2002 Coll., discriminatory government permission to grant under section 27. 8

Law No. 3/2002 Coll. world religion of the Act and the exception problem

the legal personality of religious schools. In view of the above, the

Czech Bishops ' Conference is convinced that the situation requires

protection by the Constitutional Court.



The expression of the Czech Bishops ' Conference was attached observations

The Association of the Czech Catholic charity, which is the instrumental equipment

the Roman Catholic Church and a legal person under the code of Canon

law and Act No. 308/1991 Coll., this device provides the charity,

humanitarian, health, educational and social services in a significant

range, and the recognition of its importance by the State authorities as well

the fact that its activities contribute to the high authorities of the State

subsidies. In a statement pointing out that Act No. 3/2002 Coll.

requires separate ecclesiastical legal persons, which are not

established for the purpose of meeting the religious needs of believers and

evangelism, to register again as a civil association or

generally beneficial companies, thereby distorting their close connection with the

churches. The need for such a connection is then in the comments demonstrated on

individual cases. In the opinion of the Charity, this facility relies for its

the activity of spiritual connection with the Church, expressed in particular in the organizational

the structure, which allows you to implement the specific function. The guarantee of the

that will preserve the spiritual dimension, is not only the influence of the Church on

the appointment of the statutory bodies. the President of the Charity, but the

contextualize the organizational components to the overall organizational structure that
allows you to how their collaboration on projects of a national dimension, so

an independent procedure of individual Charities, according to local needs. This

organizational structure can be by Act No. 3/2002 Coll., distorted and change

legal forms will bring administrative and financial burden.



III.



The Constitutional Court as soon as possible in accordance with section 68, paragraph. 2 Act No. 182/1993 Coll.

examined whether the law, which the plaintiffs argue its

the unconstitutionality, respectively the unconstitutionality of its individual provisions,

He was accepted and published in the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner. In this respect, from the těsnopisecké message from 38. the meetings of the

The Chamber of Deputies held from 21 June. 9. in 2001, shows that the Chamber

the Chamber of deputies by a majority vote of the 107 172 MPs, taking 59

votes against and 6 abstentions, MEPs approved the proposal

law (resolution No. 1732). After the rejection of the Bill by the Senate, which occurred

10. the meeting of 25 October. 10.2001 (resolution No. 190), the Chamber of Deputies

According to the těsnopisecké messages from 43. the meeting, held June 27. 11., 2001

the draft of the Act, when a vote of 189 in the present

members of Parliament for the Bill expressed its 119 members, against 61 was

members and 9 abstentions (resolution No. 1861). Finally, the law was

returned by the President of the Republic and the Chamber of deputies at its 43. the meeting,

held on 18 July 2005. 12. the 2001 Act again, if approved of 179

members of Parliament voted for the Bill, against 121 members was 48

members and 10 abstentions (resolution No. 1981). On 7 December 2004. 1.2002

the law was promulgated in the collection of laws. It is obvious that the law No.

3/2002 Coll. was adopted and issued a constitutionally prescribed manner and within the limits of

The Constitution laid down the competence in compliance with the kvór provided for in article. 39

paragraph. 1 and 2 of the Constitution.



IV.



The Constitutional Court when considering the proposal of the Group of senators in particular feel

the need for first-in General, at least in brief-express

to each of the constitutional principles of religious freedom in the constitutional order

Of the Czech Republic. In this respect, in particular, is based on the following

the facts.



Czech Republic is based on the principle of a lay State. According to the article. 2

paragraph. 1 of the Charter is a State based on democratic values and

"do not bind nor on exclusive ideology, not on religious belief."

It is therefore clear that the Czech Republic must accept and tolerate

religious pluralism, that is. above all, must not discriminate against or vice versa

unreasonably favour one of the religious guidelines. From the cited

the article also implies that the State must be separated from the specific

religious denominations.



The principle of religious pluralism and tolerance is also made in the article. 15

paragraph. 1, and in article. 16 of the Charter. Article. 15 paragraph. 1 of the Charter provides that the freedom of

thought, conscience and religion is guaranteed, and that everyone has the right

change your religion or faith or to be without religion.

According to the article. 16 of the Charter, each has the right to manifest freely his religion

or belief either alone or jointly with others, privately or publicly,

in worship, teaching, practice or observance of religious acts of the ceremony

((1)). Churches and religious societies administer their affairs,

in particular, organizing their bodies, their spiritual and enshrine establish monastic

and other church institutions independently of the State authorities (para. 2).

The exercise of these rights may be restricted by law, if the measures in the

democratic society for the protection of public safety and

order, health and morals or the rights and freedoms of others (para. 4). How

the Constitutional Court has already expressed in the past, contrary to freedom of conscience and

religion, for which the Charter explicitly provides that any possible

the conditions for its performance, you can limit freedom of religion or belief

limit by law for these reasons. It is here, however, while the possibility of

restrictions on the exercise of these rights, not their editing State (resolution of

8.10.1998 SP. zn. IV. TC 171/97, the Constitutional Court: the collection of findings and

resolution, of St. 12, pp. 457 et seq.).



It is clear that religious freedom can be fundamentally define the particular

as the forum internum (article 15, paragraph 1, of the Charter). as the freedom of every

to profess a certain religion and faith, to which it is not possible from the third

persons, and in particular the public authorities to intervene. As for the so-called. status negativus,

libertatis respectively (G. Jellinek), the characteristic definition of free

the space of the individual, to which the public authorities may not enter. At the same time, however,

It is obvious, that the restriction of religious freedom to the forum internum is

insufficient, since conceptual feature of religious liberty is the right to

each manifest his religion outwardly, naturally when you

respecting the restrictive kautel laid down in the article. 16. 4 of the Charter.



From what has been mentioned, also directly follows the principle of the autonomy of the Church and

religious organisations consisting of primarily in that State to

the activities of churches and religious societies may not intervene, and if

the activity of the Church is limited to internal affairs (in particular on organizational

the breakdown), is not in principle, such measures may be reviewed before

State courts (judikoval, the German Federal Constitutional Court,

BVerfGE 18/385).



Finally, the Constitutional Court notes that religious freedom is not guaranteed

only at the level of national law (i.e. primarily cited

the provisions of the Charter), but is also the subject of protection

International (e.g. Article 18 of the Covenant and article 9 of the Convention). In this

the context of the Constitutional Court emphasises that the Czech Republic is, according to article. 1

paragraph. 1 the Constitution of the democratic rule of law based on respect for the rights of

and freedoms of man and citizen. In the case of the said principle

in particular, it appears that the Constitutional Court must be based on the national or

the international scheme, which provides a higher standard of protection

fundamental rights and freedoms. If, in the case of guarantees

the national adjustment contained in the Charter of greater protection of rights than

governed by the provisions of international treaties, already for this reason

must be applied as a priority.



In the.



The proposal to repeal the whole of Act No. 3/2002 Coll., the Constitutional Court States that the

the appellants themselves essentially supply the relevant arguments for

reasonable presumption of unconstitutionality of the entire Bill. If

the plaintiffs-only in general-note that the contested Law provides

the lower standard of human rights as opposed to the law No. 308/1991 Coll., which

derogoval, and already in the fact of its unconstitutionality, see

left to the Constitutional Court recalled its settled case law than,

According to which the cancellation of the contested Law neožívá law earlier, which was

unconstitutional law abolished or amended (find of 12.2.2002 SP. zn. PL.

TC 21/01, promulgated on 11 July. 3.2002 under no. 95/2002 Coll.). Even if the

The Constitutional Court agreed with the plaintiffs, and presented the opinion of the (only) from the

for this reason, set aside by law No. 3/2002 Coll., no recovery Act

No. 308/1991 Coll. and only would be the adoption of an objective need occurred

entirely new law governing religious material. In addition, it is necessary to

recalled that the reason for the cancellation of the law cannot be its only

comparison with previous legislation, as the appellants suggest, but

exclusively the findings conflict with the constitutional order of the Czech Republic.



Already for these reasons, the Constitutional Court notes that-the closer-justified

the proposal to repeal the whole of Act No. 3/2002 Coll. did not find the reason and further

therefore dealt with only a proposal for the repeal of the provisions

Law No. 3/2002 Coll., respectively. the proposal to cancel some of their parts.

In doing so, he advanced so that it is always at the same time devoted to those provisions, which

content directly related to each other.



VI.



The question of the registration of churches, religious societies and registration

ecclesiastical legal persons:



The text of the contested provisions:



The provisions of section 6 (1). 1, 2: Registered churches and religious societies



(1) the Church and religious society becomes a legal person

registration (hereinafter referred to as "registered Church and religious society")

under this Act, unless the law provides otherwise.



(2) a registered Church and religious society may propose to the

the registration authority of the churches and religious communities or monastic and other

Church institution based in the Church and religious society according to the

its internal regulations for the purpose of the Organization, the confession and the dissemination

religious faith as a legal person under this law (hereinafter referred to as

"religious legal person").



The provisions of § 16: registration of religious juridical persons



(1) a proposal for the registration of the registered Church and religious authority

the company and other ecclesiastical or monastic institutions as legal person

the authority serves registered churches and religious societies to the specified

in the basic document submitted in accordance with section 10, paragraph 1. 3.



(2) a proposal for the registration of legal persons referred to in paragraph 1(b). 1 must contain



and the proof of its creation) to the competent authority of a registered

Church and religious society according to its basic document,



(b) the definition of the subject of its activities) and to its articles, if any,
(c)), which in its name must be different from the name of the legal person, who has already

develops activities in the territory of the Czech Republic or already on the register

She asked,



(d)) its registered office on the territory of the Czech Republic,



(e) the indication of the statutory body) on the territory of the Czech Republic,



(f) the personal information of its members), the statutory body.



(3) the proposal referred to in paragraph 1(b). 1 shall submit a registered Church and religious

the company within 10 days from the date of the founding of the Church legal persons.

The Ministry performs registration of religious juridical persons registration

The Church register of legal persons within 5 working days from the date of

the delivery of the proposal. Registration is carried out by registration on the date of its foundation in

registered Church and religious society.



(4) non-registered Church and religious society of the period

referred to in paragraph 1(b). 3, the registration shall be effected on the date of receipt of the proposal writing

According to paragraph 2(a). 1 the Ministry of.



(5) If no suggestion. 1 all of the requirements referred to in paragraph 1(b).

2, the Ministry will invite not later than 10 working days from the date of delivery of the

the design authority of registered churches and religious societies, true to

his submission to the draft added. gaps in the

period of 30 days, and notifies him that if this time limit is not complied with, the procedure for

the draft stops.



The provisions of § 20: Index of ecclesiastical legal persons



(1) in the register of religious juridical persons shall contain the following information and

their changes:



and the name of the Church legal persons) with indicating the date and the registration number,



(b) the seat of a legal person) Church on the territory of the Czech Republic,



(c) the indication of the statutory body of the Church) of a legal person,



(d)) the personal data of members of the statutory body of the Church of the legal person,



(e) the identification number of the Church) of a legal person,



(f) cancellation of the registration of the Church) of a legal person, the entry in the disposal and

the personal data of the liquidator, bankruptcy, and personal information manager

in bankruptcy, the rejection of the application for a declaration of bankruptcy, for

lack of assets and the initiation of proceedings for the settlement of indicating the date and number

a decision on these facts, the



(g)) legal identification data of the successors of religious juridical persons,

If the revocation with the legal successor,



(h)) the demise of ecclesiastical legal persons.



(2) the register of legal persons, part of the Church is a collection of documents

containing the documents to be submitted in the proposal to register the Church

legal persons and in the proposals for their amendment.



(3) the information referred to in paragraph 1 (b). (d)) and their amendments on the basis of

the application of the registered Church and religious society replaces the designation

the authority of the Church and religious society, that these data and their changes

leads and which is required to conduct this part of the Register of Church

legal persons to comply with the provisions of § 17 apply mutatis mutandis.



The provisions of section 22, paragraph. 1 (a). (d)): cancellation of the registration of the Church and

the religious community and the Union of churches and religious societies



(1) the Ministry will initiate proceedings for cancellation of the registration of churches and religious

the company or the procedure for cancellation of the registration of the Union of the churches and the

religious societies



(d)) if not for longer than 2 years, the designated authorities of the registered

the Church and religious society or church and the statutory bodies of the Union

religious societies or the current authorities and statutory authorities

over the term of more than 2 years and not to the provisions

the new.



The provisions of § 26: cancellation of registration of the legal entity of the Church and its demise



(1) the Ministry shall revoke the registration of the Church legal persons



and on a proposal from the registered), churches and religious societies to 5

working days from the date of delivery of this proposal,



(b)) on its own initiative, finds that the Church's legal person acting in

contrary to the definition of its scope in the register under section 15

paragraph. 4 or in conflict with the law, and if the remedy fails to

the competent authority of a registered Church and religious society

the call of the Ministry, at the date of the entry into force of the decision on their

registration,



(c)) on its own initiative, shall lapse if the registration of churches and religious

the company, which the Church legal person has proposed to register, on the date of

the entry into force of the decision on the cancellation of registration of churches and religious

the company, pursuant to section 24, paragraph. 3,



(d)) if the assets of the Church legal persons declared bankrupt,

cancellation of bankruptcy after completion or cancellation of resolution rozvrhového

bankruptcy on the grounds that its assets are not sufficient to cover the costs

bankruptcy, or rejection of a proposal for a declaration of bankruptcy for lack of

the asset.



(2) a legal person extinguishes the deletion of registration in the register

ecclesiastical legal persons.



(3) the demise of the Church preceded by a legal person, its liquidation,

or cancellation without liquidation, to the assets and liabilities on the

Church and religious society or other church legal

the person.



(4) it is not sufficient to dispose of the assets of the Church legal persons

to the payment of the liabilities shall be liable for the obligations of the Church and religious society,

that it has proposed to register the



(5) if the Lapse of the Church without liquidation of the legal person and not on it

filed for bankruptcy, is the date of cancellation of the same as the date of

deletion from the register of religious juridical persons.



The provisions of § 28 paragraph. 4 and 5:



(4) the registered churches and religious societies referred to in paragraph 1 are

obliged to within 1 year from the date of entry into force of this Act

Supplement to the Ministry of information in accordance with this Act for the registration or

the registration of. Attaches a registered Church and religious society these

the Ministry of information, it prompts you to add data in term of at least 30 days

from the date of receipt of the request. Attaches to the registered Church and religious

company data in this term, the Ministry may by nature

data not to initiate the procedure for the cancellation of its registration.



(5) a registered Church and religious society is required to supplement the

a period of 1 year from the date of entry into force of this Act, information about

registered Church legal entities under this Act by the authority

to that specified in the basic document. If information is not about the Church

accompanied by a legal person within this period, the Ministry will invite the registered

Church and religious society to supplement the data at least 30

days from the date of receipt of the request. Attaches a registered Church and

religious society of the information within the deadline, the Ministry may

According to the nature of the data records of the Church not legal persons

Cancel. For the ecclesiastical legal persons existing for more than 50 years can be

replace the document establishing pursuant to section 16. 2 (a). and of this law)

a sworn declaration by the competent church and religious society.



The words "and the register of religious juridical persons" in the provisions of section 29:

The enabling provisions



The Ministry shall determine by Decree the details and conditions for leadership

The register of registered churches and religious societies, the register

the Union of churches and religious societies and churches Index

legal persons and patterns of all statements from the registration or registration referred to in

of this law.



The Constitutional Court notes that the essence of the cited provisions of the law No.

3/2002 Coll. is (I) establishment of the principle that the legal formation of the Church and

religious society occurs at the moment of registration, which performs

the competent Ministry. The same authority is entitled to also register the

Cancel. (II) a registered Church and religious society may

the Ministry propose to register the Church legal person, and

the law regulates in detail the particulars of this evidence, defines the Terms

legal persons, and also the cancellation of the registration of reglementuje the legal

the person and his demise.



To the question of registration of churches and religious communities mentions the Constitutional Court

the following (ad):



1. In accordance with the provisions of section 6 (1). 1 of Act No. 3/2002 Coll., the Church and the

religious society becomes a legal person registration under this

the law, if the law does not provide otherwise. This means that the wording of the law

No. 3/2002 Coll., which is part of national law, positively

regulates the formation of legal status referred to religious associations, and that the

Therefore the legal formation of these bodies is derived from registration carried out by the

by the Ministry. Individual legal act, which is the registration and therefore has the

constitutive effects and its essence represents the acceptance of a State in

relation to the creation of a specific Association.



2. In this connection, the Constitutional Court could not overlook the adjustment, contained

in the cancelled Act No 308/1991 Coll., on which the plaintiffs also

explicitly point out. In accordance with the provisions of section 4, paragraph 4. 2 this Act, namely

true, that "the Church and religious society operating on the territory of the Czech and

Slovak Federal Republic on the basis of registration. " Previous

legislation based on the principle that the churches and religious

the company could legally exist independently of the acceptance of the State power,

However, if you wanted to legally operate on the territory of the State, relevantly, was

required to do their registration. Other than the registered Church and

the religious society of the State as a legal person, the younger (section 4, paragraph 4,

Act No. 308/1991 Coll.).
3. It is clear that the wording used in the provisions of section 6 (1). 1 of law No.

3/2002 Coll. is significantly different from the previous adjustment. While the law No.

308/1991. modifies the process for registering churches and religious

the company expressly for the purposes only of the national

environment and did so primarily because of the need for legal certainty

third parties, the text of the new legal provisions, aspires to a first look at the

konstitutivnost effects of registration of the legal persons, i.e..

raises the idea that the national administrative act leads to legal

the emergence of churches and religious societies, their general legal

eligibility. To do this, however, it is to be noted that such an approach would clearly

talking over the circuit with a series of churches and religious societies,

whose legal existence often stems not from the State but from

Canon law (or international law) and State power, therefore,

can't have the ambition to legally regulate these institutions (including their

Constitution) but only restrict their activities in cases of

set out with an exhaustive manner in article. 16. 4 of the Charter.



4. The Constitutional Court also notes that, for example. relations between the Catholic Church

(The Holy See), and the individual States are traditionally prepared

international treaties (concordats). The content of these agreements is primarily

Edit organizations religious institutions within the State. It is clear,

that the legal personality of the Catholic Church is undisputed and the national

the rule of law cannot in any way interfere with her and question her.

Confirmation of this account. the diction of the article. 1 the draft Treaty between the Czech

Republic and the Holy see on the adjustment of relations, according to which

designated Contracting Parties recognise mutual international

personality and the other shall be considered as an independent and separate entities

According to international law and undertake to this personality fully

respect.



5. The Constitutional Court in a number of its earlier decision emphasized the

the fact that prefers the principle constitutionally Conformal interpretation

legislation before their derogations. In the present case, it is clear that

the legislature of the different formulations of the cited provisions-as opposed to

the former provisions of section 4, paragraph 4. 2 of Act No. 308/1991 Coll.-created

somewhat unclear legal situation, which completely do not correspond for example. with

the demand for the creation of the laws of the European Court of human rights

and while respecting the law in terms of availability, its

clarity and predictability (prévisibilité, foreseeability)

the consequences of that. ["For" the law "can be considered as the only standard

formulated with sufficient precision to enable the citizen to adjust

behavior "(thing Hashman and Harrupová vs. United Kingdom, overview

the judgments of the European Court of human rights, no. 1/2000, p. 46).]

The Constitutional Court considers, however, that the claimant namítaný contradiction

the provisions of section 6 (1). 1 of Act No. 3/2002 Coll. with the mentioned constitutional

kautelami can be used to bridge the appropriate interpretation of the Constitution and that it is therefore not

the necessary of its abrogation.



6. In this respect, therefore, the Constitutional Court States that the provisions of section 6 (1). 1

Law No. 3/2002 Coll., cannot affect the legal personality of churches

According to religious orders or of international law, but rather just a

establishing certain conditions for the recognition of their legal personality

to guarantee a minimum of protection of other participants also private

property relations. The provisions of § constitutionally Conformal interpretation 6.

1 of Act No. 3/2002 Coll. is such that this provision

cannot be inferred any challenge to the already existing General

personality of churches and religious societies and rights on their

the existence of independently of the acceptance of the State (the Czech Republic). Function

their registration is therefore the same as in the case of the adjustments contained in the

Act No. 308/1991 Coll., which, however, this fact in the chosen language

reflect significantly more accurately-therefore only the determination of the conditions of the action

and legally relevant activities of churches and religious communities on the territory of the

The Czech Republic, not the emergence of their general legal capacity.



7. The Constitutional Court also notes that, similarly as above is

to be in accordance with the Constitution to interpret whether or not the cancellation of the registration of the Church and

religious society (or the cancellation of the registration of the Union of the churches and the

religious societies), contained in the provisions of section 22, paragraph. 1 (a).

(d)) and section 28, paragraph. 4 of law No. 3/2002 Coll., if the Constitutional Court

He came to the conclusion that the State is entitled to establish the conditions for the operation and

legally relevant activities of churches and religious communities on the territory of the

The Czech Republic and those conditions formally expressed in the Institute

registration, it is necessary to consistently respect the law of the State also

lay down the conditions for the withdrawal of the legally relevant

the action of churches and religious communities on the territory of the Czech Republic in

the case of a breach of these terms and conditions.



8. therefore, the Constitutional Court came to the conclusion that the provisions of section 6 (1). 1, section 22

paragraph. 1 (a). (d)) and section 28, paragraph. 4 of law No. 3/2002 Coll. are not contrary to article. 16

paragraph. 2, 4 of the Charter, and therefore rejected the proposal to their cancellation.



To the question of registration of religious juridical persons, the Constitutional Court stated

the following:



1. The Constitutional Court mainly notes that article. 16. 2 of the Charter of

regulates the right of churches and religious societies administer their

Affairs, in particular against their bodies, set up your spiritual and

set up monastic and other church institutions independently of the State

the bodies. It is therefore a fundamental right, which have a church and

religious communities as a specific legal persons (see, for example.

the resolution of the Constitutional Court of the CZECH REPUBLIC SP. zn. IV. TC 171/97, collection of findings and

resolution, of St. 12, p. 468; Similarly, whether or not the resolution of the Constitutional Court of the SLOVAK REPUBLIC

10.10.1995 SP. zn. II. the TC 128/95, Zbierka nálezov Ústavného and uznesení

the Slovak Republic súdu 1995, Košice, 1996, pp. 322 et seq.).

The content of this right is the right to autonomy. the law on the independence of the

the State in the management of their affairs. The guarantee of free enterprise and

management of your own affairs namely is a prerequisite for

freedom of religion and the Church, requiring for the conservation

its tasks, promoting freedom of determination of organization and management standards

(see for example find the German Federal Constitutional Court BVerfGE 70/138).

Also the opinion of the professional literature comes from that article. 16. 2

The Charter does not preclude the exercise of the external State and assumes oversight of the

the perspective of the conservation laws in those specific associations, "that have been

protected values referred to in paragraph 1(b). 4 of this article. Such statutory

the relationship of the State to these associations, however, could not restrict the independence of the

churches and religious societies with regard to the establishment of its institutions and

other issues of inner life "(P et al.: the Constitution and the constitutional order of the

Czech Republic, 2. episode-the rights and freedoms, Linde, 1996, p. 154).



2. the Ministry of culture in its comments to the draft-in this context

-States that it is necessary to distinguish between the different fields of action of churches and

religious communities and that this legal regime is to be distinguished from the

individual rights and freedoms of the citizens, since they said "legislation of churches and

religious societies is not intended to modify individual rights

citizens or each person in the area of faith and religion. "

The Ministry of culture also takes the view that the plaintiffs incorrectly and

assigned issues concepts of "religious institutions" and "the Church legal

the person ", which apparently affected the law respects the right of churches and religious

companies establish religious institutions without legal personality;

extensive interpretation of the Charter in the sense of an autonomous establishment Church

legal persons, however, reportedly "violates the constitutional principle of sovereignty

State. "



3. the contentious issue in the present case, therefore, is, in particular, the assessment of whether the

creating a church legal persons can be accommodated under the article. 16. 2

Of the Charter or not. Expressed in other words, whether the establishment of monastic and

other religious institutions can be understood either restrictively in the

the meaning of this constitutionally protected right applies only to the

vnitrocírkevní institutions without a separate legal

personality, or whether on the contrary-in extensive meaning-this

the provisions also apply to the institution with its own legal personality.



4. Eg. the German Federal Constitutional Court accepted that for example. "the concept of

the Catholic Church includes the exercise of religion, not only in the area of faith and

freedom of worship, but also to the development and operation in the world, which

corresponds to its religious tasks. This includes especially the charity

the action. The active love of neighbor is the essential task of the Christians and

Christian churches is understood as a basic function. Does not include only

religious provided hospital care, but it is generally in accordance with the basic

religious requirements focused on the necessary security people

including their education and training "(BVerfGE 70/138; 57/220). In this

context, it is also appropriate to draw attention to the article. 10 of the draft contract between the
The Czech Republic and the Holy see on the adjustment of relations

(Note: on this contract, in its comments to the draft refers

in particular, the Minister of culture), according to which the Catholic Church is established in

accordance with their own provisions for legal persons the organisation and

the confession of the Catholic faith "and for its operations, in particular in the areas of

education, health, social and charity care. " This means that the

the present proposal of the Treaty clearly accepts that the (Catholic) Church is

authorized to establish the Church's legal person and respects their

the action not only in the area of the confession of faith, but also in other areas,

which are an integral and indispensable part of any active

the Church and religious society.



5. If, therefore, the provisions of section 6 (1). 2 of Act No. 3/2002 Coll. limits

the right of churches and religious communities to propose to register the Church

legal person only "for the purposes of the Organization, the confession and the dissemination

religious faith "is restrictively defined the concept of manifestly

contrary to the objective and purpose of the Church itself and the religious communities and

suggests a fundamental misunderstanding, since their activities are

Naturally, which only on the presentation of religious faith, but your

the activities of the outwardly, in excess of the limit to a mere exercise of religion

radiate throughout the company and represent and prerequisite

the functioning of civil society. This restriction obviously contradicts the article. 16

paragraph. 2 of the Charter because this article guarantees the right of churches and

religious societies establish the monks and other religious institutions

independently of the State authorities, while the provisions of section 6 (1). 2 (the same

as a follow-up to the provisions of section 28-paragraph. 5) makes the legal formation of

ecclesiastical legal persons carried out by the Department of records.



6. While it is clear that the limitation of the legal formation of ecclesiastical bodies

persons resulting from the provisions cited or do not correspond with the mandatory

expressed the reasons for which it is possible to restrict the exercise of these rights and

positively established in the article. 16. 4 of the Charter. These restrictions, which already

having regard to their nature is to be interpreted in a restrictive manner, namely,

may occur only "in the case of the measure in a democratic society

necessary to protect public safety and order, health and morality

or of the rights and freedoms of others. " With the use of the argument and the other is

the obvious, that the statutory restrictions on the basic rights enshrined in article.

16. 2 of the Charter provided for the registration of legal condition of the Church

persons by the Ministry does not fall under any of the above constitutional and kautel

It is, therefore, for this reason the restrictions unconstitutional, nerespektující

the autonomy of churches and religious societies and the plurality of their

activity. As is apparent from the case-law of the European also constant

Court of human rights, to the limitation of fundamental rights must be met three

basic conditions: it must be provided by law, must be directed to the

legitimate objective pursued, and must be necessary in a democratic society. In

the matter is under consideration, however, the obvious, that is true, only the first of these

conditions and State interference in the establishment of ecclesiastical legal persons

You cannot mark for pointing to legitimate objectives or measures necessary to

in a democratic society.



7. The Constitutional Court also notes that the provisions cited by the diction is

legal formation of ecclesiastical legal persons bound to record and not on the

the registration. In terms of the legal theoretical, therefore, for the formation of the Church

legal persons should be set substantially "looser" than for the

other legal persons that knows the Czech law. Indeed, the evidence of his

the essence of (unlike registration) does not constitute a constitutive, but

only a declaratory Act. Therefore, it can be to register

already proposed "institution-based" and the effects of registration are fundamentally dating

backwards, IE. the date of the founding of the Church no longer legal persons registered

the Church or religious society, and not on the date of registration. From

However, the actual application point of view, and not to be overlooked, that between

records and registration, as provided for in the contested act,

There is no noticeable difference, since the draft law on the registration of

provides for clear conditions under which failure-which is authorised to

assess the Ministry-to register does not (read: no

the rule of the Church institution), and the Ministry is in the

positive cases, also be entitled to cancel the registration of the Church

legal persons, if e.g.. It finds that the Church legal entity is

in contradiction with the definition of its scope or in (94)

conflict with the law.



8. In the legal environment in the Czech Republic the Constitutional Court could not overlook

even the fact that the right of Association in the churches and religious

companies, a specific form of exercising the right bargain collectively.

However, the "normal" of the Association, according to the Act No. 83/1990 Coll.

the right to establish its organizational components. Misc. legal

person, derived from the society as a whole and possessing legal personality

(see e.g.. I. the Federal law, Telec, C.H. Beck, 1998, p. 148 and

subs.) and to the establishment of such legal persons, in principle, it is sufficient to edit

in the statutes of the Association, recognizing this option. The emergence of these

side of legal persons is not subject to the acceptance by the

State. For the reminder is also in this context the way legal

the formation of trade unions and employers ' organizations, which occurs

ex lege already on the day following after the Ministry received a proposal from the

on the register (section 9a (1) of Act No. 83/1990 Coll.). Also from this

the national comparative point of view, it is a legal requirement to register

ecclesiastical legal persons are unfounded. In other words, since the

the Church and religious society are its significance unique.

the usual societies (associations), and if the current guilds can, without the State

ingerence establish legal persons, is not justified by the statutory limitation for

the emergence of religious juridical persons registration by a public authority.



9. The Ministry of culture's argument that an autonomous establishment

ecclesiastical legal persons violates the constitutional principle of the sovereignty of the State,

It is to be rejected, and this already for that reason that the concept of a democratic

the rule of law is closely connected with the idea of the liberal State

tolerujícího the plurality of social phenomena and the institutions. The principle of the

the sovereignty of the State is therefore not possible to understand such extensive way,

He will not necessarily oppose a legal existence itself of any

legal entities are derived from other legal fact than the explicit

acceptance of State power. The idea of a liberal rule of law, namely the

based on the fact that the State has limited his public interventions, and the impact only on

in such cases, when it is necessary and when it clearly corresponds with the

the public interest. Přebujelost of State influence and arbitrary rules

social phenomena is manifestly inconsistent with this concept. In the case of

churches and religious societies is, moreover, account should be taken of the fact that

This is often a historical institution existing continuously in various

forms of Government and in the different State constitutions. The State, therefore, these

institutions representing the realization of religious freedom had access

particularly sensitive and should consider very closely their restrictive

interventions and limit is actually justified cases.



10. on the basis of what was stated, the Constitutional Court-led

the principle for self-limitation and minimizing interventions (self-restraint)-to the conclusion

about the unconstitutionality of the provisions of section 6 (1). 2 and § 28 paragraph. 5 of law No.

3/2002 Coll. of these provisions is the belief of the Constitutional Court

the conditionality rule results directly the emergence of religious juridical persons

by decision of the State. de facto, even if their registration is in the Act

formally designated as the registration. However, because the Constitutional Court did not

compelling reasons for disputing the very principle of these

operators (and in its real sense, not meaning veiled

registration, as is the case in the context of derogovaného the provisions of section 6 (1). 2

the Act) and is of the opinion that their evidence is possible, in particular, of the

point of view to populate the information function and the function of the protection of the rights of third parties,

dismiss the application for annulment of the provisions of section 16, section 20, section 26, and the abolition of

quoted words in the provisions of section 29 of Act No. 3/2002 Coll., For situations when

The Constitutional Court as unconstitutional, repeals section 6 (1). 2 of the Act,

namely those provisions, it is possible to interpret and apply the Constitution

Accordingly, so their derogation is necessary. This

the provisions governing the content of the proposal because the formalities to register (section

16), an index of ecclesiastical legal persons (section 20, section 29), the abolition

registration of the legal entity of the Church and its demise (section 26) and by

the Constitutional Court's conviction is possible to their content under the current cancellation

section 6 (1). 2 and § 28 paragraph. 5 of law No. 3/2002 Coll., to interpret it

that shall not subject the legal establishment and the demise of the ecclesiastical legal persons

konstitutivním Act of State authority, but that their registration
It has merely a declaratory nature and functions of the information and the protection of

rights of third parties.



11. Of all of the above reasons, the Constitutional Court States that the provisions of section

6 (1). 2 and § 28 paragraph. 5 of law No. 3/2002 Coll., contrary to the article. 16. 2 and

paragraph. 4 of the Charter and is therefore cancelled. The proposal to repeal the provisions of the

section 16, section 20, section 26 and on abolition of the provisions cited by the words in section 29 of the Act

No. 3/2002 Coll. is rejected.



VII.



Permission to exercise special rights:



The text of the contested provisions:



The provisions of § 11: a proposal for the granting of permission to exercise special rights



(1) a proposal for the granting of permission to exercise special rights may submit a

registered Church and religious society, which



and) is registered under this Act on the date of submission of the proposal for a continuous

at least 10 years,



(b) publish annually) for 10 years before the submission of the draft annual

activity reports for the calendar year,



(c)), duly fulfils the obligations towards the State and third parties,



(2) a proposal for the granting of permission to exercise special rights serves the authority

registered churches and religious societies.



(3) a proposal for the granting of specific rights may be filed either for performance

all of the specific rights under section 7 (2). 1 or only for the performance

special rights under section 7 (2). 1 (a). and (e)).)



(4) a proposal for the granting of permission to exercise special rights referred to in paragraph 7.

1 (a). and (e))) must contain



and so many signatures on the original) of the adult citizens of the Czech Republic, or

foreigners with permanent residency in the Czech Republic, espousing this church

and religious society, how much is 1 part per thousand of the population of the Czech Republic

According to the last census, together with their personal data by the

This Act, together with the same text on each signature sheet,

that lists the full name of the Church and religious society, which collects

signatures for the purpose of its registration, and from which it is apparent that the signing

the arch is the only person being claimed that the Church and the religious

the company,



(b)) a declaration that her activity as legal persons under

This Act is not contrary to the conditions laid down by this law and that the

complies with the conditions referred to in paragraph 1 (b). (c)),



(c)) lyrics of the annual reports referred to in paragraph 1 (b). (b)) and accounts

for 10 years prior to the submission of this proposal.



(5) the proposal on granting permission for the performance of all of the specific rights under section

7. 1 shall contain the particulars referred to in paragraph 4 and in addition the document

confirming that the obligation of confidentiality in connection with the

performance zpovědního the secrets of, or in connection with the exercise of the rights

like zpovědnímu secret is part of the traditional teachings of the Church and

the religious community is at least 50 years.



The provisions of § 21: cancellation of permission to exercise special rights



(1) the Ministry shall initiate the procedure for the cancellation of permission to perform a specific

the rights of the



and if the registered Church and) religious society violates the serious

manner or repeatedly Payables to the State or third parties,



(b)) if the registered Church and religious society does not publish

each year an annual report under section 7 (2). 3, or



(c)) on the basis of the authority of the State administration under the initiative of the

a special legal regulation, in which there is evidence of serious or repeated

infringement of registered churches and religious

the company under special legislation or agreement with the following

State administration body.



(2) the Ministry of the revocation permission to exercise special rights

registered churches and religious societies referred to in paragraph 1, stops,

expires if the reason for the proceedings or provide proof of a registered Church

and religious society in writing that the procedure proposed in her

reasonable period of time to eliminate the reason of the proceedings initiated in agreement with the

persons who were without prejudice to the negotiations that led to the initiation of

cancellation of permission to exercise specific rights.



(3) the decision of the Ministry about cancellation of permission to perform a specific

rights of the registered Church and religious society affects all

special rights under section 7 (2). 1.



(4) the decision of the Ministry about cancellation of permission to perform a specific

rights of the registered Church and religious society, which has acquired the

to be able to, be sent to the Ministry on the consciousness of the Ministry of the Interior.



1. The Constitutional Court notes that the nature of the contested provision is

the law provided for the method of granting and revocation of the registered

churches and religious communities to exercise specific rights. Enumeration

special rights is legally defined in the provisions of section 7 (1). 1 of law No.

3/2002 Coll. and falls into it the right to teach religion in State

schools; instruct the person to perform religious service in the armed forces

and in places of detention, imprisonment, protective treatment and

protective education; to be funded under the special regulation; review

the ceremonies, which concluded the church marriages; set up the Church

school and maintain a spiritual obligation of secrecy in connection with

performance zpovědního secrets.



2. The Constitutional Court stems from the fact that the essence of the religious

freedom is to ensure each capabilities to freely manifest their

religion without State intervention. At the same time, however, the State, consistently separated from

churches and religious societies, cannot be obligated to the active

assisting the activities of the various churches and religious societies

(see resolutions from 10.4.1998 SP. zn. II. the TC 227/97, the Constitutional Court:

A collection of findings and resolution. 10, pp. 447 et seq.). If

the legislature provides that the State shall facilitate the activities of the religious

entities, it is his own decision, and only the State is therefore also

to be eligible to establish the conditions which these bodies must meet in order for them

the entitlement to the assistance of the State. When determining the constitutional maximou

These terms and conditions is the absence of arbitrary discrimination.



3. The nature of the so-called. special rights, it is clear that this is the case when

the State authorized churches and religious communities will allow

"above-standard" claims on specific transactions, i.e., that this is the case

the active and positive approach of the State. These positive transactions is

for example. access to public financing, the right to teach at the State

schools, the right to establish religious schools, etc. Therefore, it is also clear that

the State is fundamentally entitled to establish the conditions under which the individual

entities will have access to this implementation. The task of the Constitutional Court

There is no review and assess the suitability or appropriateness of these conditions,

but only their constitutionality. In this case, it means that the constitutional

the Court had to consider only whether certain of the statutory

the conditions of the shows features of arbitrariness and discrimination.



4. In this respect, however, the Constitutional Court in the contested provisions of § 11 and §

21 of Act No. 3/2002 Coll. did not find signs of unconstitutionality.



5. the provisions of § 21. 1 (a). (b)) of the Act No. 3/2002 Coll.,

the belief of the Constitutional Court the obvious unconstitutionality shows characters. His

the essence of it is the ability of the Ministry to cancel the permission for the performance of

special rights, if the registered Church and religious society

each year, does not publish an annual report under section 7 (2). 3 of Act No.

3/2002 Sb. This option shall be fixed by law. the contested

provision allows for example. the withdrawal of the rights of the Church or religious

company to teach religion in State schools, to enter into the Church

marriages or maintain the confidentiality of the intellectual

the reason that a registered church or religious society annually

does not publish an annual report. This edit, in the opinion of the Constitutional Court

clearly does not respect the principle of proportionality, according to which should

the legal adjustment of the relationship between consistently maintain the balance of the violation of the

the rights of the Church and religious communities on the one hand, and between the

sanctions applied by the State on the other. In the present case, however, the said

proportionality is not retained, as for the misconduct of churches and

religious organisations in the area solely information obligations

followed by penalties, falling into the area of religious nature

activity. The Constitutional Court recalled that in a similar manner in principle

He argued in the case already conducted under SP. zn. PL. ÚS 26/94 (the Constitutional Court:

A collection of findings and resolution. 4, pp. 113 et seq.) and because of this

the argument for brevity it refers, mutatis mutandis, and despite the fact that in the

This award was a case of the other special forms of private law

corporations-political parties and movements.



6. therefore, the Constitutional Court cancelled provisions as unconstitutional § 21. 1

(a). (b)) of the Act No. 3/2002 Coll., for contradiction with article. 16 of the Charter.



VIII.



The revenue of the churches and religious societies:



The text of the contested provisions:



The provisions of section 27. 4 and 5:



(4) the revenue of the Church and religious society formed in particular



and) contributions to natural and legal persons,



b) revenue from the sale and rental of movable, immovable and intangible

the assets of churches and religious societies,



(c)), interest on deposits,



d) gifts and legacies,
e) collections and contributions from part of the proceeds under the special law,



f) loans and credits,



g) income from business or other gainful activity



h) subsidies.



(5) the nature of the business and other gainful activities must be defined in the

the basic document of the registered Church and religious society.

Business and other gainful activities of the churches and religious communities

they can only be complementary to its gainful activity and achieved a profit may only be

be used only for the fulfillment of the objectives of the activities of churches and religious

the company.



The content of the contested provisions of the enumeration is a revenue of churches and religious

companies (paragraph 4) and the definition of business, churches and religious

of the company and how to use the profit achieved (para. 5).



1. The Constitutional Court mainly notes that neither the plaintiffs themselves

No nezdůvodnili what the unconstitutionality of income fro enumeration

churches and religious societies in the provision of section 27. 4 of law No.

3/2002 Coll., Because this enumeration is performed non-and not

with an exhaustive way (cf. the word "especially"), notes, the Constitutional Court,

This definition essentially corresponds with the private nature of

churches and religious societies, and even though it may be to some extent

be considered redundant, this fact cannot be found in the features

unconstitutionality (non nocet superfluum).



2. Consequently, the Constitutional Court itself did not find reason to believe that

cited provision is unconstitutional, a proposal for its cancellation as a

nedůvodný rejected.



3. The proposal to repeal the provisions of section 27. 5 of law No. 3/2002 Coll.

The Constitutional Court stated that the first sentence of that provision, according to which the subject of the

business and other gainful activities of the churches and religious communities

must be defined in the basic document, give little reason to

the presumptions of its unconstitutionality. In its essence, an

of information duty of Church and religious society, which is

legitimována the interests of other participants in the private law relations and cannot

therefore be interpreted as inadmissible restriction of the autonomy of the Church and

religious societies. Indeed, nothing like the closer does not claim nor own

the appellants. Therefore, the part of the proposal is also rejected as unreasonable.



4. In accordance with the second sentence of the quoted provisions, the business and other

gainful activity of churches and religious societies can only be her

ancillary gainful activity and achieved a profit may be used "only to

the fulfillment of the objectives of the activities of the Church and religious society. " To the constitutional

the Court States that churches and religious communities represent-as

a special form of exercise of the rights to bargain collectively-private-law Corporation,

that can in principle do everything what is not expressly prohibited by the law (article 2 of the

paragraph. 3 of the Charter, article. 2 (2). 4 of the Constitution). In accordance with article. 16. 4

The Charter also, the exercise of these rights can be restricted only in the necessary and

The Charter defined cases. In the present case, however, the law provides that the

profit from business and other gainful activities can the Church and

religious society use only to the fulfilment of its objectives. These objectives

while defining the law No. 3/2002 Coll. in the provisions of section 3 (b). and),

where the purpose of the Church and religious society is the "confessing a certain

religious beliefs, whether publicly or privately, and in particular with that of the United

the collection, worship, teaching and spiritual services. " It is therefore

obvious, that the contested provision prevents churches and religious

companies use the achieved profit other than the legally defined manner.

This provision is also inconsistent with the article. 11. 1 of the Charter.



5. This limitation, however, in the opinion of the Constitutional Court clearly do not correspond

the purpose and mission of the churches and religious societies. How is the

stated in another place in this award, the task of those bodies in any

the case cannot be reduced to a mere confession of a certain religious faith-how to

in fact, the contested provisions lays down-but their activity in

the company is much broader and is also in the radiation of the religious

values externally, through not only religious activities, but

for example, too. the activities of charitable, humanitarian and general education.

Restriction of churches and religious societies are free to dispose of their

legally acquired income only on the area of the confession of religious faith

therefore represents arbitrary interference by the State in private

the nature of these bodies, and this intervention is clearly not legitimován

any relevant public interest, similar arguments, albeit in a relationship

the business of political parties and not the churches and religious

companies, the Constitutional Court was used in the case conducted under the SP. zn.

PL. ÚS 26/94 (finding of 18.10.1995, collection of findings and resolutions of the constitutional

the Court of the CZECH REPUBLIC, vol. 4, pp. 129 et seq.). There is, therefore a contradiction this limit with

article. 4 (4). 4 of the Charter, according to which when using the provisions on the limits of the

fundamental rights and freedoms must be investigated, their nature and the meaning of and

such restrictions must not be abused for purposes other than for which it was

established.



6. Consequently, the second part of the sentence of the Constitutional Court, the provisions of section 27. 5 of law

No. 3/2002 Coll., for its conflict with article. 4 (4). 4 of the Charter in conjunction with article.

16. 2 and article. 11. 1 of the Charter as unconstitutional.



The President of the Constitutional Court



in the z.. Haboob in r.



Vice-Chairman of the



Different opinion, pursuant to section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

took to the grounds of the award judges. Pavel Holländer and JUDr. Jiří

L.a. Geelhoed.