In The Matter Of A Proposal For The Repeal Of Section 29 Of The Act No. 229/1991 Coll.

Original Language Title: ve věci návrhu na zrušení § 29 zákona č. 229/1991 Sb.

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71586&nr=242~2F2010~20Sb.&ft=txt

242/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 1 May 2004. July 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Miloslav Výborný and Michael Židlická in the matter of the proposal

a group of Senators of the Senate of the Czech Republic on the repeal of section 29

Act No. 229/1991 Coll., on the adjustment of the ownership of land and other

agricultural property, and an unconstitutional Parliament idle

The Czech Republic, with the participation of the Chamber of deputies of the Czech Parliament

the Republic and Senate of the Parliament of the Czech Republic as parties to proceedings



as follows:



I. proposal for the repeal of section 29 of the Act No. 229/1991 Coll., on the adjustment of ownership

relationship to the land and other agricultural property, is rejected.



II. Long-term inactivity of the Czech Parliament, consisting in the

not taking special legislation, which would deal a historical

the assets of churches and religious societies, is unconstitutional and violates the

article. 1 of the Constitution of the Czech Republic. 11. 1 and 4, article. 15 paragraph. 1 and article.

16. 1 and 2 of the Charter of fundamental rights and freedoms and article. 1 Additional

Protocol to the Convention on the protection of human rights and fundamental freedoms.



Justification



(I).



Recap of the proposal and the arguments of the appellant's



1. A group of Senators of the Senate of the Czech Republic (hereinafter referred to as

"the petitioner") filed proposal for initiation of the procedure pursuant to § 64 paragraph. 1 (a).

(b)) of the Act No. 182/1993 Coll., on the Constitutional Court, as amended

Regulations (hereinafter as the "law on the Constitutional Court"), which requires

to the Constitutional Court, said that



"The Long inactivity of the Czech Parliament, consisting in the

not taking special legal regulation governing the management of

the property, which the original owners were the Church, religious orders, and

the Congregation, violates article. 1 (1). 1 of the Constitution of the Czech Republic. 4 (4).

1, article. 11. 1. 4 of the Charter of fundamental rights and freedoms and article. 1

paragraph. 1 of the additional Protocol No. 1 to the Convention for the protection of human rights and

fundamental freedoms. "



2. Further proposes that the Constitutional Court annulled section 29 of the Act No. 229/1991 Coll.,

on the adjustment of the ownership of land and other agricultural property,

(hereinafter as the "law of the land"). These provisions, including the title correctly

sounds (projector shows wrong text according to the ASPI, not according to the Collections

laws):



"The assets of the Church



The original owner of the assets which were the Church, religious society,

and the Congregation, may not be transferred to the ownership of other persons to

the adoption of laws on the property. ".



3. From the cited provisions of section 29 of the law of the land by the petitioner

It follows that it was not the will of the legislature to deal with the problems in the law of the land

the so-called. Church restitution. Due to the fact that the significant part of the

the property originally belonged to the ownership of the churches, religious orders, and

congregations, expressed by the legislature in the law about land explicitly that this

the assets will be handled by the law of the land, but in other laws, which

only will be accepted. According to the appellant, the legislature intended in the short

time period to adopt the laws, which will be the subject of the definition of

the position of the Church, the Church and the State funding of churches and in the

connection with the restitution of church property and the original. Due to the

the fact that the legislature, assumed that the original church property (or

his part), will be issued to churches, the provisions of § 29 of the law of the land called.

blocking character, as with this property could not be loaded (it cannot be

convert). The length of this transitional period, restrictions of ownership rights

is not limited by law.



4. the applicant stresses in particular that not considered unconstitutional

the texts of the provisions of section 29 of the Act on the soil in the form in which it was

accepted, and the time in which it was received. However, unconstitutional

the State, where there is the fulfillment of the legitimate expectations of this nature

only bridging provisions as a result of prolonged inactivity

the legislature, and was mothballed status, which was supposed to be only

temporary, for-at the time of the design-in excess of fifteen years. In

it sees the projector with the requirement of legal certainty, the contradiction (article 1

paragraph. 1 of the Constitution), as section 29 of the law of the land so the certainty in the law

relations, but does not create a slide intended the statutory modifications to the vague

on the contrary, the future legal relationships a significant element of uncertainty,

which can be tolerated only for a limited, transitional period.



5. the provisions of section 29 of the law of the land in the opinion of the appellant's

the legislature imposed the obligation to adopt laws which address the legal

Edit relationship to property, whose original owners were the Church,

religious orders and congregations. The fact that no such law has not yet

not being accepted, is a consequence of prolonged inactivity of the legislature. In

This pointed to the finding of the Constitutional Court SP. zn. PL. ÚS 20/05 and on the

conclusions finding SP. zn. PL. ÚS 71/04.



6. the provisions of section 29 of the Act on land ownership by the appellant produces

the inequality. The part of the owners-especially the municipalities-not his property

in the long term to freely dispose of. The blocking provisions make it impossible for example. (I)

such an arrangement of ownership relations, in which the blocked assets

He was transferred to the ownership of the Church, or in which the

entitled the Church of validly surrendered and allowed the owner

registered in the cadastre of real estate assets to "unblock." This status

so has the appellant to intervene into the rights of self-government, as

the municipality cannot take advantage of a blocked assets for projects receiving finance

from public resources and funds of the European Union. Leads to violation of the article. 4

paragraph. 1, article. 11. 4 of the Charter of fundamental rights and freedoms (hereinafter as

"The Charter") and of article. 1 (1). 1 of the additional Protocol No. 1 to the Convention on

the protection of human rights and fundamental freedoms ("the Convention").

The appellant also referred to the conclusions of the award sp.. II. the TC 528/02

(the obligation to issue the special voicing of the legislature law) and finding sp.

Zn. PL. ÚS 5/03 (what in the adequacy of the restriction of the rights).



7. Considering the need for the adoption of the contested provisions of the proposed

the law in the ordinary legislative process, the applicant proposed to postpone

enforceability of award to 31 derogačního. December 2008. At the same time suggested

priority consideration of the case within the meaning of section 39 of the Act on the Constitutional Court.



II.



Representation of the parties



8. the proposal to challenge the Constitutional Court expressed both the participants in the proceedings.

The Chamber of deputies of the Parliament of the Czech Republic in its comments of the day

July 12, 2007, signed by the Chairman of the House of Ing. Miloslav

Vlčkem, only said that the proposal was approved by the constitutionally prescribed

way on 21. in May 1991 the necessary majority of members of the Federal

the Assembly was signed by the respective constitutional factors and properly

declared. So the law under consideration was adopted within the limits of the Constitution laid down

competence and constitutionally prescribed way. The observations also contains

only link to find SP. zn. II. the TC 528/02 and recalled that the proposal

I can't think of the constitutionality of § 29 of the law of the land, but the State, which has not been

fulfillment.



9. the Board expressed its President MUDr. Přemysl Sobotka, who

in particular stated that the concept of restitution was based on the principle of returning

assets subject to certain conditions, and not from automatic

restore property rights without further proceedings. At that time there was

no constitutional or other Act of the legislature, which would have a similar step

oblige. Remind in this context, the importance of the preamble, the law of the land

and the content itself, section 29 of this Act, from which follows the will of the legislature

mitigate the consequences of property wrongs in land and other agricultural

the property, which had been the original owner of the Church, religious orders, and

the Congregation, and at the same time will block the transfer of that property until the

the adoption of legal provisions. He also pointed to the discovery II. TC 528/02 and

its importance in terms of highlighting the commitment of the State to meet the legitimate

expectations on the part of ecclesiastical legal persons. Also, remind

the Senate's activity in this direction (public hearing on this issue in the

April 2007).



III.



Oral proceedings before the Constitutional Court and the procedural varia



10. On 1 May 2004. July 2010 was held a public hearing of the constitutional

the Court, from which the representatives of the parties to the proceedings of the House of

The Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic

they apologized.



11. the representative of the appellant in his proposals for the implementation of the framework has

other evidence. In a retrospective proposal stressed the temporary nature of the

the contested norms and the difference between the silence of the legislator and the omission of the

the legislature, in the present case, the Act of the second case.

This State lasts for more than nineteen years. Reminding the wider

the context of the relationship of the State and the Church, the question of the independence of the Church from the State

and in this regard the conclusions of Prof. Tretery. The appellant's representative further

on a parallel period pointed out, the State with the earlier problem

the deregulation of rents. Finally, he remained on their proposals submitted in

the original proposal to the Constitutional Court set the date to which the
the contested provisions, shall be deleted from your account.



12. the plenum of the Constitutional Court when the consultation presented originally specified by the judge

Jiří Mucha Intelligence Advisory message along with a proposal to repeal

the contested provisions. For this design, however, expressed

a qualified majority of the judges of the estimated provision of section 13 of the Act on

The Constitutional Court, which requires the adoption of a decision pursuant to article. 87

paragraph. 1 (a). and most of the nine votes) of the Constitution. By decision of the

presiding in the meaning of the provisions of section 55 of the Act on the Constitutional Court

to change the location of the judge-rapporteur and to determine a new judge for the

the development of the award, which has become Judge Ivana Janů. What to

a separate statement (statement sub II.). Was guided by the following

reflections.



IV.



Discussion of design assumptions and the constitutionality of legislative procedures



13. The Constitutional Court has come to the conclusion that after the formal proposal is in

accordance with the requirements of the Act on the Constitutional Court. In proceedings for annulment

the legislation is the responsibility of the Constitutional Court must first examine whether the

the legislation, which concerns the proposal, was approved in the limits of the Constitution

established competence and constitutionally prescribed manner (section 68, paragraph 2

the law on the Constitutional Court). It can, however, only in the case that the constitutional

the adjustment, on the basis of the legislation under review was adopted.

The provisions of § 29 of the law of the land is valid in the original version. It was taken

The Federal Assembly of the CSFR on 21. in May 1991, and published in the collection of

Law 24. June 1991 on the basis of Constitutional Act No. 143/1968 Coll.

This Constitutional Act was repealed article. paragraph 112. 2 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution") on 1 July. January 1, 1993. Therefore, the Constitutional Court has already

the question of the fulfilment of these two conditions.



In the.



A formal assessment of the proposal



14. The Constitutional Court has examined the draft of the argument submitted by the

by the applicant, of the constitutional aspects of the other. Came to the conclusion,

that the soundness of the proposal on the annulment of the contested provisions of the given is not (opinion

Sub I.), but the argument of the claimant (or his intentions)

no constitutional significance, which led the Constitutional Court to comply with what the mover

in a separate statement (statement sub II.). Was guided by the following

reflections.



15. In the present case, the applicant has submitted such argumentation

the construction, in that it represents the only means by which the petit has be

the actual objectives achieved. This does not delete the section 29 of the Act on the ground as

the provisions of neústavního, but the removal of the condition, when as a result of

long-term inactivity of the legislature not to fulfill the legitimate

expectations based this bridging provisions. This condition so

does not create certainty in legal relations, as it would match the article. 1 (1).

1 of the Constitution, and at the same time touching other constitutionally guaranteed positions, other

legal entities, mainly municipalities. The plaintiff in the grounds of his

the proposal does not claim that the content of this provision was inconsistent with any

part of the constitutional order. His proposal seeks to achieve the status,

that will fill a legitimate expectation based obligation of the legislature to relieve

the consequences of property wrongs in land and other agricultural property, which

the original owner was the Church, religious orders and congregations. To

achieve this, in his opinion, to lead the abolition of section 29 of the Act on

the soil in connection with finding long-term unconstitutional idle

the legislature of failing to take a special Act.



16. The Constitutional Court in its established case-law based on the fact that it is bound by the

petitem design, not its reasoning. In this context, therefore, the

had to deal with the question whether it is possible to repeal provisions that neither

the appellant himself is not considered unconstitutional. The intervention of the Constitutional Court

this case is not possible, since it would mean that the Constitutional Court leaves

the role of the so-called. the negative of the legislature, and he gets on the field reserved only

Lawmakers positive, i.e.. The Parliament of the Czech Republic. The possibility of

satisfying the finding of the Constitutional Court-namely the annulment of the contested

the provisions of the combines the article. paragraph 87. 1 (a). and the Constitution and § 70) paragraph. 1

the law on the Constitutional Court, concluding that the law or its individual

the provisions are in conflict with the constitutional order. According to the article. paragraph 88. 2

The Constitution are the judges of the Constitutional Court in its decision only bound by the

the constitutional order and the law, which lays down the rules of procedure before the

The Constitutional Court. If the provisions of section 29 of the law of the land was not

found to be unconstitutional, would not be given the reasons for the award, a compliant

but to reject the proposal or refusal as obviously

unfounded. It is therefore possible to conclude that the argument

submitted by the applicant urges the Constitutional Court to review the constitutionality of the

the contested provisions in the light of the broader context (acceptance of another

legal regulation). An abstract review of constitutionality of legislation-

even the powers of the Constitutional Court-are not designed to be a full-fledged

replace any spaces in the law unconstitutional in the future

(except for the provision of protection in individual cases). You cannot expect

"zústavnění" such gaps in the law interpretation of deep Constitutional

the Court, and it actually solve the problem. The Constitutional Court would unacceptably

He entered the field of positive of the legislature.



17. The Constitutional Court is also aware that the non-acceptance of the envisaged

a special Act on a wide range of different bodies, and

the abstract of the review standards, even if the Constitutional Court did not find the reasons for the

its withdrawal, it cannot be excluded that there is such an individual case

(the impact of) the contested provisions, which raises other

no constitutional consequences.



VI.



Recapitulation of the case-law of the Constitutional Court in relation to section 29 of the Act on land



18. In its conclusions as to the interpretation of the provisions of section 29 of the Act on the soil, so to

the consequences of its existence in the context of claims by churches and religious

companies, the Constitutional Court has already interpreted in its earlier case-law. The development of the

this case-law was essentially characterized by two competing

approaches that differed in the degree of judicial options (at the time)

ingerovat to the complex social and political

questions, when the Centre of gravity of the responsibility for the adoption of the legislation lies primarily

the lawmakers.



19. The opinion according to which a temporary resting only in the adoption of law No.

298/1990 Coll., on the adjustment of certain property relationships of monastic orders and

congregations and the Archbishopric of Olomouc, as amended by Act No. 338/1991

Coll. (hereinafter "law no 298/1990 Coll.) and the contested provisions of section

29 of the law of the land, and at the same time when the absence of lasting historical law

the assets of the Church (i.e. the inaction of the legislature) is without hindrance to the concurrent

the protection of the property rights of religious bodies, on which the so-called. the enumerated

law no 298/1990 Coll. turns out, before general courts [cf. e.g. resolutions

of 24 June. November 2004, SP. zn. I. ÚS 428/04 (published in SbNU);

find SP. zn. IV. TC 298/05 dated 8. 8.2005 (N 156/38 SbNU 241) ^ *;

different opinions to the opinion of the Assembly, SP. zn. PL. ÚS-Wed 22/05 dated

1.11. 2005 (Wed 22/39 SbNU 515; 13/2006 Sb.) ^**; This and all other

the cited decision of the Constitutional Court are accessible in the electronic

database NALUS http://nalus.usoud.cz], was overcome. Exceeded the

a competing view, while emphasizing the primary duties of the legislature

Edit the issue of so-called. Church restitution considered ingerenci to be able to

the Court (the protection of individual rights) prior to the adoption of a special law

for the nepřípadný judicial activism [find SP. zn. II. the TC 528/02 of 2 July.

2.2005 (N 23/36 SbNU 287); opinion of the plenum of the day 1. November 2005

SP. zn. PL. ÚS-Wed 22/05; resolution of 19 July 1999. January 2006, SP. zn. II. THE TC

687/04 (published in SbNU) and a number of related decision].



20. Already in that finding sp.. II. the TC 528/02 Thus the Constitutional Court

He stated that "[the courts] in the course of the proceedings had to consider that the

the transition of the property by the Church is covered with kogentním the provisions of section 29 of Act No.

229/1991 Coll., according to which cannot be the original owner of the assets which were

Church, religious orders and congregations, transfer into the ownership of the other

Parties to the adoption of the law on this property. The law of the land, therefore,

assumes that an agricultural estate, which was formerly owned by the

ecclesiastical legal persons, will be handled by a separate law and until the

the release of this is protected by the law. This property is therefore to be

apply the mode of restitution laws, and therefore there is no room for

bringing actions for determining ownership for the absence of emergency rule

interest. It cannot be inferred from the fact that the State was not able to

issue a special restitution Act, although the Act No. 229/1991 Coll., which

became effective already 24. in June 1991, the issuance of such act

It assumes. However, the State must issue a law its commitment to restitution,

resulting from the cited provisions of the law of the land, about the Church

assets meet, as must meet the legitimate expectation on the part of

Church legal entities, which is based on statutory provisions. "

This conclusion (in a competition to award sp.. IV. TC 298/05-see above)

He was subsequently confirmed by the opinion of SP. zn. PL. ÚS-Wed 22/05 (see above),
that is primarily expressed the nature of law no 298/1990 Coll. as

law restitution, since restitution was filled with the purpose of this Act,

through the enumeration of the beneficiaries and of the (converted)

the asset. Moreover, the opinion has taken over part of the justification for the finding sp.. II.

TC 528/02 in the section in which it is explicitly identifies the obligation of the legislature

issue the restitution law, since they must meet the legitimate expectation on the part of

Church legal entities, which is based on legal provisions. From

that, and especially from the short separate opinion, the argument is

obvious that the purpose of the opinion was to design some new

conclusions of law, but to internalize the one of already made legal

views, and different opinion on finding sp.. SP. zn. IV. TC 298/05

and the legal conclusion of the award SP. zn. II. the TC 528/02, which stood out in

competition to the legal opinion, SP. zn. IV. TC 298/05. Referred to

statement of the obligation of the legislature to accept restitution law and fill

so the legitimate expectations on the part of the ecclesiastical entities is steadily at the

reproduced in the later case law of the Constitutional Court [cf. the already mentioned

resolution SP. zn. II. the TC 687/04; Furthermore, the resolution of the SP. zn. II.-230/05 of

day 16. March 2006; resolution SP. zn. IV. TC 509/05 of 19 July. June

2006; resolution SP. zn. I. ÚS 679/03 of 10 June 1999. May 2007; the resolution of the

SP. zn. I. ÚS 1652/07 of 18 January. July 2007 (SbNU nepublikována);

point 29 of the award SP. zn. IV. TC 34/06 of 21 June. November 2007 (N 201/47

SbNU 597); resolution SP. zn. IV. TC 158/08 dated May 6. May 2008;

resolution SP. zn. II.-2904/08 of 7 July. January 2009 and a number of other (in the

SbNU nepublikována); the last time the finding of 24 September. June 2009 SP. zn. (I).

TC 663/06].



21. In any of its decisions the Constitutional Court voiced doubts about the

the constitutionality of the provisions of section 29 of the law of the land, though it had repeatedly

the opportunity. On the contrary, on the basis of the interpretation of this provision steadily at the

make your conclusions in relation to those constitutionally Conformal solutions

settlement of the historical assets of the Church. Therefore, the eventual

a finding of unconstitutionality of the contested provisions in effect

fundamental and surprising at the same time meant a change of case-law, as this would

in principle, lost ground the opinion of plenum SP. zn. PL. ÚS-Wed 22/05

(see above) based case-law.



VII./a



Identification of the purpose of the provisions of section 29 of the Act on land



22. The earlier considerations contained in the case law of the Constitutional Court has already

the purpose of the contested provisions foreshadowed the interpretation to which the Constitutional Court

He came and now, in the specific procedure for the application for revocation of the legal

the prescription.



23. From the generally known during the legislative process in relation to the

the historical assets of the Church in the years 1990 and 1991, it is clear that the

the provisions of section 29 of the Act on the soil is the result of objective needs to adopt

such comprehensive legislation, the preparation due to the wider

the context of the relationship of the State and the Church requires a conceptual approach, and not

it appropriate to associate with the laws, which should aim to alleviate the property

grievances in recognition of State responsibility for the past and on the basis of the

specific political considerations, and that in the period when the deetatizace property

in the State had to be the essential element of the economic transformation of the originally

centrally planned economy. Specific legislative proposals on the

the settlement of the historic majektu Church in the complexity of the problem

not a success. The progress of parliamentary debate demonstrates that the non-inclusion of

the Church between the persons entitled in the restitution legislation with a view to

subsequently adopt a special act in their favor was in advance

the stated intention [of the speeches the Minister holding the Government of CZECHOSLOVAKIA

Vladimir Long on 14. joint meeting of the FS 5 June the CSFR April 1991 (to

print no. 547): "the third area is the area of authorised persons. Here

I would like to mention about the Church and the municipalities, even though it mentions both

the rapporteurs. The Government believes it is necessary to support the solution of the problem

the Church, a separate law at the level of the Federation (...) " (read in context

with debate to prints no 393 and 643); in this and other findings cited

photographs and a video and publications are published in a joint Czech-Slovak

Digital Parliamentary Library at http://www.psp.cz]. According to the then

the Government's opinion, this approach should be even (in the light of the legislative

the design has already adopted law no 298/1990 Coll.) the result of the Special

regardless of the Church and religious society, which should not be burdened by

quite a complicated process of applying for restitution claims, which

for the issue of property restitution laws assumed General [of the

speeches of the Deputy Prime Minister of CZECHOSLOVAKIA, Pavel Rychetský on 13. common

the meeting of 20 October the CSFR FS February 1991 (to print no 477, a draft law on

extrajudicial rehabilitation): "I think the important question is

the question of whether we can outline submitted by the restituovat property of the churches

and religious society or not. The Federal Government as the first

restitution law, submitted after 17. November, presented this

Assembly of the law on assets of some orders and congregations.

The Federal Government therefore clearly expressed its intention clear that it wants to

restore ownership ratios of churches and religious societies. Has made it

the new law, which does not require anything from a legitimate entity. From the law

the assets of the Church may not be cast in no time limits, no

nothing to prove substantive conditions. Here I have a law that is

uniquely formulated as laws, which are on the one hand,

the competent bodies, on the other hand, the compulsory subjects and in the case of

the conflict is entitled to an independent court, which will be assessed and interpreted

This law. The Government does not want the Church to have been built in this

position, the Government does not want to be limited by any notice, in

that, when the claim their entitlement does not apply fully and once and for all

shall cease, and the Government also admits and it never nezapírala that cannot

agree with such a fundamental change to the outline of the law, if it is a change that

turns out exclusively on other Governments, not the Federal Government. "; see

A joint Czech-Slovak digital parliamentary library, link above].



24. The law provides for this reason other provisions regulating the

(restrictive) the disposition of the property, whose original owner was not a State,

which also envisage the adoption of special legislation to detailed

adjustment of the claims of other qualified entities. Explicitly to "property

the Church "turns out the provisions of section 3 (3). 1 of Act No. 92/1991 Coll., on the

the conditions of the transfer of assets to other persons, as amended

the regulations, which reads: "the subject of this Act is not a property that has

be returned to the legal persons in specific legislation. ^ 1) the subject of this

the law is also not the assets that the State went for 25. in February 1948, from

ownership of churches, congregations and religious orders and societies. ". In

assigned to footnote the provisions refers to "eg. [the] Act No.

298/1990 Coll., on the adjustment of certain property relationships of monastic orders and

congregations and the Archbishopric of Olomouc. ".



25. From the meaning of the contested provisions and of its interpretation

The Constitutional Court (log on from the top rekapitulovanou case law) implies

that its purpose is not only very "blocking" a certain part of the State

assets (partly also of the property registered in the possession of third parties,

ESP.. municipalities), i.e., for example. the effort to maintain a specific property



the status quo

. The nature of the contested provision is to be found mainly in the undertaking

(the promise) of the legislature in the deferred time to adopt legislation

vypořádávající the historical assets of churches and religious societies,

taking into account the specifics of the fabric and the objective pojednávané the provisions of §

29 of the law of the land in fact consumed. Layout constraints with the historical

the church property is used only to protect this majektu until

the adoption of a special law. The purpose of the contested provision thus conceived

from specific historical circumstances of the creation of the so-called.

the restitution legislation, since this unique process accompanying

the most profound social changes can be assessed only in the period

contexts [cf. typically find SP. zn. PL. ÚS 14/94 of 8 December. 3. the 1995

(N 14/3 SbNU 73; 55/1995 Sb.) or other decisions concerning the legality of the

and the legitimacy of the President of the Republic decrees], and from the subsequent interpretation of the

carried out by the Constitutional Court in matters of SP. zn. II. the TC 528/02, SP. zn.

PL. ÚS-Wed 22/05 and SP. zn. I. ÚS 663/06.



VII.



Constitutionally protected interests concerned identification



26. On the part of operators (distinct from the State), which are recorded as

the owners of certain parts of the estate, which turns out layout restrictions

arising from section 29 of the Act on the soil, comes into account primarily article. 11

The Charter of fundamental rights and freedoms, according to which everyone has the right to own

assets, taking ownership of all owners has the same legal

the contents and protection. Expropriation or compulsory restriction of ownership rights is

can be in the public interest, on the basis of the law, and for compensation (see also

article. 1 of the additional protocol to the Convention on the protection of human rights and
fundamental freedoms). In the case of municipalities, which the appellant specifically

stresses can be namítán even conflict with the article. paragraph 101. 3 of the Constitution, as

by limiting the ownership of municipalities as territorial self-governing units may

be prevented in the undisturbed exercise of the rights of territorial self-government (article 8 of the Constitution).



27. in the case of the affected churches and religious societies is

not only on the General practical and symbolic significance of the adoption of the law "on mitigating

certain property injustices ", therefore a moral obligation of the Democratic

the rule of law against persons stiženým the systematic violations of

fundamental rights at the time of the Communist regime, which often also include

to those for whom Czech Republic owes its present democratic and

the legal character, but at the same time-the economic base in onetime

Church and religious activities-in particular the dismal historical reality

the implementation of explicit obligations of the State towards the (historic) churches and

religious communities, which took over by law No 218/1949

Coll., on economic security of churches and religious societies

State, as amended [cf. § 1, 4, 6, 8, section 11, paragraph 1

and section 12] on the one hand, and on the request of material fulfillment of guarantees

resulting from the article. 15 paragraph. 1 and article. 16. 1 and 2 of the Charter of fundamental

the rights and freedoms on the other. In relation to the legitimate expectations of the

(property interests) of the ecclesiastical legal persons it is a article. 11

Of the Charter and article. 1 of the additional protocol to the Convention.



28. Furthermore, it can be due to the inaction of the legislature to consider the prejudice to the principle

legal certainty and the protection of trust in the law, which stems from the base of the

the material rule of law according to the article. 1 (1). 1 of the Constitution. In the above

given the context, it is possible also to consider the article. 4 (4). 4 of the Charter,

According to which when using the provisions on limits of fundamental rights and freedoms

must be investigated, the nature and the meaning of them. Such restrictions may not be

abused for purposes other than for which it was established.



VIII.



Your own review of constitutionality



29. the above purpose section 29 of the law of the land is to be observed in the context of the

the value basis of restitution and rehabilitation legislation and case-law

The Constitutional Court. The primary value the starting points of the legislature became to the

preamble and introductory provisions on restitution and rehabilitation laws,

Act No. 198/1993 Coll., on the illegality of the Communist regime and the

resistance against him. The Constitutional Court of the nelegitimitu regime and its acts in

the years 1948-1989 expressly stated in a key finding, SP. zn. Pl. ÚS

19/93 of 21 December. 12.1993 (N 1/1 SbNU 1; 14/1994 Coll.). To be further

point out that the issue under consideration is the restitution of the Constitutional Court

even with the passage of two decades, seen as a matter of historical

the injustice which would be beyond the legal instruments of the State. For

any assessment of the acts adopted in the relevant period after 25. February

in 1948, as the primary reference point offers vintage

the level of knowledge of the fundamental rights and freedoms, as in the international

community and explicitly formulated after the second world war.

Unlike the injustices that appear only when the application later

standards, it is not for the applicable period, the remedy acts of the Communist regime

the question only the moral, but direct and lasting consequences these acts have

specific legal relevance [to the sufficiency of the only moral justification

axle "



historical injustices

"polemicky eg. Wyman, K. M. Is there a Moral Kennel Justification for

Redressing Historical Injustices? In: Vanderbilt Law Review, January

2008, p. 128-194]. At the same time, the Centre of gravity of the responsibility for

the particular solution of property restitution is in first place on the

lawmakers, not to the Constitutional Court, which in its Cassation

powers can only (possibly) be corrected by the legislature adopted

the solution, not the absence of legislation to replace, not even from the

the initiative of the applicant, which is itself the representative of the legislative power.

In other words, the Constitutional Court must reject your attempt to stop

the political struggle, in which a certain legal question is used to track

the various policy objectives.



30. In its established case law of the Constitutional Court has repeatedly ruled that the

State power-in relation to normative legal acts, in particular the power to

legislative-is in its activities, guided by the use of proportionality

(proportionality), and the prohibition of legislative arbitrariness. In doubt about

the constitutionality of the law, therefore, the Constitutional Court shall examine the purpose of the (target)

such intervention in relation to the resources used, with a yardstick for

This is the principle of proportionality, which is manifested by prohibiting

more intervention in the rights and freedoms [cf. also the Constitutional Court

SP. zn. PL. ÚS 15/96 of 9 September. 10.1996 (N 99/6 SbNU 213; 280/1996

SB.)].



31. These considerations, the review of the constitutionality of the code corresponds to the podústavního in the

three methodological steps [cf. e.g. find SP. zn. PL. ÚS 41/02

of 28 June. 1.2004 (N 10/32 SbNU 61; 98/2004 Coll.), and a number of other]:

The first is the evaluation of a simple law aspect of suitability, whose

assessment of the normative content of which is selected from the perspective of resource

the possible fulfillment of the purpose of the investigation. If this is not the normative means

eligible purpose achieved, as tracked by the legislature of

speech of arbitrariness, which is considered to be inconsistent with the principle of the rule of

State. The second step of the application of the principle of proportionality is the assessment of the

simple rights aspect need, pursues the analysis of pluralism

possible normative resources in relation to their intended purpose and their

subsidiarity in terms of limitation of the Constitution protected the values-base

rights or the public good. If the legislator pursued purpose

achieve alternative normative means, is constitutionally

conformist, the constitutionally protected value restricts the extent

the smallest. Tracks-if considered simple right on the one hand

the protection of certain constitutionally protected values, on the other hand, however, a different

limits, the third aspect of the principle of proportionality, which is the measurement,

represents a methodology consideration of these conflicts-standing constitutional

values.



32. The Constitutional Court is also aware that not all the provisions of the

the rule of law can be tested according to the given formula. With regard to the

the wider context of the contested provisions, since it is part of the "single"

restitution and rehabilitation legislation, which is implemented from the

a substantial part of at the time of such qualitative social changes, where

at least a partial remedy the wrongs of the past determines the character of the next

democratic development, it is the conclusions set out below, subject to the

the next review of the individual and specific cases.



VIII./a



33. In the first phase of the review of the Constitutional Court, the contested provisions in the tests

relation to the eligibility of the fulfillment of its purpose (the suitability of the chosen

the resource). Its essence is considering from the perspective of intervention possible

populate reference purpose. Examined the provisions must be able to

to achieve the intended objective is the protection of other fundamental rights

or the public good. If it is not legal to edit objectively qualify

reference purpose to achieve, it is a manifestation of the arbitrariness of the legislature, which is

considered to be contradictory to the principle of the rule of law.



34. The Democratic lawmaker is in the design of mitigation regulations

(in particular,) equity grievances generally limited by both de facto status

concerned (their de facto existence) and at the same time limited

imperative of minimizing injury, on the other the law protected

interests (e.g. the public interest), both on the fundamental rights in relation

to the creation of new property-related injustices [whether either side; CF..

for example. find SP. zn. PL. ÚS 71/04 of 17 December. 5.2005 (N 109/37 SbNU 421;

272/2005 Coll.), part III. (B)], in relation to persons different from the State,

which concerned real estate in the meantime after the unlawful intervention of the State

possibly acquired in good faith.



35. The legislature was forced to weigh the extent to which the system is restitution

legislation (in the broad sense of the word) internally coherent and bezrozporný

both from an objective point of view, and in terms of time sequence

the adoption of legislation. These post-legal

the regulations are therefore the characteristic provisions, which aim to

allow factual or legal effects of another future law.



36. Between these provisions may be included in addition to the contested section 29 of the Act on

the soil and the already mentioned the provisions of section 3 (3). 1 of Act No. 92/1991 Coll., on

for example. section 4, paragraph 4. 2 Act No. 172/1991 Coll., on the passing of some of the things from the

the property of the Czech Republic to the ownership of municipalities, which is to prevent

the conflict property rights restituentů (original owners) and municipalities

(any new purchasers). Also already repealed the provisions of § 8

paragraph. 6 of the law on extrajudicial rehabilitation [cf. find SP. zn. PL.

TC 25/98 of 10 February. 3.1999 (N 38/13 SbNU 269; 57/1999 Coll.)] established

that "thing, that is declared as a national cultural monument, is issued to

by the time the Czech National Council and the Slovak National Council shall adopt new

the law on the Administration and protection of cultural heritage. ", as well as already also
the repealed provisions of section 11 (1). 5 of the law of the land (cf. find SP. zn. PL.

TC 71/04-see above), providing that "[n] emovitost, which is

declared a national cultural monument, cannot be issued until the adoption of the

laws governing the management and conservation of cultural heritage ". In these

the latter cases, it was the Elimination of the conflict between

the property law of the restituenta and the public interest in the protection of the cultural

monuments.



37. In the case under consideration is especially obvious that repeal of section 29 of the Act on

the soil would allow the transfer of historic assets to third parties, which the Church

would be significantly compromised, if not impossible, settlement

through restitution in kind (as one of the key methods

mitigation of property wrongs). The transfer of ownership to the original

Church property to a third person (the acquiring the assets in good

faith) would in practice mean a substantial narrowing of the discretion of the legislature

the methods of any future securities settlement, moreover, with the possible

increased demands on the State budget.



38. Therefore, if the legislator provides that transfer (gradient) of the assets, which

the owners were the decisive date of Church and religious society, respectively.

their legal persons, i.e. as an act of contra legem flawed by reason of the absolute

invalidity (in cases where the meaning of the securities settlement against consecutive)

watched by a completely reasonable purpose of the contested provisions, and that in relation to the

ensure the material base for the future law on the settlement of

the historical assets of the Church. the broader legislative solutions

securities settlement between the State and churches. This purpose would be

in the absence of the positioning effect partly or completely thwarted, as the only

the legal disposition of the State of the property may be used as a basis for

the adoption of the laws on this property "in respect to the status of any

the new owners.



VIII./b



39. In a situation where you can reference purpose to achieve alternative

resources, is constitutionally conformal, the constitutionally protected

the value of the limits in the degree of the smallest. According to this principle it is allowed

use only the most environmentally-friendly-in relation to the fundamental rights and

freedoms-of more possible resources.



40. Although in general it is for the legislature, how to correct

grievances to proceed and that the means chosen (in theory is

conceivable restitution in kind or relutární-or a combination of these

resources), is just the kind of restitution, even with regard to the existing

"restitution legislation". in the protection of other fundamental rights and

freedoms, the primary method [by other methods should not be excluded,

more appropriate: see. for example. Basic Principles and Guidelines on the Right to

and Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International

Humanitarian Law, adopted and proclaimed by the General Assembly of the Organization

the United Nations resolution 60/147 of 16 December 2002. December 2005].



41. From publicly available data it is known [e.g., material to the resolution of the

The Chamber of Deputies, no. 774 dated 29. April 2008 (adding explanatory memorandum

"the definition of the range emitted by assets and valuation nevydávaného

assets, it's determination of the extent of financial compensation "). print 482,

http://www.psp.cz], majority owned by the contested

the provisions of the concerned real estate is the State, and in particular on the

real estate in the management of the Land Fund of the Czech Republic, with the right

the management of the forests of the Czech Republic, with p., Military forests and farms of the CZECH REPUBLIC,

with, and the Office of the Government representation in property Affairs. In relation to the

real property owned by the State is a restriction with this layout

the property of irrelevant in this way test, because such restrictions

the State against itself undoubtedly does not interfere with his constitutional position

(cf. even eventual legal "obligation" of the State possessing the

property in the public interest in the reference to article. 11. 2 of the Charter). The relatively

a smaller number of the concerned real estate is registered in third

of persons, in particular. municipalities. For more detailed information about the structure of these third parties

The Constitutional Court has not been presented.



42. In general terms is a potent alternative to restitution in kind

a major emphasis on other methods of alleviating the grievances, for example. financial compensation

asset (relutární restitution), that would be neblokován (unblocked) remained

in the final State (or other bodies). This account-

that would, in theory, could mean a more moderate intervention in the existing

property relations, but perhaps also the only seemingly-Constitutional Court

do not feel called upon to develop with regard to it, that he got on the field

reserved for lawmakers, especially in the political and economic issues.

Restitution of relutární presents a different type of burden for the State

budget (funded status of the State), and in this respect is not

the task of the Constitutional Court to assess the appropriateness of the ratio of the restitution of the methods. In

this sense, it is a kind of restitution (in particular in the future

extent, in combination with other methods) a legitimate aim

the legislature, does not ensure the asset concerned, the provisions of section 29 of

the law of soil intervention beyond necessity. The Constitutional Court cannot own

the consideration to certain ratios between lawmakers in kind and relutární

the restitution order.



43. The Constitutional Court did not find that the legislature had available

"milder" means than blocking of assets, if the

pretty only on its future economic and political discretion,

What methods of alleviating the grievances, or what kind of differentiation in its

considerations in respect of certain types of assets, the circuits of the bodies concerned

or other circumstances. It has to be said that the legislature had

in relation to the treatment of the blocked assets completely free account. On the contrary,

future legislative solution must be based on weighing the

the legitimate interests of all the concerned bodies. Just due to their

(constitutionally protected) interests, as they exist at the time of the adoption of the

a legislative solution, the legislature must choose a specific combination of

methods of alleviating the grievances, so that-in addition to other wrongs have arisen new-on

side of the authorised or required of persons. You can point out the practical level i

on the proposal of the law on securities settlements with churches and religious

[companies: draft law on the mitigation of certain property

the wrongs caused by the churches and religious communities in a time of oppression,

on the settlement of property relations between the State and churches and religious

companies and on amendments to certain acts (the Act on the securities settlement with

churches and religious societies), diet. print no. 482], which in

within the political discretion required only for persons proposed by the State, State

Organization and the Land Fund of the Czech Republic (cf. section 4), not

for example. municipalities or other bodies.



VIII./c



44. The injury on a basic law must not be disproportionate in relation to the

the intended target, IE. measures restricting fundamental human rights and

freedom must not, in the case of the collision of the basic rights and freedom with the public

interest, its negative consequences exceed benefits, which

represents the public interest in such measures.



45. The Constitutional Court has not yet even question the constitutionality or the proportionality of the intervention of the section

29 of the law of the land in its case-law has, on the contrary, in principle, made the

his constitutionally Conformal interpretation.



46. Even now the Constitutional Court did not find that the review has resulted in the conclusion of the

the disproportion between the objectives pursued by the contested provisions and resources and

constitutionally protected interests, which are in the game. From the above



implicite

implies that the purpose of the contested provision is itself constitutionally, Conformal

Indeed, desirable, to atone for the wrongs committed against the churches property

and religious societies, or. monitors the fulfilment of guarantees

resulting from the article. 15 paragraph. 1, article. 16. 1 and 2 of the Charter of fundamental rights

and freedoms (see below).



47. in relation to the largest part of the assets, which is blocking effect

prejudice and remain the property of the State, not to talk about the intervention

no constitutional relevance, especially as regards itself, available with

blocked assets. The State cannot rely on ownership as

basic rights against oneself, especially if the assets acquired

only at the price of violation of internationally accepted standards of protection

fundamental rights and freedoms and their own laws. In this context, the

You cannot even in theory presumovat good faith or similar subjective

element on the part of the State, because the State knows the objectively their right. Therefore, you cannot

be considered unconstitutional, even where State intervention (de facto or legal)

does not convert the dedicated part of the property, which is formally in his

ownership.



48. In relation to the municipalities, which in some cases are recorded as

the owners originally church property, in particular, the Constitutional Court finds

that blocking this asset is not the arbitrariness of the legislature, which would be based on the

own political considerations or on the basis of the intentions of the other indefensible

He intended to particular municipalities or to the overall level of implementation of the law

on the Government to intervene. Prejudice of these municipalities is determined by historical
the existence of a plurality of ownership before 1948. Cannot be without

further noted that the restrictions on transfers of specific individual

real estate in the property of the municipality mean without further restrictions to the right to

autonomy in relation to a particular village.



49. the Major emphasis now gives constitutional court on a different character and legal

the fate of assets before the applicable period was in the possession of persons from the

municipalities of different, because he was legitimately the subject (whether implemented

or unrealised) considerations of Democratic lawmakers about the natural

restitution to third parties, on the one hand, and the so-called. the historic property

municipalities, on the other.



50. The question of the restoration of self-government of municipalities (the overall concept of municipal establishment) with

ensuring the necessary material base in democratic conditions

Indeed, the changes already responds to Government Regulation No. 4/1945 Coll..

and n, the choice and the powers of the national committees, and in particular by law No.

279/1949 Coll., on financial management of national committees. The one in the

the provisions of § 30 paragraph. 2, which provided that "the existing tribal capital municipal

shall cease to be of this nature. ", thus was completed the legal and de facto liquidation

elements of the territorial Government. Its reconstruction took place in 1990 in the context of

with the adoption of Constitutional Act No. 294/1990 Coll. amending and supplementing

Constitutional Act No. 100/1960 Coll., the Constitution of the Czechoslovak Socialist

of the Republic, and the Constitutional Act No. 143/1968 Coll., on of the Czechoslovak Federation,

and shortens the term of national committees. The Constitutional Act No.

100/1960 Coll., it was in the article. Amended 86 in particular that "the Foundation of

the local government is a village "[1] and that" the village is a self-governing

the community of citizens. It is a legal person; has its own assets, which

separately managed. [...]" [2]. Subsequently, the Constitutional Act No.

556/1990 Coll. amending Constitutional Act No. 143/1968 Coll., on

the Czechoslovak Federation, dropped anchor in the article. 4 (4). 7 revised

the law mandates national councils to adopt the law, which lays down that

things from the assets of the Czech Republic and the Slovak Republic are the property

municipalities. This law is for the Czech Republic became Act No. 172/1991 Coll.,

on the transition of some of the things from the ownership of assets of the Czech Republic

municipalities, which in the sense of § 1 and 2



ex lege

He moved to the village (with certain exceptions) the assets that

the municipality owned at the date of 31. December 1949. historical property

municipalities.



51. In accordance with the provisions of section 4, paragraph 4. 2 Act No. 172/1991 Coll. "into the ownership of the

municipalities are also things from the ownership of the Czech Republic, which the

release of claim the person entitled under the special regulation. ". In

relation to the municipalities is a reservation, which according to its meaning has

to prevent collisions of the rights and claims of municipalities (like any new

purchasers) and beneficiaries (future restituentů). The Constitutional Court in the

its case law in relation to disputes because restitučními has repeatedly

He stated that the municipality cannot derive their right of ownership according to law No.

172/1991. where the property in question do not constitute a so-called.

the historical ownership of the village [cf. find SP. zn. II.-411/99 of

9.2. 2000 (N 23/17 SbNU 167); find SP. zn. I-84/05 from day 1. 2.

2006 (N 29/40 SbNU 233)]. The reality is that the interpretation of the provisions of section 4 of the

paragraph. 2 Act No. 172/1991 Coll. also recorded some fluctuations. For example. in

resolution SP. zn. III.-630/06 of 22 December. 3.2007 (4/44 SbNU 769)

The Constitutional Court with reference to the case-law there cited, inter alia, stated that the

of the meaning of the provisions of section 4, paragraph 4. 2 Act No. 172/1991 Coll., which refers to the

on special (restitution) transcripts, follows that by "not only on the

the specific provisions already issued, but without limitation to the provisions

subsequent. ". Similar to the earlier resolution of 13 April. November 1997, SP. zn.

IV.-373/97 (SbNU unpublished), referring to the judicial practice in

first of all stated that "in the case of restituovaného property

don't become owners and the beneficiaries shall be issued by the real estate for the State of

the title is the date that 24. 6. the 1991 kept. ". Such an interpretation is the real

conflict of rights above restituenta and the municipality tried to prevent

by eliminating the effects of even only the formal transfer of the asset to the

the municipality.



52. In contrast, is a number of other decisions of the Constitutional Court, according to the

which according to law No. 172/1991 Coll., the ownership of the immovable property concerned

subsequent restitucemi (which were raised such as the later law

the soil) on the village



de jure

passes, however, together with the duty "to issue the assets to the beneficiaries according to the

restitution legislation "[cf. e.g. resolutions of 19 November 2009

SP. zn. III.-1357/09 (published in SbNU); find SP. zn. IV. THE TC

346/98 of 12 May. 10.1998 (N 122/12 SbNU 187); find SP. zn. II. THE TC

2277/2007 of 21 December. 5.2008 (N 95/49 SbNU 419); the resolution of the Constitutional Court

of 31 March 2004. October 2007, SP. zn. III.-801/06; resolution of 16 May 2002. August

2007 SP. zn. III.-1602/07; resolution of 27 June 2002. July 2000, SP. zn.

IV.-124/99; resolution of 17 December 1998. January 2002, SP. zn. IV. TC 477/01; from

on 1 May 2004. March 2000, SP. zn. I. ÚS 448/98 (in SbNU nepublikována)].

The eventual interpretation inconsistencies in this issue, however, does not appear

the material for the purpose of the restitution process. It is appropriate to point out, even on the

the texts of the provisions of section 6 (1). 5 of the law of the land, according to which "If the

the property into the ownership of the village, the person has the right in accordance with

This Act against the village. " [e.g. the resolution of 28 September 1998

SP. zn. IV. ÚS 157/98; resolution of 19 July 1999. in May 1999, SP. zn. II. THE TC

104/99 (SbNU nepublikována), including the rejection of the proposal to repeal section 6

paragraph. 5 of the law of the land]. From the context of the adoption of individual restitution

regulations and the constant case law of the Constitutional Court is certainly

Obviously, apart from the return of the historic property of municipalities had a transition

other property intended for a future restitution on the village completely specific,

formal in nature, when the position of the municipality as required in NYC

the process was never challenged by the Constitutional Court. In the constitutional order

Moreover, such a right cannot be found of the municipalities, which would guarantee that their

relationship to the historical assets of churches will be told. From the article.

101 Constitution did not imply the entitlement of municipalities to the historical assets of churches

and religious societies. On the contrary, the Constitutional Court has already in the past

expressly stated that the issue of property restitution in process on the part of the village

the beneficiary is not the intervention of the regional authorities within the meaning of article. 101

paragraph. 4 of the Constitution [resolution of 23 March 1999, SP. zn. IV. TC 392/98

(published in SbNU)]. In any of the above decision, as it is already

clearly, the Constitutional Court did not even violations of the rights resulting from the article. 11

Of the Charter.



53. In view of the above defined the purpose of the contested provisions and

the current role of the municipalities in the restitution process, where they act conceptually and

as required, so in general do not appear very blocking

a specific asset, even if registered as property of the municipalities,

as the effect of inappropriate. In this plane cannot be the interests of the municipalities

on the one hand, and autonomous churches and religious societies on the

the other hand build into opposition since the general community development is not

subject to the possession of the original church real estate directly to municipalities,

but it may be just as well filled with management of any third person.



54. the abstract review of constitutionality by the Constitutional Court is not able to

objectively prove or hypothetically to tweak all conceivable

the situation, that the contested provisions in the individual case may

to invoke. The subject of the assessment now may not be the specific

cases of individual owners, which, taking into account the specific

circumstances, including for example. the relevance of the nabývacího of the title, to the existence of good

faith or to the existing role of the type of entity in the restitution process

the Constitutional Court may specify its assessment in the future [link to similar

the individual review of the CF. for example. find SP. zn. PL. ÚS 1/08 of

20.5. 2008 (N 91/49 SbNU 273; 251/2008 Coll.), paragraph 112; for chromatography and

instantiating the former more general legal opinion referred to in

the opinion of the plenum of the Constitutional Court there in search of Justice in

individual cases also for example. in relation to the opinion of the Assembly, SP. zn. PL.

TC-Wed, 21/05 from day 1. 11.2005 (Wed 21/39 SbNU 493; 477/2005 Coll.)

subsequent findings SP. zn. II.-519/08 of 25 June. 9.2008 (N 157/50

SbNU 399); from day 4. December 2008, SP. zn. I. ÚS 428/06; find of the day

June 25, 2009 SP. zn. I-89/07; of 5 December. August 2009 SP. zn. I. ÚS

566/07].



55. In relation to the general principle of legal certainty and the protection of trust in

law (requirement for certainty and clarity of the legal standards) must be

consider the overall quality of the contested legislative provisions.

The eventual plea of uncertainty determination of the future of the circuit of the legitimate

persons and the circuit blocked (published by) the assets, respectively. other conditions

restitution in kind may be refused. The Constitutional Court the adoption of certain

interpretation of the contested provisions in the previous case law of the

objective fuzziness or incomprehension. If the contested

provision speaks of "churches, religious societies, and

kongregacích, "there is no other reasonable interpretation than that it is an entity
existing with its own legal personality under the applicable law, whether

the Church has been seen as a legal person within the churches and religious

company or next to them, which have been the subject of rights in rem to

assets, of which the churches and religious communities have resources for

the realisation of its objectives, and whose withdrawal therefore felt as

material injustice. In relation to them, then this is a property that



de jure

or



de facto

He moved to the State in the relevant period from 25. February 1948 to 1. January 1990

[cf. for example article 4, paragraph 1, of the law of the land; § 1 paragraph 1 of law No. 87/1991

Coll. on extrajudicial rehabilitation; but i, § 2, paragraph 1. 1 of law No.

119/1990 Coll., on the judicial rehabilitation], and that as a result of property wrongs

[cf. e.g. the opening sentence of the law no 298/1990 Coll.; the preamble and

the provisions of section 6 (1). 1 of the law of the land; the preamble and the provisions of § 1 and 6

Law No. 87/1991 Coll.; section 1 of Act No. 403/1990 Coll. on the mitigation of the consequences of

certain property injustices]. Definition of the heading concerned assets in

the provisions of section 29 of the Act on the soil is sufficiently certain, since the existence of

a right in rem (or disposal of rights to assets, whose harvest was

caused by sin) in the relevant period, it is objectively a legally conclusive

facts, and is undecided, the State authorities do not keep complete

a separate list of assets, which is not even a legal reason.



56. Finally, it is clear that the contested provisions of section 29 of the Act on land

does not specifically set a time limit for the adoption of the law on the originally

the church property. The period during which it is from the effectiveness of the contested

the provisions in question is blocked, is only relative, and it

in relation to the adoption of a special law. The Constitutional Court

notes that, in General, such a procedure is not a priori excluded.

It is rather a question of legislative technique and its suitability, and

the statutory reference to the special law, which has yet to arise, always

contains an element of legal uncertainty about the relative content of such Act, is

However, the odůvodnitelný limited power of the Executive and human options

prepare legislative and accept only a limited number of laws in the

over time. From today's perspective of the nonstandard design legislatively

the contested provision is not surprising in the context of the level of restitution

legislation of the early 1990s. years. In this context, it should be pointed out

constitutionally significant doubts about the fulfilment of the claims regarding the generality

legal regulation and e.g.. the so-called. enum law no 298/1990 Coll.

that cannot be in the test of proportionality to bridge the otherwise than by pointing to

exceptional reasons for its adoption [as stated by the Constitutional Court in finding sp.

Zn. PL. ÚS 27/09 of 10 June 1999. 9.2009 (318/2009 Coll.), part VI./a].

Similar exceptional reasons-arising from the distinctive circumstances, with

which the legislature struggled after 1989-the Constitutional Court also applies to

now in the present case.



57. On the basis of the above, therefore, the Constitutional Court did not find the reasons for the

compliance with the proposal to repeal the provisions of § 29 of the law of the land, as this

the provisions unconstitutional. In the framework of the achieved constitutionally consistent

the interpretation that the purpose and means contained in the contested provision

withstanding measurement with constitutional principles, which does not deny or

the appellant, when it states that "[e] nepovažuj for the unconstitutional text itself

the provisions of section 29 of the Act on the soil in the form in which it was adopted and at the time,

in which it was received. However, consider unconstitutional [e] status, when

avoid the fulfillment of the legitimate expectations of this nature only

bridging provisions as a result of prolonged inactivity of the legislature,

and it was mothballed status, which was supposed to be only temporary, at the time

more than fifteen years. ".



58. The legal fact of the passage of time, as the appellant points out in

this case is not the constitutionality of the constitutional consequences to itself

the contested provisions, but in the case of non-fulfillment of this provision

gradually escalating consequences of the absence of legislation in the sphere of RADIUS

standards of the beneficiaries, and possibly up to the intensity of unconstitutionality. In

such a situation, the contested provisions on the legal status of

the legal standards of the beneficiaries does not change anything, on the contrary, their position may

(legal certainty) further worsen, as the range of legal relations

remains neupraven.



59. The passage of time in the present case and its associated inaction

the legislature was not the reason for the annulment of the contested norms, however, became

the basis for II. statement of this award, which plaintiff claimed

noted unconstitutional Parliament's inaction.



IX.



The consequences of the passage of time in the relevant case-law of the Constitutional Court



60. The Constitutional Court in its case-law affects cases where qualified

legal fact consisting in the time leading to the intervention of the constitutional

the Court of Cassation, either (repeal the contested adjustment) or

interpretativního (voicing unconstitutional Parliament idle). From

the first group of cases the applicant itself points out to find Pl-5/03

(see below), and SP. zn. PL. ÚS 71/04 (see above), the Constitutional Court further

considering the conclusions resulting from the award sp.. PL TC 25/98 (see above),

finding SP. zn. PL. ÚS 8/02 of 20 December. 11.2002 (N 142/28 SbNU 237;

528/2002 Coll.) and finding SP. zn. PL. ÚS 6/05 of 13 June. 12.2005 (N

226/39 SbNU 389; 531/2005 Coll.). The second type of access can be considered

find in things SP. pl. TC 20/05 of 28 June. 2.2006 (N 47/40 SbNU 389;

252/2006 Coll.).



61. In the matter of SP. zn. PL. ÚS 5/03 dated 9. 7.2003 (N 109/30 SbNU 499;

211/2003 Coll.) The Constitutional Court annulled the provisions of § 3 and § 6 of the law No.

290/2002 Coll., on the transition to some other things, rights and obligations of the Czech

Republic in the regions and municipalities, civil associations working in the field of

sports and the sports and the related changes and amending Act No.

157/2000 Coll., on the passing of some of the things, rights and liabilities from the assets of the Czech

Republic, as amended by Act No. 10/2001 Coll., and Act No. 20/1966 Coll., on

care about the health of the people, in the wording of later regulations. The reason for this was

the inadequacy of the restrictions on ownership of regions and municipalities for the assets, which

He was in the framework of the reform of public administration in the municipality and the region converted, which was

seen in the fact that the law also pledged to municipalities and regions to use

This property only for the purpose for which they were used at the date of transition

ownership, for a period of 10 years. The Constitutional Court found that the

the transferred real estate ownership restrictions should be

minimize only to "transitional period". In the present case, however,

This is a different situation. In the matter of the provisions of § 3 and § 6 of the law

No 290/2002 Coll., were the special-purpose assets that State restrictions on

the municipality has converted, without further disposition seems to indicate the special with this

the property in the future, should therefore be relatively permanent conversion.

In contrast, in the present case, where the now crucial role played by the adoption of

constitutionally the Conformal solutions mitigate property injustices caused by the

churches and religious communities, municipalities on the basis of the existence of

the contested provisions of section 29 of the Act on the soil sufficiently informed of the

the prospect of restitution in kind of the asset or its part, and on the

the basis of how the text itself of the provisions of section 29 of the Act on the soil, so since

to the case-law of the Constitutional Court and its development. In the matter of SP. zn. Pl. ÚS

5/03 the Constitutional Court found that the use of the assets transferred only for

specific purpose for a period of 10 years (the intensity of obligations) does not

outweighed any other value. In the present case, however, the now rather than

need to delete one effect of the contested provisions has found the need to

to balance a number of constitutionally protected interests, which is impossible without the active participation of

the legislature.



62. Furthermore, the Constitutional Court considered the conclusions made in the case of the proposal on

the repeal of the provisions of § 8 paragraph. 6 of the law on extrajudicial rehabilitation under

SP. zn. PL. ÚS 24/98 of 10 February. March 1999 (see above). This provision

established that the "thing, that is declared as a national cultural monument, the

fails until, when the Czech National Council and the Slovak National Council

adopt a new law on the Administration and protection of cultural relics. " The proposal was

granted, as well as the proposal in case sp.. PL. ÚS 71/04 (see above), in

which was repealed the provisions of § 11 (1). 5 of the Act on the ground that

established that the "Property that is declared the national cultural

monument, cannot be issued until the adoption of the laws governing the management and

the protection of cultural monuments ". In the latter the finding reached by the constitutional

the Court of the legal opinion, according to which cannot be considered as arbitrariness

the legislature has in the field of management and protection of cultural relics

not to adopt the new law, arbitrariness and at the same time, however, a non-discriminatory

the procedure, though on this condition, moreover, vague and inconsistent with the

principles of law in the legal State expressed, binds the possibility

the application of a restitution claim. Even on these conclusions of the Constitutional Court

found fundamental differences now considered things. In particular, it is clear

that in relation to the original owners, "blocked" assets in the amount of

the cases referred to was fixed obstacle blocking the release, although

the law governing the issue-that is, the law No. 20/1987 Coll., on

State heritage preservation-existed and gave the State enough tools to
the protection of cultural values, while respecting the rights of the restituentů. Therefore, it was

the cited provisions found to be unfounded restrictions and discrimination

restituentů. However, in the present case, the contested provisions are used

not as an obstacle but as a guarantee of future legal

(restitution) editing, and at the same time refers to a prescription that has not yet

does not exist. The abolition of provisions of the Act cited by the soil and the law on the

extrajudicial rehabilitation if in the cases mentioned above, the Constitutional Court

removed the unfounded barrier to release things to the beneficiary, in the now

the present case, however, in the absence of a special law of the axle

objectionable-the fulfillment of legitimate expectations-not reached.



63. with regard to the appellant's arguments, stating in the constitutional

the complaint, now not even the possibility of redress tempered

protiústavního the status of the abolition of the legal provisions, such as. in

the case of the cancellation of the fifth Act No 99/1963 Coll., the code of civil procedure,

as amended [cf. find SP. zn. PL. ÚS 16/99 dated

27.6. 2001 (N 96/22 SbNU 329; 276/2001 Coll.)], when the Constitutional Court also

several times in vain appealed to legislators to unconstitutional status removed

and the said legislation, administrative justice in accordance with international

the obligations of the Czech Republic. In the case under consideration now is because of the Constitutional Court

led to believe that the cancellation of the contested provisions would be constitutionally

konformnímu resolution (balance) the relations did not contribute.



64. In a different position is now the Constitutional Court and proceedings against sp.

Zn. PL. ÚS 6/05 (from 13 December 2005-see above), when

He found that the period laid down in the provisions of section 13 (3). 6 and 7 of law No.

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

Act No. 253/2003 Coll., the time-limit the exercise of the right of authorised persons

under section 11 (2). 2 the law of the land on the issue of the replacement land as

These rights are not indicative of effective procedural protection of the resource. This

How to competeing in the legislature by the Constitutional Court as the arbitrariness of the legislature,

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

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

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

in the application of property law resulting from the article. 1 Additional

Protocol to the Convention. In the now of things considered the provisions of section 29 of the beneficiaries

the law on the land also have an effective means of protecting the

the law, however, its application is not limited by the deadline, which could be

as unconstitutional to cancel.



65. Finally, in the case under consideration now is not analogous to initially

tolerated neústavnosti the transformation of the exploitation relations on relations

lease, where it gradually during the time the legislation was getting more and more

in contrary to the protection of ownership rights [cf. find SP. zn. Pl. ÚS

8/02 (see above)]. The current state of unconstitutionality, the Constitutional Court sees in

not taking the desirable legislation, not in the adoption of the constitutionally nonconformist

the legislation, therefore, the lack of legislation.



66. the Perceived practical consequences, the annulment of the contested provisions would

provide protection only to the interests of one group of mailing standards. The protection of the

the interests of the churches and religious societies-and also the legislative purpose

the contested provisions-would have been omitted entirely, as any

other transfers of property would be considered historic church in kind

the restitution made substantially, if not completely. Completely suppressing would

so the responsibility for the settlement of the historical ecclesiastical property

to the churches and religious communities (or former

individual bodies of ownership) through the

the amount of individual lawsuits. It is the path of the constitutional

the Court has already rejected, but not through due claims of the Church

bodies, but through interpretation, in which the preferred

legislative resolution of the complex and interrelated issues internally.

The Constitutional Court cannot replace the legislature that would

own political will and, in principle, positively edited by certain circuits

legal relations in accordance with the interests that are not sufficiently regulated.

For balancing the interests of a wide spectrum of people in different situations to

the future is not an objective tool that has the Constitutional Court of the

available from the provisions of section 70 paragraph. 1 and 2 of Act No. 182/1993 Coll., the cancellation

the provisions of the adoption of a special law to assuming partial future

Indeed, the remedy the absence of positive legislation.



67. The Constitutional Court therefore chose a solution that specifically notes

the constitutional relevance and urgency of the interests of municipalities and third parties whose

disposition with a former church property is limited, and the churches and

religious communities, whose historic property, unlawfully

seized by the Communist regime, it is. At the same time, however, notes that the

annulment of the contested provisions of section 29 of the law of the land would be contrary to the principle of

the adequacy of the legal State in the material, as the benefits from such

the procedure would be as a result of (further) complicating the future settlement

the historical assets of churches and religious societies, and with regard to the

the economic situation of the State, highly uncertain.



X.



Unconstitutional inaction the legislature



68. The Constitutional Court was built prior to the assessment, how to respond to

the eventual findings (as plaintiff) concerning unconstitutional idle

the legislature as a result of the passage of time. The applicant shall submit to the petit

the analogous decision in case sp.. PL. ÚS 20/05 (see above), which

It was, inter alia, identifies the unconstitutional Parliament's inaction in the Czech

Republic consisting of not taking special legal regulation in the

the area of rent control, when the Constitutional Court agreed to the

annulment of the contested regulation. Although the provisions of section, paragraph 696. 1

the civil code was envisaged the adoption of special legislation,

It has not been released. It was maintained by the State of unconstitutionality. The Constitutional Court

However, it concluded that the reasons for cancellation alone section 696 of paragraph 1. 1

of the civil code are not fulfilled, since "the very wording of section, paragraph 696. 1

of the civil code, which only anticipates the adoption of new legislation, is not

unconstitutional, unconstitutional, the legislature's inaction is long-term, which has

the effect of constitutionally neakceptovatelnou inequality and, ultimately,

violation of constitutional principles. "



69. In the cited award SP. zn. PL. ÚS 20/05 the Constitutional Court further stated:

"The attention it deserves and the second plane navrhovatelových of the opposition based

on the allegation of unconstitutional legislation, consisting in the gap that

you have not yet taken the anticipated legislation. As a result of

idle legislature may produce unconstitutional status, and it

then, if the legislature is obliged to take a specific legal adjustment

they do not do so, and it will hit the law-the Constitution-a protected interest.

While the obligation for the legislator may result directly from

constitutional level (e.g., in ensuring the implementation of fundamental rights and

freedoms or protection), as well as the level of the "ordinary" laws, in

which this obligation



expressis verbis

saved myself. [...] You can therefore conclude that, under certain conditions, are

the consequences of the gap (the missing legislation) unconstitutional, especially when

If the legislature decides that a particular area, this intention in the

the law, however, anticipated the regulation. The same conclusion applies

even in the case when Parliament declared the adjustment has taken, but she was

canceled because they did not meet the constitutional criteria, and the legislature has not taken

constitutionally, as compensation to him conformable to the Constitutional Court, provided the

sufficient time (18 months). In addition, remained idle even after the expiry of this

the period and the necessary legislation has not taken today (even after more than 4

years) ".



70. In the present case, the Constitutional Court now comes from above

the findings, which distinguish them from the inaction was unconstitutional "normal" idle

the legislature, in the sense that the legislature must exist

commitment to a range of legal relations, which regulate

an obligation may accrue either from a simple law, where the legislature's

the obligation itself explicitly saved, or directly from the constitutional order, if

not a circuit relationships raises no constitutional implications.



71. Guided by the above mentioned considerations the Constitutional Court notes that, in the

the present case, it is how the non-fulfillment of the express commitment

resulting from the Act, inaction in the field of material guarantees

fundamental rights and freedoms. Referred to is manifested in three separately

Standing planes.



XI./a



The obligation of the legislature stemming from the commitment in the provisions of section 29 of the Act on

the soil and the case-law of the Constitutional Court



72. the first plane for a constitutional evaluation indicating it is

the demonstrated will of the legislature itself (cf. the quoted part of the award.

Zn. PL. ÚS 20/05) the question of the settlement of the historical assets of the Church and

religious societies to resolve emerging as in the text of the contested

standards, so the period podchyceném for example, the legislature intends. in

stenografických records of the meetings of the relevant chambers of Parliament from
in 1991, when the contested provisions take effect, in practice, since the

in 1990, when it was approved by law no 298/1990 Coll., already in its time

presented as provisional measures [in addition to the already cited, see discussion

the outputs relating to the historic ecclesiastical assets, marginally

http://www.psp.cz: eg. Reply of the Deputy Prime Minister of the Czech and Slovak

Federal Republic of RNDr. J. Mikloška, DrSc., the interpellation submitted

Member of the Chamber of deputies of the people e. Nováková of 28 June. November 1990: "(...)

Law no 298/1990 Coll. (...) does not affect nearly all assets and

congregations and resolves to return only property for objects that schedules and

the Congregation needed necessarily to start its work. Now when

dealing with schedules and kongregacemi, it was agreed that the first stage of the

the return of the seized property, respectively, that this is not the final solution

funded the rehabilitation of churches and religious associations. (...), "print

272; on the contrary, from the last time. further, for example. the explanatory memorandum to the draft

the law on the mitigation of certain property injustices caused by the churches and

religious communities in a time of oppression, on the settlement of the property

relations between the State and churches and religious societies and amending

Some laws (law on securities settlements with churches and

religious societies), diet. print no. 482, which also sees the

the need for the law in how economic considerations, so (constitutionally) legal

including the fulfillment of the legitimate expectations of the churches and religious societies

and "the promise of the legislature"].



73. No constitutional significance of this fact is lawmakers no doubt

I know from the case law of the Constitutional Court, and at the latest from 2005, when

The Constitutional Court specifically and explicitly expressed that "the State must, however,

its commitment to issue the restitution law, arising from a quoted

the provisions of the law of the land, on the ecclesiastical assets meet, as must

meet the legitimate expectations on the part of ecclesiastical legal persons that

is based on statutory provisions. " [find dated 2 February 2005, SP. zn. II.

TC 528/02; opinion of the plenum of the day 1. November 2005, SP. zn. PL.

TC-Wed 22/05 (see above); resolution of 19 July 1999. January 2006, SP. zn. II. THE TC

687/04 (published in SbNU); find of the day 24. June 2009 SP. zn. (I).

TC 663/06; and a number of other decisions].



74. The Constitutional Court has repeatedly stated that the principle of the protection of legitimate

the expectation (in the sense of protection of confidence in law) is tightly bound to the principles

the rule of law, and does from the article. 1 (1). 1 of the Constitution. The Constitutional Court

considers it appropriate to recall that the social philosophy concludes,

If the uncertain boundaries of legitimate expectation based on the law,

It is an insecure and freedom (cf. for example. Rawls, j., a theory of Justice,

Prague, Victoria Publishing, 1995, p. 145). The protection of the legitimate

the expectation is an integral part of the rule of law. The premise of the rule

State and legal certainty, as one of its attributes, such

the arrangement of the State in which each, by a natural person and a legal person, may

have confidence in the law, on the basis of real-time planning and

to pursue their interests. It is clear that the legal security and the consolidation of

confidence in the right has a comparably negative impact as the sudden change of the rules

[cf. find SP. zn. PL. ÚS 2/02 of 9 June. 3.2004 (N 35/32 SbNU 331;

278/2004 Sb.)], so not taking predicted rules.



75. From a comparative perspective, while it is not a typical international

comparisons, comparisons with the rather common "Czechoslovak element",

the appropriate point on the fate of the contested-quite identical-the provisions of section 29 of

the law of the land in the Slovak Republic after the split of the Czechoslovak

of the Federation. This provision is now virtually in Slovakia

consumed by the adoption of Act No. 282/1993 of about zmiernení niektorých

property krívd spôsobených cirkvám and religious spoločnostiam,

which took effect on 1 January 2005. in January 1994, and law No. 503/2003 z. z.,

navrátení to pozemkom vlastníctva, which took effect on 1 January 2005. may

2005. Due to the specific activity of the Slovak legislature so

the existence of the provisions of section 29 of the law of the land, as is evident, there

questions about confidence in the legislature and the constitutionality of any activity,

legislative inaction, because the undertaking contained in the provisions of section 29 of

the law of the land has been populated. This is further supported by purpose at the same time

the contested provisions, as the Constitutional Court reviewed above.



76. The urgency of the public interest to remove the legal uncertainty arising

of the temporary legal status (law no 298/1990 Coll., in conjunction with section 29

the law of the land) to date, already exceeds the levels and

justifiable limit. Non-acceptance of the special law, to which they

the legislature explicitly committed itself, over a period of nineteen years, though he was

The Constitutional Court can its inaction is notified

manifestation of non-permissible legislative arbitrariness, and violates article. 1 (1). 1

Of the Constitution.



XI.



The obligation of the legislature resulting from the protection of legitimate expectations



77. a second plane the same commitment of the legislature is the mechanism by which it was

loaded with a legally significant demands of authorised persons from the ranks of (not only)

churches and religious societies with regard to the particular model chosen

the overall concept of the restitution law in Czechoslovakia after the year

1989. The vast majority of acts, which the Communist State completely withdrawn

churches and religious communities of their economic autonomy, would

pass muster not only with regard to the then already completely undoubted international

standard of fundamental rights, but in the light of contemporary Czechoslovak

laws. The transition of ownership rights even at the time could not be

based on e.g.. by taking things without a legal reason, moreover, state that

throughout the period of possession could not be in good faith.



78. The Constitutional Court notes that, in addition to the explicit legal basis in

the provisions of § 29 of the law on land has a legitimate expectation of the Church and

religious basis and in total by the concept of restitution

the process after the year 1989, or in individual restitution

[cf. the interpretation of provisions in the award SP. zn. PL. ÚS 15/98 of

31.3. 1999 (N 48/13 SbNU 341; 83/1999 Coll.) and many other], but

as a whole, cannot be interpreted to the detriment of entire groups of entities

(people), which in addition to the wrongs of property had survived until a long period under the

a systematic and permanent pressure of totalitarian State power in all

their (remaining) activities.



79. in the present case, it is particularly significant that, according to the case-law

The Constitutional Court and the European Court of human rights to be established

the case-law of the courts in the interpretation of the law can be considered as included in

material sense and be part of the relevant legal norms [cf. find

The Constitutional Court, SP. zn. II.-566/05 of 20 June. 9.2006 (N 170/42 SbNU

455); find SP. zn. IV.-611/2005 of 8 February 2005. 2.2006 (N 34/40 SbNU 281);

decision of the European Court of human rights in the cases against the Kruslin

France from 24 October. April 1990, no. 11801/85, Series and no. 176-B; Müller

and another against Switzerland of 24 September. in May 1988, 10737/84 Series and Well.

133; Markt Intern Verlag GmbH and Klaus Beermann against Germany dated 20.

November 1989, no. 10572/83, Series A No. 165; If not stated

otherwise, cited the decision of the European Court of human rights (the Commission)

are published in the HUDOC database on http://www.echr.coe.int]. In the now

things considered so the existence of the protection of legitimate expectations (ownership interest)

concerned religious organisations follows both from the legal provisions of

interpretation and application of established practice (case law of the Constitutional Court,

to which systematically refer to general courts).



80. On this point it should be noted that, although the concept of legitimate

expectations can have over this designation in the considerations of the different constitutional courts

or the European Court of human rights of a special nature, not quite

freely interchangeable with similarly designated by the theoretical structures in

other jurisdictions (ésperance légitime; legitimate expectation), its

the essence of the relevant securities is interest that falls under the protection of the article. 1

The additional protocol to the Convention (as well as article 11 of the Charter). According to this article:

"Any natural or legal person has the right to peacefully enjoy your

assets. No one can be deprived of his property except in the public

interest and under the conditions provided for by law and general principles of international

rights. The previous provision does not preclude the right of States to adopt laws that

consider it necessary to adapt the use of property in accordance with the General

interest and ensure the payment of taxes or other contributions or penalties. " The concept of

"property" contained in the first part of the article. 1 of the additional protocol to the Convention

has autonomous scope, which is not limited to the ownership of tangible assets and

does not depend on formal qualifications in national law. May include

"the existing asset", so a variety of assets including

the claims on the basis of the complainant can claim that it has

at least the "legitimate expectations" to achieve effective use

ownership rights. The object of the protection under the said article is therefore

not only acquired, i.e.,. an existing property, but also the legitimate expectations

the acquisition of such assets. The central rule of thumb when considering
applicability of article. 1 of the additional protocol to the Convention is the account of the

specific and individual circumstances of the case, that in your summary should

base property interest in the protected article. 1 of the additional protocol to the Convention

[Iatridis against Greece [GC], judgment of 25 March 1999, no.

31107/96, para. 54, ECHR 1999-II; Beyeler against Italy [GC], dated June 5.

January 2000, no 33202/96, para. 100, ECHR 2000-I; Broniowski against

Poland [GC], of 22 December 2004. June 2004 no 31443/96, para. 129, ECHR

2004-in; Anheuser-Busch Inc. against Portugal [GC], of 11 June. January

2007, no 73049/01, para. 63].



81. The provisions of article. 1 of the additional protocol to the Convention in the interpretation

The European Court of human rights does not impose on Member States a General

commitment to restoring property that has been transferred to them prior to the ratification of the

Of the Convention. Nor does not constitute restrictions on the Member States to determine the extent

the restitution of property and specify the conditions under which the property

navracen the original owners [Jantner against Slovakia, judgment of the day

March 4, 2003, no. 39050/97, para. 34]. On the other hand, however, if

a State party after the ratification of the Convention (the Protocol) shall adopt the legislation

to allow full or partial recovery of the property konfiskovaného

assets, can this law be based



new

property right under the protection of the article. 1 of the additional protocol to the Convention.

The same is true in relation to the measures relating to the restitution or

the compensation for the property, which arise from a law enacted prior to the ratification of the

The Convention (the Protocol), if this law remains in effect even after

ratification of the Convention (the Protocol) [Broniowski against Poland [GC], of 22 December 2004.

June 2004, no 31443/96, para. 125, ECHR 2004-in; Maltzan and others against

Germany (dec.) [GC], of 2 July. March 2005, no 71916/01, 71917/01 and

10260/02, para. 74 (d), ECHR 2005-in; Kopecky against Slovakia [GC], of

28 June. September 2004, no 44912/98, para. 35 (d), ECHR 2004-IX].



82. As regards the concept of the protection of legitimate expectations, due to the different

the concept of the Institute in various jurisdictions can be on the edge of the

comparatively to mention for example. a different concept of the protection of legitimate expectations in

the case law of the European Court of Justice (Court of Justice of the European Union),

that is the concept of the settled in the case law of the Constitutional Court and the European

Court for human rights fundamentally out completely. Respect for the legitimate

expectations in the case law of the European Court of Justice is one of the

the most commonly relied on the principles of Community law/EU, however its

the application is typical only in specifically defined areas, in particular in the

the field of agriculture and in employment disputes [see Tridimas, T. The

General Principles of EC Law. Oxford University Press, 2000, p. 169].

This principle is of particular importance, in particular in the context of retroactive

application of the law. You can, however, rely on it in other contexts, but

only in the scope in which the community/EU itself has previously created a

the situation which gave rise to a legitimate expectation. Such expectations

may arise on the basis of earlier legislation or on the basis of the negotiations

the institutions of the community, this principle may be invoked, only

If the legislation or practice of the institutions concerned are immediate

the cause of the protection of legitimate expectations. Legitimate expectations can be a source of

substantive rights, which differs for example. from the principle of legal certainty, that

It has rather the character of a general and interpretative principle. When

respecting the above general assumptions, the European Court of Justice

Specifies the concept of legitimate expectations in its case-law, so that

must have some form of who it may be relied on, in

What time, to what extent, and in relation to which the rights. For example. in

judgment of the Court of first instance, T-199/01,



(G) contre Commission de Communautes européennes

of the 7. November 2002, in point 38 States that is linked to the previous

case-law and, further, that the law of the protection of legitimate expectations binds to three

terms and conditions-who, it alleges, the public administration must be

The community provided precise, unconditional and consistent assurances

resulting from authorised and reliable sources on these guarantees must

be of such a nature that a legitimate expectation arises from them, to whom

they are intended, and finally these guarantees must be provided in accordance with

the applicable standards. These conditions are related to the concept of



protection of legitimate expectations

as defined in the abovementioned judgment of the Court of first instance, T-199/01,



(G) contre Commission de Communautes européennes

However, it must be understood in the narrow context of the present area, which

this case deals with, namely in the context of the employment dispute, in which the

cash was rejected to pay the medical expenses of the official European

of the Commission.



83. The Constitutional Court in the award of 8 June. March 2006, SP. zn. PL. ÚS (50/04 N

50/40 SbNU 443; 154/2006 Sb.) He stated that "the principle of the protection of legitimate

expectations in accordance with the case law of the European Court of human rights

judikoval, it clearly stands out the concept of the protection of legitimate

expectations as a property right that has already been individualizován

an individual legal act or individualizovatelný directly to the

the basis of the legislation "(cf. find in things SP. zn. PL. ÚS 2/02-see

above). Finally, specifically to the issue under consideration is the constitutional

the Court expressed in the above-mentioned case-law [from 2 February 2005 sp.

Zn. II. the TC 528/02; opinion of the plenum of the day 1. November 2005, SP. zn.

PL. ÚS-Wed 22/05, by confirming the conclusions previously cited

the award; resolution of 19 July 1999. January 2006, SP. zn. II. the TC 687/04 (in SbNU

unpublished); and a number of related decision], when he stated that "the State

However, its commitment to issue the restitution law, resulting from the

the cited provisions of the law of the land, on the ecclesiastical property meet

because it must meet the legitimate expectations on the part of the ecclesiastical Corporation

persons, which is based on statutory provisions. " In the present case now

Therefore, the Constitutional Court of the legitimate expectations of the (securities) infers from

the specific legal provisions supported by long-term interpreting

The Constitutional Court.



84. At the core of the Grand Chamber judgment of 22 December 2004. June 2004 in case

Broniowski against Poland [GC], no. 31443/96, ECHR 2004-in-which has

pilot character and whose support the conclusions cannot be ignored even in the now

things considered-the European Court of human rights reviewed the situation

the complainant, who, in a nutshell, unsuccessfully asserted the claim

on the compensation for the property that his family allowed to lapse after the second

After World War II. His interest in this asset had foothold within the legal order of the

(promise of the legislature) and the case-law of the highest judicial instance. In

as a result of the procedure, and in particular the idle state, which did not accept the

matching-the rule of law, predicted-law, according to which the

the compensation could be decided, was found to be violations of the article. 1

The additional protocol to the Convention.



85. the conclusions of the Constitutional Court seems substantial, that the European Court of

for human rights qualified the legislature's inaction as an intervention in the rights of the

in the sense of the general rule in the first sentence of article. 1 [paragraph 136, 145, 146

the judgment]. He emphasized that the context of the cited article contains positive

the obligation of the State to secure the performance of the concerned property rights in

taking into account the fair balance between the competing interests of the

the individual and the whole society [paragraph 143-144]. Each intervention in the rights of the

guaranteed by the Convention must pursue a legitimate aim, while maintaining the principles of the

fair balance (



fair balance

), which is its own article. 1 of the additional protocol to the Convention. At the same time

He stated that the national authorities, for their direct knowledge of the company and

its needs, have a wide discretion in the matter of equity options

the identification of the public interest in balancing rights and famously clashing

interests, to a situation when their judgment is manifestly lacks a reasonable basis

[paragraph 149; referring to James and the other against the United Kingdom of

21 June. in February 1986, no. 8793/79, Series and no. 98-A; The Former King of

Greece (Former Greek King) against Greece [GC], judgment of 23 June.

November 2000, no. 25701/94, ECHR 2000-XII]. Referred to are

also valid for such a fundamental change in the system, such as the transition of the country from

the totalitarian regime to a democratic form of Government and political reform,

legal and economic structure of the State as phenomena, which

inevitably include the adoption of economic and social

law with wide social implications. In application of the article. 1

The additional protocol must be carried out an overall assessment of different

the interests concerned, taking into account that the Convention is intended to ensure

the rights which are "efficient and effective". In the assessment of the admissibility of the intervention

may not necessarily be evaluated only the particular conditions for compensation, but also

the procedure for the parties, and the means used by the State and their implementation. In this

context stressed the European Court for human rights, that uncertainty, whether

stems from the law, administrative procedures or of the practice of the authorities of the State administration, is

a factor that must be taken into account in the evaluation procedure of the State.

When it comes to issues of public interest, the State power must act

at the right time, appropriately and consistently [paragraph 151; with reference to the judgment in

things Vasilescu Romania from June 22. in May 1998, no. 27053/95,
paragraph. 51, ECHR1998-III; Beyeler against Italy [GC], dated June 5. January

2000, no 33202/96, para. 110



in fine

, 114 and 120



in fine

, The ECHR 2000-I; Sovtransavto Holding against Ukraine, of 25 October. July

2002, no. 48553/99, para. 97-98, ECHR 2002-VII].



86. In the present case, the European Court of human rights has repeatedly

considering the historical factors, the specifics of the period when the State

He had to contend with the problems of political, economic and social transformation, and

a great range of contentious claims, and admitted to the extraordinary difficulty of

the situation, requiring a complex political decision [cf. paragraph.

155-163]. the European Court of human rights further admitted that in

situations whose solution requires the adoption of the contested act with distinct

the economic impact on the State, the national authorities must have considerable

diskreci not only in the selection of measures for the protection and control of property

relations, but also the choice of the appropriate time for their implementation. The selection of the

These measures may include the necessary decision to limit the amount of

compensation for seized assets to a level lower than its market price.

The provisions of the article. 1 of the additional Protocol thus does not fully

compensation for all of the conditions [paragraph 182. with reference to the judgment of James and

For more against the United Kingdom, from 21 October. in February 1986, no. 8793/79,

paragraph. 54, Series and no. 98-A].



87. Furthermore, the European Court of human rights stated that, although the fundamental

the reform of the political and economic system of the country and the State of public

Finance may justify a significant limitation of the compensation to be paid (per

the property on which the complainant and other parties came after 1945),

the Polish State was unable to provide sufficient explanation in relation to the

article. 1 of the additional protocol to the Convention, for what reason permanently ineffectual

After many years in the implementation of the right of the complainant, as well as thousands of

other [paragraph. 183]. The rules and principles resulting from the article. 1 Additional

Protocol to the Convention require, said the European Court of human rights, to

States not only to respect and apply consistently and predictably

the laws that they themselves have adopted, but also in their wake to ensure legal and

the factual conditions for their implementation. The same principles committed to Polish

State to within a reasonable time, by the appropriate means and consistently filled

the legislative promise to tackle the relevant claims, and it's in the public interest

[paragraph 184]. The fact that the complainant is a small (around 2%)

compensation already received, the European Court of human rights did not find a

Why would he be deprived of the possibility to obtain at least a reasonable

part of the claimed values [paragraph 186



in fine

].



88. In addition to the scope of the infringement of article 81(1). 1 of the additional protocol to the Convention

The European Court of human rights said that such a breach has its origins in the

system problem of failure of domestic legislation and

[statement of sub 3]. The next statement, the European Court of human rights

saved by the Polish State duty through the appropriate legal

measures and administrative practices to ensure the implementation of the property law

and in relation to its other holders or instead provide a

the corresponding compensation [statement of sub 4].



89. The above conclusions of law of the European Court of human rights

fall



mutatis mutandis

on the position of the beneficiaries of the contested provisions of section 29 of the law of the land,

who were the future settlement of the historical assets of the Church State

power repeatedly assured, and that the position and the explicit commitments

the top authorities of the Executive and national constitutional factors, and

primarily by the legislature through the promise contained in the

the legal standard. In this atmosphere, later, the Constitutional Court rejected referred to

the promise of the legislature to deal with kazuisticky through individual

the court proceedings, which would be due to the high number of potential

disputes being flooded with judicial power aktivisticky filled the purpose of the Act, which

only arises in the future. The key is in this case an element of trust in the

the right, on the specific interpretation of ecclesiastical bodies were repeatedly

by the public to be able to ujišťovány, including the explicit decision

The Constitutional Court has already referred to the decision of the [: find from 2 February 2005 sp.

Zn. II. the TC 528/02; opinion of the plenum of the day 1. November 2005, SP. zn.

PL. ÚS-Wed 22/05, with a reference to the previous award; the resolution of the

19 July. January 2006, SP. zn. II. the TC 687/04; find of the day 24. June 2009

SP. zn. I. ÚS 663/06; and a number of other decisions].



90. What the Constitutional Court in its case-law indicates as a legitimate

expectations [cf. quotation marks bearing concept



right to credit

in a statement the sub 3 judgment



Broniowski

], is undoubtedly a continuous and specific property interest under

under the article. 11 of the Charter and article. 1 of the additional protocol to the Convention. The inability to

implement this property interest (or achieve) for

Nineteen years as, in the opinion of the Constitutional Court meets the corner

unconstitutionality of legislative omission solve the system

and complex issue, on which the Constitutional Court, the legislature repeatedly

alerted. The legitimacy of the purpose of this intervention (inactivity) could take after

a transitional period in the time of the adoption of the most critical steps

social transformation, however, is not sustainable



ad infinitum

. As an extremely cynical, by the way, appears to be a counterargument, according to which the

now they cannot rely on the operators concerned of their property rights,

because their interests properly nehájily the available legal resources

immediately after the intervention of the law between the years 1948-1989. Similar to the

the argument exposes the nature of the legal and political changes after 1989

the fundamental doubts about their meaning and closes eyes to the role of the courts in the

(ecclesiastical) political processes such as the willing executors

the party commands [cf. especially find dated February 2, 1999, SP. zn.

II. the TC 66/98, which apply mutatis mutandis in relation to "nedůslednému" the complainant

He noted that "would further the implementation of property rights on

real estate a relatively high values certainly lead to simplicity

If your resource state-IE. to delete the wearer of this

rights, and without any justification. "; the general constitutional

of the Court of 21 June. December 1993, SP. zn. PL. ÚS 19/93 (see above)].



91. The above Constitutional Court admits that a certain particularity of this

subjective property law can-even with regard to the discretion of the

legislature-arise from the organizational nature of the individual

the Church or religious society, when a specific form of settlement

may not be directed against individual entities, rather than according to the circumstances and

against the Church or religious society as a whole. Through those must

the legislature must respect the principles of the resulting article. 11 of the Charter and article. 1

The additional protocol to the Convention, which shall not be set out above

compensation in proportion to the value of the assets of the manifestation of the arbitrary compensated

the legislature, but must reflect the principle of proportionality (respectively.



fair balance

). If the grieving individual property caused by formally Church

legal person, with regard to the organisational structure and the internal

binding the Church, intended and implemented as an act of unlawful repression against

the whole (appropriate) Church, includes the positive responsibilities of the legislature even

the discretion of the appropriate form of editing these total relations, subject to

provide judicial protection in the particular case. If it is as an alternative

the above considered high number of individual judicial path

disputes, hundreds of thousands-which would be a practical result of migration

the responsibility of the legislature to the courts when the abolition of section 29 of the Act on land-

the Constitutional Court has doubts that many years of these proceedings,

in fact, even most of the property came into the possession of churches and

religious communities, was filled with the original moral and

the economic purpose of the restitution or taken into account in the interests of the communities to the extent desirable or

of third parties.



XI./c



The obligation of the legislature an obligation arising from the protection of fundamental rights and

freedoms



92. Although the Constitutional Court in several of its decisions that

the so-called. restitution law is based on the concept that, in General, on

restitution is not constitutionally based and does not imply that such claim or

the international commitments of the Czech Republic, in the cited things SP. zn. Pl. ÚS

20/05 the Constitutional Court also found that the inaction of the legislature

(not a question) is unconstitutional, if it raises more direct

unconstitutional consequences.



93. The provisions of article. 2 (2). 1 of the Charter guarantees the religious pluralism and

religious tolerance, respectively, the Department of State from specific

religious beliefs (the principle of the konfesně of the neutral State). The principle of the

religious pluralism and tolerance is expressed in the article. 15 paragraph. 1 and in

article. 16 of the Charter of fundamental rights and freedoms. The central principle of konfesně

the neutral State is implemented by the co-op model the relationship of the State and

the churches and their mutual independence. For the following considerations

whether and to what extent is economic self-sufficiency

material assumption of the independent exercise of the rights guaranteed by the particular article.

16. 1 and 2 of the Charter. Because of the constitutional order of the Czech Republic
does not include only the imperative of independence of the State of the churches and the

religious societies (as part of the ideological and religious

the neutrality of the State), but also the requirement of independence of churches and religious

by the State in fulfilment of its objectives.



94. The Constitutional Court with regard to the formal legal continuity, but

at the same time clearly declared a value discontinuity with the Czech State

the previous, undemocratic regime [find dated December 21, 1993, sp.

Zn. PL. ÚS 19/93 (see above)], as the General commitment of the Democratic

and the rule of law, expressed in the article. 1 of the Constitution, and in particular in the individual

the provisions of the Charter of fundamental rights and freedoms, to ensure not only a formal,

but the real recovery of the material guarantees the exercise of fundamental rights and

freedoms, where previously-despite the content of the basic lidskoprávnímu in

International



jus cogens

-State failed. The adoption of the Charter of fundamental rights and freedoms and log on

other international instruments for the protection of fundamental rights, however, is not

point zero, in which the obligation of the State was beginning to asymptotically if need be,

actively create conditions for the realization of fundamental rights. On the contrary, in

relation to individual holders of the basic law cannot be disregarded on the

the historical context in which it is currently and through no fault of the State.

In other words, it would be inconsistent with the concept of development and strengthening of

fundamental rights, should the social changes have led repeatedly to download

lower standards of fundamental rights on the basis of ignoring historical

the causes of the current situation. The history of democratic and legal State

consist of thick lines in the past, but the lessons of the past

the experience must have guarantees of past mistakes in neopakování

the future.



95. In this respect, understands the Constitutional Court (in the overall process of restitution

the broad sense of the word) after 1989, not as a purely political intention,

that was only part of the (necessary) liberal economic

the transformation, in which fulfils the function of a primarily social deetatizace

wealth, but it grows even as the recovery process of material guarantees

the exercise of the fundamental rights of manifesting for example. and in the functioning of civil

the company [the first concept of accent observed in most countries of Central and

Eastern Europe and be regarded as a functioning market economy scale

the success of the transformation, for example. Posner, E. And-And Vermeule.

Called transnational Justice as Ordinary Justice. In The Harvard Law Review, Vol.

117, no. 3, January 2004, pp. 765-825; especially in relation to the Czech

the Republic is possible even in the case of external observers in the emphasis on the first

the concept at the expense of the human rights aspect of watching the criticism: Williams, R.

(C) The Contemporary Right to Property Restitution in the Context of

Transitional Justice. Occasional Paper Series, International Center for

Transitiona Justice, May 2007, p. 11-23, http://www.ictj.org].



96. The relationship to churches and religious societies as such to the constitutionally

guaranteed religious freedom to the Constitutional Court notes

the completeness of that constitutional relevance of these entities is given by the article. 15 paragraph. 1

(



"Freedom [...] religious freedom is guaranteed. "

) and the article. 16. 1 of the Charter, which guaranteed the exercise of religion

or belief privately or publicly, in worship, teaching, religious

operations or the maintenance of the ceremony, either separately or together with the

other (legal personality of such Community law is

then the effect of these guarantees, as the State cannot realize their

rights without entering into legal relations) [cf. e.g. from 18.

June 2003, SP. zn. I. TC 146/03 (see below)]. Also, the European Commission

for human rights stated that, for the purposes of article. 9 of the Convention seems to be different

inspection on the Church and on their individual members only artificially

designed, and the churches themselves have been separately granted rights

resulting from the article. 9 (2). 1 of the Convention, as through churches and

religious communities exercise their basic right themselves believers [X.

Church of Scientology in &. Sweden, App. 7805/77, € 16. Comm ' n H.R.

Dec. & Rep. 68 (1979), retrieved from Evans, c. Freedom of Religion under

the European Convention on Human Rights. Oxford: Oxford University

Press, 2001, p. 13-14]. The Constitutional Declaration of the freedom of religion without warranties

institutional, e.g.. without reflection or bargain collectively control rights

without respect to the necessary functional property essentially the individual

religious bodies, ensuring religious freedom only

iluzorně.



97. Churches and religious communities are thus the origin of the basic

rights and in the context of the pojednávaném now even eligible to act as a

the bodies of the rights of ownership. Just on the edge, in relation to the historical

the nature of the assets of the Church can point out the available doktrinární views

that same nedovozují character of the ecclesiastical property as property

the issue of the ownership of the State [of the Catholic Church and the restitution of

ecclesiastical property (Masaryk University in Brno); Assessment questions

ecclesiastical property (University of West Bohemia in Pilsen, Faculty of

legal); Expertise (Institute of State and law, ACADEMY of SCIENCES); Legally

historical expertise of Charles University in Prague, the legal status of the so-called.

the Catholic Church property in the second half of the 19th century. and in the 20th century. century on

the territory of today's CZECH REPUBLIC; expertise are published in the annex to the Convention. print no. 858

"The message of the President of the Commission, the Chamber of Deputies for the temporary solution

property issues between the State and churches and religious societies on the

the Commission's activities in the period from 13. June 2008 to 31. March 2009 "]. For

the ownership status of churches in this respect, especially not decisive whether

It was a legal person of public or private law [The Holy

Monasteries (the Holy monasteries) of 9 September 2002 against Greece. December 1994, no.

13088/87, 13984/88 series and no. 301-A, para. 48-49].



98. The Constitutional Court has already, in its case-law has confirmed that the activities of churches

cannot be reduced merely to the performance of the cult, but that constitutional protection (article 15 of the

paragraph. 1, article. 16. 1 and 2 of the Charter) to enjoy their traditional

activities generally beneficial, educational, medical, social,

charitable, etc. [find SP. zn. I. TC 146/03 of 18 June. 6.2003 (N

115/31 SbNU 33); find SP. zn. PL. ÚS 6/02 of 27 June 1994. 11.2002 (N

146/28 SbNU 295; 4/2003 Coll.); find SP. zn. PL. ÚS 2/06 of 30 October. 10.

2007 (N 173/47 SbNU 253; 10/2008 Coll.)]. You can compare for example. view

the German Federal Constitutional Court, according to which "the freedom of

religion in itself in addition to the individual freedom to manifest their religion in

Privacy and the public necessarily includes freedom of Association in

organizations for the purpose of common public religion, especially

freedom of worship for the Church in their historically formed form and on the

the basis of their mission (BVerfGE 42, 312). To submit a constitutional complaint to the

the protection of the fundamental right to unimpeded exercise of religion are

entitled not only religious society, their suborganizace or

their legally independent from the device, but also legal persons whose

the objective is the performance of charity tasks in the implementation of one of the

the basic requirements of the religion (cf. BVerfGE 19, 30, 129;

112; 42, 312; 46, 73) "[BVerfGE 53, 366]. In this context, 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

charitable action. The active love of neighbor is an essential task

Christians and Christian churches is understood as a basic function.

Does not include only religious provided hospital care, but is generally

According to the fundamental religious requirements focused on security

the necessary people, including their education and training "(BVerfGE 70, 138;

BVerfGE 57, 220). The historic role of the Church in society is

reflected in the case law and other constitutional courts [cf. the decision of the

The Constitutional Court of the Italian Republic from 11 February. April 1989,

ITA-1989-R-001; the decision of the Constitutional Court of the Republic of Lithuania

June 13, 2000, LTU-2000-2-006; the decision of the Constitutional Court of Hungary

Republic of 27 April. February 1993, HUN-1993-1-003; indications from the database

CODICES http://www.codices.coe.int].



99. Furthermore, let it be said that the European Court of human rights in the matter of The

Holy Monasteries (the Holy monasteries) of 9 September 2002 against Greece. December 1994,

No 13088/87, 13984/88, series A No. 301-and, in assessing the expropriation

farm the land concerned monasteries found primarily violations of

guaranteed protection of property interests resulting from the article. 1 Additional

Protocol to the Convention, not the rights resulting from the article. 9 of the Convention. To do this,

However, the Constitutional Court adds that this individual the conclusion (of the Department

property rights of religious freedom) is not portable to virtually

an abstract assessment of inactivity of the legislature agrees on now-

quite a different thing. In this part of the justification for the finding of fact

The constitutional court assesses the (and) the broader constitutional consequences of the Czech Constitutional

all right, (b) and taking into account the overall intensity of the intervention, which (from the

a substantial part) refusing the assets may refer to material guarantees
the level of religious freedom (c) taking into account the existence of other warranties

the rights arising from article. 16. 1 and 2 of the Charter.



100. on point (a) the Constitutional Court States that the Czech Republic is referred to in

article. 1 (1). 1 the Constitution of the democratic rule of law based on respect for

rights and freedoms of man and citizen. From this principle primarily

It follows that the Constitutional Court must be based on the national or

the international scheme, which provides the highest standard of protection

fundamental rights and freedoms. The reference criterion is now primarily article.

16. 1 and 2 as a special provision to article. 15 paragraph. 1 of the Charter. The rate of

specificity of these provisions reflects the previous bitter experience,

which resulted in ignoring the formally recognised fundamental rights at the time of

the Communist regime in Czechoslovakia, and at the same time builds on the

human rights standards achieved in civilized countries. Interpretation of the

These provisions have already been repeatedly traktována in the case law of the constitutional

of the Court.



101. To be considered under point (b) is to be particularly noted that now it is not

individual intervention to one body or group of bodies, but

that the essence of property wrongs is preventing all of the economic and

significant parts of the other property intended for the action of the Church in the

the company, which negatively affected the whole segment of society and in the

as a result of other measures will eliminate the exercise of essential ingredients

of the basic law. The Constitutional Court in its deliberations therefore takes into account that

If you are against churches and religious communities were of the

the Communist State about the uniformly driven by the intervention of a total and comprehensive, where

the primary subject of unlawful repression was not so much the individual

the body of ownership (legal person), but their whole

and status in society, and not their proprietary nature, but

the essence of their existence, reflects this fact in their

a different position after changing the social and legal conditions and in

the nature of the claims, or the obligation of a new democratic legislator

it an unavoidable condition to correct. The legislature thus stands before the solution

the consequences of the intervention, which was not in relation to the areas of religious life in the

The single exception of Czechoslovakia, but the rule, or direct

ideological imperative, as in the case of religion were "[...]

opium of the people. Cancel of religion as the illusory happiness of the people means to apply

his real happiness "[Marx, k. Introduction to the criticism of Hegel's philosophy

rights. In Marx, K., Engels, (B). Writings. St. 1. State publishing house

political literature, Prague, 1956, pp. 401-402]. The demise of the material

determined religion as vestiges of the lower

social development was then associated with the removal of the private

the ownership of the means of production in the whole of society [Engels, (B).

Anti-Dühring. In Marx, K., Engels, (B). Writings. St. 20, Publisher

Svoboda, Prague, 1966, s. 310]. In addition to the practical, the so-called. Church policy

the "ideal" even promoted the constitutional standard through

Constitutional Act No. 100/1960 Coll., the Constitution of the Czechoslovak Socialist

of the Republic, whose article. 16 expressly established that "All cultural

politics in Czechoslovakia, the development of education, training and teaching are

conducted in a spirit of scientific belief, Marxism-Leninism, [...]. "

Historical reality-in which the Constitutional Court refers to a widely available

the professional work of historical and právněhistorické-in the case of the churches and the

religious communities places preview of property wrongs

in isolation in relation to each of the affected bodies, but their

the massive nature of the substance penetrates into the religious freedom.

The overall scope of the blocked church property, if it is, how it is

the petition, on the vast majority of the historic property of churches and religious

the companies, in comparison with the guarantees of article. 16. 1 and 2 of the Charter,

differentiation in the unconstitutional status ESP.. in relation to the law of the Church freely

Choose the form and scope of its activities, and then the "manage their affairs

independently of the State authorities. ".



102. Even when the consideration (c) mechanisms, such as the State practiced so-called.

the economic security of churches. This is done on the basis of Act No.

218/1949 Coll., on economic security of churches and religious

by the State, in the wording of later regulations, according to which the State had

and according to § 1, 4, 6, 8, § 11 (1). 1 and section 12, to meet a number of obligations,

including for example. the rights and obligations of the patronátů State of transition (in the constitutionally

the permitted range), and also in relation to purely kultové activities. Cannot be

look through the fact that the so-called. the economic security of the Church was

conceived from the outset as one of the instruments for the Elimination of the economic

the independence of churches and religious societies, with direct intent

not religious freedom to fulfill, but her fight through the

direct Executive control of religious life and economic oppression.

Concisely the purpose and application of law No 218/1949 Coll. prefaced the then

the General Secretary of the Communist Party of Czechoslovakia Rudolf Slánský, on

consultation of the regional Secretaries of the COMMUNIST PARTY on 15. September 1949: "[...] We took

Bishops of the land. We have taken the Church all the printing. Everywhere in the konzistoří we are

put to the Commissioner. We have closed the Church school, this was not open

not one church school. Now we take them to the monasteries. It's closing time

the priest. [...] Now, for example. other important measures-new Act for

the priest. We will never be, under what conditions, and to whom we pay.

I think that our work in the Church is positive [...] It would be good

you have prepared such a blacklist of those the greatest King of lame in

regions and okresích. Remember, if not today, then tomorrow, we

need. The party has learned enough politically "[retrieved from Kaplan, to.

The State and the Church in Czechoslovakia 1948-1953. The Institute for contemporary history of the AV

CZECH REPUBLIC, Prague, Brno, Nakladatelství Add-on, 1993, p. 98, note. 190].

At the same time, it was called. the economic security of churches considered the measures

temporary, in the spirit of the above ideological grounds, as evidenced by the

for example. that law No 218/1949 Coll. ever anticipated process

the State of recognition or registration of churches and religious societies of new

[also for example. Hájek, j. on the issue of legal relationships by the Church in CZECHOSLOVAKIA.

Administrative law, 1986, no. 6, p. 369: "legislation (...) is based on the

recognition of temporary, the degree of social development obtained conditional

the existence of religious feeling (...) "].



103. On this point, the Constitutional Court concluded that now is not in any way direct

the subject of the constitutional review, that the so-called "model. economic security

churches and religious societies, if it had been conceived as

a full alternative to the settlement of the historical assets of the Church and

religious societies, it is not enough to guarantee freedoms, arising from the

article. 16. 1 of the Charter, especially the independence of the (affected) by the Church, and

religious organisations to State according to the article. 16. 2 of the Charter. For

a proper understanding of these considerations, it is necessary to emphasize, that the Constitutional Court now

does economic analysis claims legitimate churches resulting from

Act No. 218/1949 Coll., in proportion to the actual implementation of the State, but

speaking in General about the mechanism, when it is the only State that concerned

churches and religious communities Act confers a number of titles in the so-called.

economic security, at the same time, however, the de facto alone determines what

the total amount of these expenses will be spent, thereby virtually

unilaterally decide on the extent of the economic dependence of the affected churches and

religious societies to the State [see e.g. opinion of the Ministry of

culture contained in the conclusion of the Supreme Audit Office No.

08/20: "over the years, the Ministry of finance in the State budget

only the minimum amount of funds to salaries and insurance

Administration and maintenance of the material cost of the Church's property. The presentation of the

the budget of each of the CNS was therefore cancelled, because the State

is not able to finance all the financial needs of churches and religious

company ", http://www.nku.cz; the importance of the so-called. economic

Security for the exercise of the rights arising from religious freedom. for example.

Přibyl, with the concept of the so-called. "special rights" churches and religious

companies under Act No. 3/2002 Coll. In Lawyer No. 7, vol. CXLII,

2003, page 714].



104. that status in the absence of a reasonable settlement of the historical

the church property, which is a State of inactivity as a result of its own

continue to be the dominant source of income of the affected churches and religious

the company, moreover, without apparent ties to the proceeds from zadržovaného

the historical assets of the Church, so, in effect, violates article. 16

paragraph. 1 of the Charter to freedom to manifest faith in the company to the public

and traditional forms of religiously-motivated in General

community service activities with the use of appropriate historically formed

economic resources, and in particular article. 16. 2 of the Charter, and in

of the Church's autonomy. It is the legal opinion and the

doktrinárně held, for which see. Syllová, j. on the interpretation of article. 16
The Charter of fundamental rights and freedoms. In: Kolar, p., cross, j. (eds.).

Settlement of the relationship between the State and churches. CEVRO Institut, Prague, 2009

page 9: the legislature had intended to "Restore and rehabilitate the position

the Church, which was during the last 40 years marginalizováno and give them the

autonomy in decision making, which in the period of totality.

Ústavodárce was aware of the fact that the formulation containing the word

"independence" referred to in this provision is the only option, how

autonomy in the status of churches to strengthen at least ústavněprávně, in a situation

When it was irretrievably broken centuries of educational and educational action,

When the assets of the Church use, postátněn and the influence of the Church on it

annulled. The documentary was a program that was supposed to be completed

reaching the real independence of the Church. [...] The independence of the Church is

possible grammatically interpreted, so that must have the property that they would

allowed to perform basic functions independently of the Church that each

the right to manifest freely his religion or belief, either alone or

together with others, privately or publicly, in worship, teaching,

religious acts, or keeping the ceremony. ".



105. On this point it is appropriate to point out that i have come to a similar view,

The Constitutional Court of the Republic of Hungary in the decision of 12 July 2005. February 1993, no.

4/1993. One of the findings was the discovery that if Infected

restitution law-defining the circuits back to property

finishes with the traditional functions of churches-monitors primarily "damage

caused by the State in relation to the constitutional right to the free exercise of

religion and not on proprietary damage caused by the law. ". At the same time

He stressed that the historic role of the Church in society and to the public

oriented character of their activities is to a certain extent different from

other natural or legal persons (taking into account the nature of their

assets) and allows you to compare them to the request

the independence of the State, with local authorities (municipalities),

as units are also inseparable from the individual rights of the citizen to

self-determination (read: Government) [cf. ESP. part III of the decision;

the English translation on the website of the Constitutional Court of the Republic of Hungary

http://www.mkab.hu].



106. In other words, the impact of inaction the legislature so

manifested not only in the narrow sphere of assets (historical) churches and

religious communities (article 11 of the Charter, article 1 of the additional protocol to the

The Convention), but also in the de facto limitations on the autonomy and independence of

State (Church autonomy) guaranteed by the article. 16. 2 of the Charter to the exercise of

freedoms guaranteed article. 16. 1 and article. 15 paragraph. 1 of the Charter. For

the Constitutional Court considers it unacceptable that opinion, according to which (from the

historical perspective) broad freedom of thought, conscience and

religion, as follows from the Czech constitutional order and of the

international standards, and how it is under the protection of general courts and

The Constitutional Court, should justify a lower level of economic

the autonomy of churches and religious societies. That would perhaps

the existence of the current higher level of fundamental rights and freedoms in comparison with

the status of the earlier (to 25 February 1948) could serve as an argument for

reject the securities settlement.



107. In view of the above, the Constitutional Court found sufficient grounds for

finding unconstitutional Parliament, therefore no longer idle did not consider

relevant as well to develop other aspects of the issue in detail, between the

which is to be pointed out especially on the question of rationality, the reasons for

in fact, different treatment of the bodies of the will of the legislature

become beneficiaries under law no 298/1990 Coll. and rules

other legal persons, which are part of how Catholic

Church, so concerned other churches and religious societies, and with it the

taking into account the fact that this inequality is amplified by the length of time when

are these other legal persons referenced on a law that does not exist.

Even the consideration of mitigating some wrongs cannot be controlled by the irrational

an overbearing legislature establishing inequality.



XI./d



108. In relation to the municipalities and third parties, that are currently registered

the owners of the blocked assets, long-term historic church

Parliament's inaction may cause individual unconstitutional effects on the

the basis of the specific circumstances, which the Constitutional Court due to the abundance of

conceivable situations can affect the general verdict. Even when the

remain the primary responsibility of the legislature for the legislation concerned

due to the complexity of the fabric of the relationship due to the restraint and

The Constitutional Court, to appeal to its possible intervention in

basically a positive decision of the legislature's future,

a waiver of the provision of adequate protection to specific individual requirements

of the persons concerned in the future (together with the general courts), if

the legislature has not taken constitutionally Conformal solutions.



XII.



The conclusion of the



109. For these reasons, the Constitutional Court found that the contested provisions of section

29 of the law of the land is not in itself unconstitutional, since it tracks the constitutionally

Conformal purpose and does not contain excessive means for its achievement.

At the same time, however, found that the failure to act of the Parliament of failing to take

the law envisaged the provision of section 29 of the law of the land, which was

settled by the historical assets of the Church, and for a period of nineteen years,

violates article. 1 of the Constitution, article. 11, article. 15 paragraph. 1, article. 16. 1 and 2

The Charter of fundamental rights and freedoms and article. 1 of the additional protocol to the Convention

on the protection of human rights and fundamental freedoms.



110. The Constitutional Court did not find grounds for priority consideration of the proposal in

pursuant to section 39 of the Act on the Constitutional Court.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum

Vladimir Crust, Jiří Mucha, Jan Musil and Pavel Rychetský.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 38, find

No. 156, p. 241



** Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 39,

opinion No. 22/05, p. 515, published under no. 13/2006 Sb.