To Propose The Abolition Of The Presidential Decree No. 108/1945 Coll.

Original Language Title: o návrhu na zrušení dekretu prezidenta republiky č. 108/1945 Sb.

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55/1995 Coll.

Czech Constitutional Court
On behalf of the Czech Republic

The Czech Constitutional Court ruled on 8 March 1995 in plenary in the case
draft RD, represented by attorney JUDr. KK, to repeal the decree of the President
no. 108/1945 Coll., On the Confiscation of Enemy
assets and fund national reconstruction, with the participation of the Chamber of Deputies of the Czech Parliament
, as a party, and by
participants in the first RB, represented by attorney JUDr. LM, 2nd JUDr. JS
represented by attorney JUDr. VB


The petition is denied.

RD petitioner filed with reference to § 74 of Law no.
182/1993 Coll., On the Constitutional Court, together with a constitutional complaint against
judgment of the Regional Court in Usti nad Labem, Liberec Branch, dated 26 .
10th 1993 ref. No. 29 Co 647 / 93-30, a proposal to initiate proceedings under
§ 64 para. 1 point. d) of the Act. In its proposal
said that the Regional Court in Usti nad Labem in conflict with the existing regulations
constitutional law, and contrary to the constitutional law in force in
1945, said Presidential Decree no. 108/1945 Coll.
confiscation of enemy property and the Funds of national renewal, valid
part of "our law" and also said that this decree is
"lawful act on the basis of which has been confiscated."
According to the Constitutional Charter of 1920 belonged to the legislative power only
National Assembly and both Houses. At the time of the dissolution of the House of Commons some
or after the expiry of its term of office until re Summit of
chambers and for a period during which their meeting was postponed or terminated
amounted urgent measures, even if they were otherwise need
law, and exercised the power of government and the executive 24členný Executive Committee
composed of 16 members of the Chamber of Deputies and eight members of the Senate.
This committee has jurisdiction in all matters falling within the legislative competence of the National Assembly
, but even this committee was not authorized
change constitutional laws or impose their measures
new permanent financial obligations or dispose of state property. No other constitutional body than just listed
National Assembly, respectively.
24členný its executive committee was endowed with legislative powers. Whether it was therefore dr. Edvard Benes
whatever, respectively. at the time when the decrees published, even
president (and thus the legal opinion of the petitioner was not and could not be
because of 5. 10. abdicated in 1938, and after him was another duly elected president of Czechoslovakia
), not even as a private citizen
even as the president of the Czechoslovak Republic to be endowed with legislative powers
. So if you published any acts they were most
administrative acts and executive power of government, issued in contradiction with the then valid constitutional
right from the outset acts null and void. If the socialist legal
science and immediately preceded and influenced by so-called jurisprudence.
The National Socialist revolution, allegedly occurring in 1945, that his acts
marked as acts of revolutionary legislation, it should be noted that there
revolutionary legislation, only revolutionary violence without law.
These acts, thus judged, so they were no more than acts of violence, not
rights. In contrary to the fundamental principles of the rule of law, there was one person
be granted the same legislature and at the same time the power of government and
executive. Presidential Decree no. 108/1945 Coll., Which was
applied in that judgment of the Regional Court in Usti nad Labem, Liberec
affiliate, is inconsistent with Articles 2, 3, 4, 11 and 24 of the Charter || | fundamental rights and freedoms, concerning the application and limits of state power
national rights, fundamental rights and freedoms and the rights
property. For all these reasons, the petitioner proposed that the Constitutional Court declared
Presidential Decree no. 108/1945 Coll.
for the act null and void from the outset. If the Constitutional Court despite
legal principles of civilized European societies believed that
a legislative act or even a law designed this annul a legal norm.

RB intervener in its proposal to repeal the provisions of § 2 para.
5 of Presidential Decree no. 108/1945. He said that this is the norm
its nature and focus of the anti-democratic and inherently inhumane
. To state did not bother with any Co

In cases where it would otherwise conditions of the decree fell just part
immovable property came to him for help with legislation such uncultured
structures. The affected joint owner was excluded from the opportunity to defend itself.
This principle marked the decree is in direct contradiction with Article 17 paragraph.
2 of the Universal Declaration of Human Rights on the follow-up article 55 point. c)
UN Charter, Article 1 para. 1 of the Additional Protocol of 1952 to 20. 3.
European Convention on Human Rights, as well as in conflict with
Declaration of Children's Rights, in particular its principle No. . 2 and 8, because at the time
confiscation appellant was a minor.

Intervener JUDr. JS in its proposal to annul §
1 and 2 of Presidential Decree no. 108/1945. said that dr.
Benes was in 1945, entitled to issue presidential decrees, because
according to the Constitution of 1920 was not at the National Assembly elected as president

Chamber of Deputies of the Parliament of the Czech Republic in the representation of its Chairman Dr.
. Milan Uhde expressed so that the Decree of the President of the Republic
no. 108/1945 Coll. He was issued within the authorized head of state in
time when the National Assembly was not established, and constitutes a valid
part of our legal system. Authorization of the President of the Republic for the duration
the Provisional Constitutional Order, if necessary, issue regulations,
which amend, cancel or newly issued laws to the Government's proposal
form of decrees, countersigned by the Prime Minister, respectively.
members of the government delegation of powers, constitutional balanced
presidential decree dated 15. 10. 1940, no. 2/1940 OJ. lead. CAA., on the exercise of legislative power
, published in the Collection of Laws and Regulations under the Czechoslovak State
no. 20 of 1945. All decrees of the President of the Republic
were subsequently approved by the Provisional National Assembly
Czechoslovak Republic and constitutional law dated 28. 3. 1946 no.
57/1946 Coll., approving and declaring the law decrees
president. Presidential decrees have been issued thus
constitutional means, constitutional means are confirmed and valid part
our legal system.

The Senate of the Constitutional Court, which dealt with the constitutional complaint RD,
order dated 27. 5. 1994 ref. No. IV. US 56 / 94-15 proceedings pursuant to § 78 paragraph
. 1 of Act no. 182/1993 Coll. interrupted a proposal to repeal the decree of the President
no. 108/1945 Coll. the Plenum of the Constitutional Court to
decision under Article 87 paragraph. 1 point. a) of the Constitution.

Plenum of the Constitutional Court are primarily addressed the question of compliance with the conditions
§ 74 Act no. 182/1993 Coll., On which the petitioner proposal
rested. This provision states that, together with a constitutional complaint may be filed
proposal to repeal the law or other legal regulation or individual provisions
which led to the fact
which is the subject of the constitutional complaint if, according argument | || complainants are in conflict with constitutional law or international treaty
under Article 10 of the Constitution, respectively. the law, if it is a different legal
prescription. At this point, the Plenum of the Constitutional Court concluded that
condition relating to the authorization to submit a proposal to repeal the law or
another law is fulfilled in this case.

The first fundamental question in this case is whether the contested
decree, namely Presidential Decree dated 25. 10. 1945 no.
108/1945. was issued within the limits specified competences legitimately
or vice versa, as claimed by the petitioner, it was so contrary to the fundamental principles of the rule of law
since his release has been executive authority
in conflict with the then valid constitutional law. In this context it should
stated that the basis upon which the rule of law
Czechoslovak Republic, the Act was dated 28. 10. 1918 no. 11/1918 Coll. a. and n., a
establish an independent state of Czechoslovakia. This foundation
Czechoslovak law could not be in any way undermined
German occupation, not only on the ground that the provisions of Articles 42 to 56 of the Order Laws and Customs of War on Land
representing Annex IV. The Hague Convention of
18th 10th 1907 define the exact boundaries in which the invader could apply
power of the state on the territory occupied by the state, but mainly because
German Reich, as a totalitarian state governed by the principle expressed Rosenberg

Sentence - the right is what serves German honor - exercised state power and creating
legal system in principle has been set aside their material value
base. This fact is perhaps best describe the two imperial laws of
1935, namely the Law on the Protection of German Blood and Honour and the law on Reich citizenship
in which eminent puts emphasis on the purity of German blood, as provided
continued existence German people, and in which a citizen
Reich defines only the nationals of German or related blood
who proves by his conduct that he is willing and able to serve faithfully
German nation and empire. In contrast, the constitutional requirement
democratic nature of the Czechoslovak state in the constitutional charter of 1920 formulates
Although the concept of politico-scientific nature (which is juristically
difficult to define), which does not mean that it is metajuristický and that
not legally binding. Conversely, as a basic characteristic feature
constitutional system is, in effect, that of a prior request
formal legal legitimacy was in the Constitutional Charter of the Czechoslovak Republic
erected in 1920 the constitutional principle of democratic legitimacy of the regime

It was therefore not the case that the Czechoslovak legal system obviously prefer
primacy of national law, that its constitution was unquestionably
on the opinion of their own absolute sovereignty and independence
any other legal system, so Czechoslovak constitutional
legislature could, if maintained while a prescribed form of rulemaking,
validly whatever - namely, notwithstanding any provisions
international law. As has been already stated, was
constitutional Charter of 1920 enshrined the principle of democratic legitimacy of the state
establishment, a principle that is already in the preamble to this document ( "because we want to
affiliate to the League of Nations as a member of the educated , peaceful,
democratic, progressive ") underlines the link to the value system that is the foundation
and international law. This value basis
Constitutional Charter of 1920 and its openness towards international law
documented beyond any doubt and regulation of rights and freedoms, as well
regulations for the protection of national, religious and racial minorities. The value
perception of how created during World War II and shortly after,
was contrary contained belief in the necessity of recourse
Nazi regime and compensation, or at least mitigate the damage caused by this regime and war events
. Even in this respect, therefore, Presidential Decree No.
. 108/1945 Coll. does not "legal principles of civilized societies of Europe
force in this century," but is an act of his time
platform based also on international consensus.

In these moments lie among other things why even during the occupation was
Czechoslovak state and its legal system recognized internationally and also why
foreign political leadership stood for the position of emphasizing continuity
Czechoslovak law. Forced behavior of the Czechoslovak state
threats against starting a war of aggression on the part of Hitler - which was contrary
in this time valid, binding and Germany itself, Briand-Kellogg Pact
- adopting the Munich Agreement, despite the forced resignation || | President Benes to the way President Hacha to Berlin, had lost
this state its credible democratic legitimacy, because of his behavior
quite clearly diverged with the attitude of the constitutional sovereign, ie the people who
his will to live in a democratic State made clear, among other things,
mobilization in 1938. It is in this fact can be seen why
any of these unfortunate acts, though it was made in a formal
adherence to constitutional procedures can not be recognized as legitimate. After breaking
Czechoslovak Republic and its constitutional system
impossible situation for many years the formation of a democratic constitutive power of the people on the territory of the Republic
. In this way, we were not different from many other European countries
whose exile representation, and legal acts issued by them
were the reasons given widely recognized internationally
, in accordance with generally accepted legal the principle that acts
incurred under coercion shall be deemed null and void.

What else can be in this case considered to be decisive is that the
time when it was created and has also been recognized internationally known.
Czechoslovak government-in-exile Czechoslovak Republic, enshrined in

Constitutional presidential decrees Nos. 1, Nos. 2 and in Decree no. 4
OJ. lead. Democrats. 1940 - featured the president, the government and the State Council
- Czechoslovak government issued a resolution of 1942 3. 12. "For more
validity of the presidential office of President of the Republic dr. Edvard Benes'
with the following content: "At its meeting of the Ministerial Council on 3 December 1942
Prime Minister Dr Msgr. Jan Sramek announced:
on 18 December 1942 expire seven-year term of the incumbent President of the Republic
dr. Edvard Benes, who was duly
elected President of the Republic at a meeting of the National Assembly on 18 December 1935.
president dr. Edvard Benes gave up his presidential office on 5
October 1938, however, the Czechoslovak government in accordance with the loyal citizens of Czechoslovakia
State never thinks of this resignation as valid, because
unlawfully enforced. Therefore, the president dr. Edvard Benes
remained head of the Czechoslovak State continuously since December 18
1935 and the governments of the United Nations and the governments of other states for
head of state acknowledged. The Prime Minister further said that under § 1 of Act No.
. 161/1920 convened a meeting of the National Assembly for election of the President of the Republic
Prime Minister, and that therefore the law obliges him to take care of
timely election of a new president. In looking to § 58 paragraph 3 of the Constitutional Charter and
§ 2 of Law no. 161/1920 is to be an election meeting of the National Assembly convened soon
4 Sunday and no later than 14 days before the end
term of office of the president. Since this meeting, under the circumstances
things can not be convened, the Prime Minister suggested that the government decided as follows:
According to § 58 paragraph 5 of the Constitutional Charter, which reads: "Former President
remains in office, unless elected a new president "remains
former president dr. Edvard Benes, duly elected by the National
Assembly on December 18, 1935, in his presidential office until
time when it will be possible to conduct the election of a new president. The government has thus decided by votes
and also charged the Prime Minister, to its resolution
announced the President of the Republic, the Czechoslovak people, the State
Board and the international public. "(OJ., P. Čsl, Vol. III ,
1942, p. 17).

the Czechoslovak government that resolution should be added that the resignation of President
dr. Edvard Benes was at "the lack of freedom", which means the time
from 30. 9. 1938 to 4. 5. 1945 (constitutional Decree of the President of the Republic
of 3 8th 1944 no. 11/1944 OJ. p. CAA.,
annex to the Ordinance of the Minister of Interior no. 30 / 1945 Coll., governmental Decree no. 31/1945
Coll.), in the period after the Munich agreement of 29. 9. 1938 that
Treaty on mutual relations between the Czechoslovak Socialist Republic and the Federal
Republic of Germany, published Decree no. 94/1974 Coll., was
in Article 1, be declared null and void (nullity of the Munich Agreement
September 29, 1938 was also confirmed by the Treaty between the Czech and Slovak Federal Republic and
Federal Republic of Germany
good neighborhood and friendly cooperation, published under no. 521/1992 Coll., on
which is also recognized that the Czechoslovak state since 1918
never ceased to exist). Interim state
establishment of the Czechoslovak Republic, acting through the President, Government and from 21
7th Also in 1940 the State Council, in addition to international recognition
received support also from the domestic and foreign resistance and generally
part of the Czechoslovak people. Regarding international recognition, perhaps in the first place
letter noted British Foreign Secretary Halifax
President Benes of 21. 7. 1940 in which he says that "
in response to the request of the Czechoslovak National Committee His Majesty's Government
in the UK are happy to recognize the interim
Czechoslovak government formed Czechoslovak national Committee
in this country, and builds her relations' (OJ., p. CAA., Vol. I, no. 10, pp.
4). In the letter A. Eden on 18 7th, 1941, by the Minister
Jan Masaryk, states that the king decided to accredit an Envoy Extraordinary u
dr. Benes as president of Czechoslovakia, and that the British government considers the legal status
president and government of Czechoslovakia to be identical with the position of public
Allied Heads of State and Government. In a letter to FDR Dr. Benes
of 30. 6. 1941 as the "addressee" stated Dr. Edvard Beneš, president
provisional government of Czechoslovakia. On 26. 10. 1942 informed the United States

US official Minister Jan Masaryk, the recognition by the United States
should be regarded under international law as complete and definitive. Also
Soviet Union fully recognized the Czechoslovak provisional government in July
1,941th Aside from the UK was recognized as Czechoslovak Republic, the represented
provisional government in London, de jure recognition
either express or establishing diplomatic relations, the 27 states.
Czechoslovak Republic, even though its authorities could not exercise state authority on
occupied territory had its own foreign troops, declared war on the Axis powers
and became one of the founders of the United Nations.

The tendency to maintain the legal continuity of the Czechoslovak legal system
expressed dr. Benes especially in his speech of 24. 7. 1940, three days after
recognition of the Provisional Czechoslovak Government by the British government, which
literally said: "Neuznavše Munich and all that it engendered, we defended
and defend the principle that the Czechoslovak Republic, the Republic
Masaryk lived and survived the Munich forward. our entire legal system
internationally - legally and politically - thus continues, for us, is not legally
my departure from office and homeland for us is breaking
Republic, legally and politically, there is nothing for us what he did
violent Nazism with us after March 15, 1939. I declare solemnly
these our political and legal principles and stresses that pays
for us all, members of our state and our nation, Czechs, Slovaks, Germans and
of the Carpathian and the other at home. i declare further behind
nonexistent, and for all the disenfranchised, to which we have been since Munich
illegally and unconstitutionally compelled. "

With the Benes decrees it is in full compliance with constitutional decree
president of 21. 7. 1940 on the establishment of the State Council, as
Advisory Council of the Provisional Constitutional Order of the Czechoslovak Republic
(no. 1 / OJ 1940. p. CAA. of 4. 12. 1940), as well as
constitutional decree of the President dated 15. 10. 1940 no. 2/1940 OJ. lead. Democrats.
(Published under no. 20/1945 Coll.), Which in § 1 notes
technical impossibility to maintain regulatory proceedings under Title I of the Constitutional Charter
(until it can be implemented the provisions of Chapter Two of the Constitutional Charter
of 29 February 1920 on the legislative power, the President of the Republic
tasks assigned to it under § 64 no. 1 and no. 3 of the constitutional Charter,
if they require the consent of the National Assembly, shall be exercised with the consent
Government) and also in § 2 declares that only for this period
regulations, amending, repealing or newly issued laws
will be issued for the duration of the interim government in establishing the necessary
cases, the President of the Republic the government's proposal in the form of decrees, which
countersigned by the Prime Minister, respectively. members of the government delegation
their performances. This document suggests a marked intention to return,
soon as possible, even when it comes to the legislative process to advance
mentioned in the Constitutional Charter of 1920 and is thus based on the validity
Constitutional Charter of 1920 with that legislative power by the constitutional Charter
will be created after the liberation of the Republic under the provisions
her second head. Validity § 2 of Constitutional Decree of the President of the Republic
dated 15. 10. 1940 no. 2/1940 OJ. lead. Democrats.
was extended constitutional presidential decree dated 22. 2. 1945 no. 3/1945 OJ.
P. CAA., on exercise of legislative power in the interim period until
time Kustavi provisional legislature Czechoslovak Republic.

As far as the legislative process relating to the decrees
President of the Republic must be noted that the government was preparing a decree
rule is also discussed the State Council. According to the provisions of Article 3
constitutional decree dated 27. 10. 1942 No.12 / 1942 OJ. lead. Democrats.
President was obliged to exercise legislative power "to request
advisory report from the State Council, has not done so already if the government" within
preparation of the relevant draft. After the abolition of the State Council on 4
4, 1945 (Prime Minister's Decree of 4 4, 1945 no. 2/1945 Coll.)
Decrees were - according to the case and the territorial scope of their validity - discussed | || also in the Slovak national Council. In accordance with these rules
decrees were presented always pointing out that they were issued "to the government's proposal"
"after hearing the State Council" or "agreement with the Slovak National Council."
As laws were also countersigned by the Prime Minister and

Members of the government, instructed their performances in the event of a constitutional decree
all members of the government (§ 2 of Constitutional Decree no. 2/1940 OJ. P. CAA.).
Their specific nature has been given only an emergency situation, which occurred
disabling exercise all state power, including the power
legislative, German occupation. In this historic situation and context
so decrees represented the only opportunity to make decisions with
legal force and power of law. Similarly, the legislative process
period of German occupation also tackle other occupied countries.
There is not without significance also point to the law itself dated 28. 10. 1918 no. 11/1918 Coll.
Out. and n., which was issued by the National Committee and who nevertheless became the foundation
law of the Czechoslovak Republic.

Tendency to revert to the legislative process under Title
second constitutional charter is clearly expressed in § 1 of Presidential Decree
Republic dated 26. 10. 1940 no. 4/1940 OJ. lead. CAA., adjusting
public statement recently issued legal provisions
Czechoslovak government, which provides that a public announcement of the newly issued
legal provisions Czechoslovak Government to restore regular
constitutional life of the Czechoslovak Republic designed alongside the Collection of laws and Regulations
Official Journal of Czechoslovakia.
Principle of formal legal continuity with the pre-Munich legal system is also contained in the president
declaration pursuant to § 64 para. 1 no. 3 of the Constitutional Charter, a state of war
between the Czechoslovak Republic and the countries which are at war with Great
Britain, the Union of Soviet Socialist Republics and the United States of America
(OJ., p. čsl, Vol. III, no. 1, p. 7), as well as
acts of amnesty and abolition, the president of the Republic
granted on 24 December 1941 on the basis of the right of him, the provisions of § 64 para. 1 no. 11
constitutional charter in military justice and military disciplinary and disciplinary proceedings
respectively. in the field of military criminal law (see also
OJ. p. čsl, Vol. III, no. 1, pp. 7 and 8). The apparent continual element
can be observed in the already mentioned Government Resolution of 3. 12. 1942
which dealt with the problems caused by the fact that on 18. 12. 1942 passed
seven-year term of the president. In this resolution confirming
dr. Edvard Benes as head of state until when, according
Constitution and Act no. 161/1920 Coll. a. and n., on the presidential elections, will be performed
election of a new president is in fact contained a voucher for
§ 58 par. 5 of the Constitutional Charter governing just such a case.
In terms of formal legal continuity, ie. Following the pre-Munich
legal order had then also crucial constitutional decree dated 3 8th 1944 no. 11/1944 OJ
. lead. Democrats. (Published under no. 30/1945 Coll.)
To restore law and order, who were concerned with the "domestic legislation", as well
"foreign regulations state system." The decree distinguishes three kinds
law is constitutional and other legal provisions
Czechoslovak issued until the 29. 9. 1938 (right before the Munich)
further regulations issued in the Czechoslovak legal order (ie. The territory
Czechoslovakia) during the Oppression (ie from 30. 9. 1938 to 4. 5. 1945) authorities of the other
Republic, German Reich, the Protectorate and the Slovak Republic (
right from the time of oppression) and finally regulations issued in the form of decrees of the President of the Republic of the London
Constitution (right to the establishment of a foreign state).
While the regulations issued on the 9th to 29th 1938 in Article 1 para. 1
cited decree declares that come from free will
Czechoslovak people, and therefore Czechoslovak legal order, the notes
Article 2 of the decree on regulations issued during
unfreedom that are not part of the Czechoslovak legal order, but that is
remains "on an entirely temporary period" to use, with exceptions
set out in Article 2. 1 . whether it comes to such an exception
decisions applying judicial or administrative authority (Article 3).
Important for present purposes, however, is what sets this decree
in Article 2 of the law, "the establishment of a foreign state": if these provisions
have the power of law, forms part of the Czechoslovak legal order, subject
However ratihabici, ie.
approval by the appropriate constitutional officials. This ratihabici subordinated even the very constitutional decrees forming the London
Institute (no. 1/1940 and no. 2/1940 OJ. P. CAA.). For other

Decrees issued under this Constitution (ie. Under § 2 of Constitutional Decree no. 2/1940
OJ. P. CAA.) Then says that expire
six months after the date when it will meet National Assembly, unless such acts again
resolution and announced (Article 5 para. 2 of the decree) and can be canceled and changed
mere law and presidential decrees
designated as constitutional. However, this regulation should not be in any way prejudice
Article I of the Act, which introduces the Constitutional Charter no. 121/1920 Coll. a. a
n., regarding the constitutional laws issued until 29. 9. 1938 (Article 5 para. 3
decree). The fact that there is still president and the government followed the principle
legal continuity with the pre-Munich law, evidenced by the constitutional decree
president of 23. 6. 1945, published under no. 22/1945
Coll. to declare laws issued outside the territory of the Czechoslovak Republic
. In § 1 of this decree, the government was empowered
to determine which constitutional decrees of the President (except
constitutional decree dated 15. 10. 1940 no. 2/1940 OJ. P. CAA. And constitutional || | decree dated 22. 2. 1945 no. 3/1945 OJ. p. CAA.)
further decrees of the President, government regulation, and other legislation that
been published in the Official Journal of the Czechoslovak remain
force, changing the beginning of their effectiveness and territorial and gave them
promulgate in the Collection of laws and Regulations. It is essential, however, that the constitutional
Presidential Decree of 3 8th 1944 no. 11/1944 OJ. lead. Democrats.
Conquered ratihabici and constitutional decrees forming the so-called. London Institute
which consequently meant that the foundation of the Czechoslovak
rule of law and the publication of this decree still remained Law of
28th October 1918 no. 11/1918 Coll. a. and n., as well as the Constitution of 1920.
It also follows from the explanatory memorandum to the government's outline of that decree, which
states that the additional approval of foreign domestic legislation
legislature will be made legal principle, He relied on by
liberation struggle of the Czechoslovak state, the principle of legal

Also Constitutional Decree of the President of 4. 12. 1944 no. 18/1944
OJ. lead. CAA., on national committees and the Provisional National Assembly
, published under no. 43/1945 Coll., in the opening statement
invokes force of the Constitutional Charter of the Czechoslovak Republic and states in Article 2
following: "The national committees by election emerges
provisional National Assembly, as an interim legislative body, which will be responsible
government. its composition, its origin and its scope
down specific constitutional decree. " So it was constitutional
presidential decree dated 25. 8. 1945 on the Provisional National Assembly
, published under no. 47/1945 Coll., Which in relation to the constitutional
Charter of 1920 created Although the charter unknown
legislative authority and powers entrusted to the National Assembly by the Charter
and other laws, including the authority to change the constitution, but with the proviso that
so may not only "if it is strictly necessary" ( Article 2 no. 2
decree). Substantial remains that even this decree respects
continual basis in its content or material sense.
Constitutional decree no. 47/1945 Coll. Indeed reflects on the one hand that due
the post-war situation and the changing economic and social conditions
it was no longer possible ratihabici legislation of a foreign state system
implemented entirely on the basis of the Constitutional Charter of 1920, on the other hand | || does not represent the viewpoint of the Charter, placing, as already mentioned
, eminent emphasis on the principle of democratic legitimacy, given
charter foreign element. This is indicated by Article 2 no. 1
this decree authorizing the Provisional National Assembly to confirm the president
in his office until a new election of the president, which it did unanimously
Provisional National Assembly of 28 | || 10th 1945. It was President Benes, who even in his graduation speech
on 15. 12. 1945 pointed to the emphasis that our foreign policy leadership
always placed on the continuity of Czechoslovak law. It confirms
However, the Act no. 12/1946 Coll., Approving, supplementing and amending
regulations to restore law and order, and in which the Provisional National Assembly approves
again act as a statute Presidential Decree

Republic of 3 8th 1944 no. 11/1944 OJ. lead. CAA., with amendments and supplements
in this Act mentioned. Final period regarding the decrees of the President of the Republic
constitutes a constitutional law no. 57/1946 Coll., Which
to approve and declare as law the presidential decrees.
According to Article I, paragraph. 1 of the cited Constitutional Act
Provisional National Assembly approves and declares the law constitutional decrees and decrees
President of the Republic, issued under § 2 of Constitutional Decree
President dated 15 October 1940 no. 2/1940 OJ. lead. Democrats. (No.
20/1945 Coll.), Including the just mentioned constitutional decree, if
already occurred. As further stated in Article I, par. 2 of
constitutional law, all presidential decrees
be considered from the outset as law, constitutional decrees as constitutional law.
Although there could no longer go on ratihabici under the provisions of Article 5.
1 Constitutional Presidential Decree of 3 8th 1944 no. 11/1944
OJ. lead. CAA., because a constitutional factor in it was understood
National Assembly by the Constitutional Charter of 1920, it was a legal requirement
continuity is done by the approval and declaration of the law
terms of presidential decrees, it was allowed to deal with
condition laid down in Article 5 para. 2 of constitutional Decree of the President of the Republic
of 3 8th 1944 no. 11/1944 OJ. lead. CAA., time limit
force of presidential decrees. Moreover, the provisions of Article I, paragraph.
1 of Constitutional Act no. 57/1946 Coll. also applies to himself
Constitutional Decree of the President dated 15. 10. 1940 no. 2/1940 OJ. lead. Democrats.
and in paragraph 2 of this article highlights the validity of the decrees
president since their inception. To this must be added that
under Article 112, paragraph. 1 and 3 of the Constitution of the Czech Republic have cited
constitutional laws valid in the Czech Republic to the effective date of this Constitution
only the force of law.

For the continuity of the laws contained in the decrees of the President of the Republic with the pre-Munich
legal system, however, testifies in particular and what
represents one of the basic conditions of this continuity, namely consensus
Czech nation with the value and legal connection to Masaryk
Republic. While Nazi Germany sought to disrupt and destroy
basic principles of the Czechoslovak legal and political order
confirmed our domestic and foreign resistance, follow the link to our
Legion in World War I, as well as the negative attitude of the whole nation
the occupiers, with the exception of the traitors and collaborators that our people
wants to live in a democratic and legal state, an important developmental stage
represented just before the Munich Republic. This attitude was contained
note that democratic values ​​retain their character and quality
only on the basis of continuity, based on a sort of common language
general agreement with these values ​​and principles. If true, that
principles of law were accepted by the Czech nation on the basis
general consensus was true at the same time, it could be abandoned and replaced by other
again only on the basis of current societal consensus, not by violence
and terror.

All of these considerations and actually led the Constitutional Court to conclude that
to the Czechoslovak government-in-exile Czechoslovak Republic established
in the UK, it is to be regarded as an internationally renowned
legitimate constitutional authority of the Czechoslovak state,
whose territory occupied by imperial military forces, the enemy was prevented from enjoying
sovereign Czechoslovak state power, stemming from the constitutional Charter of the Czechoslovak Republic
introduced by constitutional law no. 121/1920 Coll., as well as the entire legal order
Czechoslovak. Consequently, all normative acts
Provisional Constitutional Order of the Czechoslovak Republic, including Presidential Decree No.
. 108/1945 Coll. - Also due to their ratihabice
Provisional National Assembly (Constitutional Law of 28. 3. 1946 no. 57/1946 Coll.)
- Are expressions of legal Czechoslovak (Czech) legislative power and was consummated their
the efforts of the nations of Czechoslovakia to restore the constitutional and legal order of the Republic
. Invoking therefore unconditionally, thus far
terms of the legislative process, the Constitutional Charter of Czechoslovakia from 1920 to the time when
Czechoslovak state was initially violently curtailed and later fully occupied and when
gradually lost their political representation, it is totally absurd.

In its effect would such an assessment is meant to deny
enslaved nation's natural right to fight okupujícímu
aggressor, including the Armed Resistance. To what has already occupying aggressor
could make or what you intended to take place, it is sufficient to state
occupation of the remainder of Czechoslovakia in the form of the Protectorate of Bohemia and Moravia
, the German armed forces, the closure of Czech universities and
planned "Endlsung "the future of the Czech nation. Also
destruction of Lidice and other violent acts were sufficient enough to make it clear that despite "all legal
principles of civilized European societies, valid in this century" was only
Czechoslovak state, but also its very nations from serious || | question of his physical existence at all.

In response to the applicant for further argument, namely, that the decree of the President of the Republic
no. 108/1945 Coll., As well as other decrees issued by dr.
Edvard Benes, contradicted legal principles of civilized societies
Europe and that it is therefore appropriate not to be considered as acts of law but
violence, in other words, they lack the nature of the right at all, maybe even || | in a general sense, a fundamental moment
related to any evaluation of the past; what comes from the past must
although even in the face of present value in principle to succeed, this evaluation
past but can not be court presence of the past.
In other words, the order of the past can not be brought to court order presence
which has been instructed by other experiences, draw on such experiences and
many phenomena seen and evaluated with a time delay. From this point of
angle and in the context of relationships and events during the Nazi occupation and
during her closely connected must evaluate himself
decree of the President dated 25. 10. 1945 no. 108/1945 Coll., whose extradition
was nothing more than a measure of the historical situation and on the basis
then valid legal order, responding to previous liquidation
state sovereignty, the independence, integrity and democratic-republican state
forms of the Czechoslovak Republic, destruction of democratic principles
, the rule of law, included in the Constitutional Charter
Czechoslovak Republic in 1920, and the Nazi regime, who
their ideology of world domination master race and ideology downstream
the terror of marauding millions of human lives, is one of the most devastating
totalitarian systems in history.
It must therefore be regarded as entirely legitimate and consequent that every
democratic political system, as already emphasized TG Masaryk, has not only need, but also the duty
defense of the foundations on which it is based, as in | || pre-Munich Czechoslovakia actually happened, for example, by issuing
Act no. 50/1923 Coll. a. and n., on Protection of the Republic and a number of other measures
, counting among them military mobilization in 1938.
Given the text of § 1 para. 1 of Presidential Decree No.
. 108/1945 Coll. There is no doubt that this decree as his goal
watched reaffirmation of these fundamental democratic and legal principles
because it is directed precisely against their enemies. This
determination to protect and develop the Czech Republic is indeed
explicitly expressed in the Preamble to the Constitution of the Czech Republic, preserving and developing this
in this area as an important element of continuity.

As more fundamental question here shows question whether
between this objective, namely the building of a democratic legal state, and used
means, in our case the confiscation of enemy property, there
necessary functional, mutually conditioning relationship, in other words, whether the means used
corresponds to the objective pursued, or whether on the contrary, was among them
such a difference when the means used are shown in relation to the objectives already
inadequate. Question the reasonableness of the means chosen is a matter
boundary beyond which no resource in the session means - the goal has
can not go, unless it wanted to challenge myself a target. To maintain a functional relationship
goals and means is therefore essential that the means used
was the same species or genus as the target, in other words, that even in their
taktizujících elements were reversed and allow development to target in our case
democracy. Seen from this perspective, as well
decree of the President no. 108/1945 Coll. may, therefore, as
normative legal act, succeed only if does not inherently intentions

Democratic rule of law.

With regard to the above questions must be stressed that suggests itself already
title of Presidential Decree no. 108/1945 Coll. (
Confiscation of enemy property ...) that the decisive factor in defining
entities confiscated property of their enmity to the Czechoslovak Republic or
Czech and Slovak nation, the fact that in the case of entities referred to in
§ 1 para. 1 no. 1 of the decree - ie.
German Empire, kingdom of Hungary, persons of public law under German or
Hungarian law, the German Nazi Party, political parties
Hungarian and other departments, organizations, business equipment, personal
associations, funds and assets of these schemes or with them
related and other German or Hungarian people
corporation - has irrefutable nature, while the entities referred to in the provisions of §
1. 1 no. 2 of the decree, ie. physical persons nationalities
German or Hungarian rebuttable nature, namely, in the sense that
assets of these persons is nekonfiskuje, if they prove they remained loyal to the Czechoslovak
Republic, had never committed any offense against the Czech and Slovak
and either actively participated in the struggle for its liberation or
suffered under Nazi or fascist terror. In so far
§ 1 para. 1 no. 3 of the decree confiscated property
regardless of nationality, and those natural and legal persons who developed
action against the sovereignty, the independence, integrity | || democratic-republican form of government, security and defense
Czechoslovak Republic, who instigated such activities or tended to induce other persons
looked, intentionally supported in any way
German or Hungarian occupiers or in times of increased threat to the Republic | || (§ 18 of Presidential Decree dated 19 June 1945 no. 16/1945
Coll., on the punishment of Nazi criminals and their accomplices and
Special People's courts) biased or Germanized Hungarization on
Czechoslovak Republic or were hostile to
Czechoslovakia or the Czech or Slovak nation, as well
natural or legal persons who endured such activity in people
managing their assets (§ 1 para. 1 no. 3 Decree of the President of the Republic
no. 108/1945 Coll., as amended by Act no. 84/1949 Coll.).
Relationship enmity is therefore in Presidential Decree no. 108/1945 Coll.
Conceived on a national basis, because the enemy here in the first place
true Nazi or fascist system, and, as already mentioned,
irrefutably, and also the object of protection is mainly
democratic-republican form. Thus, even if the decree is
primarily talking about the German Reich and people of German nationality, in fact, has
this decree broader dimension and can be considered as one of
documents reflecting the age-old struggle between democracy and || | totalitarianism. The dividing line here is, on which side who stood;
because the enemy is not considered that, for example, be of German nationality, who
actively stood in defense of democracy or been affected by the totalitarian regime
, on the other side as the enemy qualified person who, no matter
in belonging to any nation, actively stood against

In this respect it should be ascertained whether the alleged contradiction with
"legal principles of civilized European societies" can not be seen in
that Presidential Decree no. 108/1945 Coll.
is clearly based on the presumption of liability of the German (and Hungarian) nationality
while persons of other nationalities burden of proof is on the contrary side
body deciding on whether or not the conditions for
confiscation of their property. Already at the beginning there must lay emphasis on the fact that
even among people of German nationality is not about the presumption of "guilt" but
presumption of "responsibility". Category of "responsibility" is directed
quite obviously beyond the "guilt" and in this respect is much broader,
value, social, historical and legal dimension.
Categories for defining responsibility is decisive note that the individual himself is
answerable for their attitudes, for their social and value
decision and that nobody could for him to assume this responsibility, either alone or society
history. The fate of each person belongs, that is woven into
power relations and that his position clear his responsibility

Advocate the power that realizes human rights.
Reason for founding the social, political, moral, and in some cases even
legal responsibility is precisely the failure of cooperation in
structuring of power relations, inaction in a power struggle within the meaning
services law. That is why democracy is a political system based on
institutionally concretized the concept of the common responsibility of all people
for the fate of the whole human society, therefore the liability aspect here
intertwined to a greater or lesser extent all spheres, personal life
individuals, law and politics. Immanent feature of procedure, and
responsibilities in a democracy is not only his general character, but also his inner
protection resulting from internal relationship subject to social
behavior and its consequences. Just as standards, the creation of individual
contributes spontaneity of his thoughts and actions, may feel the true sense
answerable. In contrast, in a totalitarian system, which featured
Nazi Germany, was transferred to the responsibility institutionally
ruling elite, though she actually felt any responsibility

It was at this point we should ask the question: to what extent and in what sense
responsible for the gas chambers, concentration camps, mass extermination
, humiliation and dehumanization of millions of deadening, only leaders of the Nazi movement
or they are behind these phenomena share responsibility and all those who
of these movements in silence profited fulfill his orders and not put them
resistance. Black diagram exclusive responsibility of senior Nazi
and lack of accountability of all the other barely exists.
Well as the origin and evolution of Nazism have been involved in other European countries and their
government, unable and unwilling to face since the beginning of the Nazi expansion
responsible for him primarily German nation itself, even in its ranks
found quite a few of those who actively and courageously spoke against him.
Responsibility between "rest" and the responsibility of the German people, among
silence and passivity of some and silence of others and more activity seems
however, still exist significant difference, which plays an important role in the issue
the burden of proof. For it was a substantial part of the German
nation that in many ways directly and knowingly participated in
creation of structures of power in Nazi Germany, expansion
Nazi Germany against Czechoslovakia and generally Nazi
intentions and acts, leading to the fact that at stake was the fate of the world.
Neither political life in darkness warrants a fact the vast social
resignation and apathy: if a company is controlled by a tyrant
most often it is because it does not have the courage or the ability to manage
itself. The human world can be preserved only if it
each bear their share of responsibility, a part that for him, no one can take.
In the thirties, the Czechoslovak Republic fatal, years could or rather should be
her every citizen evident that here under the guise
propaganda and lies on the part of Nazi Germany is one of
historically significant clashes between democracy and totalitarianism, the
conflict in which everyone is jointly responsible for what position and what attracts
social and political role assumes, namely the role of defender of democracy or
actor's destruction. As already noted, where appropriate, Emerson, "... one should
Although the sun's heat truth was completely dazzled, even blinded, however
he can not avoid it light enough to prefer not already seen."
This also applies to German citizens in pre-war Czechoslovakia, and especially
about them because fire that unleashed Nazism, was the work of the General
part of their nation and its leaders. This should rather show their loyalty to the Czechoslovak Republic
of which they were citizens, loyalty, perhaps
last democratic system in Central Europe and this fidelity
promote the fundamental political principle.

As was the case in reality? Already at this point should be emphasized that the Constitutional Court
task here is not to examine and evaluate the Czech-German relations
they were created, shaped and changed over the centuries.
The Constitutional Court was faced with the question what position took citizens of German nationality
Czechoslovakia in the thirties crisis and whether
Presidential Decree no. 108/1945 Coll. It constitutes adequate
constitutionally and value-reasoned response to this attitude, adequate

Extent that stand in terms of principles of law recognized at this time
civilized nations. At this point it should be emphasized that the Czech-German
conflict in this era of content has a conflict of democracy and totalitarianism,
resulted catastrophically for the Czechoslovak Republic before the Munich
agreement, the result of which was, among other things, about the forced departure
half a million Czechs from the border regions to the rest of the country. Became
If the Czechoslovak Republic a mere object of this Agreement, the same can not be said about
Czechoslovak citizens of German nationality, who worked
breakaway border areas of Czechoslovakia
and their integration into the German Reich as major players, important because
their political stance provided Hitler West
acceptable argument for the necessity of curtailing Czechoslovakia.
Czechoslovak Republic was also during this critical period of the state, whose
democratic foundations could be no doubt. Although many of our
citizens of German nationality could also in this period still seem
foreign element, providing them with the structure of its political system
sufficient and effective institutional space to ensure that their leaders refused and clearly
They expressed their opinions from different opinion, namely that they do not want
into the German Reich and did not wish to be attached to it
just for her, at that time already apparent, violence and brutality is characterized
totalitarian character. Developments after 1938 but went in a different direction. While
the former border areas resulted in local German population
absolute loyalty to Nazi Germany, in
Protectorate of Bohemia and Moravia caused great persecution and terror to which considerable
contributed KH Frank, winning even the functions of the state Minister
throughout the occupied territory. His name is also linked to the tragedy of Lidice and Ležáky
and reprisals following the assassination of Heydrich.

The establishment of a totalitarian system always represents a massive attack on humanity itself and
history. In the study things that the attacker was Germany and
vast majority of its people; without broad support from the majority of the German people
what he received by Hitler and his Nazi party
remained mere marginal phenomenon. In this the extremely dangerous nature,
in that it is a social phenomenon threatening "
fate of all life on earth" (Preamble to the Charter of Fundamental Rights and Freedoms), also lies
why efforts to liquidate all sources of totalitarianism also requires
extraordinary legislative measures. In other words, in such situations
goes always followed the elimination of the causes of totalitarianism, of
eliminate the outbreaks, which could lead to a relapse in all its horrific
characters. This extraordinary legislative measures must naturally
distinguish between "guilt" and "responsibility"; So in the Czechoslovak legislation
happened resolution retributive decrees requiring
proof of individual guilt and confiscation decrees, resting when
regards natural persons
rebuttable presumption of individual responsibility. The fact that the Presidential Decree no. 108/1945 Coll.
Based on the presumption of liability of German nationality, has, therefore,
view of the circumstances, discriminatory, does not
some nationalist revenge, but it is only appropriate response to the aggression of Nazi Germany
, reactions, which can was aimed at politically and economically
least mitigate the consequences of the occupation, to prevent possible new
started totalitarianism and strengthen the social and moral consciousness post curing
that a breach of any responsibility should always be accompanied sanctions.
When used Presidential Decree no. 108/1945 Coll.
no concept of German nationality, this fact also relate to the postwar
circumstances, when the defeated Germany was under the administration of the victorious powers and
later divided into zones, and therefore the use of the term German citizenship for the situation
when the German state did not exist, it was problematic.
Shift to the term "German nationality" was thus not in the decree, some "genetic"
condemnation, but rather a response to the post-war situation, especially the problematic
German citizenship. Precisely for this reason can not decree
seen as some sort of genocidal norm, since it was directed against those who
their behavior, whether they had any form, supported the Nazi
state. This shift from plane to plane ethnic státoobčanské disappear,

Regarding the presumption of responsibility of people of German nationality, and the apparent disparity between
"Bohemia" and "Germans". As substantial remains that the Germans resulted
their obligation to assist the intent of the totalitarian state already
their citizenship to such a loyal behavior towards the German Reich unconditionally
required, while the Czechs and members of other nationalities
constitutionally bound by loyalty to democracy, they had to act against
Czechoslovak statehood and democracy of their own accord. This
rebuttable presumption of liability is not established in the law of a foreign element
because it can be observed in other areas of policy areas
certainly hardly comparable, retaining filler, however, a common feature in
that the they formed the source of a certain type especially qualified
danger (rebuttable presumption of liability occurs in
international and national law, eg. in the area of ​​special treatment
kind of liability for damage). If there is a presumption of liability in such areas
, the more likely it is the place where the game
socially and historically, the fate of mankind. However ie a field
hardly comparable, there is no doubt that the law in itself tends to
presumption of liability in such extraordinary cases it contains.

With categories responsibilities usually associated penalties, which is an essential condition
that this category could fulfill its social function.
Responsibility without sanctions would be reflected in the existence of social consciousness
so negatively that it probably meant, at least in certain areas, his
destruction. Presidential Decree no. 108/1945 Coll.
such sanctions undoubtedly is; although at first glance it seems to be only "property"
nature, contains undoubtedly an important social and ethical overtones.
Because of the nature, in this case analyzed, responsibility can not be
However, the Decree viewed as a criminal law or criminal sanction, although the
confiscation of the property was, according to him without compensation. Such criminal norm
was undoubtedly the Presidential Decree no. 16/1945 Coll., As amended
(see Decree of the Minister of Justice no. 9/1947 Coll.
A full presidential decree on punishment
Nazi criminals and their accomplices and the extraordinary People's courts and
Presidential Decree on the National court Annexes I and II to this
Decree), which saved the court in connection with a conviction for the crime in
this Edict pronounce forfeiture of all assets of convicted or
part of his fortune to the State [§ 14 point. C)]. The decree thus
watching the punishment of persons mentioned therein that a conviction for crimes
mentioned in this decree were joined for convicted
unfavorable, other consequences (eg. A loss of civic honor), while | || Presidential decree no. 108/1945 Coll. Only
confiscation of property confiscation, which apparently was related to damage caused
Czechoslovakia by Nazi aggression and occupation (see
Potsdam Agreement of 2. 8. 1945, the Agreement on Reparations from Germany, establishing || | Inter-Allied Reparation Agency and returning monetary gold,
published under no. 150/1947 Coll.).

Another fundamental question is: can they ever
such sanctions in principle, be in conflict with the rights and freedoms of those who themselves
clearly violate and who therefore themselves responsible for it?
Other words: it can, for example, the right to freedom to seek whoever their behavior
her self destructs? It was the cruelty of the Nazi regime and events
WW2 and all experience this time drawn, which necessitated
answer to this question is already in Article 30 of the Universal Declaration of Human Rights and
in this article as downstream
him identical to Article 5, paragraph. 1 of the International Covenant on civil and political rights and
International Covenant on economic, social and cultural rights,
as well as Article 17 of the European Convention on human rights,
as amended by protocols Nos. 3, 5, 8, which states: "nothing in this Convention
can not be interpreted as implying for any State, group or person any right
engage in any activity or perform any act || | aimed at the destruction of any of the rights granted herein and freedoms or
on limiting these rights and freedoms to a greater extent than it
Convention states ". It is in this plane can be seen as the basis for the conclusions
general in character and in that case; involved if the former also

Czechoslovak citizens of German nationality in the destruction of the rights and freedoms of other citizens
Czechoslovakia, then a completely
consequent that in this direction could be the ongoing conflict
fully investigated nor their rights and freedoms, naturally while maintaining
session objective and means, such as social and destructive
"naivety" would necessarily have led to disaster. The "
legal principles of civilized European societies in force in this century", to which the petitioner relies
belongs therefore right to infer from an attack on democracy and
human rights and freedoms necessary sanctions.

To this must be added that the pecuniary penalties such as confiscation
enemy property situated in the territory of the Czechoslovak Republic
has its historical context, especially in the sense that
Potsdam Agreement of 2 8 . 1945 was decided on the expulsion of the German population
or part of Poland, Czechoslovakia and Hungary to Germany
(Title XIII), and that this agreement was simultaneously
decided also on German reparations in the spirit of the resolution of the Yalta conference
laying down that Germany will be forced to replace, if possible in
greatest extent of damage and hardship caused by the United nations, and
which the German people can not escape responsibility (Title IV). On these points
Potsdam agreement is the Agreement on Reparations from Germany, establishing
Inter-Allied Reparation Agency and returning monetary gold,
agreed on 21. 12. 1945 in Paris between 18 states, including participation | || Czechoslovakia, which was published under no. 150/1947 Coll. In Part I, Article 6
A of the Paris Agreement provides that "
each signatory government retains the form's self-chosen German enemy property under its jurisdiction
, or will have it in such a way that
will not return to German ownership or under German control, and
subtracting the assets from its share of the reparations ... ". According to Part I, D
Article 6 of this Agreement, "the implementation of the provisions above and will not
property that was owned by a country which is a member of the United Nations or its
members who were nationals of Germany at the time of annexation | || that country or its occupation of Germany or its entry into war
counting down from its reparations ... ". In the present case, therefore
confiscation of enemy property not only domestic legal basis in
Presidential Decree no. 108/1945 Coll., Připouštějícím
rebuttable presumption of liability, and, moreover, while operating ex lege, but only
against persons on which it was finally decided that
conditions are met for confiscation under this decree (§ 1.
4), but is based on the international consensus expressed in the already cited documents
Potsdam conference and Paris agreements.
Was not a question of arbitrary deprivation of property, the inadmissibility
was set up in Article 17 of the Universal Declaration of Human Rights. Also mentioned
moment of arbitrariness plays when considering the legitimacy of confiscation of enemy property
important role; Indeed legitimacy refers to the deprivation of property
when not if, in addition to meeting other requirements, such an act
regarded as arbitrary. The fact that on the part of Czechoslovakia in the context of
war events and attitudes of the victorious powers was not a
arbitrary, mere "concealment" into the robes of general interest, in violation
but in fact fundamental individual rights, can hardly doubt.

Neither democracy is not possible without the use of power, as it had
provides one of the most important opportunities, namely the chance to face the "evil"
infiltration, the onset of totalitarian elements and then allow their removal
. Also, democracy is a form of political rule -
otherwise would be unable to function as a political system -
this form is not from a totalitarian form so different that the two can hardly
bring to a common denominator. Democracy is directed to the government of
- even if this goal will never be achieved - monitors allow access to positions of power
all social units.
Opening this approach can not constitute a state of anarchy. State power is forced in
democracy if it is to maintain the positive elements associated with the element of power
respond to the ambivalence of social processes and legally punish
conduct and acts of destructive forces, pointing beyond the framework defined by law.
If totalitarianism represents an attack on humanity and history is just

Democracy required to adequately respond to such an attack.
The positive nature of such a response is primarily dependent on the establishment
values ​​about which society there is some consensus.

The conflict democratic and totalitarian political system, which featured
conflict of Czechoslovakia to Nazi Germany could not therefore state power
democratic Czechoslovakia no longer do without
subsequent legal action, which also represents the Decree.
After 20 years of its existence, leaving the democratic process power
open conflict and balancing social and institutional
ensured the political basis and most diverse manifestations.
This openness is manifested principally in relation to citizens of German nationality
. After a period of violent occupation by Nazi Germany and the
due to losses and wounds that suffered by Czechoslovakia,
, there was the Czechoslovak state power other way than with the consequences
Nazi occupation and war events, at least to some extent deal . Way
way to do so was entirely consistent with the value contemplation
expressed in the preamble of the Constitutional Charter of 1920 ( "secure the blessings of liberty
future generations") and was also supported international
consent, especially from the Western democracies
clearly expressed in the decisions of the Potsdam conference.

Expressed from another perspective, the value system, as has been the historical development
increasingly manifested primarily understanding and securing
human rights and freedoms, performs at important social functions
regulatory, classification, program and control function
so significant that it qualifies for one of the basic conditions for social events
; It ensures the continuity of the historical and social development, and thus
itself supporting structure of the company.
Importance of those social functions values ​​also provides an explanation why one of
nodal points of conflict between democracy and totalitarianism is being
range of values, and why especially in this direction are concentrated massive
totalitarian tendencies. If totalitarianism seeks to dominate the whole
companies can not achieve this goal without simultaneously
constituted inverted value system, aimed not only of history, but also
over human society itself. From this perspective, showing the struggle for
value as a struggle not only for democracy, but the essence and continuity
man. Also, German Nazism reached in this fight deep into his arsenal
and his theory and practice can be recorded by Plato has so brilliantly
representations destructiveness "blood lust" that found its
satisfaction not only in the inhumanity of the concentration camps, but also atrocities
war of attrition. Concepts such as Fhrertum, Volkstum,
Volksgemeinschaft represent only some of the features of ideology, declaring
overt way right Nordic race for world domination. For
rituals accompanying Nazi "value system" was hidden
tendency to destroy and uproot all really valuable, all
what allows an individual's self-awareness and social orientation, all
you stop him from to become a mere object. The disposal of human
autonomy can also be seen as the meaning and purpose of Nazi propaganda
creating a world of mere appearances in an environment of Nazi victims in the concentration camps presented
international public as
equipment and labor re-education.

In the system of social values ​​for the material instead of just freedom
which shows us as a provocative element and also the condition
social development; a shortage or even complete lack
always implies a slowdown, respectively. and stop social movements. In its deepest
base helps to create freedom and a sense of duty and responsibility;
Inspires man to achieve the highest goals, but at the same time he leaves
know that in principle puts limits especially herself.
Under this angle of view sees the Constitutional Court the question of the limits of human rights and freedoms
investigation and their purpose and meaning, as historically emerged
also at the time of the contested decree. However because in any democratic society
determine the limits of fundamental rights and freedoms
affairs "open" social events, in which even the minority is accorded
right to their own political stance, this can not be right to associate with minority
each lacking any positive social attitude

Subtext. Democracy by itself brought to ruin, where it would
opinions and behavior minority felt bound to measures that should already
contradicted its basic value orientation. Decree of the President of the Republic
no. 108/1945 Coll. Thus, not even from this perspective
arbitrary act, but sanctions aimed at securing the functions and purpose of human rights and freedoms
their constructive social benefits and deepening
sense of responsibility. The rights of citizens of the former Czechoslovakia was
necessary after the end of Nazi occupation limit, not because
held different positions, but for the reason that these attitudes were
overall context hostile to the very essence of democracy and its || | valorem order and its consequences, aid
offensive war. These restrictions apply in this case as well for all cases
meets the specified condition, namely the relationship of hostility toward
Czechoslovak Republic and its democratic form of government, regardless of their nationality
. If some social groups to use
human rights and freedoms have no limits and thereby destroy the rights and freedoms of others
, can not but such behavior legally and socially
sanction. Also Presidential Decree no. 108/1945 Coll. So watching
interest of political and economic stabilization of a democratic country,
impoverished, war and occupation, as well as other interested removal
possible recurrence similar historical situations, the interest of protecting the rights and freedoms of its citizens
who this burden carried and whose social and moral consciousness
- necessary for the exercise of those rights - would, in the absence of such a sanction
suffered immense cracks, although the postwar proportions
monitor this purpose were already hidden the intentions and practices | || political forces seeking to establish so-called. "popular democracy" as
path for future totalitarian regime.

To what has already been stated, is assigned in this case also
decisive the fact that legislation in exile and immediately
post-war legislation of the liberated Czechoslovak state
represents in essence an already closed circuit
problems and issues closely related to war and the economic renewal of the country.
Normative acts from this period accomplished their purposes in the
immediate postwar era, from a contemporary perspective they no longer have
any current significance and already lack any further constitutive character
(Article 5 para. 2 of Constitutional Decree President of the Republic of 13. 8. 1944
no. 11/1944 OJ. p. CAA., as amended by Act no. 12/1946 Coll.).
Legal relationships established by these acts are not only a consequence of war
events, but are also the result of legally manifested
Czechoslovak (Czech) legislative power following the removal
damages incurred due to extraordinary circumstances of the time of oppression and therefore
responsible for safeguarding them under the provisions of Czechoslovak (Czech)

Based on all these findings and considerations, the Constitutional Court came to the conclusion
that Presidential Decree no. 108/1945 Coll. at the time of its release
not only legal but also legitimate act. Given that
this normative act has already accomplished its purposes and for a period of more than four decades has not created
legal relations, and therefore has no longer
constitutive character, not today, in the given situation it
conflict with the constitutional law or international treaty under Article 10 of the Constitution
[Art. 87. 1 point. a) the Constitution of the Czech Republic], because such a procedure would
lacked any legal function. The opposite approach would indeed
questioned the principle of legal certainty, which is one of the basic requirements
contemporary democratic legal systems.

For all the foregoing reasons, the Constitutional Court, therefore, proposed to repeal RD
Presidential Decree no. 108/1945 Coll., On the Confiscation
Enemy Property and the Funds of National Renewal, according to § 70 paragraph
. 2 of Act no. 182/1993 Coll., On the Constitutional Court, dismissed.

Interveners and Mr. RB. JS refer to this decision.

Chairman of the Constitutional Court of the Czech Republic:

JUDr. Kessler vr

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