In The Matter Of The Application For Revocation Under The Law On Mimosoud. Rehabilitation

Original Language Title: ve věci návrhu na zrušení části zákona o mimosoud. rehabilitaci

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=45475&nr=185~2F1997~20Sb.&ft=txt

185/1997.



FIND



The Constitutional Court



1. According to the article. 11 (1) 2 of the Charter of fundamental rights and freedoms "law may

also provide that certain things can only be owned by citizens

or legal persons based in the Czech and Slovak Federal

Republic "(in accordance with article 42, paragraph 1, of the Charter and article 1, paragraph 2,

Constitutional Act No. 4/1993 Coll., this is the country of citizenship of the Czech

States and territories of the United Kingdom). Article. 11 (1) 2 of the Charter is therefore

the special provision applicable to the constitutional principle of the equality of all subjects

regarding the acquisition and protection of property rights (an example of his

projected into the rule of law is the provision of section 17 of the Act No. 219/1995 Coll.

the foreign exchange law). It is just the article. 11 (1) 2 of the Charter, which establishes a

for the legislature's constitutional space restriction beneficiaries in

restitution legislation.



2. the International Covenant on Civil and political rights, the principle of equality

edits in the article. 2 (2). 1 and article. 26. Equality as the first of the cited

provisions incidental in nature, i.e. it applies only to equality in

the Pact enshrined rights, while the right to ownership by virtue of them

It is not. Article. 26 first, enshrines equality before the law and, secondly, the exclusion of

discrimination. In the demonstrativním enumeration of reasons excluded uneven

access is not contained the nationality.



The UN Committee for human rights has repeatedly expressed the view when permitted by

application article. 26 of the International Covenant on Civil and political rights

inequality only exclusion of arbitrary power, or if this

based on reasonable and objective distinguishing character (reasonable

and objective criteria). As such in the present case, the Constitutional Court

It considers the implications resulting from the article. 11 (1) 2 of the Charter, as well as the objectives of the

the restitution legislation and finally legislation of citizenship

According to the article. (II) Act No. 88/1990 Coll.



On behalf of the United States



The Constitutional Court decided on 4 April 2006. June 1997 in the plenary on the proposal, j. d., filed

together with the constitutional complaint, the cancellation provisions expressed in section 3 of the

paragraph. 1 of law No. 87/1991 Coll. on out-of-court rehabilitation, as amended by

amended, the words "if it is a citizen of the Czech and Slovak

Federal Republic "and to repeal provisions expressed in section 3 (2).

4 of the same Act the words "if they are citizens of the Czech and Slovak

Federal Republic Of "



as follows:



The proposal is rejected.



Justification



(I).



The appellant filed a constitutional complaint against the judgment of the District Court in

Prague of 30 May. January 1996 No. 20 751/95-44, in conjunction with the

the judgment of the District Court of Prague-West 4. October 1995 No. 4 C

352/95-27, which was rejected by its action on the issue of House No. 363,

building plot no. 459, garage construction parcel No. 460, and

Garden No. 462, everything in the cadastral territory, on the grounds that

the complainant did not establish state citizenship of the Czech Republic and has not so

one of the conditions of Act No. 87/1991 Coll. on extra-judicial rehabilitation,

in the wording of later regulations. At the same time, the complainant filed a motion to

cancellation provisions expressed in section 3 (2). 1 of law No. 87/1991 Coll., on

as amended, the words "if it is a citizen of the Czech and

Slovak Federal Republic "and provisions expressed in § 3 para. 4

of the Act the words "if they are citizens of the Czech and Slovak

The Federal Republic ".



In support of its application for annulment of the cited provisions of the law on

extrajudicial rehabilitation stated that the Constitutional Court has already in the award of the day

July 12, 1994, which was in the law No. 87/1991 Coll., as amended by

amended, revoked the condition of permanent residence, concluded

that of the words of the preamble of the Act cannot be inferred "space for the exclusion

certain entities from the circle of those characters in any restitution

the title filled with ", including for the exclusion of persons without citizenship.

Likewise, States the complainant, shall continue to apply to the Constitutional Court's conclusion that the

"between the definition of an authorized person in accordance with § 3 (1). 1 and 4 of the contested

the law and the text and meaning of his preamble is not consistent ", since,

the complainant continues to make the text of the law has actually been the fulfillment of a preamble,

should be deleted and a condition of citizenship. Furthermore, in its constitutional

complaints admitted that article. 11 (1) 2 of the Charter of fundamental rights and freedoms

(hereinafter referred to as "the Charter") enables the law stipulated that certain things

they can only be owned by citizens or legal entities established in

Czech and Slovak Federal Republic, with a resident, according to the article.

paragraph 42. 1 of the Charter means a citizen of the Czech Republic, this restriction

does not apply in General, but only in respect of certain specified goods in the Act.

In the event of a conflict between such a modification, puts forth the complainant and

the most serious claimed the will of the State to redress the injustices of the regime must

be in a State that claims to be for the rule of law, the remedy

committed wrongs. In this context, he pointed out in particular article. 1 of the Constitution

The Czech Republic (hereinafter referred to as "the Constitution"), and equality in the rights pursuant to art. 1

Of the Charter. In the other outlets of its proposal, pointed out that the persons to whom the

the condition of citizenship participation on the restitution of their property

they came in the same way as a person satisfies the conditions of the law, when in

both are about the same injustice. Each distribution has then according

the complainant, discriminatory and contrary to. 3 (2). 1

Of the Charter. Referred to discriminatory provisions of the contested parts is

According to the complainant, the obvious, in particular from the fact that de facto the only difference

between persons, which according to the current regulation are entitled to restitution, and

those that do not have this right, it is just what country these

persons themselves or their parents to live after the left Communists

-controlled Czechoslovakia. Moreover, in its constitutional complaints dealt with

the problems of our citizens living in the United States, where obtaining a

citizenship of the United States of America is linked to the loss of citizenship

the former, which is according to the complainant, in a democratic State the unthinkable

to ascribe to the detriment of the persons concerned. In this context, also pointed out the

the importance of the Czechoslovak exile living in the United States, which he called the driving

the power of both the war odbojů, including financial assistance. Then, in your

a constitutional complaint pointed out that his family in the time of danger

Republic, Nazi Germany adopted a patriotic attitude, which resulted in

1942 to prevent its assets and then subsequent

postwar recovery. As far as the issue of unconstitutionality

the contested provisions, the complainant later divorced, that this condition is

as well as the condition of permanent residence, in breach of article. 14. 1

Of the Charter, since it ignores the freedom of residence and movement. In conclusion, he pointed out again

on the contradiction of the contested provisions with article. 1 of the Charter, which guarantees all

equality in the rights of the people, and with the article. 1 of the Constitution, which stipulates that the Czech

the Republic is the rule of law, based on respect for the rights and freedoms of man,

which affected the law by excluding certain categories of persons from the options to seek

with the return of their original assets.



Under the provisions of section 74 of law No. 182/1993 Coll., on the Constitutional Court, the

together with the constitutional complaints filed the proposal to repeal the law or other

legislation or their individual provisions, which

application of the occurrence of the event which is the subject of a constitutional complaint,

If according to the complainant's allegations are inconsistent with the constitutional law

or international agreement under article. 10 of the Constitution, where appropriate, by the law,

in the case of other legislation.



According to § 78 para. 1 Act No. 182/1993 Coll., the Constitution has been set up, together with the

complaints filed the proposal to repeal the legislation under section 74, the Senate

proceedings and the proposal to repeal legislation will advance the plenary to

decision under article 9(1). 87 para. 1 (b). a) or b) of the Constitution.



II. the Senate's Constitutional Court primarily dealt with the question of whether they are

the conditions of the cited provision of section 74. It concluded that the proposal

the cancellation provisions expressed in section 3 (2). 1 of the law on extrajudicial

the words "If the rehabilitation is a citizen of the Czech and Slovak

Federal Republic "and to repeal provisions expressed in section 3 (2).

4 of the same Act the words "if they are citizens of the Czech and Slovak

Federal Republic "was filed in accordance with the provisions of section 74, for

its application has led to the decision of the regional court in Prague this

complaints so far. Therefore, in its resolution of 30 March 2004. October 1996, SP. zn. II.

TC 159/96 Senate proceedings on constitutional complaints and proposal to repeal

provisions expressed in § 3 para. 1 of the law on extrajudicial

the words "If the rehabilitation is a citizen of the Czech and Slovak

Federal Republic "and to repeal provisions expressed in section 3 (2).

4 of the same Act the words "if they are citizens of the Czech and Slovak

Federal Republic of "advanced by the Constitutional Court for decision to the plenary

According to the article. 87 para. 1 (b). a) of the Constitution. Due to the fact that the judge

the rapporteur did not find reasons to reject the application for annulment of the Act, was

the proposal delivered to the Chamber of deputies of the Parliament of the United Kingdom pursuant to § 42

paragraph. 3 and section 69 of Act No. 182/1993 Coll. and section 28 para. 1 of the Act,


Although laws, whose partial annulment is sought, have been issued

The Federal Assembly of the Czech and Slovak Federal Republic,

Therefore, the Parliament of the Czech Republic succession derives from article.

3 (2). 1 the Constitutional Act of the Czech National Council No. 4/1993 Coll., on the

measures associated with the dissolution of the Czech and Slovak Federal

Republic, the Constitution of the United States.



The Chamber of deputies of the Parliament of the Czech Republic-President Ing.

Miloš Zeman-in its observations that the Czech and Slovak

The Federal Republic was the only Eastern bloc State,

that he went to the solution of the problems of compensation for property and

other grievances arising in the earlier period, as noted in

the explanatory memorandum to the contested law. The difficulty of addressing the issue of

compensation is not only showed when discussing the draft

law, but also in having its amendments. Also stated that by its nature

It is a law of exceptional and one-off, that was based on the principle of at least

partial mitigation arising from injustices that have occurred in the period from 25.

February 1948 to 1. January 1990. It was based on the validity of

regulations in that period, and if some of the disturbed, not to interfere with the

effect from the very beginning, but from the effective date of the revoking

provisions. The aim was, according to the Chamber of Deputies, only

remove the consequences of the use of the provisions in the relevant period. From

for these reasons, therefore, you cannot talk about a return to the previous state or of

the issue of expropriated things. Because the purpose of the Act was the removal of all

grievances, but only their mitigation, it was possible to make them only in such

to the extent that the internal debt of the State of neprohloubila. From this

the proposed compensation only Czechoslovak State

citizens, which corresponds, according to the Chamber of Deputies and international

Customs. Furthermore, it is in the Chamber of Deputies indicated that

can't believe that the condition of nationality would be contrary to the

our legal system no longer, therefore, that any person who did not want to lose

their property, the law allowed the recovery of citizenship in long enough

the time limit. This fully corresponds to the provisions of article. 3 (2). 2 of the Charter,

According to which everyone has the right to freely decide on their nationality.

In addition, when the Constitutional Court in its finding of no 164/1994 Coll. of the referee

interpretive significance of the preamble to the definition of beneficiaries of

the provisions of § 3 para. 1 and 4 of the law on extrajudicial rehabilitation,

to the conclusion that it was narrowed down to the legal space for the circle of beneficiaries,

If it was determined the condition of permanent residence, as above

provision is not in line with the meaning of the preamble, however, Constitutional Court

It was based on and from article. 11 (1) 2 of the Charter, which provides for the possibility to act

limits the acquisition of certain things into the possession of the citizens or

legal entities established in the Czech and Slovak Federal Republic

(Czech Republic), while article. paragraph 42. 1 of the Charter the term citizen

means the State of a citizen of the Czech and Slovak Federative Republic (Czech

the Republic). From these findings, the Chamber of Deputies, inferred that the deletion of

conditions of permanent residence was given sufficient legal room for

those eligible to claim their restitution claims and that the cancellation

the conditions of citizenship would, in effect, be contrary to the

our rule of law. At the end of then States that the legislative

the Corps acted in the belief that the law is adopted in accordance with the Constitution and

our legal order, and that it is up to the Constitutional Court, in the context of

the examination of the proposal to assess the constitutionality of the contested parts of the provisions of the Act

No. 87/1991 Coll., as amended, and the relevant

decision.



The Constitutional Court first examined under § 68 para. 2 of law No.

182/1993 Coll., the contested act was adopted and issued within the limits of the Constitution

set out competences and constitutionally prescribed way. At the time of

the laws were dictated by the provisions of the legislative bodies competence article. 29 and

seq., and article. 102 et seq. Constitutional Act No. 143/1968 Coll., on

the Czechoslovak Federation, in wording of later regulations. From the submitted

Council prints the Federal Assembly and the reports of 13. joint meeting of the

The House of the people and of the House of peoples, which the Constitutional Court has taken in

the Office of the Chamber of deputies of the Parliament of the United Kingdom, it was

found that the meeting, to which the law voted, attended

a sufficient number of members, the law was adopted by the requisite number of votes, was

signed by the respective constitutional officials, and was duly promulgated in the collection of

laws. Individual provisions of the Act, which proposes to cancel the complainant,

has become a valid part of our legal system and how

follows from article. 1 (1). 1 the Constitutional Act of the Czech National Council No. 4/1993

Coll., yet.



II.



The Constitutional Court is ústavností definition of entitled persons in the Act on

extrajudicial rehabilitation in its finding in the case conducted under the

SP. zn. PL. ÚS 3/94 (CS CZ: collection of findings and resolutions-volume 1 (C).

Beck Prague, 1994, pp. 279-290). At the beginning of their argument, while

assess the importance of interpretation of the preamble of Act No. 87/1991 Coll., as amended by

amended, from which it is apparent that the aim of the law on extrajudicial

rehabilitation is "an effort to mitigate the consequences of certain property and

other grievances "that occurred in the period from 1948 to 1989. The first question

by the Constitutional Court in this connection was that "mitigation"

the consequences of "certain" wrongs, having regard to the principle of equality to understand

only in relation to the circuit and the intensity of equity interventions, in particular in the

ownership of the citizens during the relevant period or whether it is possible in it

See also the legal space for the narrowing of the entitled subjects with

regard to their permanent residence. On that question, the Court replied in the negative,

in finding that the space for the exclusion of certain entities from the circuit

those characters in any of the restitution of the title, from the

the wording of the preamble of the Act cannot be inferred. Beyond the possibility of limiting circuit

authorised persons is, in the opinion of the Constitutional Court, given only to the provisions of

article. 11 (1) 2 of the Charter, according to which the law may provide that certain things

they can only be owned by citizens of the Czech Republic. From this

the provisions of the then concluded that the Charter "in the provision without authorising

the legislator to determine the other terms of the acquisition of property (whether in the

the restitution process, or in General) ". Conversely, therefore,

article. 11 (1) 2 of the Charter empowers the legislature to determine the conditions

citizenship on the acquisition of ownership in the context of restitution

process [while heading the things provided for by law, subject to

entitled to release things with the beneficiaries of the State

citizenship (Czech and Slovak Federal Republic, the Czech

the Republic), as defined in § 6 of the law on extrajudicial rehabilitation]. On

elsewhere in the preamble to the Constitutional Court in case finding, pl. ÚS 3/94

consistently States that the condition of permanent residence is "in breach of article. 11 (1)

2 of the Charter, which empowers the legislature merely laid down that certain things

they can only be owned by citizens or legal entities established in

Czech and Slovak Federal Republic ".



Following up on the conclusions contained in the Constitutional Court, from

even in the present case, the Constitutional Court has no reason to derogate, to

include the following:



According to the article. 11 (1) 2 of the Charter, "the law may also provide that certain things

they can only be owned by citizens or legal entities established in

Czech and Slovak Federal Republic "(in accordance with article 42, paragraph 1,

Of the Charter and article. 1 (1). 2 constitutional law No. 4/1993 Coll., this is the

State citizenship of the Czech Republic and the Czech Republic). Article. 11 (1)

2 of the Charter is therefore a special provision applicable to the constitutional principle of equality

all bodies with regard to the acquisition and protection of property rights (an example of a

its projected into the rule of law is the provision of § 17 of the Exchange Control Act

No. 219/1995 Sb.). It is just the article. 11 (1) 2 of the Charter, which creates for

the legislature's constitutional space restriction beneficiaries in

restitution legislation.



The aim of the restitution legislation was not only alleviate some of the

property-related injustices committed by the Communist regime, but also the understanding of the

the restitution as one of the forms of privatization. In the condition of citizenship

It therefore reflected the legislature's attempt to make restitution if and only if it is

given the presence of the restituenta, and thus the likelihood of proper care

the householder of the restituovaný property. Article. (II) Act No. 88/1990 Coll.

is amended and supplemented the rules on the acquisition and loss of the Czechoslovak

citizenship, in time to allow, from 29. March 1990 until 31 December 2006.

December 1993 any restituentům just the communication of their interest in the

the Czechoslovak (or from the date of 1 January 1993 of the Czech) citizens

is back with ex tunc effects. This was created by the national law

sufficient space for the assertion of claims under the law on restitution

extrajudicial rehabilitation for persons who did not meet the condition

of citizenship.




However article. 11 (1) 2 of the Charter establishes the constitutional room for restrictions

proprietary rights of stateless persons, the Czech Republic, should be

to interpret the terms of article 1. 4 (4). 4 of the Charter, i.e.. with regard to the

the requirement of minimization of each constitutionally acceptable limits

the fundamental right or freedom, strictly. In the wake of the legal

the construction of the law on extrajudicial rehabilitation (upřednostňujícího

the release of things and, secondarily, in the case of impossibility to release zakotvujícího

the provision of financial compensation) is therefore the task of the Democratic

the legislature to seek space for mitigation of some of the

property-related injustices committed by the Communist regime, even for people without a State

the jurisdiction of the United States.



In assessing the constitutionality of the contested provisions of the legislation

The Constitutional Court examines their compliance not only with the constitutional laws, but also with

the international treaties referred to in article. 10 of the Constitution.



In this context, in particular, on the compliance of the contested provisions of the law on

extrajudicial rehabilitation with the article. 26 of the International Covenant on Civil and

political rights (hereinafter referred to as "the Covenant") and article 6(2). 14 of the Convention on the protection of

human rights and fundamental freedoms (hereinafter referred to as "the Convention").



The UN Committee for human rights in Geneva, in its decisions of 19.

July 1995 No. 516/1992 (Simunek) and of 23. July 1996 No. 586/1994

(Adam), concluded that in the case of Act No. 87/1991.

There is no reason that would justify the decision of the legislature

to distinguish between the victims of konfiskování in respect of citizenship. Condition

citizenship, therefore, shall be deemed to be incompatible with the prohibition of discrimination according to the

article. 26 of the Covenant, which according to the Committee, does not require completely equal treatment,

However, it requires that there was sufficient reason for a different approach.



The European Commission of human rights in Strasbourg, on the contrary, in the decisions of

on 4 April 2006. March 1996 No. 23154/93 (Brežný v. Slovak Republic), dated

11 April 1996 No. 28571/95 (von Pezold v. Czech Republic), of 13 December.

May 1996 no 23899/93 (Nohejl v. Czech Republic), and of 13 September. may

1996 # 23063/93 (Jonas) that you don't have to interfere with the right of ownership

There was a time when the Czech Republic (or Czechoslovakia)

take over guarantee for the respect of human rights. Further stated that the

by Convention, there is no right to restitution of property, and because

discrimination pursuant to art. 14 of the Convention is possible only in connection with a violation of

one of the other substantive rights guaranteed by the Convention, cannot be inferred in

If the conditions of citizenship and permanent residence according to the restitution

the laws of the violation of the prohibition of discrimination. Therefore, if by Convention

There is no right to restitution of property, are, according to the Commission restitution

completely in the hands of the State as a sovereign default.



The Constitutional Court in its decision interpreted the content of the constitutional principle of

equality. To associate himself in them (especially in the findings on matters

conducted under SP. zn. PL. ÚS 16/93 (CS CZ: collection of findings and resolutions-

Volume 1, c. h. Beck, Prague, 1994, p. 205-206), pl. ÚS ÚS 36/93 (the Czech Republic:

A collection of findings and resolutions-volume 1, c. h. Beck, Prague, 1994, p. 179),

PL. ÚS ÚS 5/95 (CR: a collection of findings and resolutions-volume 4 c. h. Beck

Prague 1996, p. 218), pl. ÚS 9/95 (CS CZ: collection of findings and resolutions-

Volume 5 c. h. Beck Prague, 1997, p. 137) with the understanding of the constitutional

the principle of equality, as expressed in the Constitutional Court of the Czech and Slovak

Federative Republic (ČSFR, 1992, TC R 11): "it is for the State to

the interest of the security of their functions, decided that a certain group will provide less

benefits than others. Even here, however, must not proceed completely arbitrarily. If

the law determines the benefit of one group and at the same time provides a disproportionate

the obligations of the other, can happen only with reference to the public

values. "



The Constitutional Court rejected the absolute understanding of the principle of equality, and

also noted: "equality of citizens should not be understood as a category

abstract, but as a relative equality, as they have in mind all

the modern Constitution "[PL. TC 36/93 (CS CZ: collection of findings and resolutions-volume

1 c. h. Beck Prague, 1994, p. 179)]. The content of the principle of equality by

in the field of constitutional law, the concept shifted the aspects of differentiation

bodies and rights. Aspect of the first sees in the exclusion of arbitrariness.



Second, it is apparent from the legal point of view expressed in the report in case

conducted under the SP. zn. PL. ÚS ÚS 4/95 (CR: a collection of findings and resolutions-

Volume 3, c. h. Beck, Prague, 1995, p. 209): "inequality in social

relations, in order to affect the basic human rights must reach the

intensity, casting doubt, at least in a certain direction, already the very essence of

equality. This is usually done when there is a violation of the equality

linked to violations of other fundamental rights, for example. the right to own

assets according to the article. 11 of the Charter, one of the political rights according to art. 17

and subs. Of the Charter, etc. " [same PL. ÚS ÚS 5/95 (CR: a collection of awards and

resolution-volume 4 c. h. Beck Prague, 1996, pp. 217-218)]. Aspect of the

Second, when assessing the unconstitutionality of the legislation establishing

Therefore, this inequality is based one of the fundamental rights concerned and

freedoms.



The Pact governs the principle of equality in article. 2 (2). 1 and article. 26. Equality according to the

the first of the cited provisions in the nature of ancillary, or by

only on the equality of the rights enshrined in the Pact, with the right to

ownership is not included among them. Article. 26 enshrines both equality before the

the law and non-discrimination. In the enumeration of reasons demonstrativním

exclusive unequal access is not contained the nationality.



The UN Committee for human rights has repeatedly expressed the view when permitted by

application article. 26 Pact inequality only exclusion of arbitrariness,

or if this is based on reasonable and objective distinguishing

character (reasonable and objective criteria). As such the Constitutional Court

It considers the implications resulting from the article. 11 (1) 2 of the Charter, as well as the objectives of the

the restitution legislation and finally legislation of citizenship

According to the article. (II) Act No. 88/1990 Coll.



As regards the complainant alleged a violation of article. 14. 1 of the Charter,

must be stated that the nationality condition in the law on

extrajudicial rehabilitation is not a restriction on freedom of movement and residence [and it

Unlike the conditions of permanent residence, which was the finding of the Constitutional Court

in case conducted under the SP. zn. PL. ÚS 3/94 (CS CZ: collection of findings and resolutions

-Volume 1, c. h. Beck, Prague, 1994, p. 291) cancelled]. This freedom is

nationals of the Czech Republic guaranteed not only at the level of constitutional,

but also at the level of the statutory law (and in particular the provisions of section

231, 232 and 233 of the tr code, Act No. 216/1991 Coll. on travel

documents and travelling abroad, as amended by Act No 150/1996 Coll.).



Of all the reasons given by the Constitutional Court for annulment of the provisions of

expressed in section 3 (2). 1 of law No. 87/1991 Coll., as amended

regulations, the words "if it is a citizen of the Czech and Slovak Federal

Of the Republic "and to repeal provisions expressed in § 3 para. 4 of the same

the words "Act if they are citizens of the Czech and Slovak Federal

The Republic "rejected.



The President of the Constitutional Court:



JUDr. Kessler v. r.



III.



Different views



A different opinion of the judge. Iva Brožová



In the matter of the constitutionality of the terms of citizenship, I consider that it is for

of the State, whether or not it will issue prescription claims. When he's on the

but the issue, he must do so constitutionally Conformal manner. It is therefore necessary to

consider whether the existence of only a relative equality, that is not protected

by itself, but only in connection with a violation of other fundamental rights

or freedom (SP. zn. PL. ÚS 5/95; SP. zn. PL. ÚS 4/95), and that the State

allows in the interest of ensuring their functions, decided that a certain group of

provides less benefits than others, however only with reference to the public

values, or only in justified cases (find TC CSFR SP. zn. PL.

TC 11/92; the findings of the CS CZ SP. zn. PL. ÚS 16/93; III. TC 36/94),

the condition of citizenship, a narrowing range of subjects according to Cust. No.

87/1991, in breach of article. 1 of the Charter, prohibiting discrimination, or

not. Because Cust. No. 87/1991 Coll. is as restitution law

a specific effort to deliver an opinion on the value of our totalitarian

the past, when public value is the principle, or the principle of moral and

ethical basis, that wrongs are to be odčiněny, then you can't than

noted that, from the point of view of this fundamental are all subjects

the restitution laws of equal, and it committed wrong. On the other side

I admit that it is not quite possible absolute Atonement committed

grievances, both in terms of the philosophical, legal, therefore, are also

permitted modifications, however, only from the perspective of substantive, which the legislature

expressed in the preamble of the Act. No. 87/1991 Coll. words that the mitigation

some of the grievances. This impossibility full Atonement thus does not allow for intervention

the subjects of equal look by selecting done's between them, because

such a system would mean multiplying grievances for those

the legislature of the restitution. In so doing, it cannot be overlooked that

beneficiaries are according to Cust. No. 87/1991 Coll., of the natural person. It is also

on the spot in this context to refer to the conclusions made already


unconstitutionality of the conditions of residence and contained in the report under the sp.

Zn. PL. ÚS 3/94, which expressly states that the space for the exclusion

some of the subjects of the preamble does. In a situation where the public

the value is the remedy of grievances, it is therefore not permissible to state specific

the group, IE. citizens, to atone for the wrongs committed by the totalitarian

the regime admitted and another not, did not infringe article without. 1, art. 3 (2). 1

Of the Charter, but also article. 1 of the Constitution, in which the Czech Republic declared

the democratic rule of law, based on respect for the rights and freedoms of man

and the citizen. In other words, from the perspective of the Act. No. 87/1991 Coll., seeking

correct injustices, I have not found any rational or reasonable grounds,

that would justify the exclusion of those persons who today are not our

nationals, since this has occurred due to reasons relating to the behavior of the

our State at the time of totality, and it often is those former

citizens whose acts were and are indispensable in terms of building

our new identity. In that nothing can change, that it was not in the

the determination of the conditions of citizenship on the part of the legislature to the will, as

the absence of arbitrariness does not mean sufficient reasonable grounds for

a different approach. Made the conclusion on infringement of the principle of equality under article 5(2). 1 and

article. 3 (2). 1 of the Charter cannot be questioned or referring to equality as a

the relative category that is protected only in connection with a violation of

Another fundamental right or freedom, because this binding on other

a fundamental right, the right to own pursuant to art. 11 (1) 1 of the Charter, is given by

due to the fact that the restitution according to Cust. No. 87/1991.

not only from the unlawful interference with property rights, where the main heading is

the right to own, but also giving precedence to the principle naturálního, all while

an attempt to bail out within the constitutional principle of the right to own, that

He was trampled under the totalitarian regime. As has already been předesláno, therefore, you cannot

in the analysis of the constitutionality of the terms of citizenship neshledat bind to the

the right to own pursuant to art. 11 (1) 1 of the Charter. Also the article. 11 (1) 2

Of the Charter, which States: "the law stipulates that the assets necessary to

securing the needs of the whole society, the development of the national economy and

the public interest may only be owned by the State, municipalities or intended

legal entities; the law may also provide that certain things can be

only owned by citizens or legal persons based in the Czech Republic and

Slovak Federal Republic ", and similarly article. paragraph 42. 1

Of the Charter, which provides: "If the Charter uses the concept of a citizen, the

the State citizen of the Czech and Slovak Federal Republic ", is not in the

things are not relevant, and it's for this reason that the Cust. No. 87/1991 Coll., as

restitution is a prescription prescription viewers to correct injustices and to

to cope with the past, while the Charter in article 6(2). 11 (1) 2 expresses the

certain strategic interests for the future, with the result that the bearer of those interests,

may also be a citizen. Indeed, the Constitutional Court has already in its finding under SP. zn.

PL. ÚS 3/94 in finding that the nature of the restriction within the meaning of article 87(1). 11 (1) 2

Of the Charter lies not in the fact that the article has accentuated the condition of the State

citizenship, but that limitation refers to certain things,

as defined by the law. Likewise, I consider that in the context of

considering the unconstitutionality of the conditions of citizenship cannot be relied upon the efforts of the

the legislature to ensure the presence of the restituenta care and diligence,

When left alone in this direction by the legislature of his inconsistency, as is apparent from the

the adjustments contained in another restitution Act, IE. in the Cust. No. 403/1990 Coll.

that the condition of citizenship has not stipulated. In addition, this care of the proper

householder far better to ensure the condition of permanent residence, which

The Constitutional Court, regardless of the intent of the legislature, this respected today

set aside. Also article. (II) Act. No 88/1990 Coll., according to which it can be United

citizens with just 29 at the time of the communication. 3. until 31 December 1990. 12.1993

back, nothing on the discriminatory nature of the conditions of citizenship does not change, because it is

referred to by law only created space, as this is discriminatory

condition to avoid. In other words, the possibility of discriminatory condition bypass

the procedure under the Act. No 88/1990 Coll. does not alter its discriminatory

the nature of the. From předeslaných reasons I have therefore considered that it was on the site

the condition of citizenship, for cancel its contradiction



-with article. 1 of the Constitution, which declares the Czech Republic under the rule of law,

based on respect for the rights and freedoms of man and citizen



-with article. 1 of the Charter, guaranteeing the equality of rights,



-with article. 3 (2). 1 of the Charter, prohibiting discrimination in the area of

fundamental rights and freedoms,



-with article. 11 (1) 1, y in which regulates the right of everyone to own

asset.



Completely outside the framework of a different opinion, and that's because the Czech Republic

shall be subject to the jurisdiction of both the United Nations Human Rights Committee (who found

condition of nationality contrary to article. 26 of the Covenant), the European

Commission on human rights to oppose her honour's opinion, if the

It found the condition of nationality to be compatible with the Convention, with the

on the grounds that the intervention (inequities) occurred before the takeover of liabilities

arising from the Convention, and that, therefore, that although there have been strikes before

acceptance of the obligations arising from the Convention, however, the subject of the investigation was the

the current legislation, and not the previous acts.