6/1996.
FIND
The Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided to March 8. November 1995 in the plenum in the
stuff the petitioner Ing. P. U., represented by JUDr. P. R., and participant
management-the Chamber of deputies of the Parliament of the Czech Republic on the proposal of the
the repeal of the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll., on the
acquire and dispose of the State citizenship of the Czech Republic, submitted together
with constitutional complaints against the judgment of the municipal court in Prague from 31 March.
October 1994 no. 38 Ca 4/94-13 as follows:
The proposal is rejected.
Justification
(a substantial part)
Projector-the complainant filed a constitutional complaint against the judgment of the
Municipal Court in Prague, which was denied its request for action
a review of the decision of the municipality of hl. Prague from 11 July. 8.1994 no.
MHMP 70379/SG and 1176/1994, which rejected his appeal against the
the decision of the District Office in Prague 2 of 6. 6. the 1994 no.
606/4-2571/94. By this decision it was determined that according to the provisions of section 13 of the
(a). (c)) and section 17 of the Act of the Czech National Council No. 40/1993 Coll. on acquisition and
dispose of the State citizenship of the Czech Republic, the complainant cannot be issued
certificate of citizenship of the Czech Republic.
At the same time, the complainant filed a proposal to repeal the provisions of section 17 of the Act of the Czech
the National Council No. 40/1993 Coll. (whose application has led to the citovanému
the decision of the municipal court in Prague), according to which a State citizen of the Czech
Republic of citizenship of the Czech Republic shall cease at the moment when the
their request has acquired the foreign nationality, except when the foreign State
He received citizenship in the context of marriage or birth.
The complainant stated that, pursuant to the provisions of section 3 of the Act of the National Council of the Slovak
No. 40/1993 Z.z. on the citizenship of the Slovak Republic,
received on 30 April 2005. 6. the 1993 choice of citizenship of the Slovak Republic.
Then he asked the District Office for Threshold 2 on the issuance of the certificate of the State
citizenship of the Czech Republic, and explicitly stated that as a citizen of the Czech
the Republic gained the option of 30 May. 6. the 1993 Slovak citizenship.
He stressed that only showed the will to obtain and Slovak nationality,
However, this was not reflected the will of the Czech citizenship may be lost. The District Office in Prague 2
decided that, pursuant to section 13 (a). (c)) and section 17 of the Act of the Czech National Council No.
40/1993 Coll., citizenship certificates cannot be issued to the Czech Republic.
In justification of his decision of the administrative authority stated that the disposal of the national
citizenship of the Czech Republic is bound by the provisions of section 13 (a). (c)) and section
17 of the Act of the Czech National Council No. 40/1993 Coll. on acquisition of foreign State
citizenship, with the exception of the cases referred to in the Act.
Against this decision, the complainant lodged an appeal, which the magistrate hl.
Prague has rejected and the decision of the administrative body 1. instance confirmed from
the reasons that stated the District Office.
The complainant filed a complaint against this decision of the Board under section 247 and
subs. o.s.ř. pointed to the wording of article. 12 paragraph. 2 of the Constitution of the Czech Republic
(hereinafter referred to as "the Constitution"), according to which nobody can be against my will stripped
citizenship, and said that he himself will be introduced to disposal
State citizenship of the Czech Republic never showed.
The judgment of the municipal court in Prague from 31 March. 10.1994 no. 38 Ca
4/94-13 has been dismissed. The City Court considered it beyond doubt that the
the applicant, a citizen of the Czech Republic as the State's June 30. 6. in 1993, to choose
under section 3 of the Act of the National Council of the Slovak Republic No. 40/1993 Z.z.
the Slovak citizenship, and on this day also, the citizenship of the Slovak
Republic has acquired. In this case, it is not decisive whether he showed at the same time
will lose the citizenship of the Czech Republic, as with the acquisition of foreign
the State citizenship of the Czech National Council Act No. 40/1993 Coll. connects without
next to the disposal of the State citizenship of the Czech Republic (with the exception of the mandatory
referred cases) and these consequences should be aware of the applicant's. Even if the
CIT Act of the National Council of the Slovak Republic distinguishes public option
the citizenship of the Slovak Republic and the granting of citizenship on the basis of
request, it should be assumed that the acquisition of a foreign State
citizenship was based on the plaintiff's own act. For such a
the speech will be the only application for naturalisation
The Slovak Republic, but also the option of citizenship. It is necessary to
take into account also the fact that the option is applied only to the
the former citizens of the Czech and Slovak Federative Republic, who have not been to
31.12. 1992 citizens of the Slovak Republic. It is therefore a
the specific way to the acquisition of the citizenship of the Slovak Republic and of the
the fact that this method is not mentioned explicitly in the provisions of section 17 of the Act
The Czech National Council No. 40/1993 Coll., it cannot be inferred that, in this case
to the termination of citizenship does not occur. For these reasons, the Court considers that
the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll. is not in
contrary to the article. 12 of the Constitution, for the acquisition of a foreign citizenship, with the
the exception is those cases, is associated with the manifestation of the will, and
Therefore, it cannot be concluded that a State citizen of the Czech Republic is in such
the case being the Czech Republic citizenship against their will.
The complainant was attacked, inter alia, the conclusion of the municipal court in Prague,
the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll., is not contrary to article.
12 paragraph. 2 of the Constitution. This conclusion, the Court relies on the claim that the State
citizenship of the Czech Republic shall cease to every Member, that the
the basis of my application gets citizenship of another State, as this
the hearing is also agree with its consequences, which the disposal of the national
citizenship of the Czech Republic. According to the contested decision is not
whether will lose the citizenship of the Czech Republic was
explicitly demonstrated, "as if it is the manifestation of the will to acquire foreign
citizenship as a legal consequence of the disposal of associated citizenship
Czech, contains the manifestation of will towards obtaining a foreign State
jurisdiction and will always pointing to the loss of the Czech State
citizenship ". Referred to in the opinion of the complainant's reasoning, however, be taken into account to
the fact that no law of the Czech Republic does not have a principle
the prohibition of dual citizenship, which on the contrary expressly admits.
The citizen must undoubtedly be based on knowledge of the regulations and on the acquisition and
dispose of the State citizenship of the Czech Republic, but mainly
relies on the fact that they are in accordance with the Constitution, which dispose of the State
citizenship of the Czech Republic contains explicit provisions prohibiting
the ability to get rid of the citizenship of anyone against his will. If you would
was accepted interpretation of the municipal court in Prague, which interprets section 17
the Czech National Council Act No. 40/1993 Coll., that the complainant State
citizenship of the Czech Republic ceased to ex lege, it would mean that the cited
the provision is in stark contrast with the article. 12 paragraph. 2 of the Constitution, which
prohibits any Czech citizen of the State of their citizenship was stripped
against their will.
"Deprivation" of citizenship within the meaning of the quoted constitutional provision
therefore undoubtedly means the waiver in any manner, i.e., as an ex
lege, so by decision of a public body.
In the opinion of the complainant is, therefore, the provisions of section 17 of the Act of the Czech national
Council No. 40/1993 Coll., in breach of article. 12 paragraph. 2 of the Constitution, because this
the provisions of the combines the termination of citizenship of the Czech Republic only with
the acquisition of a foreign nationality, without that result in podmiňoval
the undoubted that termination of citizenship is not in conflict with
the will of the sovereign citizen. The contested decision also represent
a potential threat to freedom of the complainant, and as regards the right to
not to be compelled to leave their country (the home country) and the right to free
return to her, therefore, the rights and freedoms that are guaranteed by:
-in article. 14 paragraph. 1 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"),
-in article. 3 of Protocol No. 4 to the Convention for the protection of human rights and fundamental
freedoms,
-in article. 12 paragraph. 4 of the International Covenant on Civil and political
rights.
In this sense, in the opinion of the complainant contested the decision and the
the provisions of section 17 of the Act. contrary to the constitutional order of the Czech
of the Republic.
The complainant finally submits that the application of the provisions of section 17 of the Act of the Czech
the National Council No. 40/1993 Coll., contained in the contested judgment
konstatujícím disposal of his nationality to Czech Republic ex
lege, constitutes a violation of the principle of equality before the law, i.e.
the basic rights of the complainant expressed in the article. 3 (3). 1 of the Charter, in article.
14 to the Convention for the protection of human rights and fundamental freedoms and in the article. 26
The International Covenant on Civil and political rights.
Pursuant to section 74 of the Act No. 182/1993 Coll., on the Constitutional Court, can be combined with
constitutional complaints filed the proposal to repeal the law or other legal
Regulation or their individual provisions whose application
occurred, which is the subject of the 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,
If it is about another piece of legislation.
Under section 78, paragraph. 1 of law No. 182/1993 Coll., if together with the constitutional
complaints filed the proposal to abolish the law under section 74, the Senate
the proceedings and the proposal to repeal the law refer to the plenary to
the decision referred to in article. paragraph 87. 1 (a). and (b)) of the Constitution) or.
Senate Constitutional Court primarily dealt with the question of whether the conditions are
This legal provision are met. It concluded that the proposal to
the cancellation of the law (section 17 of the Act of the Czech National Council No.
40/1993 Coll.) was filed (along with constitutional complaints) in accordance with the
the provisions, since its application led to the decision of the municipal court in
Prague this complaint contested. Therefore, in its resolution of 25 November 2003. 1.1995
SP. zn. I. ÚS 2/95 Senate proceedings on constitutional complaints said, and the proposal on the
the repeal of the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll.
the plenum of the Constitutional Court to forward the decision referred to in article 12(2). paragraph 87. 1 (a).
and) of the Constitution.
In the framework of the examination of the proposal, which shall be decided by the plenary of the constitutional
the Court, with the Judge Rapporteur identified with the above legal opinions
Chamber of the Constitutional Court. The reasons for the rejection of the proposal pursuant to section 43 of the Act No.
182/1993 Coll. did not.
The Chamber of deputies of the Parliament (the President of the House of Dr. Milan Uhde)
pointed out that the Czech National Council Act No. 40/1993 Coll. was
approved by the necessary majority of members 29 January. 12.1992, was signed by the
respective constitutional factors and properly declared. According to the explanatory memorandum
This is a new way of disposal of the State citizenship of the Czech Republic in
When a State citizen of the Czech Republic will take on their own request, foreign
State citizenship. This provision is based on the principle that each
a natural person who should have only one citizenship. Similar legal
Edit is true in many other countries.
The Chamber of deputies also stated that the provisions of section 17 of the Act of the Czech
the National Council No. 40/1993 Coll., is based on the assumption that the State citizen may
ask about the acquisition of a foreign citizenship, and at the moment of his
the acquisition of the citizenship of the Czech Republic loses. Submission of the application state
citizen of the acquisition of a foreign citizenship is undoubtedly
voluntary and free expression of the will of the citizen. With that
the manifestation of the will, then the provisions of section 17 of the combines Act. determined legal
the consequences, i.e.,. termination of citizenship of the Czech Republic. With
taking into account the provisions of section 17 of the cit Act fully in accordance with the
article. 12 paragraph. 2 of the Constitution since the submission of the application for the acquisition of a foreign State
citizenship manifests its will, no doubt, the applicant, in accordance
the meaning of the cited article of the Constitution of the Czech Republic. It remains, however,
the question of whether the choice of a foreign citizenship can be considered in the broader
the sense of whether or not a "request" for the acquisition of a foreign citizenship within the meaning of section
17. the law.
In this state of things the Chamber of Deputies expressed the opinion that the
the legislature acted in the belief that the law is adopted in accordance with the
The Constitution, the constitutional order of the Czech Republic and our rule of law.
The Constitutional Court also requested the comments of the Ministry of Interior of the Czech
the Republic, which is the competent authority in matters of the State resortním
citizenship of the Czech Republic (article 49, paragraph 1, of Act No. 182/1993 Coll.).
The Interior Ministry said that the termination of citizenship under section 17
the Czech National Council Act No. 40/1993 Coll., cannot be considered a waiver of
citizenship, against the will of the citizen. Of deprivation (withdrawal) citizenship in this
the case taken by the administrative authorities, but only the register citizen
The Czech Republic, at their request, took foreign citizenship and thus
losts of citizenship of the Czech Republic. In the opinion of the Ministry of the Interior shall
the citizen can decide whether to ask for a foreign citizenship and this is
agree with the legal consequences that this Act will have on its
State citizenship of the Czech Republic.
The objection that the loss of citizenship of the Czech Republic pursuant to section 17 of the Act.
does not occur in the case where the citizen has acquired the foreign nationality of the so-called. choice
citizenship, Ministry of the Interior shall not be considered significant. It is not
the decisive form of acquisition of citizenship, but it is essential that
the acquisition of a foreign citizenship has been associated with the application of the citizen,
the manifestation of his will, which can be technically designated as request
the Declaration, communication, etc.
The Ministry of the Interior is further expressed as well as to the consequences of the acquisition of foreign
citizenship in the legal systems of other States. This is for example. about
the following States:
Austria
Austrian citizenship will expire:
1. possession of a foreign nationality
Sweden
Swedish citizenship is lost:
1. when a person who acquires a foreign citizenship, the citizenship of the
requested or explicitly agreed with his grant
Similarly, the situation regarding dispose of citizenship addressed
for example, in Denmark, Norway, the Netherlands, Australia, Bolivia, and Mexico.
The Interior Ministry also informed the Commission that is preparing a new European Convention
nationality and military obligations in cases of víceronásobného
State citizenship. This proposal is still being discussed on expert
meetings of the Council of Europe, and it is difficult to determine when the final text of the
dopracováno.
Their own analysis of the issues
(I).
The Constitutional Court primarily dealt with the formal adoption of the law page
The Czech National Council No. 40/1993 Coll. of the representation of the Chamber of Deputies
Parliament and of the Council (208 and 209 prints containing těsnopiseckou
report on the 19th. a meeting of the Czech National Council of 29 April 2004. 12.1992)
demonstrated that the law was discussed and accepted by the Czech national
the Council of 29 April 2004. 12.1992, voted for him and against him 155 members
13 members voted. The law was signed by the respective constitutional
agents and duly promulgated in the collection of laws of the Czech Republic in the amount of
12/1993. Therefore, the Constitutional Court ruled that this law was adopted and
issued within the limits of the Constitution laid down the competence and the constitutionally prescribed
manner (section 68, paragraph 2 in fine of the Act No. 182/1993 Coll.).
II.
For the understanding of the wider context of examined things the Constitutional Court further
dealt with the reasons for the legislature to act on the issue of the acquisition and
dispose of the State citizenship of the Czech Republic. In the cited
Council publications, stresses that the basic principle applied in
the proposed law is a principle, according to which every citizen would have had if
only one citizenship. This is based on the efforts to prevent
problems that are connected with dual citizenship for both the physical
person, so for the State. For similar reasons, some prefer this principle
other States. As a rule directly in their own laws on citizenship
provides that if the State citizen gets on his own request, foreign
citizenship, citizenship shall cease to be the original. In the preparation of the draft law
respect the principle set out the Constitutional Act No. 23/1991 Coll., that
No one can be against my will stripped of citizenship. As well as
It is to be understood and the disposal of the State citizenship of the Czech Republic as a result of
the acquisition of the citizenship of a foreign State, at his own request.
Alone in the explanatory memorandum to the Government a draft law on the acquisition and dispose of
State citizenship of the Czech Republic stated that the existing legislation is
fragmentary and subject to the fundamental conditions for the acquisition and dispose of the State
citizenship. For these reasons, and given to the creation of a separate State-
The Czech Republic-it is necessary to readjust the Institute of citizenship.
This is based on the principle that individuals should have the option, when
compliance with the conditions laid down by law, acquire or lose State
citizenship of the Czech Republic. Emphasis is placed on the maximum extent
maintain only one citizenship.
III.
The complainant relies on article in the first place. 12 paragraph. 2 of the Constitution, which
provides that no one can be against my will stripped of citizenship.
This article, however, responds in particular to the institution of the withdrawal of the State
citizenship from the period before November 1989 and trying to constitutionally legislation
such intervention in the rights of the citizen. The purpose of the constitutional command
enshrined in article. 12 paragraph. 2 of the Constitution and is thus the exclusion options
that the legislature created such a legislation that would waive the
citizenship conceived as a penalty for any unlawful
the negotiations of the citizen. In case however meant to be challenged section 17 of Act of the Czech national
Council No. 40/1993 Coll., follows a different target if it assumes that citizen
developed its own initiative obtain foreign citizenship. From this
point of view is not the citizen about the deprivation of citizenship, but rather about the loss
citizenship obtaining citizenship of another State. From this it is obvious
that sense article. 12 paragraph. 2 of the Constitution is completely different than the complainant concludes.
If the stěžovatelova interpretation of the article. 12 paragraph. 2 of the Constitution-in
compare with section 17 of the Act.--correct, it would mean in their
the consequences of that Constitution forbids lawmakers to (albeit for the futuro)
to exclude the existence of a dual-or series of citizenship. Such
the ban, however, was completely absurd, since it would restrict the right of a sovereign
State face bipolitismu and he would have been in violation of-as mentioned on another
the point of this finding-with current and upcoming international
treaties in contemporary democratic Europe. The Constitutional Court therefore does not share
the view of the complainant that when examining the constitutionality of § 17 of the Act of the Czech national
Council No. 40/1993 Coll., article. 12 paragraph. 2 of the Constitution.
The Constitutional Court considers essential to the acquisition of a foreign State
citizenship pursuant to section 17 of the act occurs. own manifestation of the will of the citizen
(the applicant) and the legal consequence of such act is the loss of
the State citizenship of the Czech Republic. The provisions of the law of the Czech national
Council No. 40/1993 Coll. was duly published in the collection of laws and entered in
General knowledge. Every citizen is obliged to know the legal order of the Republic, which
can reasonably be expected, in particular for those who, in the context of the national
citizenship meant or means to make this or that legal action. Therefore, if a
citizen manifested (reflected) will recover on their own request of a foreign State
citizenship, had to (must) be given a clear and categorical wording
the contested legal provisions-generally binding regulation-
aware that, de lege lata, shall cease to be a state citizenship of the Czech Republic,
as soon as it gets the citizenship of a foreign State. If despite the fact such a
the Act has made (will take), is obliged to bear the legal consequences of that with this
Act law.
The view that, with regard to the constitutionality of § 17 of the Act of the Czech National Council No.
40/1993 Coll., article. 12 paragraph. 2 Constitution irrelevant, you can support and
arguments, which are based on the grammatical interpretation of both regulations.
Article. 12 paragraph. 2 of the Constitution, on the one hand and article. 12 paragraph. 1 of the Constitution and section 17
the Czech National Council Act No. 40/1993 Coll., on the other hand use the
different terms ("waiver" citizenship, "disposal" of the State
citizenship). This difference in terminology suggests the intention to the legislature
distinguish between two qualitatively different situation. Referred to the intention can be inferred
in particular, by comparing the two paragraphs of article. 12 of the Constitution. (Article 12 paragraph 1 says,
the acquisition and dispose of the State citizenship of the Czech Republic provides for the
the law. Article. 12 paragraph. 2 provides that no one can be against their will
deprived of citizenship.) It is hardly conceivable that
ústavodárce in a single provision used two different terms, if the
He didn't want to cause different legal consequences and deal with the situation rather than
the same, but different. It also is meant to be the point.
With regard to the fact that the term "waiver" has in terms of
the current Czech different meaning than the term "disposal", you can refer, in particular,
the professional literature (see linguistic description. Dictionary of literary language
Czech, 1989, CZECHOSLOVAK ACADEMY of SCIENCES-Institute for the Czech language, volume IV., p. 367,
Volume VIII, p. 238). The term "zbaviti" has a dictionary meaning.
in particular: some intervention to remove the effect, the effect of someone or something
remove something, prepare someone for something (get rid of someone head
the place). In the legal terminology is known e.g.. the notion of "deprivation of
legal capacity "," deprivation of parental rights ". The grammatical meaning
This password and its comparison with known legal institutions clearly
It appears that the term "waiver" (usually assumed to external
power) intervention extranea. In contrast, the term "disposal" is referred to in
referred to the dictionary meaning, especially "loose" (what a guy), "come" (about the
What), the opposite of the concept of "recover": eg. lose the money, assets. "Lose the
something ", unlike the concept of" be deprived of something ", thus apparently
does not foresee the external intervention of third parties. It is therefore evident that, even in terms of
grammatical interpretation of the compared texts headed the protection enshrined in the
article. 12 paragraph. 2 of the Constitution to those cases where deprivation (withdrawal)
citizenship power by the intervention of a third person (the State). In such a
the case, therefore, is not a termination of citizenship, which is regulated in
the provisions of sections 13 to 17 of the Czech National Council Act No. 40/1993 Coll.
The Constitutional Court therefore concludes that the provisions of section 17 of the Act of the Czech
the National Council No. 40/1993 Coll. article. 12 paragraph. 2 does not violate the Constitution.
The Constitutional Court also dealt with the provisions of the Charter and of international
the contracts, which the complainant in the constitutional complaint alleges.
Article. 14 paragraph. 1 of the Charter provides that the freedom of movement and residence is guaranteed.
This freedom applies to each person, as it is a basic right and
the freedom which the Charter grants regardless of citizenship. Already
the universal concept of this freedom itself thus exclude
the unconstitutionality of the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll.
--to which the complainant in the context of the article. 14 paragraph. 1 of the Charter points out
-for the provisions of section 17 relates only to the disposal of the Czech State
the acquisition of the citizenship of a foreign citizenship, so has the nature of not
General, but quite specific. It is therefore evident that the protection of the freedom of
movement and residence within the meaning of article. 14 paragraph. 1 of the Charter goes to the cases completely
the other. This article is listed in the first section of the second head of the Charter,
which is entitled "fundamental human rights and freedoms". These rights
they guarantee, inter alia, freedom of movement and residence, the right of each person to
could freely move anywhere and to freely choose a place could
your stay. Moreover, the text itself and the sense of the contested provisions of section 17.
the Act clearly suggests that this prescription to anyone-even strangers
rightfully zdržujícímu on the territory of the Czech Republic-in-freedom of movement
and stay.
Article. 3 of Protocol No. 4 to the Convention for the protection of human rights and fundamental
freedoms lays down that no one, whether individually or collectively,
expelled from the territory of the State of which he is a citizen (paragraph 1) and that no one
will not be deprived of the right to enter the territory of the State of which he is a citizen of the
(point 2). Article. 12 paragraph. 4 of the International Covenant on Civil and political
rights specifies that no one shall be arbitrarily deprived of the right to enter into
their own country. Both of these articles, which the complainant alleges,
concern only the State of the citizens of the State concerned, and apparently headed to a completely
other cases concerned by the contested provisions of section 17 of the Act of the Czech national
Council No. 40/1993 Coll. does not apply.
The Constitutional Court therefore concludes that the provisions of section 17 of the Act.
It is not in conflict with article. 14 paragraph. even with article 1 of the Charter. 3 of Protocol No 4
to the Convention on the protection of human rights and fundamental freedoms and with the article. 12 paragraph. 4
The International Covenant on Civil and political rights.
Finally, the complainant points out that the contested judgment is
When the "used" to the provisions of section 17 of the Act of the Czech National Council No.
40/1993 Coll., the violation of the principle of equality before the law, i.e. its basic
the Rights expressed in the article. 3 (3). 1 of the Charter, in article. 14 of the Convention on the protection of
human rights and fundamental freedoms and in the article. 26 of the International Covenant on
Civil and political rights. Referred to the formulation of the first
the view suggests that the complainant only militates against illegal
the use of section 17 of the Act, but the feeling. of the total context of his submission can be
to reach a wider interpretation and inferred that, in effect, is challenged by
the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll., for
contradiction with article. 3 of the Charter and with the above mentioned articles of the international treaties.
Moreover, the complainant pointed out that the judgment of the municipal court in Prague
He said the loss of its nationality ex lege (§ 17 of the Act of the Czech
the National Council No. 40/1993 Coll.), and in particular this legal consequence shall be deemed
unconstitutional, because it ignores the Constitution (article 12, paragraph 2) the
the manifestation of the will of the citizen towards the extinction of the State citizenship of the Czech
of the Republic. This legal fact, IE. the loss of the citizenship of the
the law, in the opinion of the complainant's non-discriminatory nature, violators
the principle of equality, so-how the Constitutional Court concludes--even from this
argument, it is clear that the complainant is challenging the provisions of section 17 of the Act.
for violation of the article. 3 of the Charter and international agreements, that are in this
paragraph listed.
Article. 3 (3). 1 of the Charter provides that the fundamental rights and freedoms is guaranteed
to all, without distinction of sex, race, colour of skin, language, faith and
religion, political or other opinion, national or social
origin, ethnic or accessories to the ethnic minority, property, birth
or other status.
Article. 14 to the Convention for the protection of human rights and fundamental freedoms States that
the use of the rights and freedoms recognised in this Convention shall be ensured without
discrimination based on any ground such as sex, race, color,
skin, language, religion, political or other opinion, national
or social origin, affiliation to a national minority, property,
or any other position.
The provisions of the article. 26 of the International Covenant on Civil and political
the rights of States that all persons are equal before the law and have the right to
without any discrimination on the same legal protection. The law prohibits
any discrimination and guarantee to all persons equal and effective protection
against discrimination for any reason, for example. According to race, colour,
sex, language, religion, political or other beliefs,
national or social origin, property and family.
This legal provision for the principle of non-discrimination on the one hand (from the
for any reason), and the principle of the equality of all people before the law. Is
However, you must consider whether and when to enjoy these principles in legal practice
the protection.
In international and domestic law is gradually pushed the interpretation according to
that the principles of non-discrimination and equality of the people, in principle, are not
protected themselves, but only in connection with the violation of another
the fundamental right or freedom guaranteed by constitutional law or
an international agreement within the meaning of article. 10 of the Constitution. Protection standard in the article. 3
Of the Charter and in the cited articles of both international agreements is not, therefore,
autonomous, but it has to the other rights (guaranteed by the Constitutional Act, or
referred to the international treaty) the nature of the akcesorickou. Basically the same as
i have already judikoval, the Constitutional Court of the Czech Republic. In the extensive analysis
category notes that equality, inequality, to touch
fundamental human rights, must reach the intensity of the call already
the very essence of equality, which usually happens when there is a violation of the
equality and violation of other fundamental rights, for example. the rights of the
owning a property, one of political rights, the rights of national and
ethnic minorities and the like. Equality thus usually requires a session to the
other social value. Breach of the principle of equality, therefore, assumes
relation to other fundamental rights, and thus the intensity, which is in a plane
fundamental human rights (Constitutional Court moves from 7 September. 6.
1995 SP. zn. PL. ÚS 4/95). However, in such a situation meant to be things
valid, because the Constitutional Court concluded that the contested
the provisions of section 17 of the Act of the Czech National Council No. 40/1993 Coll., violated and
other fundamental rights and freedoms, in particular those on which the complainant
He pointed out.
According to the beliefs of the Constitutional Court, however, referred to the principles of the prohibition
discrimination and equality (in the meaning of the cited legal provisions)
have not been contested provision of section 17 of the Act of the Czech National Council No. 40/1993
Coll. violated even if if they were considered in isolation.
Stěžovatelovo the concept of these constitutional principles, it is from the perspective of jurisprudence
The Constitutional Court is hardly acceptable. Equality as a constitutional institution
always has been, and is not an abstract category (absolute), but only
the relative and cannot be understood by mechanically and egalitářsky. It said in
decision No. 11/1992 collection of resolutions and findings of the Constitutional Court of the Czech Republic and no longer
Slovak Federal Republic. He stated that "it is for the State, in order to
ensure their functions, decided that a certain group will provide fewer benefits
than the other. Even here, however, must not proceed arbitrarily... ". (This
the idea of the Constitutional Court of the Czech Republic took over the award of a published
under SP. zn. PL. ÚS 16/93 Collections of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC.)
In case however meant to be by the contested provisions of section 17 of the Act
The Czech National Council No. 40/1993 Coll. to any procedure. Czech
rule of law, the law distinguishes between nationals of the Czech Republic and between the
earlier, citizens who have expressed willingness to become citizens of another State,
Although according to the applicable law of the Czech Republic know that the acquisition of foreign
citizenship on their own request, the Czech citizenship shall cease to
of the Republic. In these cases, it was conscious of the existing negotiations
citizens of the Republic, and if the applicable law (e.g., in some aspects.
the granting of voting rights, etc.) is the difference between the legal status
a citizen of the Czech Republic and a citizen of another State (a former citizen of the Czech
of the Republic), the inequality of legal and acceptable condition,
does not have a discriminatory nature. This conclusion is in accordance with the views of the legal
the doctrines and the European case-law that under the concept of "discrimination" includes
cases, when a person or group of persons without a corresponding
justification treated worse than the other. Similarly, States that no
every difference in treatment necessarily leads to unjust discrimination within the
the meaning of the Convention for the protection of human rights and fundamental freedoms; to
discrimination occurs only if the distinction lacks objective and
reasonable justification (cf.. Duffy: "the police and the European Convention on human
the rights ", European and international law 2/94-25). The case is
However, for the above reasons the things not meant to be.
The Constitutional Court therefore concludes that the provisions of section 17 of the Act.
It is not in conflict with article. 3 (3). 1 of the Charter, with the article. 14 of the Convention on the protection of
human rights and fundamental freedoms and with the article. 26 of the International Covenant on
Civil and political rights.
IV.
Our current legislation is based on the principle of a single exclusive
State citizenship. It emphasises itself the explanatory memorandum to the Government
the draft law on the acquisition and dispose of citizenship of the Czech
of the Republic. In this context, it is necessary to point out even on the constitutional
of the Court of 13 July. 9.1994, SP. zn. PL. ÚS 9/94, which relates to some
the issues of citizenship of the Czech Republic. This award is, inter alia,
stated that the Czech Republic has addressed the question of acquisition of citizenship
The Czech Republic national provision, which is the law of the Czech national
Council No. 40/1993 Coll., as amended by Act No. 272/1993 Coll., which provides
the principle of prevention of double state citizenship and avoid
homelessness. (The following has been established on the legislation valid in the territory of
The Czech and Slovak Federal Republic and was based on the fact
that similar principles are applied in the legal systems of other European
States.) Therefore, you can hardly accept the categorical and generally formulated
the complainant's allegations, that no law of the Czech Republic or its
the constitutional principle of prohibition of double order, do not have citizenship,
that said, conversely, is expressly provided.
For the assessment of the questions under examination cannot be abstract or legal status in the
the area of the international.
1. This soil is bipolitismus generally considered undesirable phenomenon. On
one side may lead to interstate disputes, particularly in matters of
diplomatic protection, because bipolita can be regarded as the State
citizen of the several States. On the other hand, operates bipolitismus, serious difficulties and
bipolitům, in particular regarding the obligations to the fidelity of the State and to the enforcement of
the military services, the performance of which may require two to bipolitům or
and more States. Third States may be considered as options for bipolitu
a citizen of any of the competing States, regardless of the will and the interest of the
bipolity himself.
2. The general practice of States can be characterized as follows:
and the person with the necessary) nationality cannot rely on their
other nationality in relation to the State of which he is also a citizen;
(b) the third State) has the person with the necessary citizenship can be considered
a citizen of one State only, and according to their own choice, rather than by
bipolity the options or any of the States concerned is a citizen. When
This option States mostly governed by the principle of efficiency, i.e.. they consider the
the alien for the citizen of the State, to which he brings a close factual relationship. In
Czechoslovakia decided the nationality, which was acquired
the last time (section 33 (2) of Act No 97/1963 Coll. on international law
private and procedural). The same legal situation is also true in today's Czech
Republic (article 1 of the constitutional law of the Czech National Council No. 4/1993 Coll., on the
measures associated with the dissolution of the Czech and Slovak Federal
Of the Republic).
3. The attempt to exclude the bipolitismu is obvious even from the bilateral conventions which
in the past, concluded the Czechoslovak Republic (or former
Czechoslovak Socialist Republic) with some of the neighbouring States,
more specifically, the SOVIET UNION, Hungary and Poland. The Convention is the principle that
and) persons who are at the same time the nationality of either of the Contracting Parties
can choose the nationality of the parties, which wish to retain the (article 1
The Convention between the Czechoslovak Republic and the Soviet
Socialist Republics about the treatment of people with dual citizenship
citizenship published under no. 47/1958 Coll., article. 1 the Convention between
The Czechoslovak Socialist Republic and the Hungarian people's
Republic on the adjustment of certain questions of citizenship published under
No 37/1961 Coll., article. 1 of the Convention between the Czechoslovak Socialist
Republic and the Polish people's Republic on the adjustment of issues relating to the
dual citizenship under the published No 71/1966 Coll.)
(b)) of the person to whom the Convention applies, shall be considered to be solely for the
citizens of the Contracting Party whose nationality have opted for (article 7
The CSR Convention-the USSR, article. 6 (1). 1 of the Convention, CZECHOSLOVAKIA-MRL),
(c)) of the person that the Declaration of the election of citizenship during the period
(Convention) do not, they will be treated exclusively for the citizens
the Contracting Party in whose territory they live (article 7 of the Convention, CZECHOSLOVAKIA-the USSR, article 6
paragraph. 3 Convention, CZECHOSLOVAKIA-MRLS, article. 6 of the Convention, CSSR--PLR).
4. It can be concluded that the legal regulation of the demise of the State citizenship of the Czech
the Republic is in full accordance with the trends of contemporary modern democratic
Europe. In this direction is significant in particular the agreement on the limitation of cases
multiple nationality, and about the service in the armed forces in
the case of multiple nationality of 6 May. in May 1963. The
lays down in article. 1 (1). 1 adult, having the nationality of the
the Contracting Party which will receive the manifestation of their own free will,
by naturalization, option or znovunabytím the nationality of the other party,
loses his former nationality. Not be entitled to retain
his former nationality. A similar adjustment also applies to persons
minors. The idea of strengthening the institution of an exclusive (sole) of the State
citizenship, then follows the article. 4 of this agreement, which States that no
the provisions of the agreement shall not preclude the application of any provisions which would
could reduce even more the emergence of multiple nationality, whether
would have already been incorporated or established in the legal order of the
Contracting Party, or in any agreement, Convention or treaty concluded
between two or more Contracting Parties.
Although the Czech Republic has not yet a signatory to this agreement, but not its
the existence of a clearly suggests the tendency of the Member States of the Council of Europe. To
day 2. in January 1995 the agreement was ratified by 13 States (Austria, Belgium,
Denmark, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Norway,
Spain, Sweden, United Kingdom of Great Britain and Northern
Ireland) and one State it signoval (Portugal). Virtually all States,
which have ratified the Agreement are important, and traditionally democratic
countries.
5. Neither the forthcoming European Convention on nationality and the military
the obligations in the case of multiple citizenship does not mean a breakthrough
the principles still valid-the-albeit not for the Czech Republic-Agreement of the
6.5. 1963. Proposal for a European Convention already in the preamble recognizes the right of everyone to
State to decide whether to allow its own citizens to have one or more
State citizenship. In the article. 4 Although the says that internal laws. ...
each State party shall be based on the following General
principles: 3.-no one is arbitrarily deprived of his nationality;
in the article. 6 (1). 1 However, this general rule is closer to getting divorced, so that
a State party shall not anchor in its internal laws. .. the loss
citizenship by operation of law, or on the initiative of the local
the State, with the exception of the following cases: a voluntary acquisition of another)
State citizenship. In the article. 9 (2). 2 further States that, depending on the
any international agreement governing the issue of the State
citizenship-a) each State party shall grant its nationality
persons who:
I) were nationals and residents of de jure and de facto the territory of
State which ceased to exist.
(ii)) have continued to reside the de jure and de facto in this territory, which is
become part of the territory of that State party.
It is obvious that the cited article on the case specifically designed for the welding fi lter,
no international treaty on the matter of State citizenship in the context of the
the termination of the existence of the Czech and Slovak Federal Republic closed
was not. But even if such a situation occurred, can point out the conclusion
the cited article. 9 (2). 2 sub a), according to which, when granting State
citizenship may be required from the persons concerned, to cede any
nationality of another.
The same principle is built and edit article. 9 (2). 2 sub b)
the forthcoming European Convention, which also directly not solved
things, but the main idea is comparable with it. Provides that in the case of
the transfer of sovereign power over the territory of each State party will allow its
citizens, who, as a result of this conversion can lose "its"
citizenship..., ii) to retain their citizenship, if
explicitly expressed his intention to leave, if they have a permanent residence de
jure and de facto the territory of the State party. Even here, however, that the
the internal laws of the State party may provide for a time limit within which the
make the choice of the person concerned, or require a waiver
any other citizenship.
From the above it follows that the new text proposed adjustment (which of course may not
be taken in this text) is not in contradiction with the text and purpose of existing
international legal arrangements. Therefore, the contested provisions of section 17 of the Act of the Czech
the National Council No. 40/1993 Coll., is not even in this direction in a conflict with another
the expected trend of international contract law in a complex region,
which concerns the institution of citizenship.
6. Comparable with the provisions of section 17 of the Act of the Czech National Council No.
40/1993 Coll. of the Besides, can be found in many other countries of Europe. As for example. about
the following States:
Austria
-The law on citizenship (Bundesgesetz über die österreichische
Staatsbürgerschaft 1965, BGBl Nr. 250), published under no. 311 BGBl
1985-StbG section III-the loss of citizenship
section 26-citizenship shall cease to
1. possession of a foreign nationality
§ 27. 1
-Citizenship, who on the basis of your application, your
the Declaration or its express consent gets foreign citizenship,
If he had not been allowed to leave the country of citizenship.
Finland
-The law on citizenship no. 401/1968 (The Finnish Nationality Act)
section 8 (10. 8.84/584)-a-Person loses their Finnish citizenship
1. If the citizenship of another country shall, on request, or
Declaration or if the consent given of my own free will.
Sweden
-The law on citizenship no. 382/1950 (the Swedish Citizenship Act)
section 7-the Swedish citizenship, losing 1. any person who acquires foreign
citizenship, after such citizenship, or expressly agreed
with its granting.
Norway
-The law on nationality, no. 3 of 8. 12.1950 (The Norwegian
Nationality Act)
§ 7-Norwegian nationality, losing 1. the person who takes the State
the nationality of another State on the basis of the application or the expression of consent.
Denmark
-Union Act No. 457 of 17 December. 6. the 1991 (Consolidation Act)
The statutory Decree (notification) of the law on the acquisition of Danish citizenship
(uniting the Danish law no 252 dated 27 May 1950 on the acquisition
Danish citizenship, the implementing Regulation No. 155 of 6 June. 4.
in 1978, as well as the Appendix resulting from section 2 of the Act No. 326 of June 4.
June 1986 and the Danish Act No 159 of 18 June. March 1991).
point 7-Danish citizenship 1. a person who acquires a foreign State
jurisdiction on the basis of the request or express consent.
The Netherlands
-The Royal law of nationality of 19 December. 12.1984-
Netherlands Nationality Act (Bulletin of acts, regulations, and decrees of 628)
known as the Dutch law on citizenship
section 15--a person who is under the legal age, loses its Dutch state
affiliation:
and the acquisition of another nationality) of their own free will.
It is therefore clear that the basic idea on which is built the provisions of §
17 of the Act of the Czech National Council No. 40/1993 Coll., you can find in other
European countries, which also stands on the principle of prevention
dual citizenship.
At the conclusion of the proceedings, the complainant pointed out that the Constitutional Court is bound by the
only by constitutional acts and international treaties under article. 10 of the Constitution,
so should not take into account the laws governing the acquisition and dispose of
citizenship, which apply in other countries. It goes without saying that the
The Constitutional Court is not bound by the laws of these States. Nothing-less content in
the award cited foreign law clearly shows what is
the legislative status of the current States of the modern democratic Europe. Therefore,
The Constitutional Court did not intend to ignore the komparatistický sight on the exercised
the issue, therefore, the existence and content of other comparable European
legal systems. It is related to the generally recognised desire to zoom in
the legal order of the Czech Republic to the laws of other democratic countries,
of our continent.
On the basis of these considerations, the Constitutional Court did not find in the provisions of section 17 of the Act
The Czech National Council No. 40/1993 Coll., the violation of the article. 12 paragraph. 2 of the Constitution, or
the other complainant placed constitutional laws or international treaties
on human rights and fundamental freedoms.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.