In The Matter Of A Proposal For The Repeal Of Section 17 Of The Act. About Citizenship

Original Language Title: ve věci návrhu na zrušení § 17 zák. o státním občanství

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43550&nr=6~2F1996~20Sb.&ft=txt

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.