In The Matter Of The Application For Revocation Of Section 8/4. About Mimosoud. Rehabilitation

Original Language Title: ve věci návrhu na zrušení § 8/4 zák. o mimosoud. rehabilitacích

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=47762&nr=83~2F1999~20Sb.&ft=txt

83/1999 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 31 December 2004. March 1999 in plenary on the proposal of the complainant

Of the repeal of § 8 paragraph. 4 of law No. 87/1991 Coll. on extra-judicial

rehabilitation,



as follows:



The proposal is rejected.



Justification



The judgment of the District Court of Prague-West of 22 March. April 1996, SP. zn. 4 (C)

814/95 was in case the complainant (applicant) against defendants f. and e. E.

(hereinafter referred to as "the defendants") decided that the defendants are required to issue a

complainant House No. 67 in k. p. construction parcel no kat. 172 and

Garden No kat. 548/8, all in the cadastral territory of k. p.



By judgment of 16 December 2003. January 1997 No. 28 What 623/96-65 has changed the regional

a court in Prague, cited the judgment of the District Court, so that the action on the issue of

building plot no kat. 172 and gardens n kat. 548/8, all in

cadastral territory, k. p., dismissed. Otherwise, it was a judgment of the Court of first

the degree is confirmed.



The Supreme Court judgment of 25 June 2002. November 1997, no. 2 Cdon

1109/97-83 was rejected the complainant's appeal against that part of the judgment

The regional court in Prague, which the Court of first instance was modified.

In the reasoning of its judgment, the Supreme Court pointed out, in particular, § 8 paragraph.

4 of law No. 87/1991 Coll. on extra-judicial rehabilitation, under which

the land, which has been established the right of personal use, is authorized

the person does not issue. If it is according to law No. 119/1990 Coll. on judicial

rehabilitation, as amended, repealed the criminal judgment,

including the operative part of the penalty of confiscation of property-how it came in on

stuff-gets the rehab person demands stemming from mentioned

abandoned utterances. There is, however, to such a restoration of property rights

to the point of the original owner, enabling him "to take their

of property rights "and of the" owner "to demand the withdrawal of a case

under the general law (§ § 126-132-previously of the civil

Code). Even in that case was as to the restitution of that

must be filed in the manner and under the conditions laid down in the specific

"restitution" of the law, for which the law No. 119/1990 Coll. points. In doing so,

the issue of property restitution law cannot be enforced in accordance with, if

the conditions of this law were not met.



In the opinion of the Supreme Court, § 8 paragraph. 4 of law No. 87/1991.

the uninterrupted between the built-up and does not recognize the land-how to claim

the complainant-a presumption that the legislature had in mind in this case

only undeveloped land (note in Mr. case has been rejected

the claim of the complainant to release built-up building plots and gardens),

Therefore, does not have a legal basis, and that's not even taking into account the logical or

historical interpretation, which could not be the grammatical interpretation of the bridge. Cited

the provisions will therefore apply to all land that was in the past

established the right of personal use, though they are now as a result of the transformation

This right in the right to property in the possession of the defendants.



In the constitutional appeal against the abovementioned judgment of the Supreme Court

in particular, the complainant stated that it was violated her constitutional rights

arising from article. 11 and from article. 36 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter") and of the article. 90 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution").

The complainant is of the opinion that section 8 (2). 4 of law No. 87/1991 Coll. had

its relevance and meaning only at the time when the right of personal use

There were. The amendment of the Civil Code carried out by Act No. 509/1991

SB. with effect from 1 January 2003. However, in January 1992 following the abolition of the Institute

personal use of the land and its replacement by the ownership.

Under section 872 para. 1 of the Civil Code expressly not affected by section 8

paragraph. 1 of the Act No. 229/1991 regulating ownership of land and

other agricultural property as amended, (hereinafter referred to as

"the law of the land"), which he assumed to be issued and the agricultural

the land on which it was established the right of personal use. Was therefore no

reasonable cause for suggesting that in application of law No. 87/1991.

they were not issued by the land, which was once established the right to personal

use, and to the land of this kind have been issued under the law on

the soil, if both categories have in common is that the natural person acquired

the land from the State at odds with the then applicable regulations.



The complainant also points out that the legislator-in pursuit of what

the fastest implementation of out-of-court restitution-formulated § 8 paragraph. 4

Act No. 87/1991 Coll. very briefly and was unable to take into account the far-reaching

the conversion of the personal use of the land in ownership that occurred later

the said amendment of the civil code. Opinion of the Supreme Court is said to be

Therefore, incorrect, preferring "positivist interpretation" and

not take into consideration the fact that "its decision to consciously determined by protismyslný and

absolutely adverse relationship between the House and the owner of restituentem construction

and the surrounding land, all property acquired in contravention of

existing regulations ". The general part of the restitution of the like kind property

they say was made out-of-court agreements, and restituentům were released

houses and building plots and gardens; also, according to some

judikátů general courts were issued not only buildings, but also the land to

buildings belonging to both.



Therefore, the complainant suggested that the judgment under appeal of the Supreme Court

cancelled, and at the same time proposed that § 8 paragraph was canceled. 4 of law No.

87/1991 due to "facilitate the out-of-court and especially judicial practice".



By resolution of the Senate and the Constitutional Court of 28 June. April 1998, SP. zn. I. ÚS

118/98 was a constitutional complaint pursuant to § 78 para. 1 of law No.

182/1993 Coll., on the Constitutional Court, and the proposal to repeal this

the provisions of that law, the plenum of the Constitutional Court has been referred to the

decision under article 9(1). 87 para. 1 (b). a) of the Constitution. The Constitutional Court

first dealt with the question of whether the formal conditions are met

the validity of the contested provisions of Act No. 87/1991 Coll. in this direction

It was from the reports on the 13. a joint meeting of the House of the people and of the House of peoples

(VI parliamentary term, part 3, p. 905 and 906) and from the report on 6. a meeting of the

The House of peoples (VI parliamentary term, February 21, 1991, p. 28) found

that day 21. February 1991, the law on out-of-court rehabilitation approved

required majority of members of the Federal Assembly, and 86 MEPs

in the House of the people (against 25 members and 13 members of the abstentions

vote) and 96 members of Parliament in the House of peoples (against was 24 members and 9

abstentions). He was then signed by the respective constitutional

agents and duly promulgated in the collection of laws. The Act was therefore

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll.). It Moreover,

the Constitutional Court has already found in the award announced in the collection of laws under no.

164/1994 Coll. (PL. ÚS 3/94) and in the award announced in the collection of laws under the

No 153/1998 Coll. (PL. ÚS 24/97).



The above proposal is under section 69 of the Act on the Constitutional Court expressed the

the party--the Chamber of deputies of the Czech Parliament. Pursuant to § 48 para.

2 and § 49 paragraph 1. 1 Act No. 182/1993 Coll., the Constitutional Court has asked for

representation of the Ministry of agriculture and land Authority-Central.



The Chamber of Deputies stated in its observations that the annulment of the contested section 8

paragraph. 4 of law No. 87/1991 would be a major breakthrough into the existing

the legal regulation of extrajudicial rehabilitation. Due to the amendment of the code of

Code made by Act No. 509/1991 Coll., that the right of personal use

the right to ownership of land has elevated, then brought the proposal means ' cancellation

one of the ownership rights at the expense of the rights of the other. " This would allegedly lead to

de facto negation of legal certainty of title to real estate.

The present proposal is said to be unconstitutional, since according to the article. 11 of the Charter is

expropriation or compulsory restriction of property rights only in

the public interest and on the basis of the law, and for compensation. The complainant's proposal

also reportedly goes beyond the logic of non-judicial legislation

rehabilitation, whose purpose is the partial easing of property and other

the wrongs committed by the Communist regime during the relevant period.



Law No. 87/1991 Coll. on extra-judicial rehabilitation, was based on the communication from the

The Chamber of Deputies approved the necessary majority of members of the Federal

the Assembly of the CZECHOSLOVAK FEDERAL REPUBLIC on 29. April 1991 (Note: this was actually

the law has been approved already 21. February 1991), was signed by the respective constitutional

agents and properly declared.



Ministry of agriculture-the Central Land Office in its observations

stated that the contested section 8 paragraph 1. 4 of law No. 87/1991 Coll.-Unlike

the law on the ground-literally does not exclude cases where the right of personal use

natural person acquired contrary to the then applicable regulations or for the price

less than the price corresponding to the then valid price regulations or on the

the basis of an unlawful advantage of the acquirer. The question apparently is whether

the fact that the contested section 8 (2). 4 of the Act literally does not

the circumstances of the infringement and the benefit of personal rights illegally

use, eliminates the possibility of the issuance of such land to the beneficiary,


If the Court found that there has been this way in the acquisition of

the right to personal use by the licensee or persons close to him. According to the

section 4, paragraph 4. 2 of law No. 87/1991 Coll., it is possible to obliged entities

There were also natural persons having acquired the thing from the State that obtained the permission

deal with it under the circumstances specified in § 6 of this Act, if

When these persons acquired either in conflict with then-applicable regulations,

or on the basis of an unlawful advantage for the person of the acquirer. This

provision thus talks about acquiring things from the State, "without the concept of acquisition

related to the right of title only ". The difference in access to land

in personal use and real estate owned by natural persons is

allegedly based on the fact that the land was on the date of

the effectiveness of Act No. 87/1991 Coll. on ownership of the State.



According to the Ministry of Agriculture of the Central Land Office-

the right to personal use (repealed by Act No. 509/1991 Coll.) was completely

different from other exploitation rights and had many of the attributes of ownership

rights. It was subjected to a similar regime as the right of ownership to

real estate "allocated by the State in the ownership of physical persons".

It was open-ended, hereditary, was obtained for a refund and withdrawn

It could also be a substitute only under the conditions prevailing for the expropriation.



In the case of acquisition of the right of personal use of the land for construction or establishment of

Garden said the cases cannot be ruled out that this has happened in relation to the

to the transferee, in the circumstances set out in section 4, paragraph 4. 2 of law No. 87/1991.

Therefore, the protection of personal rights under the land use section 8 paragraph 1. 4.

the law should not be absolute, but should be taken into account the circumstances of the

the unlawful advantage of the transferee as in the case of the law on

soil. Ministry of agriculture-the Central Land Office, however, the repeal of §

8 (2). 4 of law No. 87/1991 Coll. nedoporučilo, however, "as this would

This may result in withdrawal of the protection of the acquired rights of nedůvodnému honestly, in

accordance with the applicable law ".



Custom analysis of things:



The complainant is the examination of the proposal seeks the annulment of § 8 para. 4 of law No.

87/1991 Coll. pursuant to this provision, "the land which has been set up

the right to personal use, the authorized person does not issue ". The Constitutional Court when

decisions pursuant to article. 87 para. 1 (b). and) of the Constitution is mainly based on

principle constitutionally Conformal interpretation and application of legislation.

This means that "in a situation in which certain provisions of the legislation

allows two different interpretations, one is in accordance with the constitutional

laws and international treaties under article. 10 of the Constitution, and the second is with them

on the contrary, is not given a reason for the cancellation of the provision. When its application

It is the task of all State bodies to interpret the provision constitutionally

Conformal manner "(cf. e.g. find SP. zn. PL. ÚS 5/96, the constitutional

Court: a collection of findings and orders. 6, c. h. Beck, Prague, 1997, page.

203-finding was announced under no. 286/1996 Coll.).



In Mr. things therefore the Constitutional Court examined whether the contested provisions can be

interpret and apply the constitutionally Conformal manner, so that its

cancellation is not necessary, or whether on the contrary its constitutionally Conformal

interpretation and application may not. In this case, the Constitutional Court

had no choice but to cancel the contested provisions.



In particular, the appellant argues that the contested provisions make sense only in the

the time when the right of personal use, and that there is a reasonable

the reason for it to have been issued by the land-which was once established

the right to personal use-according to the law of the land, and not according to the law No.

87/1991, if the natural person had acquired the land from the State in

contrary to the then applicable regulations.



The Constitutional Court does not share this view.



It is true that if the law actually between the soil and the law No.

87/1991 Coll. existed such a contradiction (which attacks the complainant) that

would consist in the fact that according to the law of the land by real estate, which was

established the right of personal use, it has been possible to the person entitled to issue (per

provided that "... the natural person acquired property either in conflict with

If the regulations or on the basis of an unlawful advantage "-section

8 (2). 1 of the law of the land), while according to law No. 87/1991 would

the affected section 8 para. 4 featured an absolute obstacle to the Edition

such land, which has been established the right of personal use, it was

It would be a lack of unconstitutional. According to the article. 11 (1) 1 of the Charter

ownership of all owners has the same statutory content and protection, which

means that expressly enshrined the principle of equality of ownership

rights. It is true that, according to settled case-law of the Constitutional Court protects

Article 11 of the Charter, only the title has already been constituted,

the existing, and not only the alleged entitlement to them. However, you cannot

Miss that section 8 (2). 4 of law No. 87/1991 Coll., as expressis

It does not apply to the existence of a right of ownership, but only to the question of the release of

the land on which might, under other circumstances, the claim was. This means,

that this provision represents merely an obstacle to its own Edition of the land

consisting in the fact that the original owner cannot take their

of property rights, but that it has the only financial compensation (§ 8 paragraph.

5. Act).



In these circumstances, the Constitutional Court dealt with the question of whether the referred

the contradiction to which the complainant points out, is real, or merely

apparent, that is, whether it can bridge the constitutionally Conformal

interpretation or not.



In this context, the Constitutional Court notes that according to section 4, paragraph 4. 2 of the Act

No. 87/1991 Coll. (on which, moreover, refers in its observations and

Ministry of agriculture-the Central Land Office) "obliged entities

they are also natural persons having acquired the thing from the State that obtained the permission

dispose of it in the circumstances set out in section 6 of the Act, and that, in cases

When these persons acquired either in conflict with then-applicable regulations, or

on the basis of an unlawful advantage for the person of the transferee, as well as the persons

close to these people, if they thing was those persons transferred ".



Also, in the opinion of the Constitutional Court, this provision is necessary to

to interpret in a way that does not apply only to those persons who under the specified

conditions acquired ownership of things, but also those to the point

(the land) acquired the right to personal use. In section 4, paragraph 4. 2 of the Act

This is because she does not speak specifically about the restrictions on the acquisition of the acquisition of titles only

property rights; Moreover, it cannot be overlooked that the right of personal use to the

the land was quite different from other exploitation rights and had many

the attributes of ownership rights. At the same time is in the interpretation of this

the provisions need to be constantly the sense of restitution

the regulations, which is to alleviate the effects of certain property and

other grievances. In this spirit, it is also necessary to restitution legislation interpreted;

This means that you need to choose a method of interpretation, which will be

focused on efforts to return things to the original owners (legitimate

persons) in all cases where they would not have been incurred by the injustices of the new.



From this general background, the Constitutional Court concludes that it is in accordance with the

the purpose of Act No. 87/1991 Coll., and in particular in the context of restitučními

other provisions if the contested provision will be interpreted as

the land, which has been established the right of personal use, is authorized

the person shall issue even if it is held by a natural person who

the right to personal use of it was in connection with the acquisition of

ownership rights to build on the land, under the conditions referred to

in section 4, paragraph 4. 2 of law No. 87/1991.



From the above, it is therefore clear that § 8 para. 4 of law No. 87/1991.

interpreted in isolation but only in connection with the provisions of

the other, in particular with article 4, paragraph 2. 2 of this Act. Constitutionally Conformal

interpretations can therefore be concluded that the land, which has been

established the right of personal use, while the authorized person shall not issue, but

only if its release could cause new injustices,

that is, if the thing was to release a natural person, which it received from the State in

contrary to the then applicable regulations, or on the basis of an unlawful

advantage of the person of the transferee, or if the thing be under these conditions

issue the parties close to these people, if they were such persons

converted. In cases of unlawful advantage or acquisitions, contrary to the

If the regulations is, however, always be-as already mentioned-

treat such cases where the acquire the rights to the personal use of the land

occurred in connection with the acquisition of ownership of the building on the land

standing and ownership of the building was established, under the conditions specified in §

4 (4). 2 of law No. 87/1991.



On the contrary, there was no doubt the intention of the legislature to protect the rights of those

natural persons having acquired the thing in violation of the then applicable regulations or

on the basis of an unlawful benefit pursuant to § 4 paragraph 2. 2 of law No. 87/1991

SB. in practice, the public authorities cannot, therefore, § 8 paragraph. 4 of law No.

87/1991 Coll. understood as "absolute" obstacle to the edition of the land, but

only as a barrier to the General, which, however, in the particular case-cannot


prevent the release of things when the conditions of § 4 para. 2. the law.



With regard to the appellant's objection that the contested provisions make sense

only at the time when the right of personal use existed, the Constitutional Court

It is concluded that is not warranted. While it is true that, according to section 872 para. 1

of the civil code, the right to personal use of the land on 1 January 1993 ex lege.

January 1992 changed the ownership of physical persons (Note: this

the fact is evidence of the considerable material close to the title and

the right of personal use of the land, as stated elsewhere), but from the

It cannot be inferred that the contested provision is unconstitutional. The provisions of the

§ 8 para. 4 of law No. 87/1991, therefore, the Constitutional Court, or from the

because of the unconstitutional since it did not speak of the land to which the

It was established the right of personal use (which became ex lege right

proprietary), however, his diction and a sense do not raise doubts,

because it is clear that applies to the land, which was in

the right to personal use of the past has been established, although at present

already in the mode of ownership rights.



Because there is a possibility of a constitutionally consistent interpretation of the contested

provisions, the Constitutional Court for annulment of section 8 paragraph 1. 4 of law No. 87/1991

Coll. rejected (article 82, paragraph 1, of Act No. 182/1993 Coll.).



The President of the Constitutional Court:



JUDr. Kessler v. r.



Different opinion in this matter pursuant to section 14 of Act No. 182/1993

Coll., on the Constitutional Court, judge JUDr. Pavel Param V.