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
The proposal is rejected.
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rehabilitation, as amended, repealed the criminal judgment,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.
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.