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The COMMUNICATION FROM the
The Constitutional Court
The plenary of the Constitutional Court in the composition of Stanislav Duchoň, Franz, Package
Vlasta Formankova, Turgut Gűttler, Pavel Holländer, Dagmar Lastovecká,
Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,
Elisabeth Wagner and Michael at the meeting on 1 April. November 2005
adopted pursuant to section 23 of law No. 182/1993 Coll., on the Constitutional Court, in a case
legal opinion (II). the Chamber of the Constitutional Court, derogating from the rule of
the opinion of the Constitutional Court in finding SP. zn. IV. TC 298/05 of
on 8 June 1998. 8.2005,
Act No. 298/1990 Coll. is part of the nature of the restitution
The Constitutional Court was on 17. 12.2004 delivered a constitutional complaint
the complainant, o. s. b. r. St. And, which seeks the annulment of the judgment complained of
The Supreme Court of 31 July. 8.2004, SP. zn.. 20 Cdo 2370/2003 (note.
Red: constitutional complaint is conducted under SP. zn. II. TC 687/04). According to the
work schedule this complaint challenged to II. the Chamber of the Constitutional Court
the judge-rapporteur is Stanislav Package.
The constitutional complaint to rail against the judgment of the Supreme Court, which was to
refused leave to appeal from the complainant (applicant) held prior to the General
the courts in the application of the eviction of the marked side against real estate
participants (the defendant). The case was launched in the District Court in Zlin
under SP. zn. 11 C-171/96. In the contested judgment the Supreme Court regarding
the rich case-law deduced that "an entity which is according to the law No.
298/1990 Coll. entitled to assets as calculated in annex of this Act,
It is not open to the application of the right of ownership to property that
While religious laws and was withdrawn by the congregations in the exercise of State supervision
over the property of the churches and religious societies, but in the annex to this
the Act is not listed ".
II. the Senate's Constitutional Court in this connection came to the legal opinion
different from the law in Constitutional Court of
on 8 June 1998. 8.2005, SP. zn. IV. TC 298/05 (Note: will be published in the
38 volume Collection of findings and resolutions of the Constitutional Court, so far available on the
URwww.judikatura.cz), according to which "in any of its findings or opinions
The Constitutional Court did not express support for the view that it should also act.
298/1990 Coll. was a special restitution law, the existence of which
excluded for legal entities listed therein to seek a determination of their
of property rights law applicable General. ".
The Constitutional Court has in the past dealt with several times in their findings
the question of the application of General provisions possibilities in a situation where this is a
restoration of property rights to entities that have their title
deprived of rights in circumstances that are otherwise under specified conditions
taken into account in the so-called. restitution laws. In all these cases,
The Constitutional Court came strictly from the principle that lex specialis derogat legi
generali. This happened most recently in connection with the adoption of the opinion
from day 1. 11.2005, SP. zn. PL. ÚS-St. 21/05 (Editor's Note: published under the
No 477/2005 Coll.).
The important issue is given the situation assessment of the nature of law No.
298/1990 Coll., and in that direction, whether it is a lex specialis or
not, or whether it is a law that is its very nature by law
restitution. II. the Senate's Constitutional Court in its considerations coming out of
the fact that the term "restitution law is not in the form of
legal Institute, but merely a concept that's in the form of shortcuts
the practice has created. The concept of restitution legislation indicates that while a group
laws was to alleviate some property-related injustices from the period
According to the decision of the democratic legislature of totalitarianism. If it comes to it,
whether it is law No. 300/1990 Coll. Despite its enumerated character of the reporting
minimum characters of universality "of the law in the strict sense", II.
the Senate concluded that in this direction is this legislation necessary to perceive
certainly as the law in the formal sense of the word. Not to be overlooked, that the
According to Act No. 298/1990 Coll., there has been a series of property
transfers of more than 15 years ago, while the constitutionality of this Act for
his material for this entire period page no one before the constitutional
Court, and the Constitutional Court, if known, or before the courts of General
questioned. Restitution character of Act No. 300/1990 Coll. takes into
account of the explanatory memorandum to this Act, according to which the law "allows you to
at least partially rectify these injustices committed in the past. "
Finding SP. zn. IV. TC 298/05 joined different opinion of judge
Michael April. From this different opinion. serves:
"The Constitutional Court has already in the past in many of their decisions aligned with
the legal opinion of the Supreme Court, according to which the persons referred to in the enumeration
Act No. 300/1990 Coll., on regulation of certain property relations Warsaw, Poland
the orders and congregations and the Archbishopric of Olomouc, cannot claim release
assets not covered by the annex to the law. It was based on the purpose of the
restitution legislation, namely Act No. 403/1990 Coll., Act No.
87/1991 Coll., the Act No. 229/1991 Coll. and Act No. 243/1992 Coll., which was
remedy or mitigate property injustices committed Czechoslovak
State unlawful detention of property rights to immovable, or even
movable things between 1948 and 1989. From the fact that the legislature
defined time, factually and staffed circuit relationships, which are subject to
restitution privileges, it follows that he will interfere with existing
matrimonial property regimes only to a limited extent and only for those whose relationships
remedy considered desirable and possible. The fact that he realized that his
the competence of the legislature at the same time, established the framework of the decisions of the
property restitution, though, about the extent and the conditions of
restitution may be decided only by the courts in the context of the expression of will of the State to
restitution, that is, within the limits of the restitution laws (cf. e.g. resolutions sp.
Zn. I. ÚS 480/99).
Restitution laws, therefore, by reason of their specialties are, if they are
met subjektové and substantive prerequisites for their application, an obstacle to the
the use of the general laws. To the ownership of the renewal can be in such a
the case to take only those instruments which are regulated in the law of restitution.
Act No. 300/1990 Coll. is restitution law, particularly with respect
on its purpose, which is the same as for other restitution legislation, and
Furthermore, in view of its construction, when it defines the circle
people, which occurs to the restoration of property rights to the assets included
to the statutory enumeration. If the law of restitution law, then
similar characters, which are both own and other restitution legislation, i.e.
among other things, prevent an application General property law.
If it is further referred to the will of the legislature with the statement that "certainly
It was not the purpose of the Act, in part, to redress the wrongs caused by, but at the same time to
the future application of these persons to prevent the alleged property rights
the way of actions under the general law ", it is necessary to point out the contradiction
such a legal opinion with the above interpretation of the nature of the restitution made
regulations and of their meaning. You can identify with the view that law No.
298/1990 Coll. had the nature of a provisional and its adoption was generally
considered that the adoption of the restitution will generic prescription
concerning church property. However, the fact that such a regulation adopted
He was not, then, the legislature expressed its will, so far lasting, in
restitution of church property not to continue. This omisivně demonstrated
the will of the legislature is crucial for the assessment of the case (cf. also
different opinion on finding SP. zn. IV. TC 298/05, which joined
Judge Michael April). To do this, the Constitutional Court adds that according to its
opinion is part of those active in the legislative process believes that
the adoption of Act No. 300/1990 Coll. There has been no final solution mitigation
property-related injustices caused by the churches and ecclesiastical legal persons.
The Constitutional Court considers that that is the only thing the legislature, as once the
the above-mentioned relations accepting another law. But k. resisted them a solution to this
the questions in the form of individual judicial decisions in particular cases
It would be enough that the activist solution to, in effect, led
the fact that the judicial power took over the activity that is otherwise within the Division of
can only act belongs to.
As an obiter dictum, the Constitutional Court adds that II. Senate in finding SP. zn.
II. TC 528/02 of 2 July. February 2005 (Editor's Note: will be published in the
Volume 36 Collections of the findings and resolutions of the Constitutional Court, so far available on the
www.judikatura.cz) expressed, on the asset for which the original owner
were the Church, religious orders and congregations, "it is necessary to apply mode
the restitution laws, and therefore there is no room for antitrust
the determination of ownership for the absence of urgent legal interest. Because you cannot
derive from the fact that the State was not able to issue special
restitution law, although Act No. 229/1991 Coll., which came into force
already 24. June 1991 issue of such a law. The State, however,
must its commitment to issue a restitution law, resulting from a quoted
the provisions of the law on land, on the ecclesiastical assets meet, as must
meet the legitimate expectations on the part of ecclesiastical legal persons that
relies on the statutory provisions ". Also in this same discovery II.
the Senate was then apelováno to the legislature to make initiatives in relation
to address the mitigation of property injustices caused by the churches and religious
legal persons in the period of totality seized him.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, took to the opinion of the judges of the plenum
Miloslav Výborný, Vlasta Formankova and Elisabeth Wagner.
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