13/2006 Sb.



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,



This opinion:



Act No. 298/1990 Coll. is part of the nature of the restitution

legislation.



Justification



(I).



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While religious laws and was withdrawn by the congregations in the exercise of State supervision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.



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.