On The Protection Of The Emblem And Name Of The Red Cross

Original Language Title: o ochraně znaku a názvu Červeného kříže

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=49587&nr=261~2F2000~20Sb.&ft=txt

261/2000 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 4 April 2006. July 2000 in plenary on the proposal to repeal

point 10. Part I of annex to the Act No. 126/1992 Coll., on the protection of the emblem and

the name of the Red Cross and of the Czechoslovak Red Cross,



as follows:



Date of publication of this finding in the collection of laws in Act No. 124/1992

Coll., on the protection of the emblem and name of the Red Cross and the Czechoslovak

Red Cross, paragraph 10. Part I of the annex entitled "overview of the immovable.

the property, which returns the Czechoslovak Red Cross, shall be deleted.



Justification



(I).



Plzeň-City District Court judgement of 28. 3.1999, SP. zn. 14 C-251/98

dismiss the application of the complainant against the respondent to the Czech Red Cross, in order to

It was determined that the owner of the House. 100 in Pilsen, a coastal street No. 15 and

land parcel No. 10248 in Plzeň-City District (formerly no. 4971) is

the complainant.



In the grounds of the present judgment, in particular, the Court stated that the proposal had the nature of the

declaratory action. The Court found an urgent interest in determining the

ownership, since the complainant was not able to any other way affect

registration in the land registry, when as the owner of the

real property is written to the Czech Red Cross. According to § 2 (2). 1 (b). (c))

Act No. 172/1991 Coll., on the passing of some of the things from the assets of the United

Republic to the ownership of the municipalities, as amended, passed

the right to the property of the complainant. According to § 6 paragraph 1. 1 and 2

Act No. 123/1992 Coll., State will return the Czechoslovak Red Cross

assets, which was withdrawn in the period from 25. 2.1948 to 31. 12.1989

the scope specified in the annex to this law, and that the property was to

the effective date of this Act (i.e., to 1. 7.1992) declared

ownership of the Czechoslovak Red Cross. In accordance with the annex to this

the law is under 10 as the owner of the real estate properties listed

The Czechoslovak Red Cross.



There was said to be so to the fact that Act No. 172/1991 Coll. declared owner

of the complainant's House and Act No. 126/1992 Coll. for him said

The Czechoslovak Red Cross. Therefore, Plzeň-City District Court proceeded on the basis of

registration in the land registry, which is the owner of the said

real estate Czech Red Cross, and because the complainant failed to

proof to the contrary, corresponds to the cadastral registration of the actual state of affairs. From

the viewpoint of the relationship of the two laws, the Court regarded the Special Act No.

126/1992 Coll., which is the real estate in question specifically (and specified

that has the precedence), and the General Law No. 172/1991 Coll. as

one thing you cannot have ownership of more people, unless the

ownership, concluded that the owner of the

the respondent (Czech Red Cross) and the draft stěžovatelův

It has refused.



The regional court in Pilsen by judgment of 13. 9.1999, SP. zn. 15 What 426/99

the judgment of the District Court of Pilsen-town (I) in the operative part, which was

rejected the claim for a declaration that the applicant is the owner of the House. 100 in

Pilsen, coastal ul. No. 15 (hereinafter referred to as "the House"), and (II.)

in the operative part concerning land no. 10248 in Pilsen (hereinafter referred to as ' the

land ") changed so that the complainant is the owner of the land.



In the grounds of the judgment of the regional court in Pilsen, Czech Republic declared

no doubt, that the construction of the House was completed in 1933, from the

which implies that this House could not be the subject of the contract

in Vienna already in 1906, so this purchase agreement shall be

only of the land. About the fact that the complainant possessed the

the plot, after all, is an extract from the land register from the year 1932.

By resolution of the City Council in Pilsen, Czech Republic of 27 April. 10.1933 the city

devoted to a permanent House and free use of the Czechoslovak

Red Cross.



The House is said to be built from the Association's own resources

The Czechoslovak Red Cross, however, became its owner,

Since under the principle of "superficies solo cedit" building followed the legal

the fate of the land and the "indication of construction land in the cartridge

the book was rather informative and not greater importance ". The owner of this

the building became-as landowner-the city of Pilsen, which

also, the Association of the Czechoslovak Red Cross paid the cost

spent on the construction. To nationalization either real estate apparently occurred in

1950. therefore, the right is said to be proof that the claim that the two

real estate have become the effective date of Act No. 171/1991 Coll. (IE. 24.4.

1991) stěžovatelovým property, which was subsequently listed in the

the real estate register.



The regional court in Pilsen further deduced that after Act No. 124/1992 Coll.

entered into force (1. 7.1992), it is necessary to distinguish between the legal fate of the

the House and the land in question, as under the law, the State will return

The Czechoslovak Red Cross assets was withdrawn in the period

from 25. 2.1948 to 31. 12.1989 in the range referred to in the annex to this

the law. Immovable property referred to in the annex are hereby declares on the date

the effectiveness of the law for the ownership of the Czechoslovak Red Cross.

Because in this annex (Note: the below point 10) is given and the House

and building plot no. 89, occurred in the opinion of the Court of appeal to

a valid acquisition of ownership of the Czechoslovak Red Cross and

the complainant was obliged to respect this ownership. At the time of

the effectiveness of Act No. 123/1992 Coll., the State was not the owner of the building,

that went into the ownership of the city, "but the matter went as follows, with all the

the rights and obligations that apply to such property, including

the obligation to issue a lawful thing, or restituentovi as it is in

the case, to whom the law marks ". In addition, Act No. 124/1992 Coll. is in

relation to Act No. 172/1991 Coll. law special, as stated already, the Court

the investigative phase. In this section of the proposal, therefore, the regional court in Pilsen, the judgment of the

the District Court affirmed.



On the question of land, however, the regional court in Pilsen, concluded

that the property of the Czechoslovak Red Cross and was not referred to

the right of ownership did not arise from the law, since law No. 126/1992 Coll.,

"whether for any reason", makes no mention of this land and the creation of

ownership of the Czechoslovak Red Cross to him, therefore, cannot be

inferred. The entry in the land register was therefore incorrect in this regard.

To this extent, therefore, the regional court in Pilsen, the complainant's proposal

meet the.



II.



In a constitutional complaint against the judgment of the regional court in Pilsen from 13. 9.

1999, SP. zn. 15 What 426/99, in particular, the complainant stated that it was

violated his constitutional rights deriving from article. 11 of the Charter of fundamental

rights and freedoms ("the Charter") and of the article. paragraph 101. 3 of the Constitution of the United

No. 1/1993 Coll. (hereinafter referred to as "the Constitution"). In addition, he said, even

infringement of article 81(1). 7 and 10(3). paragraph 86. 2 of the Constitution of the CZECHOSLOVAK SOCIALIST REPUBLIC No. 100/1960 Coll. and article. 4

paragraph. 7 the Constitutional Act No. 143/1968 Coll., on the Czechoslovak Federation.



The complainant disputed the unconstitutionality of sees that, pursuant to section 6 (1).

1 Act No. 126/1992 Coll., the Czechoslovak Red Cross will be issued

the assets of the State, and that the assets that he has withdrawn from 25. 2.

1948 to 31. 12.1989, to the extent set out in the annex to this Act.

The complainant considers that the transfer of the ownership of the Czechoslovak

the Red Cross in this case can occur only if

the cumulative fulfilment of all legal conditions, i.e. that they must act

the assets of the State, which was withdrawn in the Czechoslovak Red Cross

the relevant period, and that such property falls within the ambit of things exhaustively

referred to in the annex Act No. 126/1992 Coll. Itself putting real estate

in the annex to the law, does not result in a transition of ownership

the law on the House of the Czechoslovak Red Cross.



The purpose of Act No. 123/1992 Coll. was rectifying some of the grievances

caused by the Czechoslovak Red Cross and cannot, therefore,

apply to other cases into the category of property-related injustices

caused by the Czechoslovak Red Cross does not fall. In the preparation of

This law reportedly was based on erroneous information, as for example.

as the owner of the House is listed in it. State-housing company

the city of Pilsen, as the effective date of this Act was no longer the owner of the

This real estate the complainant. In addition to this construction is absolutely mistaken

connected plot, that their number is not the same as

the land on which the House stands, and even with that House did not

are not related. "Already obvious incorrectness of such data causes the legitimate

doubts about the overall accuracy of the annex to law No. 123/1992 Coll., and from

for this reason, it is necessary to ensure that it was filled with the purpose of § 6 (1). 1.

the law, to examine each individual case meeting the other requirements of

prescribed above cited provisions. "



According to the app's opinion is above all necessary to treat the

real estate was the effective date of Act No. 124/1992 Coll. on ownership

the State, which, moreover, is the fact that for all real estate

listed in the annex to the law as their owner is State listed. In

the case, however, the decisive day in the ownership of the House in question was not


State, but the municipality (the complainant), which affirmed the judgment under appeal and the

The regional court in Pilsen.



At the same time was Act No. 126/1992 Coll. applies only to assets that

the Czechoslovak Red Cross was withdrawn in the period from 25. 2.1948

31.12. 1989. "the Detention of property," he says, however, it is not possible to ponder withdrawal

any exploitation right, but only the withdrawal of the reservation of title or

rights management. The legal predecessor of the respondent (the Czechoslovak Red

However, only the cross) right to the object in question permanently and enjoy free of charge and

He had the right of ownership or the right of economic management. If, in the

the relevant period, the House was taken away, was withdrawn by the complainant and

not the Czechoslovak Red Cross, and if the ownership

It passed by Act No. 126/1992 Coll. on the Slovak Red

Cross, she violated the General legal principle that "no one shall

enjoy more rights than it has. " With regard to correct injustices would

The Czechoslovak Red Cross could again rise to the right to

permanent and free use of the House, but not the right

the ownership.



Of all these reasons, the complainant suggested that the judgment of the regional

the Court in Pilsen from 13. 9.1999, SP. zn. 15 What 426/99 was canceled in the operative part,

Affirming the judgment of the District Court of Pilsen-town of 28. 3. the 1999

SP. zn. 14 C-251/98, and also proposed the repeal of part I, point 10. Annex

to Act No. 126/1992 Coll. (marked as an immovable property,

which is returned to the Czechoslovak Red Cross) as proof that the

the right of ownership to the real estate was in the judgment under appeal

disputed with reference to this legislation.



III.



Pursuant to section 74 of law No. 182/1993 Coll., on the Constitutional Court, can be combined with

constitutional complaints filed the proposal to repeal the law or another legal

prescription or their individual provisions, which

occurrence of the event which is the subject of a 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,

in the case of other legislation.



Due to the fact that the complainant along with constitutional complaints filed by

This legal provision as well as the proposal to repeal section 10. Part I.

the annex to the Act No. 124/1992 Coll. that is marked as an overview of the real estate

the property, which returns the Czechoslovak Red Cross, and because

The regional court in Pilsen, in the contested decision on this point leaning-which

did the District Court Plzeň-city-there was an application of this

provisions (point 10. part I. the annex to the law) the fact that is

the subject of a constitutional complaint.



Therefore, the Constitutional Court pursuant to § 78 para. 1 Act No. 182/1993 Coll. on the management

a constitutional complaint. Proposal to repeal this provision

the law in question was referred to the plenary for a decision of the Constitutional Court

According to the article. 87 para. 1 (b). a) of the Constitution.



IV.



The application for annulment of the provision is in accordance with § 69 para. 1 of the law

No. 182/1993 Coll., as amended, the Chamber expressed the

the Chamber of deputies of the Parliament of the Czech Republic.



Stated that Act No. 124/1992 Coll. on the Federal Assembly was

presented as print # 954 VI. the electoral period, and as the owner and

at the same time the user of immovable property was (ext.

the law). State-housing company city of Plzeň in the explanatory memorandum.

This proposal was told that the House was built by the Club

The Czechoslovak Red Cross in 1933, and that the title

the Czechoslovak Red Cross law was withdrawn and transferred to the State

pursuant to Act No. 185/1948 Coll., on the nationalization of medical and treatment

institutions and on the Organization of State constitutional provision. From section 6 of the law No.

126/1992 Coll. apparently shows that the body to which the effect of this Act

the right of ownership is transferred, it is the State, without thereby could be předjímáno,

who at the time of the approval of the law really was authorized by the owner and who is

I eat today. Party to the proceedings (Chamber of Deputies), in accordance with the

the applicant considers that the transfer of the ownership to real estate on

The Czechoslovak Red Cross in accordance with Act No. 126/1992 Coll. may occur

only provided the cumulative compliance with all statutory

conditions, i.e. that they must act on property owned by the State, which

the Czechoslovak Red Cross was withdrawn during the relevant period, with

This thing must fall within a radius of exhaustively listed in real estate

the annex to this Act. The introduction of the real estate in the annex to the Act

Apparently, therefore, is not a sufficient reason for the ownership, since

"the law objectively cannot lead to a transition of ownership rights of other

person, than from the State, and cannot therefore be an expropriation. " Point 10.

Part I of annex to the Act No. 126/1992 Coll., therefore, cannot be in contradiction with the

article. 11 of the Charter.



To a breach of article namítanému. paragraph 101. 3 of the Constitution, the Chamber of Deputies

noted that the sense of this provision consists in granting legal

personality, the territorial entities. Infected item 10. Part I.

the annex to the Act No. 124/1992 Coll., however, this right of the city of Plzeň

not taking away anything, since it applies only to the question of the ownership

a specific file properties, not the withdrawal of the right to own property

in General.



According to the Chamber of Deputies was Act No. 124/1992 Coll. adopted

the necessary majority of members of the House of the people and of the House of peoples of the Federal

the Assembly was signed by the President of the Republic, the Chairman of the FS and

the Prime Minister of CZECHOSLOVAKIA and was duly promulgated in the collection of laws.



Of all of the above reasons, the Chamber of Deputies stated that

the legislature acted in 1992 in the belief that the point 10. Part I.

the annex to the Act No. 124/1992 Coll. was in accordance with the then applicable constitutional

policy. Its statement concluded by saying that "it is, however, the Constitutional Court,

in the context of the examination of a proposal for the abolition of the cited provision

assess its constitutionality, and issued the decision about it. "



In the.



Even before the Constitutional Court dealt with the examination of the merits, the proposal

focused on the question of compliance with the formal conditions of acceptance

the contested act (section 10 of part I of its annex).



As already mentioned, the Constitutional Court held that in the present case was given by

the reason for the initiation of a specific control standards according to § 64 para. 1

(a). (d)) in conjunction with § 74 of law No. 182/1993 Coll., as the contested

statutory provisions was, in this case the general courts actually applied,

Therefore, its application of the occurrence of the event which is the subject of the constitutional

the complaint. The Constitutional Court further held that in the present case, the law was

issued prior to the entry into force of the Constitution, and therefore it is not for him

to review the constitutionality of the procedures and compliance with regulatory

powers, but only its content comply with contemporary constitutional

policy (cf. resolution of 22. 4.1999, SP. zn. PL. ÚS 5/98,

the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 14, p. 309).



Vi.



The Constitutional Court therefore notes that nothing prevents him in discussion and

the substance of the decision.



The examination of the proposal is challenged by the provisions of section 10. Part I of the annex to the

Act No. 123/1992 Coll. that is marked as an overview of immovable property

Returns the Czechoslovak Red Cross, which reads: "a house in Pilsen,

Coastal ul. 15, Nr. 100-House, plot no 89, registered with the SG

Plzeň-city, title deed no. 10, no ev. 9909 worksheet, kat. the territory of the

Plzeň-city. Owner: Ms. State-housing company user: City of Pilsen.

Ms. State-housing company city. " While it is clear that putting

each of the real estate in the annex to the Act has the meaning only

taking into account paragraph 6 of Act No. 123/1992 Coll., according to that provision, ' State

return the Czechoslovak Red Cross assets was withdrawn in the

the period from 25. 2.1948 to 31. 12.1989, to the extent set out in annex

This Act "(para. 1). "Immovable property referred to in the annex to this

the law declares to be the effective date of this Act for

ownership of the Czechoslovak Red Cross "(para. 2). Out of it

It follows that the effect of the law (1. 7.1992) there has been a legal transition

title (ex lege) from the State of the Czechoslovak Red Cross.

At the same time it is clear that the law could apply only to those real estate

at the time of this Act were owned by the State. It can be inferred

Secondly, from the "State of the return the Czechoslovak Red Cross

asset ... "in § 6 (1). 1 of the Act, on the one hand and of the General principles of law, that the

No one can convert to another more rights than my self. Although it is the truth,

that the State is subject to the conditions laid down in article 4(1). 11 (1) 4 of the Charter (in

the public interest, on the basis of the law, and for compensation)-shall be entitled to the assets and

expropriate, however in this case it is clear that the purpose of the Act.

126/1992 was not the expropriation of real estate to other entities (and thus the

the complainant) to their transition into the ownership of the Czechoslovak

the Red Cross, but only the return of the assets referred to in the annex to

the law, which was the Czechoslovak Red Cross in the period

withdrawn, and that was at the time of the effectiveness of the Act, property of the State.




As the Constitutional Court from the file in Plzeň-City District Court 14 C 251/98

and as i stated in the recitals of their general courts

judgments, real estate in question originally owned the complainant the city of Pilsen

and the same entity was under Act No. 172/1991 Coll., the owner and the

day 28. 5.1992. From the extract from the land register. 10.1993 on

It follows that the Czech Red Cross was registered as the owner of the

real estate "according to Act No. 126/1992 Coll.". The Constitutional Court notes that

the original owner of the property in question was the complainant the city of Pilsen

that ownership to her nonromantic came into effect of law No.

172/1991 Coll. on 24. 4.1991, however, the effect of Act No. 123/1992 Coll.

on 1 May 2004. 7. in 1992 there has been a transition of ownership of the said

real estate in the Czechoslovak Red Cross.



The purpose of section 6 of Act No. 123/1992 Coll. was the return of the assets referred to in

the annex to the Czechoslovak Red Cross. From the wording of this provision

It follows that the transition of ownership rights require three legal

conditions, and that it had to act cumulatively: (1) the assets of the State, (2.)

that was the Czechoslovak Red Cross withdrawn from 25. 2.

1948 to 31. 12.1989 and (3.) that was mentioned in the annex to this Act.

It is therefore clear that in the annex to this law should be provided only to such

assets that meet both first mentioned legal conditions.



As is apparent from the documents before the Court, in part I, point 10. the annex to the Act No.

126/1992 Sb. was between immovable property that is returned

The Czechoslovak Red Cross, listed the property in question, the

the owner at the time when the law took effect, was not the State, but by city

Plzeň. At the same time there was no real estate, which was the relevant period

deprived of the Czechoslovak Red Cross, but the city of Plzeň, which

the House had already passed since it was built in 1933, and

The Czechoslovak red cross it only had the right of permanent and

free use. It can therefore be assumed that the inclusion of the

real estate in Appendix to Act No. 126/1992 Coll. occurred accidentally, since

the contested part of the annex to the law is manifestly contrary to section 6 (1). 1

of this code.



According to the article. 1 the Constitution of the Czech Republic is a democratic rule of law.

The Constitutional Court has repeatedly held that the Czech Republic is committed to

principles not only formal, but above all material legal

State. The Constitution respects the principle of the legality of and accepts as part of

the overall concept of the rule of law does not, however, a positive right on

formal legality, but the interpretation and application of legal norms makes their

content material sense (cf. e.g. award of 21. 12.1993, SP. zn.

PL. ÚS 19/93, a collection of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 1, str.

1). In the present case, however, the Constitutional Court found that the contested provisions of the

point 10. Part I of annex to the Act No. 126/1992 Coll. is inconsistent with

the same principle of legality; one of the basic assumptions of the functioning of the

the rule of law is even the existence of the internal compliance of its legal

of the order. It is therefore also necessary that individual legislation

understood and predictable consequences resulted from them. In the case of

the contested provision is clear, however, that the principles of the material

even the formal rule of law have not been fulfilled. If in accordance with § 6

paragraph. 1 Act No. 126/1992 Coll. State will return the exiled Czechoslovak Red

cross asset that was withdrawn during the relevant period to the extent that

in the annex to this Act, and at the same time the contested paragraph 10. Part I.

the annex refers to property that, at the time, when Act No. 126/1992 Sb.

took effect, not already owned by the State and has not been

The Czechoslovak Red Cross in the period or withdrawn,

about the apparent contradiction, that, in effect, leads (or can lead) to the

a lack of this part of the Act and to the difficult predictability of its

the consequences. Therefore, the Constitutional Court concludes that the unconstitutionality of the contested

the provision which is contrary to article. 1 of the Constitution, cannot be bridged or

his constitutionally Conformal interpretation under the circumstances

is not possible.



The Constitutional Court also concluded that the contested provisions in their

the consequences and is contrary to article. 11 (1) 1 and 4, of the Charter, which protects

the right of ownership; expropriation or compulsory restriction of property rights

allows only in the public interest, on the basis of the law, and for compensation. In

the case of proof that the power of the State has infringed the right of ownership, and it

the way of the law, as to his ownership of unconstitutionally intervened,

without him for this intervention admitted a refund. This legislature-even if it

the complainant specifically-according to, in effect, committed and violation of

article. 8 and 10(1). paragraph 101. 4 of the Constitution, as contrary to them did not respect the

the principle of self-government, territorial self, in a particular case

the complainant's right to (among other things) to own property and to enjoy the protection of the

of property rights.



For completeness, the Constitutional Court notes that it was unable to examine the objections

the complainant, if sees the unconstitutionality of the contested provisions of the Act

No. 126/1992 Coll., also in breach of article. 7 and with art. paragraph 86. 2 of the Constitution of the CZECHOSLOVAK SOCIALIST REPUBLIC

No 100/1960 Coll., and with art. 4 (4). 7 the Constitutional Act No. 143/1968 Coll., on

The Czechoslovak Federation. This is because such legislation ceased to be

According to the article. paragraph 112. 2 of the Constitution of the CZECH REPUBLIC No. 1/1993 Coll., part of the legal order of the

The United States, by the Constitution is valid on 1 January 2000. January 1993 expressly

lift.



Of all of the above reasons, the Constitutional Court held that the date of publication of

This finding in the collection of laws in Act No. 124/1992 Coll., on the protection of

the character and the name of the Red Cross and of the Czechoslovak Red Cross, point

10. part I of the annex entitled "List. the immovable property, which returns a

The Czechoslovak Red Cross, shall be deleted.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice Chairman