86/1994 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided in plenary 22 November. March 1994 in
the appellants ' case T. H. and, as represented by barrister JUDr. E. S.,
and the party-the Chamber of deputies of the Czech Parliament, about
application for annulment of the provisions of § 871 of paragraph 1. 1 of the civil code, in the
amended by Act No. 509/1991 Coll.
as follows:
The proposal is rejected.
(A substantial part)
(I).
The appellants have submitted 10 June. 7.1992 the then Constitutional Court of the Czech and
Slovak Federal Republic the constitutional complaint against the judgment
The District Court in p., dismissing the action against the defendant no.
B. on the evacuation of the apartment in the House, and the complainants against the judgment of the city
the Court in which the judgment, the District Court on the merits.
Both courts justify the judgments so that the defendant and his wife
was founded in 1988 on the basis of the legally approved the exchange of flats right
at the conclusion of the submission and acceptance of the apartment, that this
the agreement was concluded between the parties in the form of tacit and that on 1 January 2004. 1.
1992, this legal relationship was renamed to joint tenancy of the defendant and the
his wife (§ 871, paragraph 1, of the civil code, as amended).
On 26 April. 8. the 1993 sent to the complainant (appellant) the Constitutional Court
The United States Administration, which "spread" the constitutional complaint of 10. 7.1992
with reference to the provisions of section 74 of law No. 182/1993 Coll., on the Constitutional Court,
and suggested that the provisions of § 871 of paragraph 1. 1 of the civil code
cancelled. Unconstitutionality of that provision see, that due to the
It cannot be excluded that also applies to cases where
the earlier legislation was enforced by the use rights to flats without consent
homeowners. This is in contradiction with the proprietary right pursuant to article 4(1). 11
The Charter of fundamental rights and freedoms ("the Charter") with the article. 9
Of the Charter, since the change of the legal usufruct on the rent under the provisions of
§ 871 of paragraph 1. 1 of the Civil Code makes the homeowner provide
a forced tenant forced labour and services are hiring
apartment.
According to the § 147 of Act No. 182/1993 Coll., on the Constitutional Court, the constitutional
complaints that were referred to in the provisions on the Constitutional Court of the Czech and Slovak
The Federal Republic to him submitted before the 1. January 1993 and for which this
The Constitutional Court decided, the Constitutional Court shall discuss and decide on them if
as to the intervention of the public authorities referred to in § 145 paragraph. 1. this
Therefore, the provisions also apply to the constitutional complaint the complainants.
Under section 148. law constitutional complaint pursuant to § 145 to 147 of the Act.
The Constitutional Court shall discuss and decide on it under this Act.
Pursuant to section 74 of the Act, together with the cit. constitutional complaint may be filed
the repeal of the law or any other law or their
individual provisions which occurred that
is the subject of a constitutional complaint, the complainants alleged that, if
are in conflict with the constitutional law or international agreement under article.
10 of the Constitution, where appropriate, to the law, if it is about another piece of legislation.
Pursuant to section 78 of the Act, if the articles, along with constitutional complaints filed
proposal to repeal legislation pursuant to section 74 of the Act, the articles, the Senate proceedings
interrupted and the proposal to repeal legislation will advance the plenary to
decision under article 9(1). 87 para. 1 (b). a) or b) of the Constitution.
Chamber of the Constitutional Court came to the conclusion that the terms of the provisions of § 78
paragraph. 1 Act No. 182/1993 Coll. are decided by the case, because the
proposal to repeal legislation (article 871, paragraph 1, of the code of
Code) within the meaning of this provision was filed. By order of 19 December 2003.
10.1993 No. i. ÚS 2/93-56, therefore the Senate proceedings on constitutional complaints
interrupted and the proposal to repeal section 871 para. 1 of the civil code advanced
the plenum of the Constitutional Court for a decision under art. 87 para. 1 (b). and)
Of the Constitution.
II.
Plenum of the Constitutional Court came to the view that the proposal to repeal section 871
paragraph. 1 of the civil code was filed on time. Decisive is whether the
the appellants brought an application for annulment of the law as the first procedural act
(pursuant to section 74 of law No. 182/1993 Coll., on the Constitutional Court) within a period of 60
days from the date when this law becomes effective (article 145, paragraph 1, of the law.
by analogy). This stěžovatelkám submitted a constitutional complaint
The Constitutional Court of the Czech and Slovak Federal Republic (which it
decided yet), allows, in accordance with § 148 paragraph. 1. the Act to apply
the provisions of section 74 of this code and to submit in due time a proposal for the
repeal of the law. Act No. 182/1993 Coll. came into effect on January 1. 7. the 1993 and
in Mr. things was the proposal to repeal section 871 para. 1 of the civil code
filed mail 30 June 8. the 1993. 60-day time limit specified shall be deemed
The Constitutional Court for procedural time limit, since Act No. 182/1993 Coll.--it
regulates procedural law is that in the case of late submissions
the proposal directs the design of refuse, while in the case of failure to comply with time limits
the material would have to be in accordance with the General principles of the proposal rejected in substance.
Deadline to submit a proposal for the repeal of the law was thus in on things
preserved.
In this respect, the Constitutional Court of the neopřel argument of the new professional
literature, which deals with the nature of the 60-day period to submit constitutional
complaints (standard in the provision of section 72, paragraph 2, of the law on the Constitutional Court)
and that concludes that this is a period of substantive, since the procedure is initiated by the
the date of service of the Constitutional Court (article 27, paragraph 2, of the Act). For completeness
It is noted that in Mr. stuff is not about the time limit to submit constitutional
a complaint pursuant to § 72 para. 2. the law, but about the deadline for submission of the proposal
the repeal of the law within the meaning of section 74 of law No. 182/1993 Coll., on
that specific case, when the Constitutional Court applied the provisions of § 145
paragraph. 1 this code merely by analogy.
III.
The Constitutional Court therefore proceeded to the examination of the proposal after the factual.
The provisions of § 871 of paragraph 1. 1 of the civil code, which revocation shall
the appellants claim, provides that the right of personal use of the apartment and the right
use of other rooms and rooms housing nesloužících
incurred by the existing legislation, which takes on the date of entry into force of
This Act, amending the effective date of this Act for the rent. Common
use of the apartment and the common use of the spouses shall be amended on the flat joint tenancy.
The provisions of article. 11 of the Charter, the violation of which is relied on by the appellants,
provides for the
-paragraph 1: everyone has the right to own property. The right of ownership of all
owners has the same statutory content and protection. Inheritance is guaranteed.
-in paragraph 3: property obliges. Must not be misused to the detriment of the rights of
of others or in conflict with the law protected the general interests. His
the performance may not harm human health, nature and the environment over
rate provided by law.
-in paragraph 4: the expropriation or compulsory restrictions of ownership rights is
can be in the public interest, on the basis of the law, and for compensation.
(Paragraphs 2 and 5 of article 11 of the Charter are not related issues examined).
The provisions of article. 9 of the Charter, the violation of which the appellant also
rely on, provides
-paragraph 1: no one shall be subjected to forced labour or services.
-in paragraph 2: the provisions of paragraph 1 shall not apply to:
and the work imposed under the Act) to persons in imprisonment
or exercising another punishment, imprisonment,
(b)) military service or other service provided by law instead of
compulsory military service,
c) service required on the basis of the law in the case of natural disasters,
accidents or other danger that threatens the life, health or considerable
property values,
(d) conduct imposed by law) for the protection of life, health or rights of
of others.
The Constitutional Court therefore examined whether the contested provisions of § 871 of paragraph 1. 1
the civil code with the cited articles of the Charter, in violation of.
The question arises, what is the position of the Constitutional Court shall deliver to the legal relationships that
originated prior to November 1989 on the basis of the laws
the rules, which were later abolished, in particular conflict with the principles of
fundamental human rights and freedoms. even conflict with the principles of the market
economy. Basically the point is that the reception of the last legal status
is not in conflict with article in particular. 11 of the Charter, if the right to personal
the use of flat rezultovalo of the administrative decisions of the competent
authorities on the allocation of a dwelling without the consent of the owner of the House often. Such
the decision was supported by a then-valid, but the non-democratic rule of law.
However, it is necessary to see that the rules of law in force worked to flats
on the territory of the State for more than 40 years old and based on them are implemented
housing the vast majority of citizens who did not live in their own homes.
A significant number of these citizens to live and dwell in houses or blocks of
the family, which were and are the property of the citizens of the other. Users of the flats
had no other option than the one you provide rules concerning
management of apartments, which house owner is precluded from deciding
who becomes the user of the apartment in the House. In this situation, inevitably occurs
conflict of interests of owners of houses on available with the flats according to their own
the will and the interests of the tenants in the protection of acquired rights, the only possible
in a way, that right applies at the time of totalitarianism. In the field of human
rights is the conflict of the rights of two or more entities, categories not
an unusual and it is for the Court's reasoning, that right is in concreto.
The Constitutional Court primarily dealt with the question of whether the provisions of § 871 of paragraph 1.
1 of the civil code is not in breach of article. 11 (1) 1 the second sentence
Of the Charter, according to which the right of ownership of all owners has the same legal
the contents and protection. The Court concluded a negative. The provisions of § 871 of paragraph 1.
1 of the civil code is a regulation of transformational nature; in the explanatory memorandum
the message to Act No. 509/1991 Coll., says that the law will directly
change personal use rights on the protected tenancy. The purpose of this
provision is to ensure protection to all current users of apartments and
create for the existing State of relations of use sufficient legal certainty.
It is in full compliance with article 4(1). 1 of the Constitution of the Czech Republic, according to which the United
Republic is a sovereign, unitary and democratic rule of law
based on respect for the rights and freedoms of man and citizen. Already from this
the perspective of the contested provision cannot be regarded as a prescription
unconstitutional.
Was also doubt as to whether the contested provisions of the neznevýhodnilo
the owners of private houses, which at the time controlled the management of flats
also it was not a decision on the allocation of a flat linked to the consent of the owner
the House, which was then obliged to conclude with the citizen to whom the apartment was allocated,
the agreement on the surrender and the takeover of the apartment (cf. section 154 (1) of section 390, paragraph 2,
and § 493 paragraph. 1 of the civil code, in the version prior to the 1. 1.1992), so
the principle of the freedom to contract has been tampered with (cf. paragraph 37
of the Civil Code). In contrast, the apartments in the houses in the State or in the
the cooperative ownership of said this principle was not affected, as
decisions on the allocation of the flat, virtually the same entity (published State
the cooperative), which then closed a deal to surrender and take over the apartment. For
This situation is therefore said to be contested provision apparently in violation of the
the principle of equal protection of property rights for all owners that article. 11
paragraph. 1 of the Charter guarantees.
According to the beliefs of the Constitutional Court or these reasons holds water. Already
The Constitutional Court of the Czech and Slovak Federal Republic dealt with the concept of
equality of citizens before the law, that he understood not as an abstract
category, but as a relative equality, which--as they have in mind
all of the modern Constitution--requires only the removal of unjustified
the differences. It is for the State to decide that a certain group will provide less
benefits than other, but they must prove that they do so in the public interest and
for the public good (cf. decision No 11/1992 collection of resolutions and findings
The Constitutional Court of CZECHOSLOVAKIA). This legal opinion of the Constitutional Court of the Czech shares
of the Republic. Even if they were the owners of private houses off to the owners
Home of the other provisions of § 871 of paragraph 1. 1 of the civil code actually
at a disadvantage, it would be these disadvantages outweighed the public interest in the
the transformation of the former user relations to flats in the institution
protected tenancies, which created an acceptable status, legal certainty for
all existing legal relationships to flats, which were based on the existence of
the law of personal use of the apartment. It was not, therefore, only the rental laws
relations between the tenants and the owners of the houses in private ownership.
Indeed, the Constitutional Court does not share the categorical view that as opposed to owners
private homes were the other owners of the said decision of the advantages
on the allocation of the flat and the agreement on the surrender of and acceptance of the closed apartment
on the side of the organization always the same entity. The following generally formulated claims
finds no support in the law that was in force in the Czech Republic before the release
Act No. 509/1991 Coll., in accordance with the rules in force at that time there was a strict
the provisioning system, which has covered virtually all apartments. The State apartments,
corporate apartments, flats and flats in the Ministry of the Interior houses the folk
housing cooperatives allocate National Committee always (section 24 of Act No. 40/1964
Coll. on the management of flats). (Only for the last three types was ingerence
the National Committee zeslabena the fact that the apartment was allocated on a proposal from
Organization.) In contrast, the agreement on the surrender of and acceptance of the apartment, which
a right apartment use, negotiated with the relevant organizations, citizen
that home run. Similarly, it was for business, housing apartments
The Ministry of the Interior and the flats of folk housing cooperatives. It was, therefore, a different
entity that is distinct from the public authority that awarded the apartment. Even in these
the cases were the organisation concerned with the allocation of a flat
did not agree. Evidenced by the existence of the provisions of § 28 para. 1
Act No. 40/1964 Coll., according to which the national against the judgment of the local
Committee on the allocation of the corporate apartment, flat or Ministry of the Interior of the apartment
in the House of the people's housing cooperatives may appeal the Organization
managing corporate apartments, the authority of the Interior Ministry or folk
Housing Association. It is clear that the alleged lack of a Contracting
freedom in this area is not only the home ownership private,
but also the home of the other.
The situation was somewhat different for flats construction housing cooperatives, which
set the Board of Directors of cooperatives, and the agreement on the surrender and acceptance
the apartment also sjednávalo Squad (cf. Article 9, paragraph 1, of the directives of the Czech
the Union of housing cooperatives No 5/1984, section 155 of the civil code, as amended by
1. 1.1992, art. 32 para. 1 Sample statutes of construction residential
cooperatives). This constituted a legal regime can be reasonably justified
the specific nature of cooperative housing ownership and public interest
the distribution of this form of housing construction, that significant progress
the gradual satisfaction of growing housing needs of its citizens. Provisioning
law of the State in housing construction cooperatives (unlike the other
those bytes) it was therefore out of the question.
In part, similar legal status (which is apparent from the provisions of § 871 (1)
of the Civil Code) existed even in the first Republic when it was released
a number of provisions that homeowners in a comparable way.
The provisions of section 5 of Act No. 118/1928 Coll. and n., concerning emergency measures
residential care, from being saved, for example. the owner of the House, the obligation to nepronajaté and
an uninhabited room that has no need for themselves or for their
the employee, click district office rent for an apartment. As strict
the current legal order or prescription. The provisions of § 871 of paragraph 1. 1
the civil code is then factually approaching the provisions of § 18 para. 2.
the law, according to which from 1. 1.1931 is about all the homes occupied (see
Government Regulation No. 38/1919 SB. z. a n.) and on the flats, the management of
She moved to the State of public housing authorities have considered that they
between the user and the owner of the House made a lease agreement. Yet
stronger restrictions on owners of vacant flats then contained the measures
The Standing Committee of the National Assembly of the Czechoslovak Republic No.
288/1938 Coll. and n., on emergency measures of residential care, according to which
the owner has been obliged to uninhabited rooms fit for habitation
rent click District Office designated by the parties. Even this historic
Therefore, the comparison suggests that the change of the law on the personal use of the apartments
rent, sanctioned provisions of § 871 of the civil code, cannot be
be considered unconstitutional step.
In support of this view, you can add that former Federal Assembly
The Czech and Slovak Federal Republic when you correct the wrongs of the past
mode, adopting a number of laws, in particular, for example. Law No. 119/1990 Coll., Act
No. 403/1990 Coll., Act No. 87/1991 Coll., and more. All of these laws
Standing on the principle of the protection of the acquired rights of the new owners in the past
withdrawal of assets, with the exception of cases, when the natural person acquired the thing in
contrary to the then applicable regulations or on the basis of an unlawful
advantage of the person of the transferee, and with the exception of people close to these
persons who have transferred them to withdrawal of a case (section 4, paragraph 2, of Act No. 87/1991
SB.). Explanatory memorandum to the cit. law says that the expiration of several
tens of years was often created a new system of legal relations, and full
restitution of rights, in particular the return of real estate, would only be possible for the
the price of new grievances or negotiations, that would be the person concerned as the wrongs
could feel the law. It can be concluded that the sense of inclusion of the provisions of §
871 of the civil code in its amendment was similar to, though this explanatory memorandum
message to this amendment explicitly does not. Even with regard to these reasons is
the question should be assessed according the provisions of § 871 of paragraph 1. 1 of the code of
code, as amended, with the provision of article. 11 of the Charter.
From the above analysis, it is clear that the contested provisions of § 871 of paragraph 1. 1
the civil code is not the right to own property within the meaning of article 87(1). 11 (1)
1 of the Charter has been infringed. This provision of the civil code, which only
transforms the institution being acquired the rights to the personal use of the apartment in rent,
You cannot qualify neither as expropriation or compulsory restrictions
of property rights within the meaning of article 87(1). 11 (1) 4 of the Charter. Due to this ongoing
the historical situation is vice versa should be pointed out the wording and the meaning of paragraph 3,
article. 11 of the Charter, from which it follows that ownership must not be misused to
prejudice to the rights of others or in conflict with the law protected the general interests.
This provision of the Charter, constitutes one of the essential assessment guides
the constitutionality of the contested provisions of § 871 of paragraph 1. 1 of the civil code, and
fully corresponds to the considerations already Constitutional Court in another place
he pronounced.
Therefore, the Constitutional Court came to the conclusion that the provisions of § 871 of paragraph 1. 1
the civil code with the article. 11 of the Charter is not in conflict.
The Constitutional Court also examined the alleged non-compliance of the contested provisions of § 871
paragraph. 1 of the civil code with the article. 9 of the Charter.
The appellants ' argument that the contested regulation infringes the prohibition of transformation
to be subject to forced labour and services within the meaning of article 87(1). 9 of the Charter, can hardly be
to accept. In the interpretation of this article is as a secondary aspect of the
usable already cited the provisions of paragraph 2 of this article, in accordance with
which the provisions of paragraph 1 shall not apply to:
and the work imposed under the Act) to persons in imprisonment
or exercising another punishment, imprisonment,
(b)) military service or other service provided by law instead of
compulsory military service,
c) service required on the basis of the law in the case of natural disasters,
accidents or other danger that threatens the life, health or considerable
property values,
(d) conduct imposed by law) for the protection of life, health or rights of
of others.
As to the cases in the works, although forced, which, however, form an exception to the
the legal principle of the prohibition of forced labour or services. For forced labour or
the service can be considered for example. those which are, by their nature, comparable to
work and services as referred to in article 2(1). 9. 2 of the Charter, even if the
forced labour and services do not deplete. It's usually about the work and services,
that very clearly and restrictively to infringe the personal rights and
freedoms of the citizen and whose enforcement represents a constraint
of an administrative nature. For forced labour and services, in principle, cannot be
those arising from the civil law obligations governed by
the civil code and other private-law regulations. Just such a
civil commitment is also the appellants namítaný commitment
provide third party works and services associated with the use of the apartment.
The views expressed can be lean and the provisions of international treaties. Article. 2
International Labour Organization Convention No. 29 (Decree No. 506/1990 Coll.)
forced or compulsory labour, defines forced labour as "every job
or service that some person enforced under threat of any
the sentence, and to which the person is offered on a voluntary basis ". Even this standard
suggests that they should go on a public relationship with the threat of
the sanctions arising from the ratio control and subordination of the relevant
subjects. The definition of what is a forced or compulsory work
does not consider, in the article. 2. paragraph 2 of the Convention, even wider than the
the amount of the cit. article. 9. 2 of the Charter.
For these reasons, no provision of § 871 of paragraph 1. 1 of the civil code
to qualify as a violation of the prohibition to be subjected to forced labour or
services within the meaning of article 87(1). 9 of the Charter.
Therefore, the Constitutional Court concluded that the contested provisions with article. 9
Of the Charter is not in conflict.
For all these reasons, the appellants ' proposal was to abolish the provisions of §
871 para. 1 of the civil code in its entirety is rejected, because the constitutional
After completion of the proceedings, the Court came to the conclusion that the grounds for revocation of this
the provisions are not made.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to a different opinion with your connections on behalf of the decision
under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, have taken advantage of these
judges: JUDr. Vojtech Cepl, JUDr. Vladimír Čermák, JUDr. Pavel
Holländer and JUDr. Antonín Procházka.
