In The Case Of A Proposal To Repeal Some Of The Provisions. Cust. No. 40/1993 Coll.

Original Language Title: ve věci návrhu na zrušení některých ust. zák. ČNR č. 40/1993 Sb.

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207/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 13 June. September 1994 in plenary on the draft

a group of members of Parliament of the United Kingdom on

repeal of sections 6, 11, § 12 para. 3, § 18 para. 1 (b). a), (c)) and § 18a (e).

and (b)) of the Act), the Czech National Council No. 40/1993 Coll. on acquisition and loss

State citizenship of the Czech Republic, as amended by Act No. 272/1993 Coll.



as follows:



The proposal is rejected.



Justification



(I).



On 14 June 2005. April 1994, the Constitutional Court of the Czech Republic received a proposal from the Group

46 members of Parliament of the United Kingdom to begin

proceedings for cancellation of the provision of section 6, 11, § 12 para. 3, § 18 para. 1 (b).

a), (c)) and § 18a (e). and (b)) of the Act), the Czech National Council No. 40/1993 Coll., on the

acquisition and loss of citizenship of the Czech Republic, as amended by

Act No. 272/1993 Coll.



Since the submission of the proposal meet the conditions set out in section 64 of the Act No.

182/1993 Coll., on the Constitutional Court, and the proposal was permissible under section 66 of the same

the law, initiated by the Constitutional Court and Parliament asked the United

States that within the legal deadline for the proposal in writing. According to the

the provisions of § 42 para. 3 and section 69 of Act No. 182/1993 Coll. posted this

the present proposal to the representation of the Chamber of Deputies. The Chairman Of The

the House of Dr. Milan Uhde confirmed the opinion of the Chamber of Deputies

expressed its vote. He stated that the purpose of the adopted Bill is-

due to the creation of an independent State-the United Kingdom, to edit your newly

the Institute of citizenship and to address it comprehensively. Points out that the

the law is based on the principle that every citizen should have only one

country of citizenship, when such legislation exists in many other

States of Europe, and is not new in our legal system. Further stresses

the principle that every citizen should have the opportunity for compliance with the law

the specified conditions to acquire or lose citizenship of the United

of the Republic. Therefore, in addition to establishing the conditions needed to be as

accurately as possible to establish the reasons for which it is possible some of the conditions for

nationality waived. In relation to nationals of the Slovak

the Republic contains then the law a special procedure that allows you to

fulfilling the conditions of the acquisition of the citizenship of the Czech Republic.

Adopted the amendment then resolves the situation arising from the application of the law, when from the

lessons learned indicated that some of the provisions of the Act may be

certain groups of citizens considered too hard. In conclusion, the States that

the adopted law is closely related to the establishment of the independent Czech State,

contains complete legislation of citizenship in accordance with the

the internationally protected human rights and fundamental freedoms. On your

representation of the President of the Chamber of deputies of the Czech Parliament

at the same time upheld the terms of a provision contained in § 68 para. 2 of the Act

No. 182/1993 Coll., on the Czech National Council Act No. 40/1993 Coll. was

approved by the necessary majority of 29 April. December 1992 and the law No.

272/1993 Coll. was approved on 12 April in the same way. October 1993. Both

the laws were signed by the respective constitutional agents and have properly

announced.



According to § 42 para. 2 Act No. 182/1993 Coll., the judge-rapporteur as requested

documentary evidence from the Chamber of Deputies the competent publications in the context of

discussing the said laws (the Czech National Council, 1992, VII. voting

period, print no 208, the Parliament of the CZECH REPUBLIC, Chamber of Deputies, 1993, I.

the electoral period, print no. 473), containing the speeches of individual members

the draft of the law.



To get an overview of the practical application. the impact of the law of the Czech

the National Council No. 40/1993 Coll. and Act No. 272/1993 Coll. requested the judge

the rapporteur also report from the Ministry of the Interior about the number of people that

opted for citizenship of the Czech Republic the Declaration within the meaning of

the provisions of § 6 of the Czech National Council Act No. 40/1993 Coll., eg. How many

There were unsuccessful, then report on the number of exemptions granted

The Ministry of the Interior in terms of the provisions of § 11, § 12 para. 3 emotion.

the law and their song, and finally about the communication, how many citizens of the Slovak

the Republic has applied for citizenship of the Czech Republic in terms of

the provisions of § 18 para. 1 (b). and cit), c). law and in terms of

the provisions of § 18a para. 1 (b). a), b) of Act No. 272/1993 Coll., and how much

such applicants state citizenship of the Czech Republic received.



From the message of the Ministry of the Interior, Chief Director of the II. the section follows

the Ministry of the Interior and the district authorities, the execution in the period 1992 to June

1994 approx. 319 CZK. the submission relating to the citizenship of the Czech

of the Republic. In terms of the provisions of § 6 (1). 1 of the law of the Czech National Council

No. 40/1993 Coll., the report states that this is a completely exceptional cases, and

maximum number of 10 persons for the period 1993, 1994, when it comes to people,

that had a 31. December 1992, the citizenship of the Czech and Slovak Federal

Republic but born in a foreign country, yet there were never even in the Czech Republic

in the Slovak Republic, and even their parents before going abroad

they did not stay in the Czech or Slovak Republic. Due to these

the facts therefore was not possible according to the law of the Czech National Council.

39/1969 Coll. on acquisition and loss of citizenship of the Czech

Socialist Republic, to determine that they are nationals of the Czech

States, and it was not possible nor determined by the Slovak National Council Act

No 206/1968 Coll. on acquisition and loss of citizenship of the Slovak

Socialist Republic, that it is the citizens of the Slovak Republic.



As for the cases, when the Ministry of the Interior of the immunity condition

provided for in § 11 and § 12 para. 3 the Czech National Council Act No. 40/1993

Coll., as amended by Act No. 273/1993 Coll., the report states that the evidence in this

the direction is guided by and due to the number of requests and the scope of discovery

the requested data, it is unrealistic to handle it. Only as regards the

remission of the composition of the státoobčanského oath pursuant to § 12 para. 3. the law

It is stated in the report that this provision is taken occasionally and

the composition of this vow is promíjeno only to the persons and to persons elderly healthcare monitoring

the disabled.



Regarding the cases of the use of the choice of citizenship of the Czech Republic

nationals of the Slovak Republic, the report says that this option

ran to 30. June of this year and has been positively dealt with approx.

319. Administration. Follow these steps to give the nationality of the United States according to the

the Czech National Council Act No. 39/1969 Coll. (IE. applications made at the end of

1992) 65. people, according to § 18, 18a of the Czech National Council Act No.

40/1993 Coll., as amended by Act No. 273/1993 Coll., i.e.. choice of citizenship, 240

ths. people 19 and under section 7 of the Act and the Czech National Council No. 40/1993 Coll., on

amended by Act No. 273/1993 Coll., i.e.. grant, 14 thousand. persons. At the same time, it was

released about 100 reasons to grant or options

citizenship of the Czech Republic. From these facts, it is clear that the vast

the majority of citizens of the Slovak Republic who have applied for Czech citizenship,

It was rejected, since the conditions for the election and the granting of citizenship.



II.



From a general point of view, you can define citizenship as a time-continuous,

Unlimited locally legal relationship of physical persons and the State, which is against

will signify your acceptance of natural persons, as a rule, on the basis of arise

its bodies the mutual rights and obligations, specifically in the law

natural persons to protection by the State on its territory and outside, in the

the right of residence within its territory and the right to participate in its management of public

matters. The duty of loyalty to the State citizen, it is above all, a commitment to

his defense, the performance of certain functions that are called in, and compliance with the

legislation of the State and outside its territory. The specific content of the State

citizenship is determined by the legislation of a single sovereign State. Is

the sovereignty of the law of the State to determine the conditions under which they shall become and shall cease to be

country of citizenship.



Citizenship is clearly a Institute of national law,

the other States are guided by policy to interfere in the internal affairs of the

State. However, the implications of citizenship have an impact even on the outside because of

the fact that citizenship guarantees to a natural person who is the

holder, protection on the territory of another State. In this case,

of course, can lead to conflicts of interest and the Institute of citizenship with

so getting to the attention of international law. International applications

the recognition of citizenship in each individual case must be

based on the national law of the State concerned, the decision of the State to grant

their own citizenship may not be internationally accepted without question.

In the Nottebohm case, the International Court of Justice ruled that "the State cannot

expect that the rules (governing the obtaining of citizenship), which

anchored, are entitled to recognition by another State, if it is not in accordance with the

the overall objective of a legal obligation of citizenship, according to which the

individual in the "genuine" (real) connection with the State, which protects your

citizens against other States ". (ICJ Rep, 1955, p. 23). In other words from the

international perspective may not be accepted by another State in case the granting of


of the nationality of a natural person who is not a close relation to the State

the granting of citizenship. Even if the decision of the International Court of Justice

committed to only States that are associated to the dispute, may be from the perspective of the General

international law, noted that with the exception of some

international contractual obligations (including granting citizenship

determining the categories of persons to whom citizenship may be granted, the conditions and

granting of citizenship that have these natural persons

meet) is a matter for each State, which is determined separately

(The Nottebohm case, ICJ Rep, 1955, p. 20).



III.



In connection with the provisions of section 6 of the Act of the Czech National Council No. 40/1993

The appellants argue SB of his conflict with the article. 1 the Constitutional Act of the Czech

the National Council No. 4/1993 Coll. on measures associated with the dissolution of the United

and Slovak Federal Republic. The provisions of § 6 of the law governs emotion.

how the acquisition of the citizenship of the Czech Republic by the Declaration,

persons who on 31 December. December 1992, were citizens of the Czech and

Slovak Federal Republic but could not be determined or citizenship

The United States, or to citizenship of the Slovak Republic. According to the opinions

the appellants ' wording of paragraph 6 of the cit Act admits, that according to him, the United

citizenship simply by declaration, the recovery of foreign nationals.

Further argue that "to 1. January 1969 and 31. December 1992, it was therefore

out of the question that someone was a Czechoslovak citizen and was not

at the same time a citizen of the Czech (or Slovak) of the Republic. There was no

a set of individuals who would have been an alternate State citizens and

who would not be at the Czech or Slovak nationals ". This

the claim, however, does not hold water. The provisions of § 6 of the cit Act is not in your

the text of the applicable to foreigners (i.e., persons with foreign nationality),

because the basic condition for the application of this provision, the State

citizenship of the Czech and Slovak Federal Republic existing at 31 December 2005.

December 1992. In the account would be felt only such legal situations

a State citizen of the Czech and Slovak Federal Republic was at the same time

a citizen of another State (i.e. bipolita). In terms of the provisions of § 6

cit. However, the question of the law claim foreign citizenship,

Since this provision does not include the new acquisition of citizenship

granting foreigners, when the condition must be the release of the original

the State of the volume, but only confirm an existing original state

citizenship of the Czech and Slovak Federal Republic and its transformation

in the country of citizenship of the Czech Republic. The existence of another (foreign)

citizenship is not decisive in this case.



It is important, however, to answer the question of whether to 31. December 1992 may

be natural persons who are nationals of the Czech and Slovak

The Federal Republic was determined by their nationality Czech

Republic or the Slovak Republic. Analysis of previous legislation

on the acquisition and loss of citizenship can no doubt come to an

the conclusion that such a legal status was realistically possible. Institute of the State

citizenship of the Czech Socialist Republic was determined by the law of the Czech

the National Council No. 39/1969 Coll. pursuant to § 2 (2). 1. the Act was a

a citizen of the Republic, the one that had to 1. January 1969, country of citizenship

The Czechoslovak Socialist Republic, if he was born on the territory of

The Czech Socialist Republic. According to § 2 (2). 2. the Act was

a citizen of the Czech Socialist Republic and the national

The Czechoslovak Socialist Republic, who was born in a foreign country,

If he was to 1. January 1969, logged on to permanent residence in the territory of the United

Socialist Republic, respectively when before going abroad

had he or his parents on the territory of the Czech Socialist Republic

the last permanent residence. The Czech National Council Act No. 39/1969 Coll., however,

contains a provision (paragraph 3) that addresses the situation of natural persons,

which had the nationality of the Czechoslovak Socialist Republic, but

country of citizenship (Czech Republic or Slovakia)

possible to determine. Referred to legal status, that is, the existence of citizenship

The Czechoslovak Socialist Republic, without identification of the State

citizenship of the Czech Socialist Republic or the Slovak Socialist

the Republic could reasonably exist, since the national citizenship national

Republic, formed in 1969. According to the previous legal

(Law No. 194/1949 Coll. on acquisition and loss of the Czechoslovak

citizenship) with citizenship took birth in the territory of

The Czechoslovak Republic of parents who are citizens (the basic way

-§ 1 (1). 1. law), even if according to § 1 (1). 1

cit. the Act is child was born abroad, were the father and mother of the citizens

The Czechoslovak Republic. Under this condition the physical person may have

Czechoslovak citizenship (under the law of the Czech National Council No. 39/1969

SB. (I) nationality of the Czechoslovak Socialist Republic and the

Consequently, the Czech and Slovak Federal Republic), but have not been met

the terms and conditions of permanent residence for her parents. Even with these parents had

Czechoslovak nationality could arise "bequest" ancestral.

According to the provisions of § 3 of the law of the Czech National Council No. 39/1969 Coll. could

These natural persons to acquire the nationality of the Czech Socialist

Republic Declaration. This statement, however, is the law of natural persons, in

the present case, the State of the citizen of the Czechoslovak Socialist Republic,

not his duty. At the same time however, it should be pointed out that the cited

the legislation has not set any time limit for the exercise of this right, and

has not even legal consequences for any under-utilisation of the rights. From

These facts can be then easy to conclude that the right to acquire statement

State citizenship of the Czech Socialist Republic was established as a

the right to unlimited and told nezanikající. It is therefore clear that

There may be a legal status when the individual's country of citizenship

The Czechoslovak Socialist Republic (and, eventually, the Czech and Slovak

Federal Republic) and at the same time does not have citizenship of the Czech Republic

or of the Slovak Republic, and when under the current law may therefore

statement to determine whether its national citizenship is linked to the Czech or

The Slovak Republic. This legislation, then completely took over and

the Czech National Council Act No. 40/1993 Coll.



You cannot, therefore, agree with the appellants ' claim that the Declaration in accordance with § 6

the Czech National Council Act No. 40/1993 Coll. of the Czech citizenship can

States take any stranger. It must always be expressed in binding to the

the original state (the Czech Socialist Republic, Czechoslovakia

Socialist Republic, the Czech and Slovak Federative Republic) and

This binding must be continuous and lasting from the viewpoint of the principle of cives

Origo facit. In the context of the statement will not examine the question of possibly another

of the nationality of a natural person could get, because there

is based on the legal basis for the existence of the State of citizenship of the Czech and

Slovak Federal Republic and is only instantiated citizenship

the newly formed United States. A condition of the release of another

státoobčanského volume, as already said above, is not examined, because

This is not about the newly granted citizenship. Should also be noted that the

the report of the Ministry of the Interior has confirmed that this is a completely exceptional

cases (up to 10 persons in the course of one year).



From the above, then you cannot nijakým way inferred that the

the provisions of § 6 of the law of the Czech National Council No. 40/1993 Coll., is inconsistent with the

the provision of article. 1 the Constitutional Act of the Czech National Council No. 4/1993 Coll.

because 1. January 1969 to 31. December 1992 have a legal status,

that allowed under section 3 of the Act of the Czech National Council No. 39/1969 Coll.

the Czechoslovak Socialist Republic nationals with a time-

an unlimited right to choose the nationality of the United statement

the Socialist Republic.



IV.



The proposal is directed against a group of MPs on the provisions of § 11 and § 12 para.

3 the Czech National Council Act No. 40/1993 Coll., which, according to

plaintiffs in breach of the provisions of article. 67 para. 1 of the Constitution of the United

States, and States that, under that provision, on the top level in the

enforcement of State power corresponds to the Government, not the Ministry of the Interior.

It also States that it is a contradiction with the provisions of article. 2 (2). 2, article. 9. 2

Of the Constitution and article. 1, art. 2 (2). 1 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter"), except that the power of the State must serve all citizens in

compliance with essential necessities of the democratic rule of law without

commitment to an exclusive ideology or religion and when

respect for the equality of all people in their rights.



The provision of section 11 of the Act of the Czech National Council No. 40/1993 Coll., as amended by

Act No. 273/1993 Coll., the Ministry of the Interior is included the right to waive the

to the applicant



-the condition laid down in article 7 (2). 1 (b). and to cit Act) (that is,

continuous residence for at least five years in the territory of the Republic), if

other conditions are met as referred to in section 11 (1) 1 (b). a) to (f))


He was born on the territory of the Czech Republic or living on the territory of the Czech

the Republic continuously for at least 10 years or had in the past, the State

citizenship of the Czech Republic. the citizenship of the Czech and Slovak

The Federal Republic was acquired or a citizen of the United States

or his spouse (wife) is a citizen of the United States or

of which at least one of the parents is a citizen of the United States,



-the condition laid down in article 7 (2). 1 (b). (b)) of the Act (i.e. feeling.

the release of the national volume of another State) when meeting other

the conditions referred to in section 11 (1) 2. the law (that is, if the applicant has to

the Czech Republic continued permanent residence for at least five

years, where the legislation of the State of which the applicant is a citizen of,

do not allow the release of the State of a volume, or if the State refuses to

to issue a document about the release of the applicant from the State of the volume),



-the condition laid down in article 7 (2). 1 (b). d). the Act (that is, knowledge of

Czech language) in cases worthy of special attention.



The provisions of § 12 para. 3. the Act is then included the right

The Ministry of Interior waived the composition of státoobčanského promise.



A proposal from a group of MPs claims that "the exercise of this right was given to the

the exclusive and isolated from the Government the powers of the Ministry of the Interior and was not

the law modified the option to review the legality of its decisions in

these matters, which is a violation of the provisions of article. 2 (2). 1, art. 67 para.

1 of the Constitution and article. 2 of the Charter, according to which the State power be exercised

in a hierarchical manner so that the top level match

Government, and to serve all citizens, in accordance with all the essential

the necessities of the democratic rule of law (article 9, paragraph 2, of the Constitution). When

deciding on the grant of citizenship is a priority in the public interest,

which is defined by the Division of State power (art. 2 of the Constitution) and the Democratic

values, and which must not be dictated by ideological or religious

themes (article 2, paragraph 1, of the Charter) or individual interests of some of the

natural persons (article 1 of the Charter on the equality of people in their rights) ".



None of the above articles of the Constitution or the Charter is not infected

the provisions of § 11, § 12 para. 3 the Czech National Council Act No. 40/1993

Coll. violated and in this respect has not been specified or proven link. Is

conditio sine qua non of any democratic Government that decision-making on a number of

professional issues for its members and their confers to the authorities, even in terms of

common and necessary Division of labour. The Government is the supreme body of executive power (§

67 para. 1 of the Constitution). Other bodies of executive power are so the Government

Naturally the children. The Government controlled by the Ministry are not only

through legislation such as the generally binding normative

the acts, but also by internal normative instructions, and

individual acts (section 21 of the Act of the Czech National Council No. 2/1969 Coll., on

the establishment of ministries and other central bodies of the State administration of the Czech

Socialist Republic of Vietnam, pursuant to which the Ministry in all its

the activities governed by the constitutional and other laws and Government resolutions). Law

The Czech National Council No. 2/1969 Coll. of the Ministry and the relationship of the Government

explicitly expressed in § 28 para. 1, according to which the activities of the ministries

control checks and consolidates the Government of the United States. The Government is at the same time

as the supreme body of executive power to its representative in relation to the

The Chamber of Deputies. The Department of process on their sections of the questions

committed to their mission, and in established areas of State policy

It is submitted to the Government as a whole for consideration. The one with them in the form of

General documents and reports, or in the form of legislative initiative

out in front of the Chamber of Deputies.



The bearer of a political responsibility for the activities of the constitutionally mandated Department of the

the Minister, who is in this direction controlled by conventional

the means of parliamentary democracy, as are questions (article 53 paragraph 1.

1, of the Constitution), the citation right of the Chamber of Deputies and its bodies or

the Commission of inquiry (article 30, article 38, paragraph 2, of the Constitution). Other control

mechanism, which is monitored by the activity, and called for constitutional law

responsibility of the Minister, is also a possibility of his removal from Office. According to the article. 74

The Constitution of this control mechanism, it is for the Prime Minister (a proposal to

the appeal of the Minister) and President of the Republic (Appeal itself). From

These facts then clearly follows that the activity of the Ministry of

as a body of State administration, which is of the law (and it is bezpochybné that the

the Czech National Council Act No. 40/1993 Coll., as amended by Act No. 272/1993

Coll., it happened-article. paragraph 79. 1 of the Constitution shall be empowered to grant)

citizenship, it is subject to all the procedures that are common in

systems of parliamentary democracies, these funds may be

checked, and can also be induced by the constitutionally legal liability

the competent Minister if laid down in its action infringing

rules of behavior.



The claim that granting Czech citizenship was given to

the exclusive and isolated from the Government the powers of the Ministry of the Interior, i.e.,

does not match the reality.



In light of this, it can be considered that the provisions of § 11 and § 12 para. 3

the Czech National Council Act No. 40/1993 Coll., as amended by Act No. 272/1993

Coll., do not conflict with those provisions of the Constitution and the Charter, as referred to

the petitioner, and has not been proven or link between the statement

the appellant and a violation of those provisions.



In the.



Design of a group of MPs finally touches and the provisions of § 18 para. 1

(a). a), (c)) and § 18a (e). and (b)) of the Act), the Czech National Council No. 40/1993

Coll., as amended by Act No. 273/1993 Coll., which referred to the provisions governing the

the choice of citizenship of the Czech Republic nationals of the Slovak

of the Republic.



Under the provisions of section 18 of the Act had a citizen. The Slovak Republic up to 30.

June 1994, the right to choose the nationality of the United States, if

meet the conditions laid down in paragraph 1 (b). a) to (c)).



These conditions include



-continuous permanent residence on the territory of the Czech Republic for at least

two years,



-release from the State of the volume of the Slovak Republic,



-integrity (in the last five years has not been finally convicted for

an intentional criminal act).



In section 18a of the cit Act is then adjusted acquisition of the nationality of the Czech

Republic of choice of citizens of the Slovak Republic, who were born on its

the territory until 31 December 2006. in December 1939, and whose parents, or at least one of the

they were born on the territory of the United States or have achieved no later than the

1993 the age of 60, while fulfilling two conditions,



-continuous residence in the territory of the Czech Republic for a period of

at least two years,



-integrity (in the last five years has not been finally convicted for

an intentional criminal act).



Under the proposal, members of the group are the following provisions of the discriminatory nature of the

because it lays down the citizens of the Slovak Republic, who originally were also

nationals of the Czech and Slovak Federal Republic, special

the conditions for acquiring citizenship of the Czech Republic, i.e. the conditions

that previous legislation of the common State of not knowing. Has to be in

contrary to the provisions of article 8(1). 26 of the International Covenant on Civil and

political rights, which States that all people are equal and have the

General right to equal and effective protection against discrimination on

any reasons.



An introduction to this subject should be pointed out that after the establishment of the Czechoslovak

the Federation has been made in the field of law of nationality article. 5

Constitutional Act No. 143/1968 Coll., on of the Czechoslovak Federation, as amended by

Constitutional Act No. 125/1970 Coll., Act No. 165/1968 Coll., Act

The Czech National Council No. 39/1969 Coll. in the wording of the legal measures

Presidium of the Czech National Council No. 124/1969 Coll. and in Act of the Slovak

the National Council No 206//1968 Coll., the Text of the article. 5 the Constitutional Act No. 143/1968

Coll. was based on the principle of citizenship of the Czech Republic prvotnosti

or the Slovak Republic (with public citizen each Republic is

at the same time a citizen of Czechoslovakia), the amendment of this article

carried out by constitutional law No 125/1970 Coll., amending and supplementing

Constitutional Act No. 143/1968 Coll., on of the Czechoslovak Federation, already

declares that the Czechoslovak State citizenship is consistent and that each

a Czech citizen is also a citizen of the Czech Republic or the Slovak

Republic; This provision should be instantiated laws both

the republics. So happened and in theory and practice that prevailed

national citizenship is primal. Furthermore, the article contained

authority, that the principles of acquisition and loss of citizenship of the Republic of

the law provides for the Federal Assembly. This became Act No. 165/1968

Coll., which set out the criteria for determining who the Czechoslovak citizens

they are citizens of the United States and citizens of the Slovak Republic who, on

that acquisition (disposal) of the nationality of the United States or

The Slovak Republic is acquired at the same time (voids) citizenship

the Czechoslovak, and determined that the former citizen of one Republic

has acquired citizenship of the second Republic (e.g. choice or grant),

the nationality of the second Republic. This legislation was based on the


the principle that a natural person may be a citizen of the Republic, the only one to

the loss of the nationality of one of the Republic automatically

at the moment of acquisition of the nationality of the second Republic.



In the law of the Czech National Council No. 39/1969 Coll. and no 206/1968 Coll. were

set out the details for the determination of the citizenship of the Czech Republic and Slovakia

the existing unitary State of the Republic citizens, the conditions for the election

One Republic citizenship citizen of the second Republic (when the option was possible

run to 31. December 1969), methods of acquisition and loss of citizenship

of the Republic. After the expiry of the deadline for the choice of citizenship of the Czech Republic could

a State citizen of the Slovak Republic to apply for a grant of citizenship

The United States and only had to meet the condition of permanent residence in the Czech

Republic, whose fulfilment can be waived. Once he was granted

citizenship of the Czech Republic, the Slovak citizenship automatically

States and therefore nepředkládal a proof of release from the volume of the Slovak

of the Republic.



In connection with the anticipated Division of Czech and Slovak Federal

States should be borne in mind that the path were sought as possible

the easiest and quickest solution to the question of citizenship.

Was based on the principle of prevention of double citizenship and the

Prevention of homelessness. Was based on the principle that a change in

the existing nationality a natural person is possible only on the basis of

its own expression of will. Was the fact that on 31 December.

December 1992 was every citizen of the Czech and Slovak Federal Republic

a citizen of the Czech or the Slovak Republic. Optimal appeared adoption

bilateral agreements between the Czech and the Slovak Republic, whose design

was prepared and submitted to the Czech side. The Treaty was based on the

the following policies:



-natural persons, which had 31. December 1992, the citizenship of one

States, are citizens of the Republic and from 1. January 1993,



-allow to make a choice of citizenship of the Czech Republic to date

a citizen of the Slovak Republic, and vice versa (for the election to determine the period

six months and the condition was a three-year permanent residency on the territory of the Republic,

a natural person's nationality shall elect),



-the acquisition of citizenship of one party is automatically

shall cease to be the citizenship of the other party,



-Prevention of dual nationality for children, for which the

one of the parents is a citizen of one party and the other a citizen of

of the other party when the parents are allowed to make a choice

citizenship for the child and at the same time laid down the criteria for determining the

citizenship only one Contracting Party for a child, not a choice

the citizenship of the parents made.



From the report, the Ministry of the Interior, Chief Director of the II. section,

so it follows that the maximum simplified procedure for obtaining State

citizenship of one party to a citizen of the other Contracting Party and at the same time

would avoid both the dual-nationality and statelessness. From

the same message, then it follows that the Slovak side would have agreed to this proposal

and committed to the dual-citizenship.



Czech Republic, therefore, address the question of the acquisition of citizenship of the Czech

Republic national law applicable is the law of the Czech National Council

No. 40/1993 Coll., as amended by Act No. 273/1993 Coll., where is contained the principle of

Prevention of double citizenship and the prevention of the

homelessness. Thus was established the legislation valid in the territory of

The Czech and Slovak Federal Republic and based on the fact that

similar principles are applied in the legislation of other European

States.



Citizens of the Slovak Republic, who until 31 December 2006. December 1992-complainant

the application for the grant of citizenship of the Czech Republic, could take the State

citizenship of the Czech Republic by the Czech National Council Act No. 40/1993

Coll., as amended by Act No. 273/1993 Coll.,



-choice of citizenship under section 18 and 18a (30 June 1994)



-the granting, under section 19 to 30. June 1994,



-grant under section 7 (this method is not time limited).



The mentioned way of acquiring citizenship has been restricted by time limits, in accordance with section 18 and

19 the Czech National Council Act No. 40/1993 Coll., which this Declaration

be made not later than 31 December 2006. in December 1993, and subsequently by regulation

the Government of the Czech Republic No. 337/1993 of 15 March. in December 1993, when

These time limits were extended to 30. June 1994. The Constitutional Act No.

542/1992 Coll. on the dissolution of the Czech and Slovak Federal Republic, there has been a

31 December 1992 to the demise of the Czech and Slovak Federal Republic as

an independent State, and on 1 July. January 1993 two new separate

States, which will no doubt have the sovereign authority to modify its internal

Affairs. Such internal matters is, of course, the acquisition of

of citizenship. You can fully agree with the statement of the claimant, that the

citizens of the Slovak Republic with the demise of the common State became the

the territory of the Czech Republic the aliens (and vice versa, of course). However, the claim that the

to the dissolution of the Czech and Slovak Federal Republic and thus the State

citizenship without directly expresses the will of the sovereign citizens of the Czech and

Slovak Federal Republic and in a number of cases against nezjištěném

their will, given the situation is unfounded and speculative. On the contrary,

It should be stressed that the date of the separate States of the Czech and

The Slovak Republic, the citizens of one State to

the position of foreigners on the territory of the State of the other. Czech Republic as

a separate State may thus lay down the conditions for the acquisition of the citizenship of a completely

independently of the legislation of another State (the Slovak Republic). This

law was expressed by the adoption of the Czech National Council Act No. 40/1993 Coll.,

as amended by Act No. 273/1993 Coll., on which it was established, inter alia, (i)

acquisition of the citizenship of a foreigner. The claim of the applicant that does not hold water

in the case of a State citizen of the Slovak Republic is not about foreigners, and

stand up nor the allegation that the choice of termination of the Federal State-induced

citizenship can make only the subjective will of the citizen and his so called.

an objective relationship with the territory. This relationship must be amended

It is expressed as follows (that is, the relation to the Czech Republic), not only to the territory,

but i must be objektivizován to the Czech Republic as such. Just this

expression is contained in the terms and conditions under which a State

to acquire the citizenship of the Czech Republic. Again to be repeated, that each

a sovereign State has the right to lay down the conditions under which you may obtain a

citizenship. The claim of the applicant that, if not integrity

conditional upon the duration of the dual nationality of Czech and Slovak

The Federal Republic and the United States that it cannot be

now, it is irrelevant. Not provided additional legal restrictions on

the legal status and the fact that occurred before the entry into force of the new

law, but on the day of its effectiveness and further into the future. As already said,

in the choice of citizenship of the Czech Republic nationals of the Slovak

States must, in General, of the regime to which they are subject in

the context of citizenship just foreigners as such. The conditions laid down

in these guidelines for the citizens of the Slovak Republic are other and for

more favourable. This, of course, from the perspective of the last living together within the

common law and social, work and family ties that

over that time have created, therefore, in General, for reasons that can be entirely

described as humane. Even in this area, however, cannot be considered

voluntaristicky. Specified conditions are adequate to this ongoing situation,

objektivizují enough relationship to the Czech Republic and are not in any way

discriminating. To these terms is then no need to include the following: u

the concept of permanent residence is in the opinion of the Constitutional Court it is a factual

expression of permanent residence, and thus not for permanent residence within the meaning of

registration-sign in to permanent residence in the commune-

but in terms of de facto. Residents need to understand in this way stay in

the place of residence of the person, i.e. the standing. as a rule, at the place where he has a family,

parents, or employment, and where also resides with the intention of delaying

here permanently (in accordance with the decision of the High Court in Prague, SP. zn. 3

CDO 76/93). A two-year residency as a condition for the selection of citizenship was

determined having regard to the Act of the Slovak National Council No. 206/1968 Coll.,

that, as a condition for the granting of citizenship of the Slovak Republic citizen

The United States has set a two-year stay on the territory of Slovakia. At the time of

the adoption of the Act on the acquisition of Czech citizenship law

The Slovak National Council still paid, and therefore, in accordance with the principle of

reciprocity, this time limit can be considered as reasonable. It is on the spot

recall that even in the case of a shorter residency could the Ministry of

the Interior of the State of citizenship of the Czech Republic to grant the applicant under section 19 or

under section 7 of the Czech National Council Act No. 40/1993 Coll. on the question

a final conviction for an intentional criminal act in recent five years

It should be underlined that this is a criminal offense intentional (therefore not

negligent), and in this context it should be noted, with regard to the Executive


message to underwriting the citizenship laws of the Czech Republic, that if

as to the persons who have been finally convicted for an intentional criminal offence,

will comply with the above condition for the grant of citizenship

The United States after finishing their conviction by the Court. In accordance with the

the criminal law and the code of criminal procedure, the person is regarded as a

persons who have not been convicted, and in the extract from the criminal record is no longer

a conviction does not. It should also be added that, for example. petty theft are

usually discussed as a misdemeanor, for the crime of theft is

It is an offence, which the perpetrator appropriated foreign thing

larger values. Certain peculiarities arising from the dissolution of the Federation were

taken into account in the temporary special mode specified for option

State citizenship of the Czech Republic. Somewhat more favourable conditions, options

set for a group of citizens of the Slovak Republic who resides in

abroad and before going abroad had a permanent place of residence in the territory of the United

Republic, be regarded again as a humane gesture that respects the

possible family and other generally the human links that those citizens may

The Czech Republic have. It is of course unnecessary to mention about the possibilities

these emigrants to obtain the citizenship of the Czech Republic at the time of the previous

mode. This fact should also be noted that these persons are present

outside the territory of the Czech Republic, in most cases for more than five years,

and so could not be convicted on the territory of the Czech Republic (criminal record

leads only to the conviction, which occurred on the territory of the Czech Republic), and

requiring such a document from the foreign authorities appears to be

problematic, since some States such a physical person

do not, and even if it had been submitted to the listing, it would be difficult to

assess the nature of the crime, when other issues would clearly

occurred, when such a person would live in multiple States. Therefore, you cannot in

these contexts speak of discrimination against specific groups of people. If

at all, then just about discrimination in a positive sense, therefore, that the

foreigners--citizens of the Slovak Republic was granted by the legislation

a more advantageous position than foreigners-citizens of other States outside the

The Slovak Republic or apolitům as a result of editing rights

Division of the State in terms of international law.



In terms of State practice, as is apparent from the report of the Ministry of

the Home Office, the citizens of the Slovak Republic who have not submitted a request for the grant of

citizenship of the Czech Republic and had permanent residence in the Czech Republic as of 31.

December 1992 and this stay continues, may submit an application for authorisation

permanent residence in the Czech Republic. Applicants presenting papers

laid down for other foreigners, but only to prove registration in the civil

permanent residence card and prove the citizenship of the Slovak Republic. Legal

the position of citizens of the Slovak Republic with permanent residency in the United

the Republic is almost identical to that of a citizen of the United States. For this

the purpose was closed between the Czech and the Slovak Republic over 40

international treaties, from which as well as of a series of legislation

It follows that, for example. the right to free education, health care, benefits in the

unemployment benefits, social benefits, etc. are bound to permanent residence and

not on citizenship. With the Institute of citizenship of the Czech

the Republic is linked to the right to vote, the right to exercise some jobs

(judges, soldiers, prosecutors), conscription.



Is finally recalled that the Czech Republic is not bound by the legal

by modifying the State citizenship of the Czech and Slovak Federal Republic

due to the fact that the dissolution of the Czech and Slovak Institute

Federal Republic disappeared too. The Constitutional Act of the Czech National Council

No. 4/1993 Coll. on measures associated with the dissolution of the Czech and Slovak

The Federal Republic, which took effect on 31 December. December 1992,

were taken over by the law in force before the establishment of the United States,

However, you cannot use the provisions merely by the existence of the Czech and the conditional

Slovak Federal Republic and the jurisdiction of the United States.

The Czech National Council Act No. 40/1993 Coll. came into effect on January 1. January

1993 and in section 28, points 1, 2, set aside the original legislation, namely law

The Czech National Council No. 39/1969 Coll. as amended by Act of the Czech National Council

No 92/1990 Coll. and Act No. 165/1968 Coll.



In the light of the above, the Constitutional Court came to the conclusion that

the provisions of § 18 para. 1 (b). a), (c)) and § 18a (e). and (b)) of the Act), the United

the National Council No. 40/1993 Coll., as amended by Act No. 273/1993 Coll., are not in

contrary to the provisions of article 8(1). 26 of the International Covenant on Civil and

political rights, as stated by the appellant, and has not been proven or

the link between the statement of the claimant and a violation of that provision.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



III.



Different views



A different opinion of the judges. Vladimír Čermák and JUDr. Paul

Varvařovského the decision on the proposal to repeal section 18 para. 1 (b). and)

(c)) and § 18a (e). a), b) the contested act



1. the Constitution of the Czech Republic in article I declares the Czech Republic for the

the democratic rule of law, based on respect for the rights and freedoms of man

and the citizen. In addition, the Constitution in its preamble to the traditions

Czechoslovak statehood, which, among other things, is expressed by the takeover

the legal system of the former State and its symbols. Signed up

thus to ideas, according to which Czechoslovakia should be stabilising

a democratic body in Central Europe, based on a humanistic

principles and on the principles of democracy. Preamble to the Constitution stresses the

the civil and not a national understanding of the new State.



A State that wants to be the democratic rule of law, must necessarily acknowledge the

their constitutional obligation to self-limitation, since this concept necessarily

nadstátního origin belonging to the recognition of fundamental human rights, that is,

the recognition of the autonomy of the person and of civil society. For the State, unlike the

citizen, cannot pay that allowed is everything that is not specifically prohibited from.



In connection with the demise of the common State of the Czech Republic therefore expressly

declared in its Constitution that they feel to be the successor to the

Czechoslovak statehood. This is not a mere abstraction, then statehood, but

its content is and was populated with the specific subjects, mainly

the citizens of this State. One would therefore expect that the law that to this

The Institute immediately follows, and which regulates not only the acquisition and

loss of citizenship of the CZECH REPUBLIC, but which also contains special

the provisions in relation to the dissolution of the CSFR, the above-mentioned principles and

conceptual basis against the former citizens of the common State.

Such a procedure could expect even more, if the Constitution of the Slovak

Republic, standing rather on the principle of national and in its preamble

the common Czechoslovak statehood to pass, is realized by the law

that persons who were on 31 December. 12. the 1992 nationals of Czechoslovakia, but

they were not nationals of the Slovak Republic, allows the option of citizenship SR

without any conditions (section 3 of Act No. 40/1993 Zb.).



2. No doubt nothing can be against a claim that the Czech Republic as

a separate State may lay down the conditions for the acquisition of the citizenship of a completely

independently of the legislation of another State, i.e. also on legislation

Of the Slovak Republic. However, the opinion of the judges signed is that for citizens

CZECHOSLOVAKIA was the de facto citizenship citizenship a priority, mainly

in the legal consciousness of the citizens of the State. From the mezinárodněprávního point of view then was

citizenship only. The transformation of the nationality criteria for citizens

Federation, who were citizens of the Slovak Republic, should therefore be

significantly different than the criteria for acquisition of citizenship by foreigners. The claim that the

adjustment contained in the provisions of section 18 and 18a Act No. 40/1993 Coll.

significantly different and favouring really is, is unconvincing. The said

provisions introduced in the third section entitled "special provisions for the

the citizenship of the Czech Republic in connection with the dissolution of the CSFR ', are

in essence, the Special just by name. The only "advantage" that this

the provisions of the offer to the citizens of the Slovak Republic living on the territory of the United

States against actual foreigners, reducing the length of continuous

of permanent residence from five years to two years, and some have been removed

the hardness for the elderly (Additionally connected § 18a). Laid down

the conditions certainly do not confer the right of option, which should anchorage

you might expect the State to put the principles and legal

continuity, as are mentioned in paragraph 2. 1. this opinion. Can be

members of the group agree that the following provisions have been

introduced discriminatory conditions for the acquisition of the nationality of the former

nationals of Czechoslovakia, who, under their original homeland were

foreigners. Additional legal restrictions have been established on the legal status and

the fact that occurred and existed before the entry into force of the Act

No. 40/1993 Coll. was limited this right in a way that from the hard

for obvious reasons, nor is it the same for all citizens of the Slovak

of the Republic. For the discriminating can mainly be considered that those citizens


The Slovak Republic, who have their relationship with the newly formed Czech Republic

can demonstrate a long-term permanent residents in its territory, have for

at least advantageous conditions for acquiring citizenship. Only to them is

applies, as well as on the actual aliens, neprominutelná condition

five years of impunity, which is not required for the Slovak citizens,

who permanently live abroad, and before going into a foreign country had a permanent and

time-nevymezený stay on the territory of the Czech Republic. Significantly more favourable

the conditions more accurately clean the right to the option, then pay for the former citizens of the CSFR,

where it is not possible to determine the citizenship of any of the Republics (section 6 of Act No.

40/1993 Coll.). The undersigned judges take the view that the principle of choice

citizenship, as defined in section 6 of the Act, it is

the standard solution in a country that wants to be a democratic legal

State and that is sincerely committed to the traditions of Czechoslovak statehood.

Any adjustment under this standard is discriminatory.