In The Matter Of A Proposal For The Repeal Of Section 11 Of Act No. 87/1991.

Original Language Title: ve věci návrhu na zrušení § 11 zákona č. 87/1991 Sb.

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154/2013 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 33/10 of 23 April. April 2013

the plenary consisting of the President of the Court, Pavel Rychetský and Stanislav

Ass-Bag, Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana

Smith, Vladimir Crust, Dagmar Lastovecké (reporter judge), Jana

Musil, Jiří Nykodýma, Miloslava Excellent and Michaela Židlické on

the design of the circuit court for Prague 1 Ovocný trh 14, Prague 1, for which the

It is Mgr. Michal Copy as the President of the Senate of the 19 C and as the President of the

the Senate 11 (C), on the repeal of section 11 of Act No. 87/1991 Coll. on extrajudicial

rehabilitation,



as follows:



The proposal is rejected.



Justification



(I).



The Constitutional Court was in connection with the management of the current in the circuit

Court for Prague 1 (hereinafter as the "District Court") submitted to the 17 May. 6.

2010 draft of this Court to repeal section 11 of Act No. 87/1991 Coll. on

extrajudicial rehabilitation, for the alleged inconsistency of the cited provisions with

the constitutional order of the Czech Republic.



In the circuit court for Prague 1 is proceeding, the applicant Dahlias

Umlaufové against the Czech Republic-Ministry of Finance of payment

the amount of CZK 6 785 715. The claim, the applicant seeks, as

the former owner of the estate, which was required, on the basis of the judgment

Municipal Court in Prague, in conjunction with the judgment of the regional court in Brno

issued to the claimant. The property acquired by the applicant in 1974 on the basis of the

Treaty on the transfer of real estate closed with the Czechoslovak State-

The District National Committee, Brno (II) at the purchase price of CZK 114 285. The courts of the

concluded on the issue of the original owners of the property, as

the applicant and her husband acquired the property in violation of the then

the legislation, and that failure to observe the rights of existing

users of real estate on their purchase by the State (in accordance with the

Directive No. 10/1964 Journal of the Ministry of Finance). According to the specialist

opinion of the value of property determined the amount 4 800 0000 Czk, after

the release of the applicant was the defendant real estate Czech Republic-

The Ministry of finance is returned the amount corresponding to the purchase price paid in

in 1974.



District Court for Prague 1, which is for the purpose of the legal assessment of a case

apply to section 11 of the law on extrajudicial rehabilitation, refers to the

the case-law of the European Court of human rights (hereinafter "ECHR"),

in particular, the judgment in case Pincová and Trees against the Czech Republic.

The conclusions of this judgment, although related to the application of section 8 of the Act No. 229/1991

Coll., on the adjustment of the ownership of land and other agricultural property,

as amended, (hereinafter as the "law of the land"), fall

in the opinion of the District Court and the present case. The provisions of § 11

the law on out-of-court rehabilitation, allowing grant compulsory

persons ownership largely according to this law, only with an exhaustive

manner as defined by claim to refund the purchase price paid in the acquisition

real estate, according to the Court, the statutory law violates the people asset protection

According to the article. 1 of the additional protocol to the Convention on the protection of human rights and

fundamental freedoms ("the Convention") and according to the article. 11 of the Charter of

fundamental rights and freedoms ("the Charter"). The granting of the refund

for assets issued only under section 11 of the law on extrajudicial rehabilitation

It is not in accordance with the ECHR and the Constitutional Court to provide adequate

compensation for assets issued in cases where the required person acquired assets

in good faith.



(The District Court considers the adjustment according to the cited provisions of the desirable

only for cases where the required persons have assets in good faith,

While in other cases it is necessary to legally modify and

the entitlement to appropriate compensation.)



From the above reasons, filed the circuit court for Prague 1 proposal on

the cancellation of the cited provision that does not provide

reasonable compensation for assets issued under the Act on extrajudicial

rehabilitation.



II.



The Senate of the Parliament of the Czech Republic in the comments to the design of the circuit court

He stated that the contested provisions of the Act in our legal order in unaltered

as from the 1. 4.1991. Restitution legislation is specific and is for

characteristic and abundant case-law. Judicial power so filled

the gaps and ambiguities in the law without requiring the intervention of the legislature. The principle of the

of the "completion of standardisation" can be applied according to the Senate on the affected

section 11 of the law on extrajudicial rehabilitation. In this context, referred

The judgment of the Supreme Court Senate SP. zn. 28 Cdo 2202/2009.



The Senate attended a hearing of the four amendments of Act No. 87/1991 Coll.,

and in neither case could not rozporováno the provisions of § 11, or

proposed text of the other.



The Chamber of deputies of the Parliament of the Czech Republic in the comments to the proposal

only stated that Act No. 87/1991 Coll. was on 13. joint meeting of the

The House of the people and of the House of peoples of the Federal Assembly on 21. 2. the 1991

approved 86 MEPs in the House of the people and the House of Nations 96 MEPs.

After the signature of the relevant constitutional factors, the law was duly declared in

the amount of 19 collections of laws.



III.



The Constitutional Court was 20 December. 8.2010 served the same plaintiff on the

cancellation of identical provisions of Act No. 87/1991 Coll., which was the resolution of the

SP. zn. PL. ÚS 40/10 of 23 April. 2.2011 (published in SbNU,

available on http://nalus.usoud.cz) rejected as inadmissible pursuant to section

paragraph 43. 1 (a). e) Act No. 182/1993 Coll., on the Constitutional Court, as amended by

Law No. 77/1998 Coll., in conjunction with section 43, paragraph. 2 (a). (b)) Law No.

182/1993 Coll., on the Constitutional Court, as amended, as

meritornímu consultation process prevented the lis pendens.



As already mentioned in the narrative part of the circuit court for Prague 1

decides on actions on cash transactions, which is required after the Czech

Republic-Ministry of Finance of the compensation for the property, issued by the applicants

as required by the persons under the Act on extrajudicial rehabilitation. In

These procedures have the circuit court to assess the claim in relation to section

11 of the law on extrajudicial rehabilitation. Can be on the side of the

the appellant pointed out the evidence for the fulfillment of the conditions of the active

the submission of the proposal on the opening of the procedure on the control standards according to § 64 paragraph. 3

Act No. 182/1993 Coll., on the Constitutional Court, as amended.



IV.



The language of the relevant provisions of Act No. 87/1991 Coll. on extrajudicial

rehabilitation.



1. In accordance with the provisions of section 4, paragraph 4. 2 persons, natural persons are compulsory,

which were acquired from the State, the thing that won it for permissions

the circumstances referred to in section 6 of the Act (including the case when the citizen mean

in a foreign country in the territory of the Republic left the thing), and that in cases where the

These individuals have acquired either in conflict with the then applicable regulations, or

the basis of an unlawful advantage.



2. In accordance with the provisions of section 7 (1). 4 in the case of real estate valued so that

its value exceeds the price of the original case, the authorized person shall replace the

required the person the difference between these prices, which are determined according to the

price regulations in force on the date of effectiveness of this Act.



3. In accordance with the provisions of section 11 if a property a person other than the State,

This occurs to a person entitled to a refund of the purchase price that you paid for

buying things. This claim must be filed with the competent authority of the State

the administration of the Republic.



In the.



Předesílá, the Constitutional Court, in its activities, in particular in the

the end of the 1990s, repeatedly addressed the issue of restitution, and

always in relation to the constitutionally guaranteed rights of the complainants (mainly

restituentů) has accentuated the sense and purpose of restitution, thus relieving some of the

the wrongs caused by the totalitarian regime, leading to the violation of the rights of

the actual owners. It follows from the concept of restitution, and restitution

laws, primarily was a carrier of the obligation to remedy the injustices the State which

He had as a taxable person to issue the persons authorized assets obtained in

the relevant period (from 25. 2.1948 to 31. 12.1989) as a result of

the unlawful interference with their property rights. to provide for the

him financial compensation. A natural person might get into the position required

persons only in a situation where the State property, which would be according to the conditions

the laws of restitution shall issue to such a person in breach of the

the time of the transfer of the applicable legislation.



The Constitutional Court judged in this context, also the issue of the release of

assets required by persons as possible interference with ownership in the

relation to the article. 11. 4 of the Charter, and in finding SP. zn. PL. ÚS 16/93 of

24 September. 5. the 1994 (N 25/1 SbNU 189; 131/1994 Coll.), in which the conclusions of the

explanation of the differences between restitution and expropriation.



While restitution is deleting the illegality in the transfer

the ownership of, or unlawful intervention in the title, and it

returning things to their original legal relationship, the expropriation is forced

removing the ownership rights in the public interest, on the basis of the law

and for the replacement. The reason the restitution is exclusively the illegality, while

the reason for this is the expropriation in the public interest, i.e.. the concept is different. Restitution

Therefore, it is not compulsory, but removing the ownership obligations to restore

the original legal status. The case-law of the Constitutional Court to take, in particular,

the fact that, in the case of the restitution law is
the sovereign decision, which was adopted by the chosen form of the axle, respectively.

alleviate some of the grievances that have occurred in the time of Nazi occupation in the area of

of ownership relations.



The logical consequence of the conditions laid down for the issue of physical assets

persons according to § 4, paragraph 4. 2 of Act No. 87/1991 Coll., as well as the actual

specificity of restitution, which the article doesn't work. 11. 4 of the Charter, including the

It provided for compensation, was how the legislation section 11 of Act No. 87/1991

SB, and its literal interpretation in restitution procedures. (A similar

You can, indeed, stated in relation to section 8 (2). 3 of the Act No. 229/1991

SB.). In a claim against the State, admitted on the repayment of the purchase price

paid when buying things from the cited Act on extrajudicial

rehabilitation, in particular taken into account was "unlawful" acquisition

ownership and his performance at the time of the totalitarian regime on the

the expense of "real" owners. Any assessment issued by the asset

required by the person in the course of the exercise of ownership rights was solved

separately against the person authorised within the meaning of section 7 (1). 4 of the law on

extrajudicial rehabilitation, according to the regulations in force on the date of price

the effectiveness of the law.



Under a slightly different angle judged the issue when the ECTHR

mandatory-decide on complaints of natural persons, which after the release

the property according to the laws of restitution and return the paid purchase price argued

for this Court to violations of their rights to protection of property.



The ECTHR in many of their decisions (for example. Pincová and Trees against the Czech

Republic, P against the Czech Republic, against the Czech Republic and Aftermath

further deduced violation) of the Czech Republic, as against

There was an intervention to the complainants of their right to own property without

adequate compensation.



The Court, which judged the matter from the perspective of article. 1 of the additional protocol to the

The Convention, he stated that the release of the assets on the basis of restitution laws

There has been a deprivation of property of the complainants, however, occurred to the legal

in a way, and this deprivation of assets also followed a legitimate target, since here

There was "reason in the general interest" within the meaning of the second paragraph of article. 1

The additional protocol to the Convention. For a legitimate purpose of restitution considers the

Court remedy the illegality of conversion or other earlier interventions into

ownership by returning the matter to its original legal status.

A person free from your property, however, the Court must, in principle, according to get

the amount of compensation is reasonable, given the value of the assets, which

has been deprived.



At the same time, the Court expressed the view that the legitimate purpose of the restitution laws,

like every measures affecting the right to the peaceful use of property,

be designed to mitigate the previous injustices cause new

unreasonable injustice. The legislation should make it possible to take into account the

the circumstances of each individual case, to persons who have acquired their

property in good faith, have been forced to bear the burden of responsibility of a State

Once the assets confiscated.



In other words, the material for the assessment of equitable compensation for issued

the property is therefore the question of whether the issued property was acquired (though contrary to

If the applicable law) in good faith. It is also necessary to

to distinguish whether the assets were acquired the following mandatory persons misuse

their position in a totalitarian regime, whether the violation occurred

substantive rules or to procedural misconduct for which the

responsible State. on the basis of too extensive interpretation

the restitution laws, and also what the "social" impacts of the release of the assets

means for the required person.



The repeated findings of the European Court of human rights expressed in the above

those (and other) judgments both in relation to the compensation provided by the

mandatory-natural persons, pursuant to Act No. 87/1991 Coll. on extrajudicial

rehabilitation, as amended, and Act No.

229/1991 Coll. find reflection in more then the decision-making activities

The Constitutional Court.



In its resolution SP. zn. III.-575/05 of 28 June. 2.2006 (for 1/40 SbNU 765)

The Constitutional Court with reference to the decision of the ECHR HAS stressed that it is necessary to

to maintain a fair balance between the requirement of public interest on the

restitution of property and the protection of the basic rights of the individual is the imperative to

asset protection, which implies that a person has, in principle, receive

compensation, the amount of which would be reasonable relative to the value of the assets, which

has been deprived. It is clear that the consequences of the application of the laws of restitution

may be for the complainant in particular cases, the steep and may

significantly intervene in their lives. Therefore, if the complainants will be

claim compensation for the assets, which are now required to issue, will have to

when fixing the refund, the competent authorities take account of all the circumstances

of the case so that the complainants do not have to bear a disproportionate burden

associated with the enforcement of the legitimate objectives pursued by the restitučními

regulations, or that they were forced to carry the burden of responsibility of a State

Once the assets confiscated.



Similarly, in the case of sp.. III. TC 1731/09 [resolution SP. zn. III. THE TC

1731/09 dated June 3. 8.2010 (unpublished, available on SbNU

http://nalus.usoud.cz)], the Constitutional Court stated: "in assessing the Affairs of

the perspective of the article. 1 of the additional protocol to the Convention as a Constitutional Court, with

reference to the conclusions set out in the decision of the European Court of human

and in the matter of rights Pincová Pinc against the Czech Republic. .. which has been

complainants known, notes that the complainants to their incapacitation

the property has been lawfully and this deprivation of assets also followed

a legitimate target, since there existed a reason in the general interest ' within the meaning of

the second paragraph of article. 1 of the additional protocol to the Convention. To the concept of, General

interest ' and to the freedom of the parties to the Convention when deciding on your own

Economic and social policy can also refer to the decision in

things Pincová and Pinc ... According to the European Court by the legitimate objective

restitution is a correction of the earlier conversion of the illegality or other

interventions into the ownership by returning the matter to its original

the legal status of the aftermath of ex tunc.



Therefore, you can summarize the ... that the withdrawal of the property owner, ' on the basis of

the restitution legislation and in accordance with them cannot be considered inconsistent with the

his (constitutionally guaranteed) fundamental rights and freedoms, or just on

the basis of this fact, it cannot be concluded that the carrying

a disproportionate burden, ' ... and that in the case of legal and legitimate intervention

the title can be the existence of a disproportionate burden, ' (and the

subsequently referred to rights violations) judge, depending on the

the State granted the refund (or its absence).



Of the constitutional complaint would imply that the complainants, who claimed that the

the real estate acquired in good faith without being in control

demonstrated that they could however transfer of real estate or the amount of the purchase price

affect, any compensation received, and it is not obvious whether the already

fight over compensation. The compensation law of soil anchors itself in the

the provisions of § 8 paragraph. 3. The Constitutional Court is aware that the consequences of

the application of the laws of restitution may be in some cases steep and

significantly affect the lives of persons, and underlines the compulsory so that if

the persons concerned will claim compensation for the assets, which are now

obliged to issue, will be required to the competent authorities when fixing the refund,

where appropriate, in proceedings for eviction of the immovable property, which is already

conducted, take into account all the circumstances of the case so that the

the complainant did not have to bear a disproportionate burden related to the enforcement of

the legitimate aim pursued in restitučními legislation. ".



Although those conclusions reflected only in the statement of reasons of the resolution, which was

decision on constitutional complaints in the Chamber of the Constitutional Court, is

clearly, the findings of the ECHR were the Constitutional Court aprobovány, with no

of the boards did not break constitutional complaints that would be given to the

the doubts presented a plenary session to assess the compliance of the contested now

provisions, i.e.. section 11 of Act No. 87/1991 Coll. with the constitutional order of the Czech

of the Republic.



In a similar way to the case law of the ECHR and the case law of the Constitutional Court

translated into the decision-making activities, and the case-law of the Supreme Court, which

for example. in the judgment of the SP. zn. 28 Cdo 2202/2009 or judgment SP. zn. 28 Cdo

2836/2009 said:



"In General, we can say that the considerations of the highest instance of judikatorní

mainly akcentovaly grammatical interpretation of the cited standards. This rather

It is necessary to rely on precedents created by the European Court of human

the law, taking into account the guarantees given by the additional Protocol (article 1)

to the European Convention for the protection of human rights and fundamental freedoms and article

11. 1 of the Charter of fundamental rights and freedoms.



... That was the interpretation of the statutory provisions at issue to be conformable to

the above-mentioned human rights kautelám and civilistické the principle of the protection of

ownership rights in all legal aspects may not be in the clear

contradiction with the principles of proportionality and, if possible, to justice.



... [U] the determination of section 11 of the law on extrajudicial rehabilitation referred to in

relationship to person on mandatory, refund the purchase price paid in

buying things ' ... Dovolací, the Court is of the opinion that stands a wider

interpretation of the text of the provisions of § 11, namely, for ' his verbatim
the text, however, is its purpose and meaning. That cannot be

return date and time as a result of inadequate purchase price, but-

as the Czech Republic reminded the Strasbourg Court-in payment of such

the amount of State that is relevant (and rare) restitution

circumstances, adequate, and reasonable. Therefore, the interpretation according to which the hold up may be

under the term of the purchase price within the meaning of section 11 of Act No. 87/1991 Coll. also include

other performance expressing the value of the property. ".



The Supreme Court in its case law outlining the principles of working with and in

the broader context, which stems from the interpretation that the section 13 (3). 1 and 4

the law on out-of-court rehabilitation on the appropriateness of the amount of the

financial compensation to the beneficiary. According to the judgment of the SP. zn. 28 Cdo 1603/2011

even the financial compensation granted to the beneficiary shall not be unreasonably

low. "The passage of time (20 years and more since the effectiveness of the restitution of the standards),

leaders in matters of compensation for restitution to increase the value of the order of things,

or many times, represents a change in the circumstances that may lead

per se in specific situations to use other legal solutions, "which

will be based on a broader interpretation of the constitutionally-conformist-mechanism of calculation

This refund.



In příkladmo referred to the case-law of the Constitutional Court and Supreme Court can be

apparently found principles even in the ECTHR judgments, which were

found to be necessary for finding a "fair balance" Edition

the assets of the complainants to the beneficiaries according to the section 4, paragraph 4. 2 of the law on

extrajudicial rehabilitation, which, however, cannot apply when the literal

the interpretation of section 11 of the Act.



The Constitutional Court in proceedings for the control of standards is progressing according to the principle of priority

constitutionally Conformal interpretation, according to which, before the derogations in the situation,

When certain provisions of the Act allows for two different

interpretation, one is in accordance with constitutional order and the second is

in conflict with him, is not given a reason for the cancellation of this provision. This method

based on the principle of the separation of powers, and with it the United principle of restraint,

i.e.. in principle, according to which, if it can ensure the constitutionality of the reach

alternative means, the Constitutional Court shall elect the legislative

limited to the extent the smallest [see e.g. find SP. zn. PL. ÚS 69/06 dated

29.1. 2008 (N 22/48 SbNU 243; 269/2008 Coll.)], while constitutionally

konformnímu interpretation can testify and extensive interpretation [see e.g. find

SP. zn. III.-609/04 of 7 December 2004. 4.2005 (N 79/37 SbNU 97), find sp.

Zn. PL. ÚS 13/05 of 22 December. 6.2005 (N 127/37 SbNU 593; 283/2005 Coll.)].



In accordance with the aforementioned conclusions of the Constitutional Court and the graduating when

assessment of the interpretation of the contested provisions, i.e., whether it is possible his

interpretation, which is in line with the constitutional order. The Constitutional Court must

noted in following the case-law cited above, that such a

the interpretation has already been found, and therefore the argument referred to the decision of the

only refers to. The Constitutional Court adds that when submitted to the interpretation of section 11 of the Act

No. 87/1991 Coll., this provision is not considered in isolation or only in

relation to the related section 4, paragraph 4. 2 of the cited Act, but in the context of the

the law on extrajudicial rehabilitation and the whole complex of restitution

regulations. Respected is the sense and purpose of the restitution, that is, the axle or

alleviate the injustices caused by the Nazi occupation in the area at the time of the ownership

relations and the protection of property relations, guaranteed by the Charter. The constitutional

the Court, without in any way deviated from its previous case-law

define restitution in relation to the article. 11 of the Charter, shall return the

the purchase price of natural persons, which issued the assets "illegally" acquired in

the time of oppression, as a form of compensation. This concept can be

relate to it and take into account the specifics of each of the criteria for

specific cases, as well as the feasibility of compensation in its provision.



The Constitutional Court is aware that the district court interrupted the proceedings, from which

the proposal emerged on the specific control standards, the management of the amount of the refund,

that should be paid to the plaintiff, Czech Republic-Ministry of

Finance, not with his own management NYC. In this control (or in the

other proceedings for damages in connection with the restitučními laws) can be

in the opinion of the Constitutional Court for the fulfillment of the protection of ownership rights in

the meaning of the article. 11. 1 of the Charter to consider and the amount of the compensation for the

issued by property in a broader context.



The Constitutional Court concluded that the claims applied to compensation for assets issued

within the meaning of section 11 of Act No. 87/1991 Coll. can be assessed, without

violation of the constitutional guarantees of ownership rights. And whereas that

the interpretation of section 11 of the law on extrajudicial rehabilitation general courts

(the Supreme Court), the Constitutional Court found constitutionally compatible,

He hadn't done to annulment of the contested provisions and decided, as in the

the phrase mentioned.



The President of the Constitutional Court:



JUDr. Rychetský in r.

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