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In The Matter Of A Proposal To Amend § 4/1. About How To Modify Your Own. Relationship To Land

Original Language Title: ve věci návrhu na změnu § 4/1 zák. o úpravě vlastn. vztahů k půdě

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79/1998 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 25 April. March 1998 in the plenary on the proposal and the

the cancellation provision, which is in section 4, paragraph 4. 1 of the Act No. 229/1991 Coll., on the

modify the ownership of land and other agricultural property in

as amended, the words "from 25. February 1948 ",



as follows:



The proposal is rejected.



Justification



(I).



The Constitutional Court was on 12. June 1997 delivered a constitutional complaint,

supplemented by the Administration delivered on 19 December. September 1997, which is directed against the

the judgment of the municipal court in Prague from 26 March. March 1997 No. 28 Ca

381/96-17, which was confirmed by the decision of the District Office Louny-

the District Land Office of 3 July 2003. September 1996, no. (j).

1508/96-R/4668/93/ver. of these decisions shows that the stěžovatelkou in the

under the restitution required of real estate cannot be issued, since the transition

the assets of the State occurred on 13 November. August 1947, i.e. before the decisive period of the

defined from the 25. February 1948 to 1. January 1990.



Along with this constitutional complaint is brought by the applicant for a declaration of

the invalidity of the Act No. 143/1947, Coll., on the transfer of ownership of property

the Hluboká branch of the Schwarzenbergs on Earth Czech Republic, conflict with the article. 1, art. 3

and article. 11 of the Charter of fundamental rights and freedoms, article. 26 of the International Covenant on

Civil and political rights (hereinafter referred to as "the Covenant") and article. 14 of the Convention on the

the protection of human rights and fundamental freedoms. Furthermore, it was proposed to repeal

under the provisions of § 4 para. 1 of the Act No. 229/1991 Coll., on the adjustment of

the ownership of land and other agricultural property as amended by

amended, (hereinafter referred to as the "law of the land") in the part of the sentence in fine "from the

on 25 February 1948 ", with a similar argument about the violation of the principle of equality

and non-discrimination. Similar proposals teamed up with other

more than 20 constitutional complaints.



As regards the proposal to repeal Act No. 143/1947, Coll., the judge

the rapporteur to the same conclusion as the judge in the case, the rapporteur SP. zn.

PL. ÚS 43/96, i.e.. that the contested law in any proceedings that preceded the

filing a constitutional complaint, was not directly applied. With reference to the

the reasons for the resolution of the Constitutional Court, SP. zn. PL. ÚS 43/96 of 13 December 1996 may

Therefore, a proposal rejected as 1997 a request submitted by a person clearly ineligible [§

paragraph 43. 1 (b). d) Act No. 182/1993 Coll., on the Constitutional Court],

resolution SP. zn. IV. TC 207/97 of 25 June. November 1997.



As regards the proposal to repeal part of the provisions of section 4, paragraph 4. 1 of the law on

soil in part expressed by the words "from 25. February 1948 ", it is common ground that the

This provision in a previous case was immediately applied and

the terms of section 74 of law No. 182/1993 Coll. are met. Although the above

referred to similar things SP. zn. PL. ÚS 43/96 was, even when it comes to this

the proposal, released a negative resolution and the proposal was under the provisions of § 43 para.

1 (b). c) Act No. 182/1993 Coll. rejected as manifestly unfounded,

IV. the Senate proceedings by order SP. zn. IV. TC 207/97 of 25 June.

November 1997 and submitted the matter to the full Court for review.



II.



In support of its application for annulment of part of the provisions of section 4, paragraph 4. 1

the Act on the ground, the appellant points out that Dr. Adolf Schwarzenberg (from

which the appellant his rights determined by arbitrary acts has been affected) as

the Nazis and postwar Czechoslovak authorities. Points to the

political background that led to the adoption of Act No. 143/1947, Coll., which

the issue was motivated by a desire to part of the Czech Government affect assets

the Hluboká branch of the Schwarzenbergs, and elaborates on the arguments in detail, for which

This law should be repealed as unconstitutional. The Act also

in its opinion, represents in the history of Czech legislation

an exceptional Act that has not been applied in General, but was and is arbitrary and

discriminatory act directly against one branch of the same family,

without even trying to pretend that it was issued in the public interest or

as a just punishment. Puts forth that in comparison with the law No.

143/1947, Coll., on the revision of the first agrarian reform, was also much harder,

more stringent and more discriminatory, since it represented a basically without a refund

all property owners, not only immovable. In this

context, then, the appellant submits that the Act No. 143/1947 Coll. could be

used in the case of the Hluboká branch of the Schwarzenbergs, however, their

the property was sequestrated by a separate law. As one who has been

assets expropriated on the basis of Act No. 143/1947, Coll., shall be entitled to

restitution on the basis of § 6 (1). 1 (b). (b)) of the soil, the appellant

as heir to the Dr. Adolph Schwarzenberg is still denied restitution

entitled to the assets of Dr. Adolph Schwarzenberg, which was expropriated by the

Act No. 143/1947 Sb. effect of the provisions of § 4 para. 1 of the law of the land is

discriminatory against it, since Act No. 143/1947 Coll. and Act No.

143/1947 Coll. is made unfounded difference.



Points out in addition to the Czech National Council Act No. 243/1992 Coll., which

regulate certain issues relating to Act No. 229/1991 Coll., on the

modify the ownership of land and other agricultural property in

amended by Act No. 93/1992 Coll., which expanded the restitution of property to the citizens of the

The Czech Republic, who lost his property under decrees issued by the President

No. 12/1945 SB. and no. 108/1945 Coll., and in this context is

invoking articles 2, 14 and 26 of the Covenant. Stresses that the application of the principle

of non-discrimination contained in article. 26 of the Covenant, is not limited to the rights

referred to the Pact guaranteed. The appellant also relied on the decision of the

The Committee for human rights in Geneva (hereinafter referred to as "the Committee") on "Duru".

In that case, in which the appellants were affected by the negative

as a condition of citizenship in Act 87/1991 Coll. on extra-judicial

rehabilitation, the Committee, inter alia, stated that the right to own property

as such, is not protected under the Covenant, however, stated that the confiscation

the State of the personal property or refusal to pay compensation for such

confiscation may refer to a violation of the Covenant if the relevant conduct or

the omission was based on discriminatory behavior surfaces in violation of

with the article. 26 of the Covenant. In assessing whether the conditions for restitution or compensation for

are in accordance with the Pact, assessed the Committee all the relevant

the facts, including the original title to the property,

as well as the nature of confiscation. He stressed then that the special law governing

forms of restitution may not distinguish between victims of previous seizure,

Since all victims entitled to compensation without distinction. In the marked

Affairs Committee concluded that Act No. 87/1991 Coll. violated the rights

the appellants guaranteed in article. 26 of the Covenant. The opinions of the Committee shall at the end of

its proposal, the appellant relies on the request and stated that the part of the

the contested provisions and the resulting exclusion of the appellants as

heiress Dr. Adolph Schwarzenberg from the right to appropriate compensation for

it a discriminatory effect in comparison with other victims of confiscation and

violates the rights guaranteed by article. 26 of the Covenant. Suggests, therefore, that

the requirement set out in section 4, paragraph 4. 1 of the law of the land, which provides that

a beneficiary is a person whose property has been transferred to the State at the time of

from 25. February 1948 to 1. January 1990, was canceled, or that it does not

the case of the appellant, applied.



III.



The Chamber of deputies of the Parliament of the United Kingdom in its observations to the

the proposal referred to the observations that we made the proposal on 11 July.

February 1997 in case pl. ÚS 45/96.



In this representation of the Chamber of deputies in particular refers to the purpose

the law of the land, which is to make a restitution of wrongly seized assets

where the original owner lost it as a result of unlawful acts or

under pressure caused by the overall social climate in the period bezprávním

a time-limited period from 25. February 1948 to 1. January 1990. General

the principle of restitution, i.e.. that day, 25. February 1948 is a nepřekročitelným

landmark, was here applied consistently with other laws, restitučními

whose purpose is to eliminate or at least alleviate the effects only

certain property and other injustices, as they perform a full rehabilitation

or full compensation to those who were harmed in the past, it is not

possible. In a statement later confirmed that the law has been approved by the necessary

most members of the Federal Assembly of the Czech and Slovak Federal

Republic of 21 March. May 1991, was signed by the respective constitutional

agents and properly declared. In conclusion, it is then expressed the opinion that the

the legislature acted in the belief that the law is adopted in accordance with the

The Constitution of the United States and our legal order, and it is up to the Constitutional Court,

to assess the constitutionality of the contested provisions and issued the relevant

decision.



IV.



The essence of the proposal is the allegation of infringement of the principle of equality, or violations of the

the principle of non-discrimination, which, in the opinion of the appellant's

the legislature has committed that the delimitation of the relevant period did not allow the

compensation for property-related injustices to people and their successors, the affected

property law No. 143/1947, Coll., as it did in relation to persons

where there was a loss of property rights under Act No. 143/1947, Coll.

where appropriate, as it did by Act No. 243/1992.




Article 26 of the Covenant, which the appellant specifically relies, provides

that all are equal before the law and are entitled to the same protection

the law without any discrimination. The law prohibits any discrimination

and guarantee to all persons equal and effective protection against discrimination on

for whatever reasons, for example. based on race, colour, sex, language,

religion, political or other beliefs, national or

social origin, property and family. The Committee, which under the Pact determines

the cited article be interpreted so that the right that this article warrants is

under the Pact, the law of an independent and his work is not limited to

the law modified the Pact. From this perspective, it is therefore irrelevant that

the appellant alleged discrimination relates to claims for restitution.

Discrimination then the Committee interprets as the European institutions

decisive under the Convention on human rights and fundamental freedoms,

as a distinction, which is not based on "reasonable and objective"

the reasons why.



The Czechoslovak State after November 1989 decided to undo the

property and other injustices that have occurred in the previous period in the

due to the undemocratic practices of the previous regime, had to solve

the way it will do. He decided to come out of the principle of at least a partial

mitigate arising from wrongs, aware of the fact that a complete rehabilitation

or full compensation to those who were harmed in the past, it is not

possible. Of several possible concepts then was by the legislature in restitution

those regulations, which explicitly invalidate legislation, to

the basis of a loss of property has occurred, but on the contrary foreseen in the

under the special proceedings to determine whether all the conditions are met

laid down by the legislature in the special legislation for restitution

redress the injustices of the regime.



The basic statutory condition represents just move things to the State in

the so-called. the decisive period that, in the contested provisions of the legislature

defined. Its origin has specified the date of 25. February 1948, that is, the date of the onset of

mode, which is already quite consciously, to programmatically and consistently transgress the principles of

the rule of law. The determination of this date cannot be interpreted in a way that would

the legislature considered the "předúnorový" mode is a mode

respecting the principles of the rule of law, but only for the expression of political

question whether the restitution when (to which other postcommunist countries

has not at all) to proceed and, if so, how. That's

no doubt the legislature suverénem. The appellant in that regard can be

the beginning of the process the demise of democracy in our country has been the Munich dictate and

that democracy to some extent negated and the postwar regime of the national front.

Indeed, this preview of the period. the third Republic is contained in

some of the findings of the Constitutional Court.



In the framework of the so-called. the vesting period were pursuing equity in law

restitution--even in the law on land--defined the so-called.

restitution, i.e. titles. restitution of the facts establishing (at

meeting other conditions) are entitled to the restitution of the assets of authorized persons.

About the discriminatory conception of the process of axle property-related injustices could go

in a situation where clearly between the cases falling within the relevant period,

have included such restitution titles that should the intensity of intervention in the

of ownership were, in comparison with the titles of the non-attached, interventions

the more moderate. The risk of such a situation, however, the legislature has ruled out the inclusion of

the so-called. "the generals of the constituent elements of"--section 6 (1). 1 (b). p & r))

the law on land, or § 6 para. 2 in Act No. 87/1991 Coll. (loss of

property as a result of political persecution or practice that violates the General

recognized human rights and freedoms and further loss of assets without legal

reason). Following the widely conceived titles allow you to make restitution in

each individual case hardened property wrongs which have occurred in the

the relevant period, and that would not otherwise be podřaditelné under the named

the factual situation, were considered and it was decided about them individually.



The crucial question in the present case was an assessment of the alleged

the beginning of the so-called discriminatory nature. the vesting period based on the comparison of the

the position of the appellant, as the alleged successor of a person with disabilities

Act No. 143/1947 Coll. in relation to persons who have become devoid of assets according

decrees issued by the President of the Republic No. 12/1945 SB. and no. 108/1945 Coll., which

There was a loss of property rights ex lege to the effective date of these

decrees, i.e. before the so-called. a decisive period. Even if we admit that, in the

relation to such cases of loss of assets there has been some breaking

the vesting period should be noted that this happened by a specially

defined characters beneficiaries in section 2 of the Act No. 243/1992 Coll.,

adopted on the basis of the mandate contained in section 7 (2). 2 the law of the land.

The fact that the restitution "input" prior to the date of 25. February 1948

does not have the nature of amendments to the provisions of § 4 para. 1 of the law of the land-

the so-called zakotvujícího. the vesting period as the principle-but it occurs

the release of Act No. 243/1992 Coll., suggests that the legislator understood

This code only as an exception related to the specifics of the decrees

President of the Republic No. 12/1945 SB. and no. 108/1945 Coll., as well as with the

by modifying the conditions for the acquisition and loss of citizenship, i.e., prescription

in response to the specific situation of persons who have been in the 1950s

the return of Czechoslovak nationality, whose equity claims

However, due to the political changes that have occurred in the intervening period, no one

did not address. Admission of such exceptions is to be understood as a manifest

a manifestation of the political will of the legislature, which, however, nothing has changed on the principle

in principle, subject to restitution claims continue to be the existence of the so-called.

the vesting period.



After considering all of the above, it was the plenary Constitutional

the Court concluded that article 4, paragraph 2. 1 of the law of the land cannot be

found nothing to suggest the unconstitutional nature of this

provisions. The Constitutional Court, moreover, already in its finding of TechCrunch.com. I. TC 59/93

It stated that after November 1989 addressed the then Czechoslovak State

through its highest authority the question of Atonement

property-related injustices that occurred after 25. in 1948, and that he couldn't get it up

the opinion that they will odčiněny all wrongs, but only the wrongs

some, to the extent and under the conditions provided for by law. It was things

the sovereign decision of the State whether, and if so, to what extent

property will be odčiněny of injustice.



It can be stated that the establishment of the so-called. the vesting period, in particular the

its beginning is based on "reasonable and objective grounds", when

the legislature was forced to clearly define the time limit for which in principle

You can no longer go without risk of further compensation until the chaining

pre-Munich or even further. From the perspective of

legislatively-technical should finally mention that compliance with design

would mean no positive edits, the absence of any bottom time

the boundaries of the claim of restitution claims.



Of all the reasons given by the plenary of the Constitutional Court rejected the proposal.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice Chairman