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Cancellation Of Part Of The Provisions Of Section 2 (2). 1 Section 5 Of The Act. 255/1946 Sb.

Original Language Title: zrušení části ustanovení § 2 odst. 1 bodu 5 zák. 255/1946 Sb.

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290/1999 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 27. October 1999 in the plenary on the proposal L. D.

cancellation of part of the provisions of section 2 (2). 1 section 5 of Act No. 255/1946 Coll.

members of the Czechoslovak army abroad and about some of the other

participating in the national struggle for liberation, as expressed by the words "at the time between the

15. in March 1939, and 4. May 1945 "administered along with constitutional complaints



as follows:



The proposal is rejected.



Justification



(I).



The proposal of 22 July. the appellant filed a May 1998, together with the constitutional

complaints against the judgment of the High Court in Prague from 27 June. February 1998

SP. zn. 6 723/97 pursuant to § 74 of law No. 182/1993 Coll., on the Constitutional Court,

application for annulment of part of the provisions of section 2 (2). 1 section 5 of Act No. 255/1946

Coll., on members of the Czechoslovak army abroad and about some of the

other participants in the national struggle for liberation, expressed by the words "in the

the period between 15. in March 1939, and 4. May 1945 ".



Contested statutory provisions is the appellant in breach of article. 1 and

article. 4 (4). 4 of the Charter of fundamental rights and freedoms, if it has the experience

breach of the principle of equality and the principle of proportionality. The appellant objects to this

against time-definition of the Czechoslovak political prisoner day

May 4, 1945, as it believes that their own historical reality

did then no reason for lawmakers to make a decisive

It was just the date. Stresses that, although the so-called. III. the Empire in

the early days of May 1945, has endured its agony, it was not possible in the case of

the murdered victims of Nazism in the days after 4. in May 1945, the liberation of

the initiative of some fanatical individuals, but about the performance of armed forces

the Nazi state.



Chamber of the Constitutional Court by a resolution of 4 November. March 1999, no. III. TC

238/98-6 the proceedings on constitutional complaints and the proposal to repeal section

the provisions of § 2 (2). 1 section 5 of Act No. 255/1946 Coll. expressed by the words "in the

the period between 15. in March 1939, and 4. May 1945 "ceded plenary Constitutional

the decision of the Court pursuant to article. 87 para. 1 (b). and the Constitution of the United States)

(hereinafter referred to as "the Constitution").



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the judge-rapporteur proposal to represent the Chamber of Deputies

Parliament of the Czech Republic. The President of the Chamber of Deputies, Prof. Ing.

Václav Klaus, PhD. stated that date 4. in May 1945, which is the last

the date on which a Czech citizen could become a Czechoslovak political

the prisoner, is based on the Decree of 27 June. July 1945 no. 31/1945

Coll., which stipulates the end of oppression for the scope of the provisions on recovery

legal order. Pursuant to section 1 of this Decree time freedom

expires on 4. in May 1945, which is the last day before the outbreak of

The Prague uprising. Period of time as defined by the data 15. in March 1939, and 4.

May 1945 is a historical fact, has its own logic and from this

point of view is fixed. As figuring the time slot is objective,

can't even give rise to inequality between the actors, as each body

turns out the same way. In further points to the fact that different

the question is the concept of the Act No. 216/1994 Coll. on the provision of disposable

a sum of some of the victims of Nazi persecution, as amended by

amended, which to their range to include only some of the victims

of Nazi persecution, and does not include a mandate for governing body on the

remove any hardness. However, this does not alter the fact that

the provisions of § 2 (2). 1 section 5 of Act No. 255/1946 Coll. does not constitute

the inequality between the entities.



The President of the Chamber of deputies confirmed that Act No. 255/1946 Sb.

approved by the necessary majority of members of the legislature, signed

respective constitutional actors and duly promulgated in accordance with the then

the applicable constitutional principles. In conclusion then expresses the opinion that the

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

The Constitution, the constitutional order and our legal order, and is on the

The Constitutional Court, in order to assess the proposal, submitted and issued the relevant decision.



The Constitutional Court also delivered the proposal to represent the main human resources Office

The Ministry of defence, the Department for the issuance of the certificate. He submitted a

The explanatory memorandum to the Constitutional Court to amend the draft of the law,

as well as parliamentary publications and the record of parliamentary debates. In

observations on the draft, points to the fact that the supporting documents

nezdůvodňují, why the provisions of § 2 (2). 1 section 5 of Act No. 255/1946 Sb.

(Czechoslovak political prisoner), and article 15, paragraph 2. 1 and 2 of Act No. 255/1946

(Time spent in the position of a participant of the national struggle for Liberation)

anchored just date 4. May 1945 as the latest possible date on which

end position of the Czechoslovak political prisoner-participant

the national struggle for liberation. Justification it is possible, for example, in the

the fact that Act No. 255/1946 Coll. in § 1 (1). 1 (1) (a). (f)) and paragraph 15 of

paragraph. 1 and 2 also remembers the participants in a national struggle for liberation-

the participants of the uprising in May 1945, whose activities began with a 5. may

1945 and ended 9. in May 1945. The main human resources Office pronounced further

the presumption that certain misconduct is primarily, as amended by Act No. 216/1994

Coll., which remembers the fact that not every victim of the Nazi occupation in the

1939-1945 is entitled to issue the certificate that was ".

political prisoner "(which is a condition for claims arising from the

of the Act). For example, the participants in the uprising in May 1945

(who died, died or were executed by the Nazis from the May 5, 1945 to

May 9, 1945), former members of the State Defense Guard, of which

Many also died a violent death at the end of September and beginning of October

1938 (see § 1, paragraph 2, of Act No. 255/1946 Sb.)-internované

soldiers of the Czechoslovak foreign army, captured members of the 1.

the Czechoslovak army in Slovakia (article 2 (1) of section 4 of Act No.

255/1946 Sb.), who was executed by the partisans, and arrested participants in a domestic movement

etc. The Department of Defense highlights the purpose of Act No. 255/1946 Coll.

who had in mind to accommodate for the Czechoslovak political prisoner in particular

those citizens who have been through the Nazi concentration camps and were

imprisoned for reasons of resistance activities, national, political, racial and

religious persecution. Notes further that in the case of

annulment of the contested statutory provisions would need to be retrospectively from

in 1946, to review all certificates (about 300 thousand) ex officio,

the Ministry of defence which is not far from being ready, and which would, according to the

his conviction brought among the living participants of the national struggle for

Liberation not only misunderstood, but even intolerance. Repeatedly in this

connection points to the adverse effects of the opening of the new groups

the participants of the resistance in the case of derogačního Award (the increase in new applications for

certificate), when considering the issue under consideration lies in the weaknesses

Act No. 216/1994 SB.. In this context, all his survivors

participating in the uprising could request a change to the qualification

the Czechoslovak political prisoner and for participants who demonstrably

they died in fighting on the barricades and fighting without being arrested. Change

documents should impact on the calculation of the pension (for the surviving widows) and

the validity of the originally issued documents (from the years 1946-1999) would be canceled

exposure to new documents in accordance with this decision. The proposed

intervention in the Act No. 255/1946 Coll. would still after more than 50 years after

the end of the II. During World War II as new participants in the resistance, it had

This law in mind. Finally, the Department of Defense highlights

the necessity, in the case of the adoption of the revoking of the finding, the cancellation of a provision

§ 15 para. 1 and 2 of Act No. 255/1946 Coll., where is established the origin and

the end of the time spent in the various forms of participation in the national struggle for

the exemption, including the Czechoslovak political prisoner, though this time

ending no later than 5. in May 1945.



The Constitutional Court has sent the draft to comment whether or not the Czech administration of social

Security. This in my opinion shows, inter alia, that the solution of cases,

people because of the suffering caused by the records for Nazi persecution

It is based on legislation contained in the Act No. 216/1994 Coll. and act

No 255/1946 Sb. Coherence of the legislation contained in both

These laws and not entirely clear diction, led in the past to

the need to remove some of the confusion by using the interpretation. Czech administration

social security appealed to the Constitutional Court a variety of observations, in

which expressed its will, after the implementation of extensive interpretations for the benefit

those with disabilities. The legal issue is clear from the context

the legislation made both of these laws. The case law that has come to the

the conclusion that the death of the victim after the date, if any, 4. May 5, respectively.

May 1945 the surviving only as a result of such fact, in itself,

each of the claim does not exclude. In this context, refers the intervener

the findings of the Constitutional Court from 1. July 1997, SP. zn. IV. TC 78/96,

June 24, 1997, SP. zn. I. ÚS 83/96 and of 2. July 1997, SP. zn. IV. TC


318/96 (volume 8 Collections of findings and resolutions of the Constitutional Court), of which

It follows that the proper solutions to these cases, it is necessary to search just in

sensitive interpretation of the law and its application to a particular factual

status.



Recalls in this context that an obvious intention of the legislature was

provide a lump sum pursuant to Act No. 216/1994 Coll.

those affected have applied methods of Nazi persecution in the

qualitative plane corresponding to the concept of the Czechoslovak political

the prisoner (§ 2 (1) of section 5 of Act No. 255/1946 Sb.). This follows a completely

no doubt from the entire amended by Act No. 216/1994 Coll. was not the purpose of this

standards to provide compensation to any other categories of participants in the national struggle

for relief, for example. the participants of the may uprising. The law No.

255/1946 Coll. is obsolete in specific contexts. The proposed

the cancellation of the incriminated sentence would solve the situation only a few

cases.



According to § 68 para. 2 Act No. 182/1993 Coll., the Constitutional Court when deciding on

the revocation of laws and other legislation assesses the content

These regulations in terms of their compliance with constitutional requirements,

the international treaties referred to in article. 10 of the Constitution, where appropriate, laws, if it

other legislation and discovers that they have been adopted and published in the

the limits of the Constitution laid down the competence and constitutionally prescribed way.



If the Constitutional Court under the control of standards of competence shall be assessed the constitutionality of

the regulatory authority and the constitutionality of the regulatory process, based out of 66

paragraph. 2 Act No. 182/1993 Coll., according to which the proposal of cancellation

laws and other legal regulations of the inadmissible if constitutional law

or an international agreement to which they are examined according to the design

in violation of the rules, which expired before delivery of the draft to the Constitutional Court

the validity of. It follows that the laws issued prior to

entry into force of the Constitution, the Constitutional Court is entitled to examine only

their content compliance with the current constitutional order, but not

the constitutionality of the procedure of their creation and compliance with regulatory competence.



In this case, when Act No. 255/1946 Coll. was adopted on 19 December.

December 1946 and declared the year of 1946 in the amount of 107 of the laws of the day

on December 31, 1946, the Constitutional Court therefore limited to an assessment of the content

compliance of the contested legal provisions with constitutional laws and

the international treaties referred to in article. 10 of the Constitution.



II.



According to the provisions of § 2 (2). 1 section 5 of Act No. 255/1946 Sb.

of this Act, the Czechoslovak political prisoner of the one who was at the time of

out of 15. in March 1939, and 4. May 1945 limited to personal freedom

imprisonment, internováním, drama, or otherwise for the antifascist

fighting or political action directly against the Nazi or

the fascist occupiers, their acolytes, or traitors to the nation of the Czech

or the Slovak or because of persecution, political, national, racial

or religious, it took the limitation of personal freedom at least 3 months or

Although for less, however, if suffered injury or on the body of a more serious

He died as a result of nature or limitation of personal freedom.



In its established case-law of the Constitutional Court interprets the Constitution the principle of

equality of dual-perspective [see pl. ÚS 16/93 (TC, vol. 1, pp. 194-195,

205-206), pl. TC 36/93 (TC, vol. 1, p. 179), pl. ÚS ÚS (5/95, vol. 4,

p. 218), pl. ÚS 9/95 (TC, vol. 5, p. 137), pl. TC 33/96 (TC, vol. 8, p.

163-172)]. The first is due to the requirement of the exclusion of the arbitrariness in the procedure

the legislature in differentiating groups of entities and their rights, the second

the requirement of acceptability of the aspects differentiating the constitutional law, i.e.

the inadmissibility of the prejudice of one of the fundamental rights and freedoms

odlišováním bodies and rights on the part of the legislature.



In the present case must answer the question of whether the exclusion of

people at the time. in May 1945 until the end of the Nazi occupation

suffered injury or on the body of a more serious nature or died

due to limitation of personal freedom for antifascist battle or

political action directly against the Nazi or fascist

the occupiers, their acolytes, or traitors to the nation the Czech or

the Slovak or because of persecution, political, national, racial or

religious, from the category of the Czechoslovak political prisoner has broken

the legislature of the constitutional principle of equality, when these persons admitted

rights, the rule of law which provides the Czechoslovak political prisoners

(e.g. in the pension insurance act or under Act No. 216/1994, Coll.).



Act No. 255/1946 Coll. was originally conceived as a Government Bill,

amending and supplementing Act No. 136/1946 Coll., on positioning and other

maintenance of the participants of the national struggle for liberation (National Constituent

the Assembly of the Republic, as well as meeting, print no. 83). A proposal from the

the amendment did not touch the provisions of § 1 (1). 1 (b). e) of Act No. 136/1946

Coll., according to which a participant in the national struggle for liberation under this

the law is for the fulfillment of specified conditions, in General, also a person who was

imprisoned or interned (provided) in the concentration and similar

camps for political reasons, in order to prevent or

the Suppression of the resistance movement of the Czech or the Slovak nation, especially for

an action directly to the liberation of Czechoslovakia

by removing the Nazi occupation. That provision therefore

do not include any time limit defining the period of Nazi oppression.



From the reports of the meetings of the committees, armed services, socio-political, legal

and the budget on a Government Bill (83), amending and

supplementing Act No. 136/1946 Coll., held on 11, 17. and 18. December 1946

(A constituent National Assembly of the Czechoslovak Republic, i. meetings

print no. 284) follows that consideration of the proposal showed the need to

numerous changes, so legislative, technical reasons to take effect

the need to process the whole fabric in the form of the New Testament. In the outline

the law worked in committees is already contained a legal definition of the term

the Czechoslovak political prisoner that contains the definition of the period of oppression

(between 15 March 1939, and 4 May 1945), without the above report,

or record of parliamentary debates contain the justification. Can be used with the

Therefore, only believe that the legislature went out in the first round of the section 1 of the Government

Regulation No 31/1945 Coll., according to which the period of Nazi occupation within the meaning of the constitutional

Decree No. 11/1944, p.1 p. 1. CSL. will expire on 4. May 1945 (this

presuming a somewhat dilutes the fact that pursuant to art. 1 (1). 2 of that Decree

is the beginning of the period of oppression designed not by 15 February. in March 1939, but

the date ' 30. September 1938). A possible additional reason points out in its observations

The Ministry of defence when he points to the fact that Act No. 255/1946

Coll. in § 1 (1). 1 (1) (a). (f)) and § 15 para. 1 and 2, category

participants in the national struggle for the liberation of the ranks of the insurgency in may participants

1945.



By comparing the provisions of § 1 (1). 1 (1) (a). (f)), and § 2, paragraph 1. 1 point 5

Act No. 255/1946 Coll. remain from the categories of participants in the national struggle

for the liberation of excluded persons who, at the time, from 5. in May 1945, to

the end of the Nazi occupation suffered personal injury or on the body

of a more serious nature or have died as a result of restrictions of personal freedom for the

antifascist fighting or political action directly against the

Nazi or fascist occupiers, their acolytes, or traitors

the nation of the Czech or Slovak or because of political persecution,

national, racial or religious, without, however, were the participants of the may

the uprising.



In the given context is the need to consider the procedural dimension of the

the issue, which relates to the proof of a property of the Czechoslovak

political prisoner. The case-law of general courts here gradually come to

the conclusion that this evidence may not be solely to production of the certificate referred to in

Act No. 255/1946 Sb. Such a procedure would be in conflict with the principle of

free evaluation of evidence. The provisions of § 5 para. 3 of the Act No. 216/1994, Coll.

Therefore, it is clearly a procedural nature, and its purpose is to speed up the proceedings

the designation means of proof, which in most cases will be

immediately available. However, this does not mean a return to the so-called. legal theory

origins, i.e., to the notion that certain facts may be proved

the only evidence of the resources that are specified by the law, and not

evidence in other (see e.g. the judgment in the High Court in Prague

SP. zn. 6 763/95).



If the Act No. 255/1946 Coll., on whose basis is issued a certificate of

the position of the participant in the resistance, deferred each category

participants in the national struggle for liberation, wanted to express a qualitative

difference methods of Nazi persecution during the various stages of occupation and

the corresponding method of the resistance of the participants of the national struggle for liberation.

It is clear that the determination of data 4. in May 1945, as the ultimate

the boundaries for the granting of the status of the Czechoslovak political prisoner is

reflects the fact that this date be concentration camps generally

no longer exempt and other deportations to them were not possible. The definition of the

contained in the Act No. 255/1946 Coll. therefore have its quantitative dimension


as defined by a specific time range and its qualitative dimension

defined a specific form of oppression. When Act No. 255/1946

Coll. is applied on the basis of other legal standards, reference is to be

consider the interpretation of systematic and therefore a mutual respect

both legal norms. It is clear that the definition according to § 2 (2). 1 point 5

Act No. 255/1946 Coll., precisely does not cover the definition under section 3 (1). 1

Act No. 216/1994 Coll., as amended. An obvious intention of the legislature

was to provide a lump sum pursuant to Act No. 216/1994

Coll. of those affected have applied methods of the Nazi

persecution in qualitative plane corresponding to the concept of the Czechoslovak

political prisoner. If a citizen cannot lose the status

the Czechoslovak political prisoner the passage of time, one can imagine and

the opposite situation, namely that the conditions of this status, with regard to the form of

persecution and the way of death, could meet after the date citizen 4. in May 1945.



The question whether a citizen is a Czechoslovak political prisoner, the question is,

that needs to be resolved before a decision on the award of

compensation, and on the basis of all the evidence adduced. The problem that

was the reason for the application for revocation under Act No. 255/1946 Coll. in

connection with the provision of compensation under Act No. 216/1994, Coll.,

beat interpretačně and general courts and administrative authorities and in the

practice often makes. It is necessary to be based on the individual characteristics of the

each individual case, which must be based in particular on safely

the proven facts. Their legal assessment should then

respect the mentioned aspects, in particular the human dimension, expressed in

the preamble of the Act No. 216/1994, Coll., when in the United States

not provide such assistance to all the victims, they would deserve.

Because it is a help in the form of humanitarian gestures, it is in this sense, on a

the spot as follows to interpret the contested part of Act No. 255/1946 Sb.



For a given State, the plaintiff requested the intervention of the law

does not seem necessary, and it can be concluded that the constitutional interpretation of the contested

the provisions of Act No. 255/1946 Coll. is possible and acceptable.



The Constitutional Court did not find that the contested part of the provisions of section 2 (2). 1 point

5 Act No. 255/1946 Coll. expressed by the words "at the time of between 15. March 1939

and 4. May 1945 "was inconsistent with the constitutional law or international

the Treaty pursuant to article. 10 of the Constitution, and therefore the proposal L. D. pursuant to section 70 para. 2

Act No. 182/1993 Coll. rejected.



The President of the Constitutional Court:



JUDr. Kessler v. r.