Found at the Constitutional Court of the Czech Republic No. 128 / 1997 Coll.

Motion denied.

M. Š. lodged a constitutional complaint with the Constitutional Court on the judgment of the Supreme Court in Prague sp. zn. 3 A 64 / 95 confirming the decision of the Czech Social Security Administration of 20 July 1995. By its decision, the Czech Social Security Administration then rejected the request by M. Š. to grant a lump sum pursuant to § 3 (1) (c) of Act No. 217 / 1994 Coll., to grant a lump sum to certain victims of Nazi persecution, as amended, on the grounds that the condition of § 2 (c) of the Act was not met, since at the time of death her husband no longer had the status of Czechoslovak political prisoner under § 2 (1) (5) of Act No. 255 / 1946 Coll., concerning members of the Czechoslovak army abroad and certain other participants in the national struggle for liberation, as required by Act No. 217 / 1994 Coll., in force.

The appellant brought an appeal against the decision of the Czech Social Security Administration to the Supreme Court in Prague, pointing out in particular the statement of the daughter of A.S., L. R., by her father, a former cellmate, A. H., said that A. Š. was shot on the back of a truck when evacuating the concentration camp on April 25, 1945. However, the Supreme Court in Prague concluded that the appellant was unable to prove this date and relied on the International Red Cross's documents, which stated as the day of death on 8 May 1945.

The Supreme Court in Prague also concluded to the appellant that the political prisoner's status was maintained with her husband only from 14 December 1944 to 5 May 1945. If he died after this period, he was no longer a political prisoner under Act No. 255 / 1946 Coll., and therefore cannot be considered a disabled person.

In view of the above opinion of the Supreme Court in Prague, the complainant joined with its constitutional complaint the proposal for the annulment of part of the legislation under the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court. By its application - according to the author - a fact arose which is the subject of a constitutional complaint. It therefore proposed the abolition of part of Act No. 217 / 1994 Coll., as amended, in the following words: "in custody, prisons, concentration and internment camps' in § 3 (1) (c) of the Act, as well as in the same sentence:" in connection with arrest '. After this adjustment, the introductory words of Section 3, which are worded as follows: "The entitlement to a lump sum shall be:', in point (c), the following shall be added: 'to widows and widows after the affected citizens of the executed or deceased or killed'.

The Senate of the Constitutional Court, when it found that the complaint met all the necessary conditions, suspended the present proceedings pursuant to Article 78 (1) of Law No 182 / 1993 Coll. and, by order of 19 July 1996, the application for annulment of Section 3 (1) (c) of Act No 217 / 1994 Coll., as amended, referred the plenary to the decision under Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), by virtue of Article 78 (1) of Act No 182 / 1993 Coll., since the Supreme Court in Prague relied on its negative opinion on the claim by M. Šo contested provision of the Act.

In its constitutional complaint, the appellant states to § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, by virtue of the provisions of § 2 (1) (5) of Act No. 255 / 1946 Coll., that neither of the two provisions can be concluded that she is a widow within the meaning of § 3 (1) (c) of the contested law, if her husband died on 8 May 1945. Even the concentration camp liberated was still a concentration camp, the affected citizen was there against his will, and the only change was that he was not threatened by death by the captors and that he was treated kindly - but that was not enough to survive. It is therefore absurd to say that whoever died in a concentration camp after 4 May 1945 did not actually die in a concentration camp. Boundary 4 May 1945 is important for defining the concept of political prisoner, not as a time limit for the provision of § 3 paragraph 1 (c) of Act No. 217 / 1994 Coll., as amended. The appellant is convinced that it is under the sensitive law regime, and considers it impossible to conclude that certain widows receive the sum of money because their husband died when all conditions of May 4, 1945 were met, and other widows did not receive the sum of money because their husband died on similar terms a day or two days later. In view of this, the appellant is convinced that the said application of the law in the decision of the Supreme Court in Prague has infringed its fundamental right enshrined in Article 1 of the Charter of Fundamental Rights and Freedoms ("the Charter"): "People are free and equal in dignity and rights."

The Constitutional Court found from the decision of the Czech Social Security Administration that the applicant's application for a lump sum pursuant to § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, was rejected on 20 July 1995. It was established from the judgment of the Supreme Court in Prague that the decision of the Czech Social Security Administration was confirmed by this court. The Court of First Instance further held that, although the appellant fulfilled both the nationality condition and the condition of the widow of the affected citizen under the law of the art, it did not fulfil the condition of § 3 (1) (c) of the Act, according to which the widow of the affected citizen is entitled to pay a lump sum of CZK 100 000 only if the citizen died in custody, in prisons, in concentration and in internment camps or in violent killings in connection with arrest. From the text of the law, the Supreme Court in Prague concluded that the death of the affected citizen would have to take place under the circumstances. In the present case, the Supreme Court in Prague took the view that the author's husband had the status of a political prisoner from 19 December 1944 to 5 May 1945, while the longer duration of that status was ruled out by the express wording of Act No. 255 / 1946 Coll. If he has been proven to have died on 8 May 1945, it is obvious - in the view of the Supreme Court in Prague - that he died at a time when he no longer had political status and therefore cannot be regarded as a disabled citizen at the time of his death for the purposes of the claim. In the view of the Supreme Court in Prague, neither Act No. 255 / 1946 Coll. nor Act No. 217 / 1994 Coll., in its current version, extending the interpretation in this respect, since their provisions are of a taxative nature.

The Constitutional Court requested the opinion of the Parliament of the Czech Republic on the proposal by M. Š. to repeal part of the legislation. The President of the Chamber of Deputies of the Czech Republic Ing. Miloš Zeman stated that the purpose of Act No. 217 / 1994 Coll. was to mitigate the consequences of Nazi persecution in the knowledge that it was not possible to heal all the suffering caused to the citizens of Nazi persecution. According to the opinion of the President of the Chamber of Deputies of the Parliament of the Czech Republic, A. Š. was a citizen affected within the meaning of § 2 of Act No. 217 / 1994 Coll., because he was in accordance with § 2 (1) (5) of the Act No. 255 / 1946 Coll. a Czechoslovak political prisoner. It is the widow's claim that he died in a concentration camp. Since the law does not contain an interpretation of the concept of concentration camp nor does it provide for the date of termination of the existence of concentration camps, it is necessary to consider whether the period referred to in Article 2 (1) (5) of Act No. 255 / 1946 Coll. can be used to interpret the concept of concentration camp and conclude that after 4 May 1945 the relevant concentration camp could no longer exist, as there are also known cases where until 8 May 1945 including, or even later, the prisoners could not leave the concentration camp and were executed there until 8 May 1945 or died otherwise. It is therefore necessary to consider whether the actual duration of the concentration camp does not need to be considered as the period during which prisoners could not leave the camp freely, which must be assessed individually according to the specific circumstances of the case. Act No 217 / 1994 Coll. itself does not mention the date of 4 May 1945 and is therefore merely an interpretation, which does not require the law to contain a clause to remove or mitigate hardness.

In the view of the President of the Chamber of Deputies of the Parliament of the Czech Republic, it is also not clear whether there has been a breach of the principle of equality of citizens in their rights in the contested law and therefore an infringement of Article 1 of the Charter, if only a certain categorisation of claims under the conditions laid down in the Act for all natural persons equally. Finally, it is stated in the opinion of the President of the Chamber of Deputies of the Parliament of the Czech Republic that the law was passed by a necessary majority of the legislators, signed by the relevant constitutional authorities and duly declared. The legislature acted in the belief that the law adopted was in accordance with the Constitution, the constitutional order of the Czech Republic and our legal order.

As regards the assessment of the complainant's proposal to abolish part of Section 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, the Constitutional Court concluded to reject the proposal for the following reasons:

1. At the core of Mr Š.'s proposal is that the law infringes the principle of equality, which the appellant sees in the fact that only the time of death of the affected citizen is decisive for determining the right to one-off compensation under § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, if all other conditions are met. Consequently, according to the appellant, there is an unequal assessment of otherwise equal cases.

As regards the breach of the appellant's fundamental right under Article 1 of the Charter, reference should be made to the finding of the Constitutional Court sp. zn. Pl. ÚS 47 / 95 on the application for annulment of the provisions of § 3 (1) (b) and § 5 (2) of Act No 217 / 1994 Coll., as amended, in which the infringement of Article 1 of the Charter was contested. In this context, the Constitutional Court adopted an opinion on the maintenance of the principle of equality in Act No. 217 / 1994 Coll., as amended. With reference to this finding, it can be noted that the contested law as a rule of restitution could not but apply certain criteria to define the personnel scope of the law, namely to define the bodies entitled to receive certain benefits. The basic question is whether inequality can be argued where the law provides for the same conditions of entitlement for all bodies which are included in the personal scope of the law. In the view of the Constitutional Court, this is not the case, since inequality could only be the case if a certain part of the persons had to fulfil any other condition for inclusion. However, the provisions of Article 3 of the Law in question provide for the same conditions for all widows, widows and orphans, i.e. for all beneficiaries. That part of the provision of § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, the cancellation of which the complainant proposes does not constitute an infringement of the constitutional principle of equality of citizens.

2. The Constitutional Court also considered that, if the contested provisions had been repealed, there would have been a substantial change in the meaning of that provision, since the text of Article 3 (1) (c) of Act No 217 / 1994 Coll., as amended, would have been: "the right to grant a lump sum to widows and widows after the affected citizens of the executed or deceased or killed '. In this regulation, the death of the affected citizens under § 2 of the Act would no longer be seen as a result of an investigation, a result of imprisonment, a concentration and an internment camp, or an arrest at the time of occupation and the Second World War, which would be contrary to the objectives of the legislator and the meaning of the law. For the reasons set out above, the Constitutional Court was therefore unable to reject the application for annulment of part of the provisions of Paragraph 3 (1) (c) of Act No 217 / 1994 Coll., as amended.

3. However, the Constitutional Court has finally considered whether the wording of § 3 (1) (c) of the Act justifies the interpretation which the Supreme Court in Prague relied on. After careful consideration of the content and meaning of the provisions of § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, and § 2 (1) (5) of Act No. 255 / 1946 Coll. the Constitutional Court concluded that the interpretation on which the Opposition of the Supreme Court in Prague is based is not sustainable. The date set out in Paragraph 2 (1) (5) of Act No. 255 / 1946 Coll. is crucial for the definition of Czechoslovak political prisoners during the occupation and World War II. In addition to certain others in the law of the mentioned cases, anyone who, between March 15, 1939 and May 4, 1945 was confined to personal freedom by imprisonment, internment, tow or otherwise was a political prisoner. This provision is important from the point of view of the constitutional complaint by M. Š. As long as her husband undoubtedly met these conditions.

The Constitutional Court considers that the date of 4 May 1945 cannot be extended to the provisions of Section 3 of an entirely different Act, namely Act No. 217 / 1994 Coll., as amended. While Article 2 of Act No. 255 / 1946 Coll. sets out who is a disabled citizen, Article 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, deals with the conditions of the entitlement of widows and widows after these political prisoners, which occurs provided that the affected citizens were executed or died "in custody, prisons, concentration and internment camps" or were violently killed "in connection with arrest."

The Supreme Court in Prague interpreted the law so that death in the object of the concentration camp after 5 May 1945 is not a qualified fact within the meaning of the provisions of § 3 (1) (c) and (d) of Act No. 217 / 1994 Coll., as amended, because the time spent in the character of Czechoslovak political prisoner is the period ending on 5 May 1945. The idea that this status of a disabled citizen would just be lost by extending his imprisonment beyond the 4th of May 1945 is absurd and contradicts the meaning of the law.

Therefore, the interpretation of § 3 (1) (c) of Act No. 217 / 1994 Coll., as amended, remains to be considered when the assumption that death occurred is fulfilled "in custody, prisons, concentration or internment camps." According to the documents, he died either at Flossenburg concentration camp on 8 May 1945 or (rather) as a result of evacuation (death march) in Eggenfelden, where he is also listed in the register of deceased persons. Either way, the Constitutional Court considers that it was in the hands of a foreign power at the time, because Germany's surrender took place only on 8 May 1945, or at least in a camp that was abandoned or perhaps abandoned by retreating Nazi troops. Given the date of 8 May 1945, this last circumstance is not decisive in this case, nor is it decisive in whether A.Š was in the camp or in the prisoner transport. The Constitutional Court recognises the argument put forward by the President of the Chamber of Deputies of the Parliament of the Czech Republic that the period referred to in Paragraph 2 (1) (5) of Act No. 255 / 1946 Coll. for other purposes and in other context cannot be used to interpret the concept of concentration camp in the contested law. If neither the concept of a concentration camp nor the existence of concentration camps is laid down in the law, there is no legal basis for interpretation according to which a concentration camp could no longer exist after 5 May 1945 and the freedom of the prisoner could no longer be restricted after that date. It is therefore necessary to consider whether the actual duration of the concentration camp does not need to be considered as the period during which prisoners could not leave the camp freely, which must be assessed individually according to the specific circumstances of the case.

The Constitutional Court understands that the wording of the law offers an opportunity for different interpretations, but considers that the restrictive interpretation of the Supreme Court in Prague does not quite clearly correspond to the meaning of the law or the objective of the legislator and that it infringes the principle of proportionality in the rule of law as set out in Article 4 (4) of the Charter, according to which their substance and purpose must be investigated when applying the provisions on the limits of fundamental rights and freedoms. In the present case, the disproportionate interpretation of the Law by the Supreme Court in Prague led to a breach of the fundamental right under Article 36 of the Charter, since the complainant was not granted adequate judicial protection against a decision which had no legal basis.

The additional application for cancellation of the period of time for the application of the claim pursuant to § 5 (2) of Act No. 217 / 1994 Coll. in its current version, the Constitutional Court refused because it was not a provision which was the subject of a constitutional complaint (§ 74 of Act No. 182 / 1993 Coll.).

The Constitutional Court does not see a constitutional conformal solution in this case in the annulment of the contested provision, but in the departure from its excessively restrictive interpretation. For this reason, the Constitutional Court also rejected the application for annulment of the contested provision.