Communication from the Constitutional Court No 13 / 2006 Coll.

Law No 298 / 1990 Coll. is by its nature part of the restitution legislation.

On 17 December 2004, the Constitutional Court received a constitutional complaint from the complainant O. S. B. ř. A., who complained about the annulment of the judgment of the Supreme Court of 31 August 2004 in Case 20 Cdo 2370 / 2003 (ref.: the constitutional complaint is made under Sv. II. ÚS 687 / 04). According to the work schedule, this complaint was attacked by the Second Chamber of the Constitutional Court, the Judge-Rapporteur is Stanislav Balík.

The constitutional complaint is opposed to the judgment of the Supreme Court in which the complainant (s) was dismissed in a case brought before the general courts on the clearance of the property in an action against interveners (the defendant). The case was initiated at the District Court in Zlín under sp. zn. 11 C 171 / 96. In the judgment under appeal, the Supreme Court, with reference to rich caselaw, concluded that "an entity which is entitled to property under Law No 298 / 1990 Coll. as calculated in the Annex to that law is not authorised to exercise the right to property which, while being withdrawn from the law of religion and congregation in the exercise of State control over the property of churches and religious societies, is not listed in the Annex to that law '.

The Second Chamber of the Constitutional Court, in this context, has reached a legal opinion which deviates from the legal opinion expressed in the Constitutional Court's finding of 8.8.2005 sp. zn. IV. ÚS 298 / 05 (ref.: will be published in Volume 38 of the Collection of Finances and Order of the Constitutional Court, yet available at www.jurisprudura.cz), according to which "in any of its findings or opinions, the Constitutional Court did not express its support for the fact that Law No 298 / 1990 Coll. was also a special restitution law, the existence of which excludes legal persons named therein from seeking the determination of their property law by the application of general rules."

In the past, the Constitutional Court has dealt with the possibility of applying the general rules several times in the past, in a situation where the right to property is restored to entities which have been deprived of their right in circumstances which are otherwise taken into account under so-called restitution laws under defined conditions. In all these cases, the Constitutional Court based strictly on the principle that lex specialis derogat legi generali. This was also the last time in connection with the adoption of the opinion of 1.11.2005 sp. zn.

The fundamental question in the given situation is the assessment of the nature of Act No. 298 / 1990 Coll., in that respect, whether it is lex specialis or not, or whether it is a law which by its nature is restitution law. The Second Chamber of the Constitutional Court took the view that the term "restitution law" was a term not in the form of a legal institute, but only a term which, in the form of an acronym, had established practice. The concept of restitution legislature refers to a group of laws which have reduced certain property injustices from the totalitarianism period, as decided by a democratic legislator. As to whether Law No 298 / 1990 Coll. is, despite its calculation character, showing the minimum characteristics of universality "by law in the true sense ', the Second Chamber concluded that, in this respect, this legislation must be regarded undeniably as a law in the formal sense. It cannot be overlooked that according to the Act No. 298 / 1990 Coll., a number of property transfers took place more than 15 years ago, and no one had ever questioned the constitutionality of that law for its material aspect during this whole period before the Constitutional Court and, if known, before the Constitutional Court. The restitution nature of Act No 298 / 1990 Coll. also takes into account the explanatory memorandum to the Act, according to which the Act" allows at least partly to correct these past injustices'.

"The Constitutional Court has in the past identified in a number of its decisions the legal opinion of the Supreme Court, according to which persons listed in Act No. 298 / 1990 Coll., on the modification of certain property relations of the Greek Order and the Congregations and Archbishop of Olomouc, cannot claim the issue of property in an annex to the Act not mentioned. It was based on the purpose of the restitution regulations, namely Act No. 403 / 1990 Coll., Act No. 87 / 1991 Coll., Act No. 229 / 1991 Coll. and Act No. 243 / 1992 Coll., which was the remedy or relief of property injustices committed by the Czechoslovak State by unlawful withdrawal of property rights to immovable property or possibly movable property between 1948 and 1989. It follows from the fact that the legislature defined the time, substance and staffing range of relations to which restitution permits apply, that it had the will to intervene in existing property ratios only to a limited extent and only in those relationships which it considered desirable and possible to remedy. By exercising that power, the legislature also established a framework for judicial decisions on property restitutions, when it is true that the scope and conditions of restitution can only be decided by the courts in the context of the State's will for restitution, within the limits of the restitution laws (cf. Resolution sp. zn. I. ÚS 479 / 99)."

Therefore, because of their speciality, restitution laws constitute, if subjective and substantive conditions for their application, an obstacle to the application of general legislation. Only those instruments that are covered by the restitution law may be used to restore ownership in such a case. Law No 298 / 1990 Coll. is a restitution regulation, in particular with regard to its purpose, which is similar to that of other restitution regulations, and also with regard to its construction, when it defines the range of beneficiaries who are subject to the renewal of property ownership rights included in the statutory list. If the law in question is a restitution regulation, it has similar characteristics, which are the same as those of other restitution regulations, that is to say, the property to prevent the application of general legislation.

If further reference is made to the legislature's will, claiming that "the purpose of the law caused by the injustices was certainly not partly to remedy it, but at the same time, in future to prevent these persons from applying the alleged property rights by means of legal actions', it must be pointed out that such a legal opinion, with an interpretation of the nature of the restitution rules and their meaning, was contradicted. It can be accepted that Law No 298 / 1990 Coll. had the character of a commission and, at the time of its adoption, it was generally assumed that a general restitution provision concerning church property would be adopted. However, by failing to adopt such a regulation, the legislator subsequently expressed his will not to continue in the restitution of church property. This omissibly expressed will of the legislator is decisive for the assessment of the case (cf. also a different opinion on the finding of page IV of ÚS 298 / 05, which was attached by Judge Michaela Židlická). In addition, the Constitutional Court adds that, in its view, part of the persons active in the legislative process believe that the adoption of Law No 298 / 1990 Coll. did not provide a final solution to the relief of the property injustices caused by churches and religious legal persons. The Constitutional Court considers that it is only a matter for the legislator to resolve these relations by adopting another law. A Casualistic solution to this issue in the form of individual judicial decisions in specific cases would be such an activist solution that, in its consequences, the power of the judiciary would take over an activity that, otherwise, within the division of power, only falls to legislative power.

As an obiter dictum, the Constitutional Court adds that the II. senate in the decision in sp. zn. II. ÚS 528 / 02 of 2 February 2005 (ref.: will be published in Volume 36 of the Collection of Found and Order of the Constitutional Court, so far available at www.fakitura.cz) has stated that the property of which the original owner was the church, religious order and congregation 'must be governed by the regime of restitution laws and therefore there is no room for bringing actions to determine ownership for the absence of an urgent legal interest. Nor can it be inferred from the fact that the State was not able to issue a special restitution law, although Act No. 229 / 1991 Coll., which had already entered into force on 24 June 1991, foresees the issue of such a law. The State must, however, fulfil its obligation to issue a restitution law resulting from the provision of the Land Act cited, concerning church property, because it must meet legitimate expectations on the part of church legal entities based on a legal provision. "Thus, in this quoted finding of the Second Chamber, it was called upon by the legislature to take the initiative to address the relief of property injustices caused by churches and religious legal entities during the period of totalitarianism.