Found at the Constitutional Court of the Czech Republic No. 131 / 1994 Coll.
The finding of the Constitutional Court of the Czech Republic of 24 May 1994 on the application for annulment of Act No. 183 / 1993 Coll.
Valid
The Constitutional Tribunal found
Text versions:
21.06.1994
131
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 24 May 1994 in plenary on the proposal of a group of Members to repeal Act No. 183 / 1993 Coll.
as follows:
The following provisions of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 42 / 1992 Coll., Act No. 93 / 1992 Coll., Act No. 39 / 1993 Coll. and Act No. 183 / 1993 Coll.:
1. the provision, expressed in Paragraph 8 (3), "on the date of application of this Act,"
2. Paragraph 8 (4),
3. The provision in Paragraph 8 (5), in the words "the owner of the land has donated his land to a natural person or has transferred it free of charge in connection with the conclusion of the purchase contract to the building to which the land belonged," and "if" and "on the date of application of this Law,"
4. the provision in the third and fourth sentences of Paragraph 20 (2): "shall be granted by a legal person who used the land of the beneficiary on 24 June 1991. If it is not possible to designate a mandatory person in this way, ',
5. Paragraph 24 (1).
The remainder is rejected.
Reasons
On 10 September 1993 the Constitutional Court of the Czech Republic received a proposal from a group of 41 Members of the Chamber of Deputies of the Czech Parliament to initiate the procedure for the annulment of Act No. 183 / 1993 Coll., amending and supplementing Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended by Act No. 42 / 1992 Coll., Act No. 93 / 1992 Coll. and Act No. 39 / 1993 Coll.
According to the provisions of § 42 (3) and § 69 of the Act cited, the Constitutional Court of the Czech Republic has sent the motion in question to the Chamber of Deputies for observations. The President of the Chamber of Deputies, Dr Milan Uhde, confirmed the position of the Chamber of Deputies, expressed by its vote on the draft law, and the seriousness of the amendments adopted by Act No. 229 / 1991 Coll. justified the following arguments: "The Act on the modification of property relations with land and other agricultural property is a fundamental law governing the restitution of agricultural property adopted by the Federal Assembly. The approved law responds to the situation that arose after this law began to be implemented in practice and certain other laws were adopted, such as the Law on the Transformation of Cooperatives, the Land Adjustment Act. The purpose of the adjustment is to accelerate the process of returning withdrawn agricultural assets, with a fundamental change in the solution of relations between natural persons when concluding purchase contracts for buildings and in connection with the forced donation of land belonging to buildings. This change consists in the possibility of applying in the manner laid down in the Land Return Act or, where appropriate, of paying the price for the land thus donated. In addition, the law shall provide, as a compulsory person, for compensation to beneficiaries where they are obliged, a municipality or a State or a Land Fund. The law unifies the process of settling permanent crops compensation for forest land, both when returning ownership and exploitation rights. The Act is intended to prevent the slow offsetting of the restitution rights of beneficiaries, which takes place mainly in the transformation of agricultural cooperatives under Act No. 42 / 1992 Coll. and in which the right of restitution rights of beneficiaries is undisputed."
Pursuant to Article 42 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court of the Czech Republic requested, as documentary evidence from the Chamber of Deputies, the relevant prints and records of the Chamber of Commerce Act No. 183 / 1993 Coll., as well as the Ministry of Justice, Act No. 229 / 1991 Coll. (Parliamentary Press No. 1047, Press FS No. 928, Press F No. 1106, Press F No. 1104, Press FS No. 393, Press No. 547, Press No. 547, Draft Committees No. 643, Press No. 108, Joint Report to the Ministry of Justice and the Ministry of Agriculture, Joint Report on the Procedure for the Registration of Contracts for the State, and on Transfers and on the Real Estate of Some Species, "issued on 15 May 1964 by the Ministry of Justice and the Ministry of Justice and the Ministry of Agriculture, No. 643, and the Ministry of the Ministry of Agriculture, and from the Ministry of the Ministry of the Ministry of the Ministry of the Czech Republic.
In the context of the provisions of § 8 (3) to (5) of Act No. 229 / 1991 Coll., as amended, the appellants object to its contradiction with Article 11 (4) of the Charter of Fundamental Rights and Freedoms. In the appellants' view, the provisions cited allow "the withdrawal of ownership of a natural person and the restriction of the exercise of property rights without compensation ', not only to those who" have acquired ownership rights on the basis of overriding advantages', but also to those who have acquired ownership rights in good faith.
In view of this objection, the Constitutional Court of the Czech Republic dealt with the question whether the provisions of § 8 (3) to (5) of Act No. 229 / 1991 Coll., as amended, govern the expropriation institute and are therefore subject to the conditions laid down in Article 11 (4) of the Charter of Fundamental Rights and Freedoms.
The Constitution and the legislation do not explicitly define the concept of expropriation. Therefore, its content can be defined, on the one hand, inductively on the basis of the positive legislation of the expropriation institute in various laws and, on the other hand, on the other hand, on the basis of the definitions of legal science.
The issues of expropriation, in addition to Article 11 (4) of the Charter of Fundamental Rights and Freedoms, are particularly affected by the provisions of Section 128 (2) of the Civil Code, Section 25 of the Commercial Code, Sections 108 to 114 and Section 141 (4) of the Building Act, Section 25 of Act No. 40 / 1961 Coll. on State Defence, as amended. It can be concluded from all the provisions cited that the rule of law under the concept of expropriation means the compulsory withdrawal of property rights in the public interest, on the basis of the law and for compensation (it must be noted that the rule of law also knows another kind of forced withdrawal of property rights in the public interest and on the basis of the law, but not for compensation, by the institute of confiscation under the criminal law, the admissibility of which is provided for in Article 39 of the Charter of Fundamental Rights and Freedoms).
In theory, expropriation "is usually defined as interference with property rights, especially property rights, for the benefit of all-useful works which cancel or restrict rights and at the same time establish rights for others, usually for compensation... The goal of expropriation is to be set up for an entrepreneur of an all-useful work of law that would allow him to carry out the work... It is of fundamental importance to find God. Adm. 14.224 that the public interest is given if the work is carried out in order to meet the vital needs of a larger entity, state, territorial, social, etc." (J. Hoetzel, Expropriation. In: Dictionary of Czechoslovak public law. St. V., Brno 1948, p. 487, 493).
From the comparison of Paragraph 8 (3) to (5) of Act No. 229 / 1991 Coll., as amended, with positive legal induction, as well as with the doctrine, it can be concluded that this is not the case in the quoted expropriation clause, in particular for the following two reasons:
According to the preamble to the Act cited, it is intended to "mitigate the consequences of certain property injustices that occurred against owners of agricultural and forestry assets between 1948 and 1989." The legal institute that pursues that purpose in the law is the restitution institute, that is, the institution of the removal of illegality in the transfer of ownership or, where applicable, of unlawful interference in property law, by returning the case to the original legal relationship. This illegality is of two kinds.
The first type is the illegality that existed positively at the time of the transfer of ownership (e.g. the conclusion of a purchase contract in distress under noticeably unfavourable conditions). Act No. 229 / 1991 Coll., as amended, in these cases constitutes a lex specialis in relation to the Civil Code. It makes it possible to claim the invalidity of the transfer of ownership and subsequently to issue the case even if the time limit for the acquisition expires (in that example also after the limitation period for withdrawal).
The second is the illegality caused by the legal order in force between 1948 and 1989, allowing for the execution of property injustices and provided for by Act No. 229 / 1991 Coll., as amended. In these cases, it is again a special provision relating to the Civil Code determining other grounds of illegality in the application of a property action for the issue of a case, as well as the exclusion in such cases of the acquisition of the property right by retention.
The legal consequence of the fulfilment of the conditions contained in the provisions of § 8 (3) of Act No. 229 / 1991 Coll., as amended, is the possibility of the authorised person seeking the judicial annulment of the land transfer contract. The term "cancellation of a contract 'must be analogous to Article 457 of the Civil Code, stating that it is a declaratory decision of the court (the same position in the interpretation of the term" cancellation of a contract' is the case-law: R 26 / 75).
The difference between restitution and expropriation can generally be defined as follows:
(a) Restitution is the removal of unlawful property transfers or unlawful interference into property law by returning the case to the original legal relationship with the legal effects of ex tunc.
(b) Expropriation is a compulsory withdrawal of property rights in the public interest, by law and for compensation and with legal effects ex nunc.
(c) The reason for restitution is exclusively unlawful, whereas the reason for expropriation is the public interest, i.e. the concept of different. The question in this context is whether the elimination of illegality may be of public interest in the event of expropriation. By definition, expropriation leads to the following conclusion: Expropriated are "all rights holders which are not comparable to the rights to be expropriated and must therefore be revoked or restricted. It follows that all expropriates should have a direct claim against the expropriator for compensation." (J. Hoetzel, op. cit. p. 497). Rejection of the possibility of subjecting the elimination of illegality to the concept of public interest in expropriation can be achieved by the argument reductio ad absurdum. Therefore, it follows from the requirement of compensation, which is a definitive feature of the expropriation, that it cannot be the reason for the expropriation, since the provision of compensation to a expropriated person whose legal position is linked to the illegality would be absurd.
d) The legal effects of restitution arise ex tunc, the legal effects of expropriation ex nunc. Restitution is therefore not a forced withdrawal of ownership but an obligation to restore the original legal situation. However, the legal arrangements for restitution may, in constitutionally justified cases, exclude retroactive claims by persons entitled to request the issue of a case. It is precisely in the case of Act No. 229 / 1991 Coll., as amended. According to Article 28 of the Act cited, the person entitled to the issue of the case cannot claim against the debtor any claims relating to the issue of the case other than those referred to in that Act (§ 14 (3), § 15 (2) to (4)). In this context, it is necessary to examine whether this based inequality towards other reivinditions is in line with the Constitution of the Czech Republic. Because Article 3 The Constitution of the Czech Republic is a Charter of Fundamental Rights and Freedoms part of its constitutional order, and the binding decision of the Constitutional Court of the Czech and Slovak Federal Republic, which was issued on the basis of it, can be taken into account. In Decision No 11 / 1992 Reports of resolutions and findings of the Constitutional Court of the Czech and Slovak Federal Republic expressed its understanding of the principle of equality as follows: "It is for the State to decide, in order to ensure its functions, that it will give a certain group less benefits than others. But even here, they can't go any further.... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'In the present case, it is necessary to consider as a reason to limit the rights of the person entitled to the person liable, contained in the provision cited in Section 28, the purpose of the law, which consists in mitigating (and not eliminating) certain (and not all) injustices committed between 1948-1989.
e) The legal effects of restitution are also different from the legal effects of expropriation in terms of the contents of the register.
Therefore, by comparing the expropriation and restitution institutes, the appellants' objection must be rejected that the provisions of § 8 (3) to (5) of Act No. 229 / 1991 Coll., as amended, regulate expropriation and are contrary to Article 11 (4) of the Charter of Fundamental Rights and Freedoms.
When assessing the compliance of the provisions of § 8 paragraphs 3 to 5 of Act No. 229 / 1991 Coll., as amended, with the Constitution of the Czech Republic, constitutional laws and international treaties pursuant to Article 10 of the Constitution of the Czech Republic, it is necessary to refer to other aspects.
The law on property rehabilitation (restitution) is based on the idea that the State committed property injustices through its legal or factual measures and actions. These are both real estate and movable goods, which, during the relevant period, "switched" to the State or to "socialist sector organisations," which in fact constituted the economic whole of the State.
The mandatory persons are therefore:
1. the State or legal persons holding the case on the date on which the individual laws became effective (§ 4 (1) of Act No. 403 / 1990 Coll., as amended; Section 3 and 6 of Act No. 87 / 1991 Coll., as amended; § 4 and 6 of Act No. 229 / 1991 Coll., as amended),
2. natural persons only if they have acquired the case from a State (or other legal persons) which would otherwise have been obliged to issue the case under legal or morally irregular conditions: contrary to the legislation in force at the time, on the basis of an unlawful advantage or at a price lower than the price under the then applicable rules (§ 4 (2) of Act No. 403 / 1990 Coll., as amended; § 4 (2) of Act No. 87 / 1991 Coll., as amended; Article 8 (1) of Act No. 229 / 1991 Coll., as amended).
From this idea concept the contested provisions of § 8 (3) to (5) of Act No. 229 / 1991 Coll., as amended, deviate and establish restitution claims between individuals. It follows from the above that the provision cited is a special provision in the law and the terms contained therein are specific in relation to the general concepts of the law. It is mainly the term "authorised persons' under § 8 (3) and (5), which is specific in relation to the term" authorised persons' under § 4 of the Act. The rights and obligations of "authorised persons' under the law therefore apply to the general term" authorised persons' and not to the term "special persons'. The procedure for the exercise of the rights of" authorised persons' under § 8 (3) to (5) is adapted directly in the provision cited, the period for their application in Article II (1) of Act No 183 / 1993 Coll.
The extension of the concept of restitution laws by the legislature in the explanatory memorandum to draft law 183 / 1993 Coll. justifies: "The amendment also addresses the legal problem of the free transfer of land from one natural person to another in connection with the conclusion of a purchase contract to the building to which the land belonged. The natural persons who bought the building had in the purchase contract a donation clause for agricultural land. At present, the owners of these land claim their right to issue them, although they have acquired them on the basis of an unlawful advantage and without remuneration. That legal practice was carried out on the basis of the" Directive on the procedure for the registration of contracts for state notaries and the granting of consent to transfers and leases of certain types of real estate by district national committees', issued on 15.5.1964 by the Ministry of Justice and the Ministry of Agriculture, Forestry and Water Management (No 61 516 / 64-MZE). It is therefore fair to require that those who have received or paid for the land which others have given in distress and on the basis of coercion return the land to the original owner. When registering sales contracts for residential and economic buildings, the owners were put under pressure (under the penalty of non-registration of the purchase contract) to include the donation of land belonging to the buildings. It is therefore proposed that the court should decide that the current owner (a natural person) paid the land thus obtained free of charge, or that the part of the contract to which the land was given should be abolished. '
According to the preamble to the Act cited, it is intended to "mitigate the consequences of certain property injustices that occurred against owners of agricultural and forestry assets between 1948 and 1989." The nature of the period in question (described by the legislator in Act No. 480 / 1991 Coll. and in Act No. 198 / 1993 Coll.) could have caused property injustices not only between natural persons and the State but also between natural persons. The illegality leading to restitution (or replacing it) must therefore be interpreted exclusively in the light of the purpose of the law. In the case of § 8 (3) of Act No. 229 / 1991 Coll., as amended, that is:
- interpret the concept of distress in connection with political coercion linked to the period 1948 to 1989 (another interpretation would create inequality of legal consequences in relation to other, in distress closed legal acts and thus conflict with the constitutional principle of equality),
- the reason for the unlawful transfer of land in connection with the conclusion of a purchase contract for the building to which the land belonged, in fact, is that, when registering purchase contracts for residential buildings and economic buildings, the owners were under pressure (under the penalty of non-registration of the purchase contract) to include the donation of land belonging to the buildings, thus limiting their contractual freedom.
The additional provisions of the Soil Act (§ 8 (3) to (5) of Article I (11) of Act No. 183 / 1993 Coll.) refer to the "effective date of the Act '. Since this term is used in the provisions of the Soil Act, this cannot be understood as other than the date on which Act No. 229 / 1991 Coll., i.e. June 24, 1991 (this conclusion also applies mutatis mutandis to the passage of subjective period pursuant to § 13 (3) of Act No. 229 / 1991 Coll., as amended, i.e. Article I (21) of Act No. 183 / 1993 Coll.). This interpretation is also confirmed by the provision of Article II (1) of Act No. 183 / 1993 Coll., which sets a deadline for the application of the claims contained in Act No. 183 / 1993 Coll. (i.e. Article I of the Act cited). Any intention of the legislator to express by this expression that this is the day on which Act No. 183 / 1993 Coll., i.e. 1 July 1993, came into force does not change the legal consequences of the regulation because the wording actually used is decisive. For example, Article I (54) of Act 183 / 1993 Coll. The new Paragraph 33c (1) of the Soil Act states that the procedure for declaring and carrying out an auction is laid down by the Government by a regulation which it issues" within 30 days of the effective date of that Act', which is likely to mean the period calculated from 1 July 1993.
It follows that the legislator, contrary to the principles of legislative technology, and at the same time contrary to the principles of clarity and certainty of the law, which form part of the principle of legal certainty and hence the principle of the rule of law (Article 1 of the Constitution of the Czech Republic), adjusted in two different ways the beginning of the passage of time-limits following the legal facts based on the effectiveness of Act No. 183 / 1993 Coll. He did so, on the one hand, in amending provisions and, on the other, in non-implementing provisions forming part of Act No. 183 / 1993 Coll. Only the second procedure can be considered correct. The amendments become part of the amended law. For this reason, it is necessary to interpret the term "this law" in the word links "on the date of the effectiveness of this law" in the meaning of the amended law and not the amendment ("this law" is Act No. 229 / 1991 Coll., as amended, and not Act No. 183 / 1993 Coll.). In the present case, the interpretation therefore leads to the conclusion that the provisions in question are retroactive.
The question is whether the retroactivity of the provisions of § 8 paragraphs 3 to 5 of Act No. 229 / 1991 Coll., as amended, is unconstitutional or not.
In the constitutional order of the Czech Republic, the explicit prohibition of retroactivity in the field of substantive criminal law is enshrined in Article 40 (6) of the Charter of Fundamental Rights and Freedoms; the general prohibition of retroactivity can be derived from Article 1 of the Constitution of the Czech Republic, according to which the Czech Republic is a legal State. The definition of the rule of law also includes the principle of legal certainty and the protection of citizens' trust in law, including the prohibition of retroactivity of legal standards. Similarly, on the Margo principle of retroactivity, the Constitutional Court of the Czech and Slovak Federal Republic stated in the case sp. zn. Pl. ÚS 78 / 92: "Principles of the rule of law, legal certainty, which can be derived from the requirement of a democratic organisation of the state, requires any constitutional case of retroactivity to berth express verbis in the Constitution, virtually the law, and to resolve the related cases in such a way that the rights acquired are properly protected." (Constitutional Court of CSFR, Reports of Resolutions and Finances, 1992, No. 15). In the case of the provisions of § 8 paragraphs 3 to 5 of Act No. 229 / 1991 Coll., as amended, retroactive (i.e. from 1 July 1993, the date of entry into force of Act No. 183 / 1993 Coll., on the date of entry into force of Act No. 229 / 1991 Coll., 24 June 1991), all transfers of land to which the provisions cited apply are invalid. This affects the acquired rights of legal entities which no longer stand in the causal relationship to illegality, expressed in the purpose of Act No. 229 / 1991 Coll., as amended. The retroactivity of the provisions cited is therefore a violation of acquired rights, exceeding the purpose of Act No. 229 / 1991 Coll., as amended, and thus a breach of the principle of the protection of citizens' trust in law and, consequently, the provisions cited must be regarded as contradictory to Article 1 of the Constitution of the Czech Republic. That conclusion is also based on Paragraph 8 (5), which excludes the direction of the restitution rights vis-à-vis third parties and provides for the compulsory body to pay "the price at which the land was transferred to a third party."
By deleting the provision contained in § 8 (3) of Act No. 229 / 1991 Coll., as amended, and expressed in the words "on the date of the effective date of the Act ', any doubts regarding possible retroactivity are excluded. The period for the exercise of the entitlement of the beneficiary is determined by the provisions of Article II of Act No. 183 / 1993 Coll., the condition of the existence of a right established by the provision of § 8 (3) of Act No. 229 / 1991 Coll., as amended, is whether the land in question is, at the time of application of the claim (as defined in Article II of the Act No. 183 / 1993 Coll.), owned by the person to whom it was donated or transferred free of charge, or owned by a person close to that person.
Paragraph 8 (4) of the contested law excludes from the scope of the cases referred to in paragraph 3 a donation in distress or a free transfer in connection with the conclusion of a purchase contract for a building to close persons. The legislature therefore puts one group of legal entities at a disadvantage, and neither the provision in question nor the general provisions of the law on such inequality can be relied upon for any reason. As a result of that finding, the provision in question must be classified as contradictory with the constitutional principle of equality as set out in Article 11 (1) of the Charter of Fundamental Rights and Freedoms.
In addition to the specific constitutional analysis already mentioned, § 8 (5) of Act No. 229 / 1991 Coll., as amended, requires provision.
By deleting Article 8 (5) of the Act cited as a condition for the entry of a public-law penalty "the payment of the price at which the land was transferred to a third party ', the legislator" omitted any distress when the land was donated to a third party,' the claim resulting from the provision cited may be exercised by any owner of the land which "has given his land to a natural person 'and only" if the land is... owned by a person other than the person referred to in paragraph 3', the person referred to in paragraph 3 being the person who has been given the land in distress. Therefore, such a person may also be the person who has been properly given the land. Therefore, the provision constitutes a public-law penalty for a perfect legal act without any explanation of the reason for such a procedure. This results in a retroactive penalty for legally lawful conduct. This is again contrary to the principles of protecting citizens' trust in law, the prohibition of retroactivity, and thus contrary to Article 1 of the Constitution of the Czech Republic. That argument is justified by the conclusion that part of the provision of § 8 (5) of Act No. 229 / 1991 Coll., as amended, is repealed.
In the context of the provision of § 11 (7) of Act No. 229 / 1991 Coll., as amended, the appellants object to its contradiction with Article 11 (1) of the Charter of Fundamental Rights: "The dispute consists in favouring the owner of the land compared to the owner of the building on the land by allowing the law to issue the land and with the construction. The owner of the land therefore enjoys more legal protection than the owner of the building. 'In support of their position, the appellants cite the reasoning for the decision of the Supreme Court in Prague in Case No 3 Cdo 45 / 92:" Equal protection of all forms of ownership... does not allow the case to be considered as if the claimant, as owner of the land, had more rights and as if the defendant's cooperative, as owner of the buildings standing on these lands, had to submit to the ruling ownership of the land. The former principle' supercompetence solo cedit 'is not part of our legal order since the effectiveness of the so-called middle civil code (Act No. 141 / 1950 Coll.), moreover, the regime is now explicitly expressed in the provision of § 120 (2) of the Civil Code.'
In assessing the appellants' argument, it must be pointed out once again the content of the concept of expropriation, as already explained in the recital in paragraph II / a. By comparing the provision in question with that interpretation, defining the concept of expropriation, it must therefore be concluded that the provisions of § 11 (7) of Act No. 229 / 1991 Coll., as amended, encompass the expropriation institute in accordance with the conditions laid down in Article 11 (4) of the Charter of Fundamental Rights and Freedoms. The public interest pursued by the provision is one of the purposes enshrined in the preamble to Act No. 229 / 1991 Coll., as amended, "to adjust property relations to land in accordance with the interests of rural development '. The design contained in the provision of § 11 (7) of Act No. 229 / 1991 Coll., as amended, allows the purpose of the Act to be achieved by forced withdrawal of ownership by law and for compensation. This structure should therefore be classified as expropriation and therefore considered to comply with the conditions laid down in Article 11 (4) of the Charter of Fundamental Rights and Freedoms.
The argument of the Supreme Court in Prague in the case sp. zn. 3 Cdo 45 / 92 applies to the application of the provisions of § 126 and § 135c (1) of the Civil Code and is therefore based on a different normative basis: it concerns the Institute of restitution. As already noted, Paragraph 11 (7) of Act No. 229 / 1991 Coll., as amended, had to be regarded not as a provision of restitution but as a provision establishing the conditions for expropriation. It follows that the appellant of the decision of the Supreme Court in Prague cannot be relied upon by § 11 (7) of Act No. 229 / 1991 Coll., as amended.
From the point of view of the difference between the market price of the construction and the price of the construction according to the regulation, contained in explanatory note No 13a) (Decree No 182 / 1988 Coll., on the prices of buildings, land, permanent crops, remuneration for the establishment of the right of personal use of land and compensation for temporary use of land, as amended by Decree No 316 / 1990 Coll.), it must be noted that the explanatory note is not part of the legislation and therefore cannot constitute legal inequality as a consequence. For these reasons, the Constitutional Court of the Czech Republic did not find any contradiction with the Constitution of the Czech Republic.
For the provisions of Sections 15 (1) and (4) and 24 of Act No. 229 / 1991 Coll., as amended, the appellants object to their contradiction with Article 11 (4) of the Charter of Fundamental Rights: "This applies to melioration facilities located under the surface of the land which are transferred to the ownership of the beneficiary without compensation (Section 15 (1) of the Act) and to the obligation of the debtor to reforestation the land at his expense under the conditions set out in Section 15 (4). The same applies to permanent buildings and mellioration facilities which are transferred to the property owner according to the new version of § 24 of the Act. '
The explanatory memorandum on the draft Act No. 183 / 1993 Coll. on the provision of Paragraph 15 (1) states: "When returning agricultural parcels, compulsory organisations often require beneficiaries to pay compensation for the valuation of the land by the mellioration construction, e.g. by building drains. The beneficiaries then argue that the removal of groundwater has changed the original biosystem so much that it is more of a devaluation. Not even soil experts have a clear opinion. The new legislation is based on the fact that, if implemented, soil care, including meliorations, has been carried out as a care for the proper economy and that, therefore, it is not an assessment if the meliorative buildings, such as irrigation systems, are not located above the soil level, but are located above the normal soil care level, albeit financially expensive. '
The appellants reiterate their argument against the provision cited with the constitutional conditions of expropriation. In the light of the arguments already put forward in point II / a, such a contradiction would be considered only in the case where the "melioration plant located below the surface of the land 'would not be considered as part of the case (s) but as a separate case.
Such an interpretation could be relied on by Decree No. 34 / 1960 Coll., on the obligations of owners (users) of melliorated land in the operation and maintenance of the irrigation grid and drainage, drainage and small waste networks of melliorative buildings of deleted water cooperatives and on the operation and maintenance of these parts of the mellioration structures. According to Article 2 (1) (a) of the Decree cited, part of the melioration building is also understood as "a continuous network of tubular and mole drainage '. According to the provisions of § 38 (1) (e) of the Water Act (No 138 / 1973 Coll.), water works are buildings intended for the drainage of land. According to Paragraph 1 (1) (a) of Decree No 85 / 1976 Coll., on more detailed adaptation of the zoning and construction rules, the underground line is also considered to be a construction.
When dealing with the question, it is first of all necessary to answer whether the concepts of the construction and the immovable property are equivalent and therefore the melioratory structure is a separate immovable property which is not part of the property.
According to Section 119 (2) of the Civil Code, "real estate is a solid foundation '. From the above it can be concluded that not every building is a real estate, but only one which is linked to the ground with a solid foundation." Melioration plant located below the surface of the land' should therefore be considered as a building which is not linked to the ground with a fixed base and is therefore not a real estate.
Paragraph 119 of the Civil Code "states that all... things which cannot be classified under the concept of real estate are of the nature of a movable matter" (J. Bičovský, M. Holub, Civil Code. Praha 1991, p. 91). "Melioration equipment located below the surface of the plot 'would therefore be a movable item if it could not be defined as a real estate item or part of a real estate item (plot).
Under Paragraph 120 (1) of the Civil Code, "all that belongs and cannot be separated according to its nature is part of the case '. The caselaw cited in the analysed context interprets the following:" The legal precondition of the component of the case is its indivisibility without the simultaneous degradation of the case; it is indecisive whether the component is degraded in the separation. However, the abuse of a case cannot be understood only in a narrow sense, i.e. as destruction or at least material damage to the main cause in the separation of the component; the separation of the part of the land as the main object is not generally physically damaged (not impaired) but its price is reduced; Therefore, depreciation can also be understood in terms of depreciation and, as a rule, the price of the case. Derogation can also mean that the matter will perform its function at a lower level (functional impairment), and finally, it is possible to consider an impairment in terms of the appearance of the matter (so-called aesthetic impairment).... part of the land within the meaning of the provisions of § 120 of the Civil Code are also outdoor modifications (supporting walls, tiles and frames, water and sewage connections, flower pools, outdoor presented steps, fences of height less than 100 cm and more). "(R 4 / 1992). The decision was given at a time when there was no doubt that the principle of supercompetence solo cedit in civil law was not valid (see, for example, the reasoning for the decision of the Supreme Court in Prague in Case No 3 Cdo 45 / 92:" The former principle of' supercompetence solo cedit 'is no longer part of our legal order since the effectiveness of the so-called Central Civil Code (Act No 141 / 1950 Coll.), moreover, the regime is now explicitly expressed in the provision of § 120 (2) of the Civil Code. "
The essential defining features of the component of the case are its functional and physical connection to the main and impossibility of its separation without devaluation. "Melioration equipment located below the surface of the plot 'meets the following characteristics: it is functionally and physically connected with the plot and is subject to the impossibility of separation without damaging the plot and therefore must be understood in the meaning of the component of the item - the plot.
It follows from the above that the provision of Paragraph 120 (2) of the Civil Code, according to which "construction is not part of the land ', must therefore be interpreted in the light of paragraph 1, so that the construction is not part of the land if it is a building which is a real estate, or if it is a building which is not a movable object and which is not functionally or physically linked to the land and which can be separated from it without degrading the land. Melioration facilities located below the surface of the land are therefore not a construction within the meaning of § 120 (2) of the Civil Code, but a part of the land under § 120 (1) of the Civil Code.
For this conclusion, the legal argument can also be made: the meaning of the principle that the ownership of the building does not automatically follow the ownership of the land is mainly related to the real estate structures. These constitute a legally separate matter for the transfer of ownership which is required to fulfil specific conditions (written form, deposit in the register). The buildings that are movable must be distinguished in terms of their purpose, i.e. whether they meet the characteristics of accessories or parts of the plot. The component of a thing, unlike accessories, is a functionally and physically integral part of a thing that cannot be separated from this without devaluation. Such an integral part of the plot may also be a building which is a movable item, the separation of which would degrade the plot (e.g. melioration equipment, supporting walls, etc.).
Acceptance of an objection concerning compensation for an integrated installation and, where appropriate, the issue of unjustified enrichment (pursuant to § 451 et seq. of the Civil Code) would result in legal disputes over the nature of the melliorative installations in terms of land evaluation or degradation. At the same time, the determination of an obligation on the beneficiary to provide compensation for an integrated installation would give him the right to require the obliged entity to bring the land back to normal. Both possible consequences would undermine the purpose of the law: "to mitigate the consequences of certain property injustices that have occurred against owners of agricultural and forestry assets between 1948 and 1989, to achieve an improvement in the care of agricultural and forestry land by restoring original property relations to land and to adjust ownership relations to land in accordance with the interests of rural economic development as well as in accordance with the requirements for landscape and environmental creation '.
In Decision No 11 / 1992, already cited, the Constitutional Court of the Czech and Slovak Federal Republic has expressed its understanding of the principle of equality: "It is up to the State to decide, in order to ensure its functions, that a group will provide less benefits than others. However, it must not proceed freely here either.... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'In the present case, this" public value' is expressed by the purpose of Act No. 229 / 1991 Coll., as amended, enshrined in its preamble.
In Article 15 (4) of Act No. 229 / 1991 Coll., as amended, the purpose of the restitution law is fully respected by the fact that the law allows the beneficiary to receive the land together with what was his or her connection at the time of its withdrawal, or to settle the property (by analogy, the claim of the injured party and Article 442 (2) of the Civil Code).
The above arguments apply mutatis mutandis to § 24 of Act No. 229 / 1991 Coll., as amended.
The comparison between Article 15 (1) and Article 24 (1) of the contested law shows the inequality in the definition of the melioration plant, which is the subject of the legislation in the provisions cited. According to Article 15 (1), the issue of the land is also the subject of a melioration facility located below the surface of the land, with the exception of the main melioration facilities, pursuant to Article 24 (1), the issue of all melioration facilities located below the surface of the ground (hence including the main).
For the said inequality relating to the same right to issue land, neither the general nor the special provisions of the law give rise to any reason. It is therefore necessary to establish a contradiction between this regulation and the constitutional principle of equality expressed in Article 11 (1) of the Charter of Fundamental Rights and Freedoms.
When assessing the compliance or conflict of law or its provisions with the Constitution of the Czech Republic and constitutional laws, the Constitutional Court of the Czech Republic is bound only by a petition, but not by its justification. Paragraph 68 (2) of Law No 182 / 1993 Coll. imposes an obligation on the court before the contested provision to examine other matters relevant to the assessment of its constitutionality.
By virtue of Article 24 (1) of Act No. 229 / 1991 Coll., as amended, including Act No. 183 / 1993 Coll., there was a significant change in the original legislation contained in the amended Act No. 229 / 1991 Coll. The original provision of the Act was bound by the transfer of the property right to permanent crops with the date of the termination of the use of land relations under the previous rules. On the other hand, the amended provision changed ownership ratios to permanent crops in the sense that land returned to the original owners, where the lease was set up with the current user, transfers ownership to permanent crops only at the moment of termination of the lease (as well as the melioration equipment under the surface of the land and buildings related to permanent crops). The legislature hereby, contrary to the conditions laid down in Article 11 (4) of the Charter of Fundamental Rights and Freedoms, compulsorily withdrawn the right of ownership of permanent crops from persons already established by the original version of § 24 (1) of Act No. 229 / 1991 Coll. Those reasons lead to the conclusion that the provisions of § 24 paragraph 1 of Act No. 229 / 1991 Coll., as amended, are repealed.
By repealing that provision, ownership rights to permanent crops are also governed by § 22 of Act No. 229 / 1991 Coll., as amended, by Paragraph 2 (2) of the Act cited. The moment of the transfer of ownership to the mellioration plant is given by the provisions of § 22 (1) (c) of Act No. 229 / 1991 Coll., as amended, in the case of the owners of the land for which the property rights in accordance with § 22 (1) (1) (c) of the Act cited, i.e. the date of its entry into force. the scope of the mellioration facilities to be considered as part of the land is defined in § 15 (1) of Act No. 229 / 1991 Coll., as amended.
The ownership conditions for permanent crops created during the lease are governed by the provisions of the Civil Code.
Pursuant to the third sentence of Article 20 (2) of Act No. 229 / 1991 Coll., as amended, if it is not possible to identify a legal person who, (i.e. a live and dead inventory and stocks that the original owner has brought into the agricultural cooperative or has been withdrawn or otherwise transferred free of charge) has taken over or his legal successor or, if the legal person has ceased to exist, provides compensation for those matters by a legal person who used the land of the beneficiary on 24 June 1991.
In the present case, the injunction is removed by imposing an obligation on a legal person to compensate for the damage, which it did not itself cause and is neither the legal successor of the legal person that caused it.
Articles 1, 3 (1), 11 (1) of the Charter of Fundamental Rights and Freedoms establish the constitutional principle of equality. Pursuant to Article 4 (1) of the Charter of Fundamental Rights and Freedoms, obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms. It follows from the above that the obligation established by the third sentence of § 20 (2) of Act No. 229 / 1991 Coll., as amended, must also retain the fundamental rights arising from the constitutional principle of equality in relation to entities under § 18a (1) of the Act cited. As has already been stated, "if the law determines the benefit of one group and thus imposes disproportionate obligations on another, it can only happen following an appeal to public values' (Decision No 11 / 1992 Reports of resolutions and findings of the Constitutional Court of CSFR). In the case of Paragraph 20 (2) of the third Act No. 229 / 1991 Coll., as amended, the legislator did not make such an appeal to public values in relation to the entities mentioned in the provision cited and such an appeal cannot be inferred from other provisions of the law, in particular from the preamble, on the ground that the statutory obligation in the case in question does not refer to the bodies involved in the application of the law.
Therefore, the Constitutional Court of the Czech Republic decided as stated in the operative part in relation to Article 20 (2) of Act No. 229 / 1991 Coll., as amended.
In the context of the provisions of Section 33a of Act No. 229 / 1991 Coll., as amended, the appellants object to its contradiction with Article 11 (1) of the Charter of Fundamental Rights: "Its content gives a very rough advantage to a group of beneficiaries (those who join to enforce their claims) over other beneficiaries. '
It can be concluded from the appellants' argument that they object to the inequality of a group of beneficiaries which have been brought together pursuant to Section 33a (3) of Act No. 229 / 1991 Coll., as amended, in relation to the other beneficiaries and to the beneficiaries under Act No. 42 / 1992 Coll., on the treatment of property relations and the settlement of property rights in cooperatives, as amended.
If the appellants contend that "there is no respect whatsoever for the fact that, by approving the transformation project, the assets of the cooperative were divided into the shares of the beneficiaries', it must be pointed out that the provisions of § 7 (1) and (2) of Act No. 42 / 1992 Coll., as amended, according to which the net assets of the cooperative are not included in the assets to which the claim was made under Act No. 229 / 1991 Coll., as well as the asset contribution which, pursuant to § 16 (b) of the Act No. 42 / 1992 Coll., as amended, means the movable and immovable property acquired by a member. The amount to be used to satisfy other restitution claims after the effectiveness of Act No. 42 / 1992 Coll. Pursuant to Article 7 (4) of Act No. 42 / 1992 Coll., as amended, the ownership of the beneficiary in the transformed cooperative constitutes the sum of the basic share and the additional share of the cooperative's assets. The basic share also consists of the above-mentioned equity contribution (§ 7 (3) of the Act cited).
It follows that the beneficiaries under Act No. 42 / 1992 Coll., as amended, cannot be regarded as disadvantaged in relation to the beneficiaries under Act No. 229 / 1991 Coll., as amended. Both groups of beneficiaries shall be entitled to return the property. The decision on the advantage of the procedure under Act No. 229 / 1991 Coll., as amended, or under Act No. 42 / 1992 Coll., as amended, the legislator entrusts the legal entity (if it is an authorised entity under both laws cited). The diversity of legal consequences is determined by the purpose of both laws. This difference cannot be regarded as a breach of Article 11 (1) of the Charter of Fundamental Rights and Freedoms, since the legislator provides the person entitled under the two laws cited with the option of choice, i.e. a personal assessment of the advantages of one of the two possible legal adjustments.
Nor can the creditors' association under § 33a (3) of Act No. 229 / 1991 Coll., as amended, be regarded as an advantage in relation to other creditors. On the one hand, the content and scope of the claims thus combined correspond to the sum of the claims of individual creditors, and on the other hand, the possibility of grouping claims allows the creditors' rights to be met by issuing a higher value which could not be met by the claim of one creditor.
In the statement of reasons for their proposal, the appellants contend that the provisions of § 8 (3) to (5), § 11 (7), § 15 (1) and (4), § 20 (2), § 24 and 33a of Act No. 229 / 1991 Coll., as amended, are incompatible with the provisions of the Act, "since the cancellation of the only provisions cited by the Act would not have fulfilled its purpose because of the various internal links in the Act ', the appellants ask in the petition the annulment of the entire Act No. 183 / 1993 Coll.
In view of the fact that the appellants did not demonstrate the "internal link ', as well as the fact that the Constitutional Court of the Czech Republic found that only part of the provisions of § 8 (3), the provisions of § 8 (4), the part of the provision of § 8 (5), the part of the provision of § 20 (2) and the provision of § 24 (1) of Act No. 229 / 1991 Coll., as amended, was rejected in the remainder.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court of the Czech Republic found No. 131 / 1994 Coll., on the application for annulment of Act No. 183 / 1993 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.06.1994 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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