The Constitutional Court found No 135 / 2018 Coll.
The Constitutional Court found of 19 June 2018 sp. zn.
Valid
135
FIND
The Constitutional Court
On behalf of the Republic
On 19 June 2018, the Constitutional Court decided under sp. zn. In Act No. 185 / 2016 Coll., amending Act No. 503 / 2012 Coll., on the State Land Office and amending certain related laws, as amended, and other related laws, with the participation of the Chamber of Deputies and Senate of the Parliament of the Czech Republic as parties to the proceedings and the Government as intervener,
as follows:
I. Article IV (1) to (7), (9), (10), (14), (15), (18), (20) and (21) and Article V of Act No. 185 / 2016 Coll., amending Act No. 503 / 2012 Coll., on the State Land Office and amending certain related laws, as amended, and other related laws shall be repealed with effect from 30 June 2018.
II. The remainder is rejected.
Reasons
Subject matter
1. On 16 November 2017, the Constitutional Court received a motion from a group of 18 Senators (hereinafter referred to as "the applicant '), under which Senator PhDr. Tomáš Grulich was acting, to abolish the above-specified provisions of Act No. 185 / 2016 Coll., amending Act No. 503 / 2012 Coll., on the State Land Office and on the amendment of certain related laws, as amended, and other related laws (hereinafter referred to as" the Amendment').
2. The amendment in part 2 repeals certain provisions of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended, (hereinafter referred to as the "Soil Act '), which allow the restitution of the beneficiaries under the Land Act to be met by the transfer of another land owned by the State and, to that end, regulate the procedure of the State Land Office (hereinafter referred to as" SPU'). The repeal of those provisions, which is to take place with effect from 1 July 2018, should result in the restitution rights of the beneficiaries being met exclusively by means of cash compensation if the original land is not issued. In the event that the beneficiary does not apply for a cash refund pursuant to Article 16 (1) of the Soil Act within 10 years of the date of entry into force of this amendment to the Act, the entitlement to such a refund shall cease on the first day following the expiry of that period, i.e. on 2 July 2028.
3. This change thus means, in future, a reduction in the restitution entitlement of the beneficiaries in the sense that its replacement satisfaction will no longer be possible by means of the transfer of other land but solely by means of a financial compensation (so-called second restitution period); The appellant considers the contested legislation to be constitutionally inconsistent for the reasons set out below, as it is contrary to Articles 1, 3, 4 (3) and 11 (1) and (4) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Articles 1 (1) and 2 (3) of the Constitution of the Czech Republic (" the Constitution').
Text of the contested provisions and related legislation
4. Act No. 185 / 2016 Coll. in Articles IV and V amends the relevant provisions of the Soil Act with effect from 1 July 2018, with the exception of Article IV (12), which came into force on 1 August 2016. The following is the content of the parts of the following articles which the appellant proposes to abolish:
Amendment of the Act on the treatment of property relations with land and other agricultural assets
Act No. 229 / 1991 Coll., on the modification of property relations to land and other agricultural property, as amended by Act No. 42 / 1992 Coll., Act No. 93 / 1992 Coll., Act No. 39 / 1993 Coll., Act No. 183 / 1993 Coll., Act No. 254 Coll., Act No. 75 / 2012 Coll., Act No. 131 / 1994 Coll., Act No. 139 / 2002 Coll., Act No. 320 / 2002 Coll., Act No. 131 / 2006 Coll., Act No. 354 / 2004 Coll., Act No. 30 / 1996 Coll., Act No. 272 / 2005 Coll., Act No. 320 / 2002 Coll., Act No. 253 / 2003 Coll., Act No. 354 / 2004 Coll.
1. Paragraph 11 (2), including footnote 10a, is deleted. Paragraphs 3, 4, 6 and 7 shall be renumbered paragraphs 2 to 5.
2. In Paragraph 11 (2), the words, the transfer of another State-owned land 'are replaced by the words, "cash compensation'.
3. In Paragraph 11 (2), the second sentence is deleted.
4. Article 11a shall be deleted, including the title and footnote 13c, including the footnote reference.
5. In Article 12, the words, the transfer of land pursuant to Article 11 (2) or Article 11a or, where applicable, to financial 'shall be replaced by' cash '.
6. In Paragraph 13, paragraphs 6 to 8 are deleted.
7. In the second sentence of Paragraph 14a, the words, the compensation to be granted under Paragraph 18a (2) 'shall be replaced by the words, "the cash compensation'.
(...)
9. Paragraph 15 (7) is deleted. Paragraphs 8 and 9 shall be renumbered paragraphs 7 and 8.
10.Paragraph 16 (1) reads as follows:
, (1) For land which is not issued under this Act and for which no other land has been granted, a cash refund equal to the price of the land withdrawn shall be that determined in accordance with § 28a, unless otherwise provided for in that Act (§ 14 (9)). Reimbursement shall be provided by the Land Office within three years of receipt of the written invitation.
(a) to the beneficiary, his heir, the relative in a direct line, to the spouse, partner or siblings, in that order; or
(b) a person to whom the right of reimbursement has been transferred in a manner other than that referred to in point (a), provided that he has made a request for reimbursement within 30 months of the date of the legal authority of the decision referred to in Article 9 (4) which has not been restored to property ownership. ';
(...)
12. in Article 17 (2), the second sentence is deleted;
(...)
14. in Article 17 (3), point (b) is deleted; Points (c) to (e) shall be renumbered (b) to (d).
15. in Article 17 (3) (d), the words, and may not be used as replacement parcels' shall be deleted;
(...)
18. in Paragraph 18a (1), the word 'gives' shall be inserted, the money 'and the word' the person 'shall be inserted.
(...)
20. Paragraph 18a (2) is deleted and paragraph 1 is deleted.
21. in the third sentence of Paragraph 20 (2), the words referred to in Article 18a (2) 'shall be replaced by the words, in cash form';
(...)
Transitional provisions
1. Transfers of land on the basis of applications submitted prior to the date of entry into force of this Act pursuant to Article 11a (11) of Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act, and transfers of public offers made pursuant to § 11a of Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act, shall be completed in accordance with Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act, provided that the conditions laid down by Act No. 229 / 1991 Coll., as effective before the date of entry into force of that Act, have been fulfilled at the date of entry into force of this Act.
2. If the beneficiary does not apply for a cash refund pursuant to Article 16 (1) of Act No. 229 / 1991 Coll. within 10 years of the date of entry into force of this Act, the right to such a cash refund shall cease on the first day following the expiry of that period. If the decision not to issue land to eligible persons pursuant to Article 9 (4) of Act No. 229 / 1991 Coll., as effective from the date of entry into force of this Act, takes place after the date of entry into force of this Act, the period of 10 years for the exercise of the right to cash compensation shall begin to run from the date of entry into force of this Decision.
3. Transfers of immovable property on the basis of applications submitted before the date of entry into force of this Act pursuant to Article 17 (3) (a) of Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act, shall be completed in accordance with Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act, provided that the conditions laid down by Act No. 229 / 1991 Coll., as effective before the date of entry into force of this Act have been fulfilled. '
5. Paragraph 11 (2) of the Soil Act, which is to be repealed pursuant to Article IV (1) of Act No. 185 / 2016 Coll., provides for the possibility of transferring other forest land of adequate size and quality, at prices on 24 June 1991 and under the conditions laid down in a separate legislation, to authorised persons where it was not possible to issue their original land. Following this amendment, Article IV (2) to (7), (9), (10), (14), (15), (18), (20) and (21) of Act No 185 / 2016 Coll. repeals, or amends, where appropriate, the various provisions of the Land Act which foresee the possibility of transferring another parcel, including the provisions of Paragraph 11a, which regulates the procedure for transferring another agricultural parcel in the form of public offers. This Regulation shall be binding in its entirety and directly applicable in all Member States. In Act No. 185 / 2016 Coll. Article IV (12) of Law No 185 / 2016 Coll. abolishes the second sentence of Paragraph 17 (2) of the Land Act, according to which "until the privatisation project has been approved or in accordance with it, the Land Fund may make use of the real estate to other persons'.
Arguments of the appellant
6. The appellant first states, with reference to the content of the relevant explanatory memorandum, that the SPO still recorded outstanding restitution claims of more than 56,000 beneficiaries under the Land Act, amounting to CZK 558 040 618,44, and this non-compliance continues to exist, and in almost 100 cases the State Land Authority has not yet been able to decide on the restitution entitlement to the issue of the original land under Section 9 of the Land Act, in other words, even after 25 years of the State through its institutions to decide on the restitution claims of these persons.
7. The appellant recalls that the democratic Czechoslovak State undertook to provide its addressees with adequate compensation by adopting the Soil Act in 1991. After twenty-five years, when, in thousands of cases, even the third generation of beneficiaries is still hoping to receive land compensation which the State has not yet been able to provide them, the Senate's bill (despite the negative opinion of the Senate's constitutional legal committee on the draft law) is based on an amendment to the Land Act which abolishes the natural restitution on a arbitrary date. According to the press release by the SPO, by 1 July 2018 the State will not satisfy 80% of the remaining entitlements of beneficiaries, since it will not offer sufficient land to beneficiaries until then. According to the appellant, it is because of the administration of the state, not the existing legislation, that the State has been unable for more than a quarter of a century to deal with the claims of beneficiaries, which is completely contrary to the rule of law by removing the possibility of natural restitution, which is legitimately expected by the beneficiaries under the Land Act.
8. According to the appellant, instead of adopting the contested amendment to the Land Act, the State was to improve and streamline the supply of land for beneficiaries by a better management of the SPO, which is currently (instead of dealing with restitution claims) mainly devoted to the issue of land modifications, so that beneficiaries are neglected under the Land Act, it declares public offers under the Land Act only occasionally; moreover, the quality of the land offered is not adequate to the claims applied and, after five years of existence, the SPO's system of such offers did not improve, rather the contrary. The appellant claims, inter alia, that it normally appreciates the withdrawn land as agricultural land without taking into account whether it was intended for construction, which is evidenced by, for example, the content of the resolution of the Supreme Court of 9 October 2013 sp. zn. 28 Cdo. In this context, the appellant also points out that the SPO, even if it is found to have been erroneous in the valuation of the restitution claim by a final decision of the Court of First Instance (since it valued the land withdrawn as agricultural land without taking into account its construction character), does not respect that decision and continues to insist on the valuation of the land withdrawn in several lower values corresponding to agricultural land. The legal persons are thus obliged to refer again to the courts and to seek once-completed "revaluation 'of their restitution claim (described by the idle and arbitrary procedure of the SPO, the appellant demonstrates on the case of the Chvoy family, as is apparent from the reasoning of the resolution of the Supreme Court of 21 June 2016 sp. zn. 28 Cdo. 155 / 2016, or from the resolution of 24 April 2017 sp. zn. 28 Cdo 5249 / 2016). Thus, according to the appellant, the SPO does not respect the decision-making practice of higher courts, which is also reflected in the fact that it still records hundreds and perhaps thousands of restitution claims at several undervalued levels. In the explanatory memorandum, the reported amount of remaining unsatisfied restitution claims is thus in fact likely significantly higher.
9. In addition, the appellant submits that, in the course of legal proceedings with beneficiaries, in order to prevent beneficiaries from acquiring the State's land, it resorts to a variety of obstructive practices, causing delays, for example by the early absence of evidence, by obstructing ordered court proceedings by requests to postpone last-minute proceedings, by submitting comprehensive written observations and various evidence on the day before the trial or even at the hearing itself, possibly by repeated objections to the local jurisdiction of the courts - despite clearly determined local jurisdiction under § 88 (1). (b) the Code of Civil Procedure - or by making proposals for a delegation of proceedings to other courts without a reasonable reason (this claim is evidenced by the appellant, inter alia, by a resolution of the Supreme Court of 30 August 2017, sp. zn. 28 Nd 280 / 2017). In addition, according to the appellant, the State property office in the legal proceedings in the actions of the beneficiaries after the action transfers the defendant's land to third parties outside the public tender without awaiting a final court decision (this practice, according to the appellant, illustrates the case of Mrs Anna Bek), even in contravention of its own methodology for the exchange of land, according to which the transfer explicitly excludes the land "which is the subject of an outstanding court '.
10. Consequently, the appellant is of the opinion that the SPO, in the long term, favours third parties to transfers of state property over beneficiaries and should primarily serve to satisfy beneficiaries under the Land Act, transferring them, for example, to municipalities (even free of charge) or to commercial (non-agricultural) entities. According to the appellant, the existence of this unlawful practice has been repeatedly indicated in numerous judicial decisions (e.g. decisions of the Supreme Court sp. cdo 1807 / 2013, sp.31 Cdo 3767 / 2009 and sp.28 Cdo 170 / 2008). In this context, the appellant also draws attention to cases where the SPO, as a result of its own errors, loses 24 hectares of national agricultural land (the SPO subsequently did not appeal against the contumeration judgment and the transfer was not subject to the transfer, although the Government did not agree to the transfer by the Administration of the Šumava National Park and the municipality's claim was manifestly barred), or the exchange of land in the value of tens of millions of crowns in Bedřichov, where it was entirely eligible for the settlement of the land rights of the beneficiaries (also according to the appellants of the name, as the SPÚ preferred by third parties - here entrepreneurs in agriculture - before the beneficiaries, since the land in question was entirely eligible for the disposal of the restitution rights of the land).
11. The appellant also recalls that according to the explanatory memorandum to the amendment of the Act, the State has privatised 660 thousand hectares of agricultural land since the beginning of the 1990s, with only about one eighth, namely about 82 thousand hectares of national agricultural land being transferred from the total to eligible persons under the Land Act. At present, the SPO still manages around 130,000 hectares of agricultural land, i.e. 1.5 times the area of land transferred since 1991 to all beneficiaries under the Soil Act, with less than 10% of the available area in the SPO administration sufficient to satisfy all remaining restitution claims. In addition, the State, through the State Representation Office, holds another tens of thousands of properties of unknown owners in property matters. According to the appellant, it is so obvious that the State still has enough agricultural land to settle the remaining restitution claims, i.e., in other words, the debtor who is in this case the State, on the one hand, in the explanatory memorandum to the amendment to the Land Act, claims that it does not have enough land to be subject to natural restitution, but that he has sufficient land to satisfy the restitution rights of the beneficiaries, but uses or intends to use those land at the expense of the beneficiaries for other purposes.
12. In the present situation, the contested part of Act No. 185 / 2016 Coll., according to the appellant, creates an inequality between a group of beneficiaries whose claim has already been satisfied by the land refund (or will be satisfied by 30 June 2018), and a group of approximately 45,000 persons whose claim will not be met in kind, particularly in view of the fact that the financial compensation granted under Section 16 (1) of the Soil Act is completely inadequate. In this context, the appellant points out that all beneficiaries' claims under the Land Act were made by submitting an application for the issue of the original land in 1991 and 1992, and mainly because of the State, have not yet been satisfied in tens of thousands of cases, either because of excessive administrative procedures for the issue of the original land or because of a poor quality and limited supply of land. In this legal capacity, all beneficiaries are equal, and they have the same rights and obligations that the State guaranteed them by adopting the Land Act in 1991. According to the appellant, the rule of law cannot, for any reason and for any reason, even through the law, allocate one group whose claims will not be met; Such a procedure would constitute a gross breach of the principle of equal treatment. According to the appellant's information, the SPO currently records several dozen outstanding restitution cases (up to 100) started in 1991 and 1992, in which the alleged restitution claim was not decided at all, and the contested amendment to the Land Act "attributed" only the possibility of financial compensation in 1991 prices. Restitution was therefore not completed after more than 26 years in their cases, although the time limit for decisions under the administrative order is sixty days. In these specific cases, the appellant therefore considers that, in view of the delays in the restitution procedures and the inequity of the participants in the provision of restitution refunds, the Czech Republic may be unsuccessful in any legal dispute brought before the European Court of Human Rights.
13. Furthermore, the appellant considers the contested legislation to be inadmissible retroactive, "as it interferes with the legal right of beneficiaries to issue a replacement parcel under Paragraph 11a of the Land Act... before its effect," which is completely abolished without adequate compensation. According to the appellant, this is an inadmissible case of genuine retroactivity, as the Constitutional Court pointed out already in the decision of 8.6.1995 sp. zn. IV. ÚS 215 / 94 (N 30 / 3 SbNU 227) and, as a result, there is a arbitrary breach of the legitimate expectations of the beneficiaries. The amendment to the Land Act, contrary to this fundamental right, deprives beneficiaries of this right at all (in the case of pending administrative procedures under Section 9 of the Land Act) or of this duly acquired claim on the basis of a final administrative decision not to issue the original land under Section 11a of the Land Act makes it impossible to apply at all. In this respect, it should be noted, according to the appellant, that the legitimate expectation of obtaining a replacement parcel in these cases is reinforced by good faith in the correctness of the decision of the public authority, which expressly states in the lesson that such persons have a subjective right to issue a replacement parcel against the State. Therefore, the withdrawal of property as a restitution replacement on 1 July 2018 is totally inadmissible and distorts the fundamental right of beneficiaries to acquire property, which is also protected by the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, as is apparent from the constant case law of the European Court of Human Rights.
14. The legislature's discretion is also seen by the appellant in setting a deadline for the termination of the possibility of satisfying restitution claims in the form of replacement land, both in relation to the beneficiaries who apply their restitution claims in the context of the ongoing 2 000 legal proceedings and in relation to persons who have applied for the land to be issued in 1991 under Section 9 of the Land Act but have not yet been decided on their applications. In fact, when determining the effective date of the repeal of Paragraph 11a of the Land Act, the legislature did not at all address the question of the status of the rights of the beneficiaries concerned on that date. The contested amendment does not contain any transitional provisions in relation to beneficiaries in different legal positions (except for a fraction of beneficiaries - about 20% according to the SPO's declaration, which will succeed in public land offers by 1 July 2018). Moreover, in the appellant's view, the contested amendment does not in any way take into account its social and financial implications, including the amount of the costs necessary to complete the ongoing litigation and disputes concerning the issue of compensation, which are likely to be raised by the unsuccessful beneficiaries.
15. The absence of transitional provisions, at least in relation to the beneficiaries, whose claims are decided in the pending legal proceedings, was, in the appellant's view, a gross error of the promoter of the draft law, and since this deficit has not even been corrected in the legislative process, the contested amendment to the Land Act infringes the principle of legal certainty of the beneficiaries, leading to legal disputes with the SPO. As a result of the lack of transitional provisions, it is not clear at all whether, after 30 June 2018, the legal proceedings initiated under the current legislation will be completed, i.e. whether, in the event of the success of the beneficiaries in the legal proceedings, the transfer of the land will be completed or not. In this context, the appellant considers it necessary to recall that, although the SPO was aware of the problem (this phenomenon of the explanatory memorandum mentioned), it did not request the inclusion of the relevant transitional provisions in the amendment in question, although it did so in the case of a request for the transfer of functional units (even though in this case it is a marginal group of beneficiaries, having not direct claims of the original beneficiaries or their heirs, but claims derived). According to the appellant, the legislature thus unreasonably preferred the group to other beneficiaries, for which, on the contrary, the legal regime already established for the issue of the replacement plot from 1 July 2018 did not change it at all, thereby putting it into a state of legal uncertainty, thereby violating the principle of predictability, clarity and internal inconsistencies of the law.
16. For the above reasons and with reference to the conclusion of the finding of 13.12.2005 sp. zn. The appellant accentuates the findings of the finding of 13.8.2015 sp. zn. III. ÚS 130 / 14 (N 144 / 78 SbNU 235) and in particular of the finding of 18.7.2017 sp. zn. II. ÚS 4139 / 16 (available at http: / / nalus.ujud.cz), which shows that no financial compensation can be granted for withdrawn properties under the price regulations in force on 1.4.1991, since the financial compensation should be granted at a reasonable rate. However, even the contested amendment does not alter Article 28a of the Land Act, nor does the subsequent practice of the SPO indicate that the State (through this organisational body) intends to reflect in any way the conclusions of these findings.
17. Although more than ten years have elapsed since the Constitutional Court's finding of the Constitutional Court, Pl. ÚS 6 / 05 considers that the reasons which led to the application for the annulment of part of the Land Act at that time are largely identical to the deficits which, in its view, are also affected by the contested legislation.
Proceedings before the Constitutional Court
18. The Constitutional Court pursuant to Article 69 (1), (2) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) sent the proposal to the two chambers of Parliament as parties to the proceedings, and to the Government and the Ombudsman as entitled to intervene as interveners.
Observation of Parliament's chambers
19. The Senate and the Chamber of Deputies, both in their statements of 12. 12. 2017 and 20. 12. 2017, signed by the Presidents of each Chamber by Milan Štěm and Mgr. Radek Vondráček, only briefly summarized the course of the legislative process under which the government draft law was discussed, then announced under No 185 / 2016 Coll., the Senate also briefly recited the course and content of the plenary debate on the draft law in question.
Government observations
20. In its observations of 15. 1. 2018, the Government first pointed out that only dozens of outstanding administrative procedures were registered by the State Property Office, while at the same time it should be stressed that at the end of 2016 99,79% of the completed administrative procedures on the issue of the original property under the Land Act were registered. In the procedures already completed, the property rights to the original plots of land totalled 1,304 million hectares were restored to the beneficiaries, and the land authorities at the same time decided not to issue the land for a total area of 0,337 million hectares without compensation (in the absence of proof of the existence of a restitution title) and to issue the land for an area of 0,132 million hectares with a right to compensation in the form of a replacement plot or a cash (financial) compensation. According to the Government, it should be pointed out that pending administrative proceedings are mostly related to extremely complex cases which have been interrupted under Paragraph 64 (1) (c) of the Administrative Regulation because of pending legal proceedings.
21. To the appellant's objection that the land was not publicly offered to eligible persons in the past, the Government states that the Land Fund of the Czech Republic (the Land Fund) and its successor SPO publicly offered in 85 rounds of land offers to eligible persons a total of 246,334 parcels in aggregate area of 1 342 886 223 m2 in price 8 091 525 777 CZK. In addition, 66 rounds of land offers for sale were published pursuant to Article 7 of Act No. 95 / 1999 Coll., on the conditions for the transfer of agricultural and forestry land from state ownership to other persons and on the amendment of Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended, and Act No. 357 / 1992 Coll., on the tax on inheritance, tax on donation and property transfer tax, as amended, and under Article 12 of Act No. 503 / 2012 Coll., on the State Land Fund of the Czech Republic, as amended, and on the amendment of certain related laws, as amended, (hereinafter referred to as "Act No. 503 / 2012 Coll."), in which 640 596 plots 5 779 844 089 m2 in the price of CZK 225 395 370 CZK. Since the beginning of sales offers, beneficiaries can also participate and pay the purchase price with their restitution claims. Since 2003, beneficiaries have been given priority in the context of sales offers, provided that they acquire land at the sites where their own land was nationalised and not issued to them. Since 2012, this priority of beneficiaries has been extended by the abolition of the same location. On average, the success of the tenders expressed in terms of size was 19% from 1998 to 2014. The higher success rate was recorded only in 2005 (about 34%), i.e. at a time when the beneficiaries expected to end the provision of replacement land (i.e. at the time of the so-called first restitution dot, cancelled by the sp. zn. Pl. ÚS 6 / 05). Another increase in the interest of beneficiaries for the public supply of land (about 45%) occurred only in 2016, when the possibility of obtaining the replacement land was legally again limited by the contested legislation. In the view of the Government, that fact clearly indicates that the State Property Office is wrongly accused of libel by the appellant. In this context, the Government declares that it is ready to demonstrate an overview of the land offered in vain, which is suitable for restitution.
22. If the appellant contends that the SPO misrecords the value of the land not issued, the Government first of all stresses that the settlement of claims under the Land Act is necessarily linked to the synergy of the beneficiary, which must clearly and clearly express its will on the form of settlement of its restitution claim. For the purpose of accelerating the settlement of restitution claims, the Land Fund carried out an information campaign in 2008, addressing about 50,000 beneficiaries who held outstanding claims on replacement land at that time, a personal letter with a call and instructions to satisfy their restitution claims. A similar information campaign was carried out repeatedly by the Land Fund in 2012, when it targeted only beneficiaries who at that time had not registered any request for replacement land or for cash compensation. By letter, over 38,000 beneficiaries were called upon to participate actively in the settlement of restitution claims, either by participating in public land offers (including the disclosure of their dates and procedures for applying for land) or by claiming cash compensation. Both information campaigns have produced a short-term effect in the form of a slight increase in interest in the provision of cash compensation, in particular from those beneficiaries who held the restitution claims of lower denominations. Therefore, no significant increase in interest in public land offers was observed.
23. Following the appellant's objection to the lack of a registered restitution claim, the Government also points out in its observations that the original purpose and purpose of the Land Act were, in the course of the passage of time, backed up by the preferences of other interests of the beneficiaries (and other persons participating in the restitution process on a commercial basis). According to the Government, where the Land Fund or the SPO were in dispute with the beneficiary regarding the amount of its restitution claim, they generally have the same scenario: the beneficiaries in administrative proceedings with the Land Authorities requested that their restitution claims should be decided under the Land Act, which established, as the only one in a number of restitution laws, the possibility of providing replacement land, with reference to the original agricultural character of the land withdrawn. After these restituents had reached an administrative decision granting them the right to substitute land, they accentuated somewhat in contrast to the originally claimed agricultural character of the land not issued, the fact that the land in question at the date of its withdrawal was finally intended to implement the construction or had already been built. The aim of such a procedure was to force the Land Fund and, consequently, the SPS to "revalue" claims, i.e. to determine a different (only much higher) value of the unpublished land (a typical example of this procedure is described by the Government, for example, by the author of the reported case of the Chvoy family). To illustrate this, the government states that if all eligible persons across the Czech Republic had achieved the valuation of their unpublished land at the prices of construction land, the total amount of all outstanding restitution claims not registered today would be CZK 0,397 billion, but almost CZK 44 billion, with the intention of finding sp. zn. II. The ÚS 4139 / 16 would be even higher, which would significantly burden the state budget.
24. In this connection, the Government also states that the SPO records 526 actions by 254 authorised persons; as a general rule, those beneficiaries combine in the application applications the requirement to transfer the land they have selected with the question of the amount of their restitution entitlement. In cases where the courts in the operative sentence determine the amount of the restitution claim, the SPO accepts this. However, if the court deals with the amount of the restitution claim only in the preamble to the judgment as a preliminary question, the SPO insists on the original, previously recognised amount of the restitution claim.
25. At the same time, the Government points out that a number of actions are known from the activities of the SPO to replace the will, where the actions of the applicants are contrary to law or good manners (e.g. an action for land excluded from the transfer to beneficiaries under § 6 of Act No. 503 / 2012 Coll., most often in the case of land which is a binding part of approved land planning documentation intended for construction by public utility construction; By way of example, land situated within closed sites for privatisation pursuant to Act No. 92 / 1991 Coll., on the conditions for the transfer of the State's assets to other persons is required, which subsequently prevents the privatisation of these sites from being terminated, and thus reduces the operators of agricultural primary production and, secondly, makes it impossible to nationalise maintenance-intensive assets). In the view of the Government, the procedure of the beneficiaries or their legal representatives often shows signs of special purpose negotiations, where the satisfaction of the restitution claim is not primarily monitored, but rather an attempt to reverse the outcome of the exchange contest (as a typical example, the Government points to the author of the mentioned case of Anna Bek).
26. Finally, if the appellant refers to cases where the SPO transferred land to entities other than beneficiaries with an outstanding entitlement to substitute land, the Government recalls that such transfers result from the legislation in force, namely the wording of § 7 of Act No. 503 / 2012 Coll., which, pursuant to § 6 of the same Act, are excluded from the transfer to entities other than municipalities as well as from the transfers under the Land Act, as the Act in these cases favours the municipalities in respect of land which the land planning documents are intended for public construction. The nature of the case is therefore land which is not suitable as compensation for the agricultural property not issued, since its issue cannot remedy the damage caused to the agricultural property.
27. In conclusion, the Government, having regard to the amount recap, expresses the view that the proposal in question is not justified; the legal provisions under appeal pursue a legitimate objective in the form of speeding up the completion of the restitution of agricultural assets, with the legislature's chosen means of achieving that objective being rational and proportionate. The Government therefore proposes that the Senate Group's proposal be rejected in full.
Communication from the Ombudsman
28. Ombudsman Mgr. Anna Shabat, Ph.D., by letter of 5 December 2017 It informed the Constitutional Court that it did not exercise its right under Paragraph 69 (3) of the Law on the Constitutional Court to intervene in this proceeding.
Replication of the appellant
29. The appellant, in its reply to the recap of the parties' comments, disagrees with the argument contained in the Government's observations, first of all underlining that the agricultural character of the land is not excluded by the fact that the land concerned is designated for construction by the land planning documents. This fact affects only the amount of compensation provided for by law - according to the valuation regulation (i.e. pursuant to Decree No. 182 / 1988 Coll., on the prices of buildings, land, permanent crops, remuneration for establishing the right of personal use of land and compensation for temporary use of land, as amended by Decree No. 316 / 1990 Coll.), which also explicitly foresees the possibility of valuation of the land as building land. As seen by this prism, the very estimation of the volume of outstanding restitution claims and the related possible (extreme) burden on the state budget raises the question of whether the SPO budget (i.e. the state budget as such) is prepared for such high financial compensation.
30. In order to disagree with the actions brought by the SPO to replace the will and the often associated proposals to determine the amount of the restitution claim, the appellant submits that, when the conditions repeatedly imposed by the case law of the Constitutional Court and the Supreme Court are met, the procedure is fully legal. In this context, the appellant notes, in general terms, that if the possibility of seeking the "judicial 'settlement of restitution claims was brought by binding decisions of the Constitutional Court [e.g. the finding of 4.3.2004 sp. zn. III. However, from a number of subsequent decisions issued by the Constitutional Court and the Supreme Court, it is clear, according to the appellant, that this did not happen and that the SPO's approach in this context can be considered to be absolutely constant, with all the legal consequences that arise for the compulsory body.
31. If, in its view, the Government considers that the contested provisions of the amendment to the Soil Act pursue a legitimate objective (speeding up the completion of the restitution of agricultural assets), with the funds chosen by the legislator to achieve that objective allegedly being rational and proportionate, the appellant contends that, in its view, it is not possible to talk about the legitimacy of the legislator set out an objective in a situation where, after almost 27 years from the date of application of the SPU Act, (a) it has not been able to satisfy the claims of these persons, (b) it continues to register (at least) dozens of administrative procedures which it has not been able to complete throughout that period. In particular, for the group of beneficiaries concerned by the pending administrative proceedings, intervention in their rights would be manifestly disproportionate and in direct conflict with their legitimate expectation of recovery of the original property, possibly the provision of replacement land. As a result of the fact that the State authorities did not decide on their entitlement before the amendment of the legislation, they will be completely denied the right to natural restitution, primarily foreseen by the Land Act. Although these beneficiaries have waited patiently and have been active in handling their restitution claims, they will be fully dependent on financial compensation at disproportionate prices for 1991, as there is no legal framework for adjusting these compensation arrangements that would in any way reflect the passage of time. From this point of view, too, the appellant is therefore convinced that the contested provisions cannot stand the proportionality test.
State Land Authority's observations
32. On the request of the Constitutional Court to communicate information on the current (number) status (s) of the (ongoing) restitution proceedings, the Central Director of the SPO provided a brief statement in which it first recalled the relevant legislation and its ongoing changes, stressing that, like the Land Act, it did not modify the time limits for deciding the land authorities, nor did it modify the conditions for dealing with the applicable restitution claims, which were defined by it only as a framework, which certainly did not contribute to the faster progress of land offices; In addition, the reasons for taking over the property by the State under Section 6 of the Soil Act have not been clearly modified, and in particular the provisions of Section 6 (1) (t) and (u) consider the practice of the Court to be questionable, and in some cases it has only been brought together at present (see the find of 11.7.2017 sp. zn.
33. From the total value of the claims for the land not issued, there are currently 393 million CZK (that is 4.9% of the total). The outstanding claims are registered by the SPO with less than 42 000 beneficiaries. Of this number, nearly 34 000 beneficiaries have never in the past applied for any form of settlement. They did not participate in the tenders, did not apply for financial compensation or are not in a legal dispute over the provision of replacement land. The management of these claims is unlikely in the long term according to the SPO. These beneficiaries do not actively seek to settle restitution claims and, without the legal end of the restitution process, their restitution claims will still be treated as a liability (debt) of the State, without the possibility of fulfilling that obligation (debt); More than 53% of beneficiaries who hold an outstanding restitution claim have a restitution claim of up to CZK 1,000.
34. The SPO also stresses that the purpose of Act No. 185 / 2016 Coll. was to establish a time-frame for the termination of the restitution requirements, as the further extension of the natural restitution limits the state's development programmes. Authorised persons in the vast majority do not carry out agricultural production and are only interested in land commercially usable, i.e. land where non-agricultural use is assumed, which was not the purpose of the Land Act. In addition, the beneficiaries represent persons who, on their behalf (and often successfully), seek to increase their claims for compensation for the land not issued, pursuant to Decree No. 182 / 1988 Coll., as amended by Decree No. 316 / 1990 Coll., in Prague CZK 250 / m2, the highest price of agricultural land is CZK 11,80 / m2. Thus, this valuation gives the beneficiaries a claim for the transfer of land in a number of times higher than the area of land withdrawn. The representatives of the persons entitled subsequently seek the issue of replacement parcels which they themselves choose, and the courts of actions for replacement parcels comply with the procedure laid down in Section 11a of the Soil Act and without prejudice to the opinions of the SPO. In addition, representatives of authorised persons buy the replacement land from the authorised persons, which subsequently enriches other groups of persons than the authorised persons according to the SPO. These facts have been highlighted by the SPO in the longer term, in increased intensity since the end of last year.
35. In this context, the SPO points out that an effort by beneficiaries to change the valuation of their unpublished land to reflect the price of the land intended for construction could lead, in the extreme case, to an increase in outstanding claims up to 100 times. The current balance of restitution entitlements, which was established by valuation of unissued land as agricultural land (and, exceptionally, in clearly demonstrable cases, as building land), amounts to CZK 0,395 billion. The increase in the value of outstanding claims, which the SPO is intensively resisting, would mean an increase to CZK 43.9 billion. These figures still represent the price level of 1991 when the Soil Act came into force. The purpose of the Land Act was not, in the opinion of the SPO, to compensate the restituents for all investment construction from 1948 to 1989, this was to be dealt with by other restitution legislation. The Land Act was intended to cover the correction of property injustices committed by the removal of agricultural land and agricultural property. The legal application of the Constitutional Court's finding of the Constitutional Court, sp. zn. II. ÚS 4139 / 16, may, according to the SPO, bring unsuspecting consequences. It is clear that the beneficiaries will claim compensation in cash at a value significantly higher than the value of the land referred to in 1991. If these real assumptions are fulfilled, it can be estimated that the remaining outstanding claims, which are now valued at less than CZK 400 million (and represent less than 5% of the total amount of all claims incurred), will burden the state budget with hundreds of billions of crowns.
36. Finally, the SPO states that it currently records dozens of pending administrative proceedings (Regional Land Authority for the South Moravian Region records 77 files, representing less than 0,5% of all the items registered by it, Regional Land Office for the Central Bohemia Region and the City of Prague then records 151 outstanding cases), most of which are extremely complex restitution cases, which are interrupted pursuant to § 64 (1) (c) of the Administrative Regulation because of pending legal proceedings, or are pending proceedings on the succession or disputes concerning the determination of citizenship. From the point of view of the SPU, these are cases that cannot be ended in the long term, and the SPO cannot change anything about this condition. At the same time, the SPO stressed that it would continue to complete individual restitution cases in the future when the obstacles that have prevented such completion have been removed. For all the above-mentioned reasons, the SPO expressed the belief that the legal termination of the grant of the natural compensation and the so-called restitution period were justified and justified.
Replication of the appellant's observations by the State Land Authority
37. In a brief reply, the appellant pointed out first of all that it was clear from the State Land Authority's observations that even after more than 27 years, the restitution claims of several hundred persons were not decided, and that these persons - after such a long time as they had a legitimate expectation that they would be able to apply for compensation in kind - would refer exclusively to the totally inadequate financial compensation provided for in the prices in force 27 years ago, and in a similar situation, those entitled persons who had been brought to an end in accordance with Article 9 of the Land Act only recently.
38. The appellant therefore persists in the belief that, in particular, in relation to a group of persons concerned by pending administrative proceedings, intervention in their rights would be manifestly disproportionate and in direct conflict with their legitimate expectations. As a result of the fact that the State authorities did not decide on their claim before the contested amendment to the Soil Act was effective, they will be completely denied the right to the Soil Act primarily provided for restitution in the form of replacement land. These beneficiaries, while patiently waiting and actively acting in the execution of their restitution claims, will be fully dependent on financial compensation at absolutely disproportionate prices for 1991, as there is no legislative framework to reflect the passage of time.
(39) In conclusion, the appellant had intended to supplement its observations following the additional documents it had requested from other bodies.
40. Following this, the Constitutional Court received on 18 June 2018 "Opinion on the constitutional conformity of Act No. 185 / 2016 Coll., amending Act No. 503 / 2012 Coll., on the State Land Office and on the amendment of certain related laws," by Prof. JUDr. Aleš Gerloch, CSc. At the beginning of this opinion, the author expresses the belief that the contested legislation is unduly retroactive; the retroactivity is incorrect, but as a result, the rights acquired by beneficiaries are affected; If the Land Act gave beneficiaries an option to choose between the replacement land and the financial compensation, the withdrawal of that choice constitutes an intervention in the acquired rights, in which case, according to the author of the opinion, "disappointed trust 'is in considerable disproportion to the lack of clarity of" urgency for reasons of legal change'. At the same time, the author underlines that the legislation under assessment creates an unequal position between the restituents, paradoxically precisely against the logic of the standard effect of false retroactivity, which, on the contrary, is intended to correct the existing unequal position of comparable entities. In conclusion, the author of the opinion therefore notes that the contested legislation distorts a number of constitutional principles, primarily the principle of legal certainty and the principle of equality.
Oral proceedings
41. According to Article 44 of the Constitutional Court Act, the Constitutional Court decided on a case without oral hearing because it could not be expected to further clarify the case.
Active procedural legitimacy and management conditions
42. The application for the annulment of the contested parts of the Act was submitted by a group of 18 Senators, which, pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, is a legitimate appellant for the application for annulment of the Act; the application is accompanied by a signature document, to which each Senator has individually confirmed that he is attached to the application. The proposal contains all the legal requirements required, according to Article 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., is not inadmissible, neither are the grounds for the termination of the procedure under Section 67 of the same Act and, for the following reasons, it can be considered formally impeccable.
43. The applicant does not contest Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural assets, as amended by Act No. 185 / 2016 Coll., but directly individual provisions of this amendment. The Constitutional Court has repeatedly rejected, in the past, as manifestly unfounded proposals to abolish amending provisions if they have already taken effect and have thus resulted in the amendment of the amended legislation. This meant that they had already ceased to be part of the contested amendment and instead became (with the exception of any transitional provisions of the amendment) part of the amended legislation, but which was not challenged [cf., for example, the Resolution of 15.8.2000 sp. zn. Pl. ÚS 25 / 2000 (U 27 / 19 SbNU 271) or the Resolution of 5.8.2014 sp. zn. Pl. ÚS 26 / 13 (available at http: / / nalus.ujud.cz)].
44. However, the situation is different in the present case, as the contested provisions have not yet come into force. As a general rule, the legislation in force or its provisions may be reviewed in the procedure for the repeal of laws or other legislation, regardless of whether the legislation has already taken effect. It is irrelevant whether it is a new legislation or an amended legislation, which is still effective in the previous version. In any event, even if the possible interference of the Constitutional Court is to be substantially related to the amended provision, in a situation where the fact of the repeal of the previous legislation is seen in the very fact, it can be accepted, in order to maintain legal certainty, that the relevant amendment to the amendment of the law will also be subject to constitutional review. This will ensure that the amendment does not result in the repeal of the legislation or part thereof in a situation where the absence of legislation would result in an unconstitutional state. That's the way things are.
45. Therefore, nothing prevents a substantive discussion of the proposal. The exception is only Article IV (12) of Act No. 185 / 2016 Coll., which took effect on 1 August 2016. Since, in the case of this annulment provision, neither the appellant nor the appellant are claimed, the reasons justifying the intervention of the Constitutional Court in the light of the content of the annulled provision (cf.
46. By letter dated 14 May 2018, the appellant proposed that the Constitutional Court decide that the case is urgent and that it complies with its proposal for a preliminary hearing; without issuing a separate order, the Constitutional Court, on the grounds of the approaching date of the effective date of the contested provisions of the application for a preliminary hearing, effectively complied with the case.
Assessment of the competence and procedure for the adoption of the contested provisions
47. According to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with the constitutional order consists of answering the question whether the law was adopted and issued within the limits of the Constitution established competence, whether it was adopted in a constitutional manner and whether its content is in accordance with the constitutional order of the Czech Republic.
48. The Constitutional Court notes that Parliament was competent to adopt the contested law under Article 15 (1) of the Constitution. From the statements of his chambers and publicly available documents relating to the legislative process, he also found that the Government of the Chamber of Deputies (Chamber of Deputies, 7th Election, 2013- 2017, Chamber of Deputies, 575 / 0) submitted the draft law to the Chamber of Deputies on 25 August 2015. The Chamber of Deputies approved it at the third reading on 23 March 2016 at its 42nd meeting (Resolution No 1147), with 122 out of 158 Members voting for it, 15 opposed. The Senate discussed the bill at its 23rd meeting on 27 April 2016 and returned it to the Chamber of Deputies with amendments (Senate, 10th term, 2014- 2016, Senate Press 247, Resolution 420). 49 of the 65 senators present voted in favour of returning the bill with amendments (which did not, however, affect the provisions currently under appeal). The Chamber of Deputies of 24 May 2016, at its 47th meeting, remained in the originally approved bill (resolution 1230). 120 of the 151 Members present voted in favour, 13 opposed. The Law adopted was delivered to the President of the Republic on 30 May 2016 and signed by the President of the Republic on 1 June 2016; his publication in the Collection of Laws took place on 13 June 2016 in the amount of 70 under No. 185 / 2016 Coll. These findings are sufficient to conclude that the law was adopted in a constitutional manner.
Background to the constitutional review of the contested rule
49. The applicant, by its proposal, opened a legal question which, in a similar form, reacted in the previous plenary case sp. zn. Pl. ÚS 6 / 05, in which the Constitutional Court dealt with the so-called first restitution period. As part of the assessment of the current proposal, it is therefore first of all necessary to recall the underlying reasons for the de-rogation ruling at the time. At the same time, although the question of the level of financial compensation in the event of the impossibility of providing a replacement parcel is not the subject of the present case, it is appropriate to recall some of the conclusions adopted by the Constitutional Court in the appellant and by the State Land Office repeatedly referred to in point II.II of the ÚS 4139 / 16. In view of the urgency of the case, determined by the date of effectiveness of the contested legislation, the Constitutional Court did not take any evidence in addition to the observations of the parties, which, with the exception of these above-mentioned observations, came only from the content of the relevant explanatory memorandum and from the content of the plenary discussions in the context of the discussion of the draft contested law in the Chamber of Deputies and the Senate.
Brief recap of the conclusions of the finding sp. zn. Pl. ÚS 6 / 05
50. In this finding, the Constitutional Court first recalled the overall context of the Land Act, namely that the purpose of the Act is not only to mitigate the injustices, but also to restore the countryside, and therefore, in the event of the existence of grounds for non-issue of the land, the Land Act provides for a right to the free transfer of another land into the ownership of the beneficiary (Paragraph 11 (2)) and only for the land which is not issued under that Act and for which the Land Act cannot be granted to the beneficiary, in the order of the second subsidiary entitlement to financial compensation (Paragraph 16 (1)); in cases of compliance with the conditions for the issue of the original or replacement plot, the law therefore provides, alternatively, for beneficiaries the possibility of settling claims by transferring ownership rights to state-owned immovable property.
51. Furthermore, the Constitutional Court recalled that the time limit (in the present case, the precondition for the exercise of the right to transfer a State-owned land pursuant to Article 11 (2) of the Land Act, in the version in force at that time) does not, without any further indication or indication of the nature of the unconstitutional nature of the case at issue, nor can it be given only by the "specific circumstances" of the case under assessment, which constitute: "1. the inadequacy of the period in relation to which the time-limited possibility of the exercise of a constitutionally guaranteed right (claim), or, where applicable, to the period of limitation of subjective law defined," 2. "
52. Before dealing with the constitutionality of the contested provision, the Constitutional Court recalled that the question of the relationship between the transfer of land, which the State as owner transfers to other persons, and the transfer of land which the State is obliged to give to the legitimate persons - restituents - on the basis of the restitution rules, had already taken a position in the sp. zn. III. ÚS 495 / 02, which stated that "the claims arising under the Soil Act have priority, which results from both the ratia legis of the Soil Act and its Article 11 (2)" and from Article 19 (1) of Act No 95 / 1999 Coll., and if the State applied the opposite interpretation through the Land Fund, it was found outside the scope of the authorisation conferred on it by the Act (Article 2 (2) of the Charter). The Constitutional Court therefore pointed out that the Land Fund must not, in fact, give priority to the procedure under Law No 95 / 1999 Coll. over the fulfilment of the State's obligations under Paragraph 11 (2) of the Land Act, which the State has recognised, as this is contrary to its scope in fulfilling the obligations imposed on the State by the Land Act. In this context, the Constitutional Court also recalled, in its recap, that, although the Land Act provides for the obligation of the State to conclude a contract with the beneficiary, it does not provide for the means of its conclusion; Therefore, the land office's will may be replaced in such cases by a decision pursuant to Article 161 (3) of the Civil Code. In this context, the Constitutional Court also stressed that, without calling into question the Land Fund's claim on the adequacy of the "structured offer 'to satisfy the rights of the beneficiaries under Article 11 (2) of the Soil Act and without calling into question the applicants' claim on compliance with the vigilante iura principle by the beneficiaries, it considers that" there is no evidence that would allow them to verify those claims in the standard control procedure. Such verification is only conceivable within the scope of the taxation of an effective procedural remedy to protect the right, the purpose of which is to verify the adequacy of the offer to a particular beneficiary. Such a means of procedure may, on the one hand, be based on an explicit legal provision and its corresponding application practice, or may be developed and established by the caselaw itself. "
53. In other words, there is no effective procedural means for beneficiaries under Article 11 (2) of the Land Act (it is at the level of the sub-constitutional law to establish a subjective right without entitlement, or without the procedural possibility of obtaining it). For the Constitutional Court in the procedure for checking the standards, it follows from this conclusion that the time limits laid down in Article 13 (6) and (7) of the Soil Act, as amended by Act No 253 / 2003 Coll., and in Article VI of Law No 253 / 2003 Coll. limit the period of application of the right of authorised persons under Article 11 (2) of the Soil Act to the issue of a substitute land, in accordance with Article 11 (2) of the Soil Act to the issue of a substitute land, i.e. a right which "does not bear an effective procedural means of law, since, from the point of view of the possibility of the application of the law of the law of a judicial nature, the law, it is in breach of the principle of legitimate expectation in the application of the law of property law of Article 1 Additional Protocol to the Convention."
Brief recap of the finding sp. zn. II. ÚS 4139 / 16
54. For the purposes of the present case, it should be recalled that the Constitutional Court, in its decision in sp. zn. II. In this context, the Constitutional Court also referred to the decision of the European Court of Human Rights of 5.11.2002 in the case of Pinco and Pinc against the Czech Republic, complaint No 36548 / 97 of 26.11.2009 in the case of Peshková v Czech Republic, complaint No 22186 / 03, and of 27.5.2010 in the case of Otava v Czech Republic, complaint No 36561 / 05, the conclusions of which subsequently the Constitutional Court accepted and reflekted in particular in the finding of 23.4.2013 sp. In this context, it is appropriate to mention the judgment of 16 May 2012 in Case 28 Cdo 1603 / 2011, in which the Supreme Court stated that "if, in exceptional cases, the inadequacy of the compensation granted for the purchase price increases to those persons who, as compulsory and once favoured, have lost their real estate in restitution... it is all the more fair (and minority ad maius) to treat similarly in cases of legitimate restituents to which the property could not be returned and must be granted financial compensation '. The Constitutional Conformation of such an interpretation was confirmed by the Constitutional Court in the judgment in Case 130 / 14 ÚS 130 / 14, when it was emphasised that it was fully consistent with the fundamental constitutional legal bases relating to the interpretation and application of restitution rules.
55. To interpret Article 16 (1) and Article 28a of the Law on Land, the Constitutional Court stated in its recap that, although the financial compensation granted may not necessarily be equivalent to the current market price of the property in question, it is intended to allow its provision to "eliminate or mitigate the injustices... in a comparable manner, as would be the case at the time of the issue of the case," in other words, the financial compensation granted "to be such as to be proportionate and reasonable in view of the purpose of the restitution laws."
56. At the same time, the Constitutional Court pointed out in this finding that the interpretation that financial compensation should be granted at prices in force on 24 June 1991 could lead to "the State effectively ceases to offer adequate land to beneficiaries and instead their quarter-century-long claim to settle through baguatelic amounts." In this context, he recalled that the state where the SPO "does not declare public offers in the long term or does so in insufficient quantities is no longer exceptional for many years'.
Brief recap of the explanatory memorandum to Act No. 185 / 2016 Coll.
57. In the "problem definition 'section, the explanatory memorandum states, inter alia:" In the area of restitution, current legislation does not take sufficient account of the economic effects of costly and inefficient solutions to the restitution entitlements of certain beneficiaries. As the practice has shown and shows, the expectations of beneficiaries far exceed the objectives of the Land Act and, instead of mitigating some property injustices, they expect a public supply of land which will subsequently enable them to make profitable investments, i.e. land in large cities and their immediate surroundings, in places expected to be large in investment construction, transport routes, industrial zones, etc., the primary purpose of the Land Act, which is to mitigate certain property injustices caused by the original farmers, and to recover agricultural property or to provide replacement agricultural land to beneficiaries, is to be circumvented in practice.'
58. In addition, the explanatory memorandum states: "In view of the already transferred number of land from the management of the PF of the Czech Republic and consequently of the management of the SPU to third parties, higher quality and quantity of land in the public offers of the SPU cannot be expected. At the same time, it is completely unnecessary and inefficient to continue public offers for beneficiaries who are either not interested in participating in public offers and prefer exceptional means of procedure by judicial channels (i.e. actions to replace the will, actions to impose the obligation to conclude a contract), or their claim in the interval up to CZK 1, - up to CZK 1 000, - CZK does not allow the offer of restitution in the form of replacement land. It is therefore proposed not to proceed with this procedure in relation to the costs of the State if it is possible to pay the cash compensation and finally terminate the restitution. '
59. As part of the section on alternative solutions, the so-called zero option, that is to say the option reflecting the existing legislation without any amendment to the law, states in the explanatory memorandum that in such a case "there will be a constant decline in the area of state land when it is impossible to secure them at a reasonable price for the required area. At the same time, the State would be forced, through the SPO, to purchase the necessary land at market price, thereby increasing the State budget's expenditure. By maintaining current legislation, the State is at risk of not having the necessary size of state land to implement certain development programmes in the future. This risk was assessed as high when the SPO was created due to the volume of land transferred to date. The exercise of the activities of the SPO, such as the implementation of land-use adjustments, would be jeopardised by the exhaustion of this measure, or the implementation of Government Resolution 1497 of 30 November 2009 to create a 3% reserve on state land in the different cadastral territories for the needs of territorial environmental stability systems'.
60. In the final passages of the general part of the explanatory note concerning the assessment of the effects of the draft law in question, it is noted that the new legislation "requires increased costs of paying cash compensation to beneficiaries under the Land Act, which will be paid from the budget chapter of the Ministry of Agriculture," the remaining value of the restitution claims for settlement is "no more than CZK 500 million" (under Decree No. 182 / 1988 Coll., on the prices of buildings, land, permanent crops, payments 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.). In this context, it is noted that the compensation in land corresponding to the amount of the remaining restitution entitlements would "require around 10 000 hectares of agricultural land at the price defined above '; If, according to the current use of public land offers of only 19%, this area had to be transferred, the public land offer would have to be five times larger, i.e. 50 000 hectares of agricultural land. The costs of carrying out land transfers under the Land Act (in particular for expert reports on land prices, geometric plans, or advertising public offers with data on land, their price, conditions of participation, etc.) in the last 4 years were on average CZK 6.415 million per year. Assuming that four fifths of the costs would be spent again for nothing, a year's cost of CZK 5.132 million can be saved. If this form of compensation is terminated, land which, if necessary for the performance of its own tasks, would be purchased by the State for at least the market price, i.e. on average about CZK 10-20 / m2 according to the valued location."
61. Finally, in the context of a brief recap, it is appropriate to point out that - with the exception of page 27, where its existence is established - in the relevant reasoned report, there is no indication of the findings of the Constitutional Court's finding, sp. zn. Pl. ÚS 6 / 05, and therefore, from the nature of the case, there is no question of whether the proposed legislation is compatible with the conclusions of that finding, in other words, nowhere in the explanatory report does not indicate whether the earlier alleged deficiencies have been remedied, or whether the reasons for which - in relation to the original beneficiaries and their heirs - the Constitutional Court of First Replacement period were no longer maintained in 2005.
Constitutional review of the contested rules
62. The constitutional review of the contested legislation may be made from two complementary aspects. First, a context assessment of the constitutionality of the period establishing the so-called second restitution period and, second, the contested regulation - since it clearly interferes with the legitimate expectations of the beneficiaries - must be examined on the basis of the proportionality test, namely whether the regulation is pursuing a legitimate objective at all, and, if so, to examine further in the position of the chosen means of intervention (in other words, whether such a measure is capable of meeting the objective pursued) and its necessity (i.e. whether a more prudent measure could not be applied), or whether it would also be appropriate to assess the principle of proportionality (in a narrow sense) according to which damage to the fundamental rights of beneficiaries must not be disproportionate.
63. In order for the Constitutional Court to take these final steps in the abstract control of the constitutionality of the contested legislation, it must resolve several "preliminary questions." It is apparent from the above that the legislator chose the so-called second restitution period primarily because the remaining restitution claims of the beneficiaries can no longer be settled in kind, i.e. through replacement land, due to the lack of the necessary State-owned land. However, this premission is largely contradicted by the appellant in the proposal under consideration. In order to assess the constitutional conformity of the contested legislation, the questions referred for a preliminary ruling are indirectly related to the question of the real (market) value of the outstanding restitution claims under the Land Act.
The question of the existence of sufficient State-owned land to be used as replacement land
64. The Government states in its observations that the Land Fund and the SPO have in total offered a total of 246 334 land in 85 rounds of land offers to eligible persons in a total area of 1 342 886 223 m2 and that 66 land offers were published in accordance with § 7 of Act No. 95 / 1999 Coll. and § 12 of Act No. 503 / 2012 Coll., in which 640 596 land was offered in an area of 5 779 844 089 m2. However, it is not clear from these aggregated figures how the wide range of land was actually offered by the State to the beneficiaries, since at the 19% success rate of these bids, most "unwanted" land could have been rediscovered in 85 rounds of offers, and there is no indication of how high-quality offers were made at all. Even more problematic is the Government's reference to transfers of land offers for sale pursuant to § 7 of Act No. 95 / 1999 Coll. and § 12 of Act No. 503 / 2012 Coll., since it is appropriate to conclude that in these competitions the beneficiaries, whose claims were set at their value for 1991, could not be too "competitive '; Moreover, the Government does not state what percentage of the transferred land" has "been competitive" of the beneficiaries.
65. Without taking any evidence in this regard (see above), the Constitutional Court is based on the appellant's assertion, which the Government does not in any way argue that the SPO currently manages around 130,000 hectares of agricultural land, with less than 10% of the available area in the SPO administration, according to the explanatory note to the contested law, should be sufficient to satisfy all remaining restitution claims. The information in question on the size of the State-owned land, in the management of the SPO, corresponds, moreover, to the information contained in the State-owned land map, publicly available on the State-owned property representation office's website, which shows that the State had more than 160,000 parcels of total area of over 86 thousand hectares in 2016 - only in relation to arable land. Moreover, neither the explanatory memorandum nor the observations of the Government nor the SPO indicate why a part of the land cannot be offered and subsequently transferred to the beneficiaries, in other words, it is not clear why the land registered as arable land should constitute some strategically important land for the State that the State cannot dispose of. If both the government and the SPO claim that a large part of the outstanding restitution claims are devoid of character, it is sufficient to point out that if these claims are still registered at prices fixed for 1991, they do not necessarily have to be completely negligible. Finally, the argument that, in order to satisfy the smallest restitution claims, there is not adequately large (or small) land, cannot, from a constitutional point of view, be in itself a relevant reason for which it is no longer possible to provide replacement land, since, in general, a larger number of smaller land can be created from one larger plot, and if such a procedure would not allow for the legislation in force, there is certainly room for its possible change. Therefore, the claim that these allegedly bagging claims can no longer be met in the form of replacement land cannot be rejected without further ado.
66. Finally, in the context of the question under discussion, it is not possible to ignore the fact that the State in the past (as is apparent, for example, by the then Minister of Agriculture Ing. Marian Jurečka, who, when discussing the draft law in question in the Senate, admitted that "the State Land Office had over 550 hectares of agricultural land ') transferred a significant amount of land to private persons during the period when, as is apparent by many of the draftsmen of the court decisions referred to it, the State through the Land Fund had exceptionally liquidated the entitlements of beneficiaries under the Land Act. Furthermore, by citing this fact, the State's arguments that land suitable for the fulfilment of restitution claims is no longer available do not appear to be very convincing.
The issue of the value of the outstanding restitution entitlements
67. On the one hand, the Government and the SPO consistently stress that the remaining restitution claims represent only a negligible fraction of the total number of original restitution claims, but at the same time - somewhat inconsistent - the SPO "warns" of the possibility that, if the conclusions of the sp. zn. II. ÚS 4139 / 16 were implemented in practice, the total cost of financial compensation for the remaining restitution claims could amount to "hundreds of billions of crowns." Apart from the fact that the financial compensation of hundreds of billions of crowns would come into consideration only if the remaining restitution claims were to depend in their majority on the most lucrative land in the Czech Republic, they cannot lose sight of the fact that individual declarations are mutually exclusive and may lead to doubts as to whether the government has indeed pursued a legitimate objective by the draft law. It is clear that the so-called second restitution period, according to the government bill or its explanatory memorandum, was intended to limit the possibility of natural restitution for only a relatively dire number of remaining claims, with the fact that a total amount of about half a billion CZK will need to be released from the state budget for financial compensation, namely the amount in terms of total State expenditure - especially if this amount is decomposed into several years - relatively low.
68. It was only after the adoption of the contested legislation that the Constitutional Court announced the above-mentioned finding in point II.II of the ÚS 4139 / 16, in which it clearly stated that only such financial compensation could be regarded as constitutionally compatible, which is several times higher than the registered value of individual restitution claims. The State is thus in a contradictory position as a result of the contested legislation - in conjunction with the need for a constitutional consistent solution to possible financial compensation - because, on the one hand, it claims that it is no longer in a position to deal with the existing restitution claims in the form of replacement land, on the other hand - at least at the time the contested legislation was adopted - but completely ignores the fact that the claims not yet met have a significantly higher value than that of the explanatory report, which retrospectively means that the legislator has adopted legislation on its actual budgetary implications. In other words, it is clear that the government (i.e. the Ministry of Agriculture) and the SPO had an interest in receiving the so-called second restitution dot in the sense that, to a large extent, the need to implement lengthy and financially costly land offers would be waived, while at the same time the bulk of the remaining restitution claims would be settled in the form of financial compensation, at the level of the registered value of the entitlements fixed for 1991 prices. As mentioned above, such an interpretation is not constitutionally consistent.
69. In doing so, if the then Minister of Agriculture, in the context of a parliamentary debate, expressed concern during the discussion of the draft law in question that any legislative increase in the amount of financial compensation would be unacceptable because of the possible inequality between the various restituents, the Constitutional Court will limit itself to stating that, in general terms - in a given context - it does not cause this inequality.
Contextual assessment of the deadline in question
70. The Constitutional Court finds that the deadline establishing the so-called second restitution period, or the establishment of the effective date of the contested legislation, which distorts the possibility of satisfying the restitution claim in the form of a replacement parcel, is not disproportionate, on the ground that it does not have the necessary information for such conclusion. However, the appellant must testify that the legislator, when determining the date of effective annulment of Paragraph 11a of the Land Act - clearly - did not address at all the question of the status of outstanding rights of beneficiaries at that date, that is to say that it did not consider at all whether, on the date laid down, the legitimate claims of all persons who - from the legislator's point of view - were sufficiently active in implementing their restitution entitlement. It is therefore appropriate to consider that the determination of the effectiveness of the contested legislation bears the characteristics of arbitrariness. Similarly, the appellant must be charged with the fact that the contested legislation constitutes - unfounded - an inequality, since it potentially constitutes two groups of beneficiaries, thus effectively distinguishes the persons whose claim was (or will be) satisfied in the form of a replacement plot from those in a comparable position whose restitution claim - without any procedural cause - cannot be satisfied in the form of a replacement plot. Finally, in this context, the appellant must also be accused of the fact that the contested law does not contain transitional provisions that would eliminate or at least mitigate the projected deficits.
71. At the same time, it should be pointed out that, in the previous paragraph of the statement of fact, they do not without further foundation the unconstitutionality of the contested legislation, since all the above-mentioned facts could be healed if the contested legislation as a whole successfully passed the proportionality test.
Short test of proportionality
72. The Constitutional Court considers that the contested legislation has failed to pass through the three-stage proportionality test for succeeding reasons.
73. The determination of a date after which beneficiaries can no longer apply for the free transfer of the replacement parcel could constitute a legitimate objective in the sense that an interest in the legal certainty of all stakeholders in general may indeed require the establishment of a date on which all restitution claims must be settled. However, this is not the case in the case at hand, since, in this regard, neither the contested legislation provides for any de facto and definitive so-called restitution period, only - without any convincing and indisputable reason for such action - constitutes an inequality within a comparable group of beneficiaries (see above). In this context, it should also be noted that in the present case, the objective pursued cannot without further legitimacy be legitimised by the Government and the SPU, the accentuated fact that the pending restitution administrative proceedings concern "only dozens of persons" (apart from around 2 000 other beneficiaries of their restitution claims in court proceedings, which are clearly not affected by the transitional provisions). Even if there is only one restitution administrative procedure left, it is not appropriate - if there is no legitimate reason for that - to create inequality between an otherwise comparable group of beneficiaries. Otherwise, there would have been an intervention in the legitimate expectation of a part of the beneficiaries, or an undue intervention in the law acquired by them (iura quaesita), to be able to satisfy its restitution claim through a replacement plot.
74. As seen by this prism, the legislature's objective could thus only be considered legitimate if the State, without any doubt (and without its own "fault"), had no more suitable substitute land or had no agricultural land, except for one that could be considered objectively significant without reasonable doubt.
75. However, since the Constitutional Court does not have any convincing evidence at its disposal which could lead it to believe that the State is no longer in a position to provide substitute land to the beneficiaries, it must state that it has not been established that the contested legislation pursues a legitimate objective.
76. Since the contested legislation has not already passed the first step of the proportionality test, there is no scope to address the question of the appropriateness and proportionality of the chosen legal measure, but the Constitutional Court points out, precisely because the conclusion of a lack of a legitimate objective is a consequence of an adequate application of the principle of in-dubio for libertate, where it is in doubt that the derogatory statement should protect the legitimate expectations of the beneficiaries, such as an obiter dictum, that even in the indication of the legitimate objective pursued, the contested legislation would not meet the criterion of economy (necessity), or, where appropriate, a finding of inadequacy (in the narrow sense of meaning) of the measure chosen.
77. Although, in the decision in point II.II of the ÚS 4139 / 16, it defined clear mandinels for the constitutionally consistent determination of the financial compensation granted above, the Constitutional Court does not lose sight of the fact that, if the SPO is not "forced" to do so by a specific enforceable judicial decision, it is likely that, under the current wording of § 28a of the Land Act, it is still not entitled to "voluntarily" provide adequate financial compensation to entitled persons. Although such an interpretation of the SPO is constitutionally unsustainable, it cannot be ignored that the established practice of the SPO is one of the key criteria of the constitutional review of the so-called restitution dot.
78. At the same time, the Constitutional Court underlines that this finding does not intend "once and for all 'to exclude the possibility of so-called restitution dots, but in such a case, the legislature must seek such legal form as can be considered to be the most sparing legitimate expectations of beneficiaries.
Conclusion
79. For the reasons set out above, the Constitutional Court concluded that all the provisions of Act No. 185 / 2016 Coll., which repealed Sections 11 (2), 11 (a) and the abolition or amendment of all the following provisions of the Law on Soil, directly or indirectly, are contrary to the constitutional principle of the protection of the legitimate trust of the citizen in the law which is a part of the rule of law (Article 1 (1) of the Constitution) and therefore, pursuant to Article 70 (1) of the Law No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., it has annulled, including the contested transitional provisions which would have become totally obsoluous as a result of the derogatory decree. In the section relating to Article IV (12) of Act No. 185 / 2016 Coll., the proposal was then rejected pursuant to Article 43 (2) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., since the contested "amendment 'of the provision had already come into effect, and therefore cannot - in this proceeding - be subject to constitutional review.
80. As a result of this derogatory finding, the provisions of Law No 185 / 2016 Coll. specified in the first sentence are repealed before they become effective, and therefore those provisions do not become part of the Soil Act on the date of the effective date of this amendment or change it in a foreseeable manner by the legislator, which means, in the context of which it is essentially that, on 1 July 2018, Law No 185 / 2016 Coll. is not foreseen to eliminate the possibility of satisfying the restitution claims in question in the form of the provision of replacement land.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 135 / 2018 Coll., on the application for annulment of part of Article IV and Article V of Act No. 185 / 2016 Coll., amending Act No. 503 / 2012 Coll., on the State Land Office and on the amendment of certain related laws, as amended, and other related laws |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.06.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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