The Constitutional Court found No 154 / 2013 Coll.
The Constitutional Court found of 23 April 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
20.06.2013
154
FIND
The Constitutional Court
On behalf of the Republic
On 23 April 2013, the Constitutional Court decided, under point Pl.
as follows:
Motion denied.
Reasons
The Constitutional Court, in connection with the proceedings pending at the District Court for Prague 1 ("the Circuit Court '), was submitted on 17 June 2010 to the Constitutional Court for the annulment of § 11 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, for the alleged contradiction of the provision cited with the constitutional order of the Czech Republic.
At the District Court for Prague 1 the proceedings of the applicant Jiřina Umlauf against the Czech Republic - Ministry of Finance for payment of the sum of CZK 6 785 715 with accessories are conducted. The applicant claims the claim as a former owner of the real estate, which was required by the judgment of the Municipal Court in Prague in conjunction with the judgment of the Regional Court in Brno to issue restituents. Real estate was acquired by the applicant in 1974 on the basis of a real estate transfer agreement concluded with the Czechoslovak State - Brno II District National Committee for a purchase price of CZK 114 285. The courts concluded on the issue of real estate to the original owners, since the applicant and her husband acquired real estate in breach of the legislation at the time, by failing to respect the priority right of existing users of real estate to purchase it by the State (in accordance with Directive No 10 / 1964 of the Ministry of Finance Bulletin). According to the expert opinion, the value of the real estate was set at CZK 4,800,000. After the issue of the real estate, the defendant, Czech Republic - Ministry of Finance, was reimbursed the amount corresponding to the purchase price paid in 1974.
The Circuit Court for Prague 1, which is to apply Article 11 of the Law on non-judicial rehabilitation, refers to the case law of the European Court of Human Rights (hereinafter referred to as "the ECHR '), in particular to the Pinco and Pinc judgments against the Czech Republic. The conclusions of this judgment, even if they relate to the application of Article 8 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended (hereinafter referred to as the" Soil Act'), are also affected by the case at issue by the Circular. Paragraph 11 of the Law on non-judicial rehabilitation, which allows obliged persons deprived of property rights under that law to be granted only by a tax-limited right to refund the purchase price paid when the property was acquired, infringes, in accordance with Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention ') and Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'). The granting of compensation for the property issued is not in accordance with the opinion of the ECHR and the Constitutional Court on the granting of adequate compensation for the property issued in cases where the debtor has acquired assets in good faith. (The Circumstantial Court considers that an adjustment under the provision cited is only desirable in cases where the obliged entities have not acquired the property in good faith, and in other cases the right to appropriate compensation must be legally adjusted.)
For the reasons set out above, the District Court for Prague 1 has put forward an application for annulment of the provision cited above, which does not allow for adequate compensation for the property issued under the Law on extrajudicial rehabilitation.
The Senate of Parliament of the Czech Republic stated in its observations on the proposal of the Circular Court that the contested provision has been operating in our legal order unchanged since 1 April 1991. The restitution legislature is specific and is characterised by rich case law. The judiciary thus filled the gaps and ambiguities in the laws without the need for the legislator to intervene. According to the Senate, the principle of judicial "completion of standards" can also be applied to the contested Section 11 of the Act on extrajudicial rehabilitation. In this context, the Senate referred to the judgment of the Supreme Court in sp. v. 28 Cdo 2202 / 2009.
The Senate participated in the discussion of the four amendments to Act No. 87 / 1991 Coll., in which neither the provisions of § 11 were dissected or the other wording proposed.
The Chamber of Deputies of the Parliament of the Czech Republic merely stated in its observations on the proposal that Act No. 87 / 1991 Coll. was approved by 86 Members in the House of the People and the House of Nations on 21 February 1991 and 96 Members in the House of Nations. After the signature of the relevant constitutional authorities, the law was duly declared in the amount of 19 Collection of Laws.
The Constitutional Court received on 20 August 2010 a proposal from the same appellant for the annulment of the same provision of Act No. 87 / 1991 Coll., which was rejected for inadmissibility pursuant to § 43 (1) (e) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., in conjunction with § 43 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as it prevented a procedural obstacle to litispendency.
As already stated in the narrative section, the District Court for Prague 1 decides on the claims for cash transactions which are required by the Czech Republic - Ministry of Finance to compensate the property issued by the claimants as obliged persons under the Act on extrajudicial rehabilitation. In these proceedings, the District Court is to assess the claim claimed in relation to Article 11 of the Act on extrajudicial rehabilitation. It is therefore possible to state on the part of the appellant that the conditions of active legitimacy for the application to initiate the procedure for the examination of standards pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.
Dedication of the relevant provisions of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation.
1. According to the provisions of Paragraph 4 (2), natural persons who have acquired a case from a State which has acquired the right to dispose of it in the circumstances referred to in Article 6 of the Act (including where a citizen residing abroad has left the case in the territory of the Republic) are obliged persons, in cases where those persons have acquired the case either in breach of the provisions in force at that time or on the basis of an unlawful advantage.
2. According to the provisions of Paragraph 7 (4), if the property is valued in such a way that the value of the property exceeds the price of the original case, the person entitled shall substitute the difference between those prices, which shall be determined in accordance with the price regulations in force on the date of application of this law.
3. Under Paragraph 11, if the property is issued by a person other than the State, the person concerned shall be entitled to a refund of the purchase price which he paid when buying the case. This entitlement must be exercised with the competent authority of the State Administration of the Republic.
The Constitutional Court states that it has repeatedly addressed the issue of restitution in its decision-making activities, in particular at the end of the 1990s, while always, in relation to the constitutionally guaranteed rights of complainants (mainly restituents), accentuating the meaning and purpose of restitution, thus reducing some of the injustices caused by the totalitarian regime leading to the infringement of the rights of the beneficial owners. As is apparent from the concept of restitution and restitution laws, he was primarily the carrier of the obligation to remedy the injustices of a State which, as a person, was obliged to give the persons entitled to the property acquired during the relevant period (from 25.2.1948 to 31.12.1989) as a result of unlawful interference with their property rights or to provide financial compensation for it. Natural persons could only enter the position of obliged persons in a situation where the State transferred the property which would have been required under the terms of the restitution laws to those persons in breach at the time of the transfer of the legislation in force.
In this context, the Constitutional Court also considered the issue of the issue of the issue of the issue of the issue of the issue of the issue of the property by the compulsory persons as a possible interference with property law in relation to Article 11 (4) of the Charter, in the sp. zl.
While restitution is the removal of unlawful property transfers and possibly unlawful interference in property law by returning the case to the original legal relationship, expropriation is the forced withdrawal of property rights in the public interest, on the basis of the law and for compensation. The reason for the restitution is exclusively unlawful, whereas the reason for the expropriation is the public interest, i.e. the concept of different. Restitution is therefore not a forced withdrawal of ownership but an obligation to restore the original legal situation. In particular, the Constitutional Court's case-law took into account the fact that, in the case of restitution legislation, the decision of the sovereign adopted by the chosen form of redress, or the reduction of some of the injustices that occurred at the time of lack of freedom of ownership.
The logical consequence of the conditions laid down for the issue of the property by natural persons pursuant to § 4 (2) of Act No. 87 / 1991 Coll., as well as the specificity of the restitution, which does not fall within the scope of Article 11 (4) of the Charter, including the compensation provided for therein, was the legislation of § 11 of Act No. 87 / 1991 Coll., as well as its literal interpretation in the restitution proceedings. (The same can also be seen in relation to § 8 (3) of Act No. 229 / 1991 Coll.). In particular, the "unlawful 'acquisition of ownership law and its long-standing performance at the time of the totalitarian regime at the expense of the" real' owners were taken into account in the entitlement to the State, namely the reimbursement of the purchase price paid in the case under the Act cited. Any evaluation of the property issued by the obliged person during the exercise of the right of ownership has been dealt with separately against the person authorised within the meaning of Article 7 (4) of the Act on extrajudicial rehabilitation, in accordance with the price regulations in force on the date of application of the law.
Under a somewhat different angle of view, he assessed the issue of the ESLP when deciding on the complaints of the mandatory - natural persons who, after issuing the property under restitution laws and repaying the paid purchase price, argued in this court a breach of their right to protect the property.
In a number of its decisions (e.g. Pincova and Pinc against the Czech Republic, Pešková against the Czech Republic, Otava against the Czech Republic and others), the ECHR committed a breach of the obligations of the Czech Republic as the complainants were affected by their right to own the property without proper compensation.
The Court of First Instance, which examined the cases in the light of Article 1 of the Additional Protocol to the Convention, noted that the issue of the property by virtue of the restitution laws had been deprived of the property of the complainants, but it had been legally disposed of and that the disposal of the property had also followed a legitimate objective since there was a "cause of general interest 'within the meaning of the second paragraph of Article 1 of the Additional Protocol to the Convention. The Court considers that the legitimate objective of restitution is to remedy the earlier illegality of the transfer or other interference in property law by returning the case to its original legal status. However, the person deprived of his or her property must, in principle, be compensated, the amount of which is reasonable in view of the value of the assets he or she has been deprived of.
At the same time, the Court of First Instance took the view that the legitimate objective of the restitution laws, such as any measure affecting the right to peaceful use of property, should be implemented in such a way that the mitigation of previous injustices does not cause new disproportionate injustices. The legislation should allow the circumstances of each individual case to be taken into account so that persons who have acquired their property in good faith are not forced to bear the burden of liability of the State which once confiscated it.
In other words, the question of whether the property issued was acquired (although contrary to the legislation in force at the time) in good faith is therefore essential to assess the appropriate compensation for the assets issued. It is also necessary to distinguish whether the property has been acquired by those obliged persons by misappropriation of their status in the totalitarian regime, whether there has been a breach of substantive law or a procedural misconduct for which the State is responsible, or on the basis of an excessive interpretation of the restitution laws, as well as what "social 'effects of the issue of the property mean to the debtor.
The repeated conclusions of the European Court of Human Rights, expressed in the above-mentioned (and other) judgments, both in relation to compensation granted to compulsory individuals under Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, as well as under Act No. 229 / 1991 Coll. subsequently found a reflection in the further decision-making activities of the Constitutional Court.
In resolution sp. zn. III. ÚS 575 / 05 of 28.2.2006 (U 1 / 40 of SbNU 765), The Constitutional Court, referring to the ECHR's decision, stressed the need to maintain a fair balance between the requirement of public interest in the restitution of property and the imperative of the protection of the fundamental right of the individual to the protection of property, which implies that, in principle, the debtor is to receive compensation, the amount of which would be reasonable in view of the value of the assets which he was deprived of. It is clear that the consequences of the application of the restitution rules may be severe for complainants in specific cases and may significantly interfere with their lives. Therefore, if complainants claim compensation for the assets which are now required to be issued, the competent authorities will have to take into account all the circumstances of the case into account in order not to have to bear the disproportionate burden of enforcing the legitimate objective pursued by the restitution rules, or to be forced to bear the burden of liability of the State which once confiscated the property.
Similarly in case sp. zn. III ÚS 1731 / 09 [Resolution sp. zn. III. ÚS 1731 / 09 of 3.8.2010 (not published in SbNU, available at http: / / nalus.ujud.cz)] The Constitutional Court stated: "In assessing the case from the perspective of Article 1 of the Additional Protocol to the Convention, the Constitutional Court, with reference to the conclusions set out in the European Court of Human Rights ruling on the Pinco and Pinca case against the Czech Republic... which was known to the complainants, notes that the removal of the complainants of their property took place in a lawful manner and that the disposal of the property also pursued a legitimate objective, as there was a 'cause of general interest' within the meaning of the second paragraph of Article 1 of the Additional Protocol to the Convention. The concept of 'general interest' and the freedom of the Parties to the Convention to decide on their own economic and social policy may also be referred to in the Pinco and Pinco decisions... According to the European Court of Justice, the legitimate objective of restitution is to remedy the earlier illegality of the transfer or other interference in property law by returning the case to its original legal status with the consequences of ex tunc.
It can therefore be summarised... that the "withdrawal 'of the property of the owner on the basis of the restitution rules and in accordance with them cannot be regarded as contradictory with its (constitutionally guaranteed) fundamental rights and freedoms, or only on the basis of this fact, it cannot be concluded that it would bear a" disproportionate burden'... and that, in the case of legal and legitimate interference with the property right, the existence of an "disproportionate burden '(and consequently the infringement of that right) can be assessed only depending on the State-granted compensation (or its absence).
The constitutional complaint does not imply that complainants who claim that they have acquired the property in question in good faith, without proof in the proceedings that they were in any way able to influence the transfer of real estate or the amount of the purchase price, receive any compensation and it does not indicate whether they have already claimed compensation. The Land Act itself provides for a method of compensation in Section 8 (3). The Constitutional Court is aware that, in some cases, the consequences of the application of the restitution rules may be severe and have a significant impact on the lives of the obliged persons and stresses that, if the persons concerned claim compensation for the assets they are now obliged to issue, the competent authorities will have to take into account all the circumstances of the case in question in order not to bear the disproportionate burden of enforcing the legitimate objective pursued by the restitution rules. '
Although the above conclusions were reflected only in the reasoning of the resolutions which decided on the constitutional complaints in the Chamber of the Constitutional Court, it is clear that the conclusions of the ECHR were addressed by the Constitutional Court and that none of the Chambers had abrupted the proceedings on the Constitutional Complaints and, in view of doubts, would have submitted a plenary to assess the compliance of the now contested provision, i.e. Article 11 of Law No 87 / 1991 Coll. with the constitutional order of the Czech Republic.
Similarly, the ECHR case-law and the case-law of the Constitutional Court were reflected in the decision-making activity and case-law of the Supreme Court, which, for example, in the judgment in Case C-220 / 2009 or in the judgment in Case C-2836 / 2009:
"In general, it can be said that the case law of the highest instance mainly accentuated the grammatical interpretation of the quoted standard. All the more so, the precedents created by the European Court of Human Rights, taking into account the guarantees given by the Additional Protocol (Article 1 thereof) to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 11 (1) of the Charter of Fundamental Rights and Freedoms.
... In order for the interpretation of the contested legal provision to be conformal to the above-mentioned human rights coupons as well as to the civil principle of the protection of property rights in all legal aspects, it must not be in a clear contrast with the principles of proportionality and, if possible, justice.
... [U] The establishment of Paragraph 11 of the Act on Outcourt Rehabilitation refers in a session to the obliged person about the refund of the purchase price he paid when buying the case '... The Court of First Instance takes the view that a broader interpretation of the text of Paragraph 11, which, although directed' beyond 'its literal wording, accentuates its purpose and purpose... This cannot consist in a return of a timely and inadequate purchase price, but, as the Strasbourg court has reminded the Czech Republic, in the payment of such an amount by the State, which is reasonable and reasonable in the relevant (and exceptional) restitution circumstances. Therefore, the interpretation that the concept of purchase price within the meaning of Article 11 of Law No 87 / 1991 Coll. can also be understood to include other transactions expressing the value of the property...'.
The Supreme Court also works in a broader context in its case-law with the principles outlined above, which is also the interpretation which it has adopted on Paragraph 13 (1) and (4) of the Law on extrajudicial rehabilitation on the proportionality of the amount of financial compensation to the beneficiary. Neither the financial compensation granted to the beneficiary can be unduly low, according to sp. zn. 28 Cdo 1603 / 2011. "The passage of time (20 or more years from the effectiveness of the restitution standards) leading to an increase in the value of the matter in order or multiple times, respectively, represents such a change in circumstances that may lead per se to the use of another legal solution" which will be based on a broader - constitutionally conformal - interpretation of the mechanism for calculating the refund.
In the case-law of the Constitutional Court and the Supreme Court, it is clear that the principles contained in the ECHR judgments, which were found necessary to find a "fair balance 'in the issue of the property of the complainants to beneficiaries under Section 4 (2) of the Law on extrajudicial rehabilitation, cannot be applied in the literal interpretation of Article 11 of the Act cited.
The Constitutional Court in the procedure for the control of standards, according to the principle of the principle of constitutional conformal interpretation prior to deregation, according to which, in a situation where a provision of legislation allows two different interpretations, one being in accordance with the constitutional order and the other being contrary to it, there is no reason to repeal that provision. This method is based on the principle of division of power and the associated principle of restraint, i.e. the principle that, if it is possible to ensure the constitutionality to achieve alternative means, the Constitutional Court chooses one that limits the legislative power to the minimum [see, for example, the finding of sp. zn. Pl. ÚS 69 / 06 of 29.1.2008 (N 22 / 48 SbNU 243; 269 / 2008 Sb.)], and the constitutionally conformal interpretation can also be indicative of an extensive interpretation [see e.g. the finding of sp. zn. III. ÚS 609 / 04 of 7.4.2005 (N 79 / 37 SbNU 97), the finding of sp. Pl. ÚS 13 / 05 of 22.6.2005 (N 127 / 37 SbNU 593; 283 / 2005 Sb.)].
In accordance with the above conclusions, the Constitutional Court also followed the assessment of the interpretation of the contested provision, namely whether it was possible to interpret it, which is in line with the constitutional order. The Constitutional Court must state, following the caselaw cited above, that such an interpretation has already been found and therefore merely refers to the reasoning of those decisions. The Constitutional Court adds that, in the interpretation of Article 11 of Law No 87 / 1991 Coll., that provision is not considered in isolation or only in relation to the related § 4 (2) of the cited Act, but in the context of the Act on extrajudicial rehabilitation and of the entire complex of restitution regulations. The purpose and purpose of restitution, i.e. to remedy or mitigate the injustices caused during the period of infreedom in the area of ownership and the protection of property relations guaranteed by the Charter, is respected. The Constitutional Court, without deviating in any way from its previous caselaw defining restitution in relation to Article 11 of the Charter, considers the repayment of the purchase price to natural persons who have issued property "unlawfully 'acquired during the period of infreedom as a form of compensation. In such a view, the criteria for taking into account the specificities of individual cases and the reality of the compensation in its granting may also be applied.
The Constitutional Court is aware that the court-martialed proceedings resulting from the application for a specific control of the standards are proceedings for the amount of compensation to be paid to the applicant by the Czech Republic - Ministry of Finance, not by the insolvency proceedings. In the present proceedings (or in other proceedings for damages in connection with restitution laws), the Constitutional Court's view that the protection of property rights within the meaning of Article 11 (1) of the Charter may also be assessed as the amount of the compensation requested for the assets issued in the wider context.
The Constitutional Court concludes that claims for compensation for the property issued within the meaning of Article 11 of Law No 87 / 1991 Coll. can be assessed without infringing constitutional guarantees of ownership. Even since the interpretation of Article 11 of the Law on non-judicial rehabilitation was found by the general courts (or the Supreme Court) to be constitutional, the Constitutional Court did not proceed to the annulment of the contested provision and decided as stated in the operative part.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 154 / 2013 Coll., on the application for annulment of § 11 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.06.2013 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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