Found at the Constitutional Court of the Czech Republic No. 164 / 1994 Coll.
Findings of the Constitutional Court of the Czech Republic of 12 July 1994 concerning the application for annulment of part of the provision § 3 paragraph 1, part of the provision § 3 paragraph 2 and part of the provision § 5 paragraph 2 and paragraph 4 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing
Valid
The Constitutional Tribunal found
Text versions:
11.08.1994
164
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 12 July 1994, in plenary, in the case of the appellant - a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic, a party to the proceedings - the Chamber of Deputies of the Parliament of the Czech Republic and the intervener MUDr. E. W., represented by the lawyer JUDr. A. G., on the application for annulment
1. part of the provision of § 3 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, in words "having permanent residence in its territory" and part of the provision of § 3 (2) of the same Act, as amended by the laws amending it and supplementing it, in words "and having permanent residence in its territory,"
2. part of the provisions of Sections 5 (2) and 4 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, in the words "since the effective date of the Act"
as follows:
On 1 November 1994:
1. in the provisions of § 3 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, part of the sentence after (second) comma in the words "has permanent residence in its territory" and in the provisions of § 3 (4) of the same Act, as amended by the laws amending it and supplementing it (before the application of Act No. 116 / 1994 Coll. designated as paragraph 2), part of the sentence in the words "have permanent residence in its territory,"
2. in the provisions of Sections 5 (2) and 4 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, the words "from the date of application of this Act."
Reasons (substantial part)
A group of 53 Members of the Chamber of Deputies of the Parliament of the Czech Republic submitted a proposal:
1. on the abolition of part of the sentence after comma, namely the words "and has permanent residence in its territory" in the provision of § 3 paragraph 1 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by Acts No. 264 / 1992 Coll., No. 267 / 1992 Coll. and No. 134 / 1993 Coll., and in the provision of § 3 paragraph 2 of the same Act, as amended, in the part of the sentence "and have permanent residence in its territory," stating that they are contrary:
(a) with the provisions of Articles 1, 4 and 10 of the Constitution of the Czech Republic,
(b) the second sentence of Articles 1, 3, 4 and 11 (1) and Articles 36, 38 and 42 of the Charter of Fundamental Rights and Freedoms,
(c) with Article 1 (1) of the Additional Protocol to the European Convention (Convention) on the Protection of Human Rights and Fundamental Freedoms;
2. to abolish part of the provisions of Sections 5 (2) and 5 (4) of the same Act, as amended, in the words "from the date of application of this Act." The additional submission of 2 June 1994 states that these provisions are contradictory in those words to the same constitutional provisions as those which contravene the contested parts of § 3 (1), (2) of Act No. 87 / 1991 Coll.
In its observations of 8 April 1994 (signed by the President of the Chamber of Deputies PhDr. Milan Uhdem), the Chamber of Deputies stated that Law No 87 / 1991 Coll. was in accordance with the Constitution and our legal order. The law was approved by the necessary majority of the Members of the Federal Assembly on 21 March 1991, signed by the relevant constitutional authorities and duly declared. The purpose of the law is to make at least a partial reduction of the injustices caused, since the frequency of areas of social life in which property and other injustices were committed in our Republic between 25 February 1948 and 1 January 1990, and the number of people affected significantly limits the possibilities of comprehensive legislation to cover the consequences of all injustices. Similarly, it is not possible to make full rehabilitation or full compensation to all who have been damaged in the past. In accordance with this principle, the Act provided for citizenship and permanent residence in the territory of the Republic for beneficiaries. The adoption of this principle is fully in line with international practice.
On 29 April 1994 Act No. 116 / 1994 Coll., amending and supplementing Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, was adopted. This Law entered into force on 1 July 1994. Article 2 Article 3 (2) and (3) shall be replaced by the following: This legal amendment is therefore also affected by the numbering of the contested provision Article 3 (2) of the Act on extrajudicial rehabilitation, which continues to be referred to as paragraph 4.
Own analysis of issues
1. The Constitutional Court first addressed the issue of the constitutionality of narrowing the circle of persons to whom certain property and other injustices have been caused by civil and labour law acts and administrative acts which were made in the so-called operative period (i.e. 25 February 1948 to 1 January 1990) contrary to the principles of a democratic society respecting the rights of citizens expressed in international documents and treaties binding on our State (§ 1 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation). The narrowing of the group of beneficiaries follows from the provisions of § 3 (1) of the cited Act, according to which the person entitled is only a natural person whose case has been transferred to the State in the cases referred to in § 6 of the cited Act if he is a State citizen of the CSFR and has a permanent residence in its territory. In the event that that person has already died, the person entitled shall be the natural person who is referred to as the legal successor in § 3 (4) (a) to (e) of the cited Act [previously § 3 (2) (a) to (e)], provided that he is a State citizen of the CSFR and resides in its territory.
It is common ground that even in the restitution of ownership processes it is necessary to assess the principle of equality before the law in relation to the specifics of the area in which it is intended to find its fulfillment. Consideration should be given to whether, in the existence of only the relative equality of potentially interested natural persons, the constitutional legal concept of fundamental rights of the Czech Republic can tolerate the existence of a narrowing provision as regards the scope of the legal entities according to the criterion of permanent residence in the Czech Republic.
First of all, it is necessary to assess the interpretative importance of the preamble to Act No. 87 / 1991 Coll., which states that the aim of the regulation is to "seek to mitigate the consequences of certain property and other injustices' which occurred between 1948 and 1989. It is therefore about defining the content of the concept of" certain 'property and other injustices. The question arises as to whether this concept can be understood not only in relation to the heading and intensity of the property intervention, in particular to the ownership of citizens in the relevant period, or whether it is possible to see the legal space for narrowing down the circle of authorised entities in view of whether they are permanently resident in CSFR (from 1 January 1993 in the Czech Republic). This question must be answered in the negative. The word' some property and other injustices' can be seen as an expression of the legislator's will to mitigate not all injustices in terms of content and scope, but - and only in this respect - only the most serious injustices. However, the scope for the exclusion of certain entities from the scope of those who fulfil the characteristics of a restitution title cannot be inferred from that wording of the preamble to the law. It can therefore be concluded that there is no consistency between the definition of the concept of "authorised person 'in accordance with the provisions of Paragraph 3 (1) and (4) (formerly paragraph 2) of the contested law and the text and purpose of its preamble.
The possibility of expressly restricting the acquisition of certain items of property only by certain entities contains Article 11 (2) The Charter of Fundamental Rights and Freedoms, which states that "the law may also provide that certain items may only be owned by citizens or legal persons established in the Czech and Slovak Federal Republic" (from 1 January 1993 in the Czech Republic). In connection with Article 42 (1) of the Charter of Fundamental Rights and Freedoms under the term "citizen" means a citizen of the state of the CSFR (Czech Republic). However, this regulation applies only to the conditions of citizenship of the Czech Republic, not in general, but only to certain matters laid down in the law. The Charter of Fundamental Rights and Freedoms in that provision does not empower the legislator to determine further conditions for acquiring ownership (whether in the context of the restitution process or in general), namely the conditions of permanent residence in the Czech Republic. Such authorisation cannot be found in other constitutional regulations of the Czech State.
The term "permanent residence" itself is regulated in the provision of § 3 (2) of Act No. 135 / 1982 Coll., on the reporting and registration of residents. The permanent residence is a permanent residence of a citizen, usually in a place where he has a family, parents, apartment or job. It follows from the provisions of § 1 of the Act cited that the purpose of the Act is to regulate and ensure proper and timely reporting and registration of the residence of Czechoslovak state citizens in the territory of the then CSSR. It is therefore a public law law law, which is only of a nature which is registered and police; This is also apparent from the provisions of Section 3 (3) of this Act, according to which citizens can only have permanent residence in objects marked with a number under special regulations. The concept of "permanent residence 'should therefore not be relevant in a standard which regulates private law relations such as Act No 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by laws amending it and supplementing it, in the present case.
Furthermore, when dealing with the issue of constitutionality, the term of permanent residence within the meaning of the contested law requires consideration of the provisions of Article 14 (1) and (2) of the Charter of Fundamental Rights and Freedoms, even if the motion of a group of Members does not expressly refer to it. Under this article, freedom of movement and residence is guaranteed. Anyone who is legally present in the territory of CSFR (now the Czech Republic) has the right to leave it freely. Thus, if the contested provision of Act No. 87 / 1991 Coll. (§ 3 paragraph 1, 2 - now 4) considers only a natural person who (apart from other conditions) has permanent residence in the territory of the CSFR (CR) - and if the law allows only that person to successfully apply for the issue of withdrawn items - then this legal condition ignores the constitutional freedom of residence and movement in its consequences.
The Constitutional Court therefore concludes that the proposal by a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to abolish the contested part of the provisions of Paragraph 3 (1) (2) (now Article 4) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, is justified if it points to a contradiction:
- Article 1 of the Constitution, which declares the Czech Republic a rule of law, based on respect for the rights and freedoms of man and citizen,
- Article 1 of the Charter of Fundamental Rights and Freedoms, guaranteeing equality in rights,
- Article 3 (1) of the Charter of Fundamental Rights and Freedoms, prohibiting discrimination in the field of fundamental rights and freedoms,
- Article 4 (2) The Charter of Fundamental Rights and Freedoms, establishing the principle that the limits of fundamental rights and freedoms may only be regulated by law under the conditions laid down in the Charter of Fundamental Rights and Freedoms,
- Article 4 (3) The Charter of Fundamental Rights and Freedoms, which provides that statutory restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down,
- with Article 1 (1) of the Additional Protocol to the European Convention (Convention) on the Protection of Human Rights and Fundamental Freedoms, determining that any natural or legal person has the right to use his property peacefully,
- Article 10 of the Constitution, according to which the ratified and declared international treaties on human rights and fundamental freedoms by which the Czech Republic is bound are directly binding and take precedence over the law.
Furthermore, the contested provision of the law is contrary to Article 11 (2) The Charter of Fundamental Rights and Freedoms, which empowers the legislature only to provide that certain items may only be owned by citizens or legal persons established in the Czech and Slovak Federal Republic. It also runs counter to Article 14 (1), (2) of the Charter of Fundamental Rights and Freedoms, which establishes freedom of movement and residence and other rights therein.
However, if the parliamentary motion is based on the following Articles of the Constitution and the Charter of Fundamental Rights and Freedoms, the Constitutional Court has not found them to be infringed for the following reasons:
- Article 4 of the Constitution - provides that fundamental rights and freedoms are protected by judicial authority. This article places emphasis on the protection of the judiciary and therefore has a different meaning and does not affect part of the provision of § 3 paragraph 1, paragraph 4 (formerly paragraph 2) of Act No. 87 / 1991 Coll., as amended by the laws amending it and supplementing it,
- Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms - both of these Articles place the emphasis on the protection of the judiciary, that is, in the same way as Article 4 of the Constitution,
- Article 42 of the Charter of Fundamental Rights and Freedoms - it is not a contradiction with this Article. The proposal challenges the condition of permanent residence, Article 42 of the Charter of Fundamental Rights and Freedoms, however, concerns the definition of the concept of "citizen 'and the guarantees of human rights and fundamental freedoms guaranteed by the Charter of Fundamental Rights and Freedoms for foreigners, provided that such rights are not expressly granted to citizens. Article 42 of the Charter of Fundamental Rights and Freedoms does not therefore apply to the case under trial.
2. The motion of the group of Members also goes against the disproportionately short period laid down in the provisions of Paragraph 5 (2), paragraph 4 of Law No 87 / 1991 Coll. to call for a case (6 months from the date of application of the law) and to claim the entitlement of the beneficiary in court (1 year from the date of application of the law). The proposal argues, in particular, that these provisions are in accordance with the provisions of Paragraph 3 (1), (2) (now Article 4) of the contested law - which are manifestly unconstitutional - organically linked, since they standard the way in which the beneficiary can (and must) exercise his right. In this situation, it is necessary, according to the proposal of a group of Members, to delete the words "from the date of application of this law 'in the provisions of Section 5 (2), paragraph 4, because it is only possible to allow persons whose claim is based only on the finding of a Constitutional Court (i.e. citizens of the Czech Republic who do not reside on its territory) to apply it properly within a period which will start to fall into one with the entry into force of the annulment of the Constitutional Court.
In the previous considerations, the Constitutional Court considered that the provisions of § 3 (1) and (4) (formerly Article 2) of Act No. 87 / 1991 Coll., as amended by the laws amending it and supplementing it, as long as the condition of permanent residence in the territory of the CSFR (since 1 January 1993 in the Czech Republic) was also standardised for beneficiaries, is particularly contrary to the constitutional principle of equality of people enshrined in the Charter of Fundamental Rights and Freedoms. However, that conclusion would not in itself be sufficient to eliminate the inequality between the beneficiaries, as the time limits contained in the provisions of Sections 5 (2) and 5 (4) of the contested law have already expired. Natural persons who are citizens of the Czech Republic and do not reside permanently on its territory could therefore not claim their claims successfully, as the legal period expired. Thus, the annulment of the non-constitutional provisions of § 3 (1) and (4) (formerly Article 2) of the contested law would completely pass. In order to comply with the constitutional principles, which necessitates the abolition of parts of the provisions of Paragraph 3 (1), (4) (formerly paragraph 2) of the Act, it is therefore necessary to repeal part of the provisions of paragraphs 5 (2) and (4) of the Act, namely the words "from the date of application of the Act ', since, as the appellant rightly states, it is only in this way that citizens whose claim will be established only by the Constitutional Court to apply it in time. Paragraph 5 (2), (4) and § 3 (1), (4) (formerly Article 2) of the Act are therefore so connected that they cannot be separated from each other and the constitutionality of Section 5 (2), (4) cannot be considered separately. Therefore, the Constitutional Court concludes that the contested part of the provision of § 5 (2), 4 of Law No 87 / 1991 Coll. is in its consequences contrary to the same constitutional provisions which are infringed by the contested part of the provision of § 3 (1), (2) of that law.
If the Constitutional Court repeals the words "from the date of application of the Law 'in the provisions of § 5 (2) and § 4 (4) of the Law, then the period referred to in § 5 (2) and (4) of that Law shall begin to run from the date of enforceability of the Constitutional Court's decision, 1 November 1994. This conclusion is necessary as otherwise the protection of constitutional principles which led to the annulment of the contested parts of the provisions of § 3 (1), (4) (formerly 2) of Act No 87 / 1991 Coll., as amended by the laws amending it and supplementing it, would not be guaranteed. However, this newly opened period shall only apply to persons who are found to be eligible. They are therefore persons who did not fulfil the condition of permanent residence in the territory of CSFR (Czech Republic), which had already been abolished by the Constitutional Court. However, the running of the new deadline from the date of enforcement of the finding does not concern persons who were already entitled before the date of the finding, since they fulfilled the valid permanent residence conditions in the territory of CSFR (Czech Republic) and for various reasons did not apply the claim in time.
For the sake of completeness, the Constitutional Court also addressed the appellant's objection that the 6-month period for the call for action and the 1-year period for the claim to the court, which is beginning to run on the date of application of the law, is excessively short. This objection must also be attested. What is important is that both periods are bound by the effectiveness of the law, which many citizens with permanent residence outside the territory of the Republic, in particular citizens from overseas countries, did not have to, or could not have, know in time. In this situation, the setting of several months' time limits for the exercise of the right, in particular in relation to those citizens, is discriminatory, since, in its consequences, many of them have made it impossible to exercise their rights within the legal period. From this point of view, it can be concluded that the determination of excessively short time limits in the provisions of § 5 (2), (4) of the Act is contrary to the constitutional provisions invoked by the motion of a group of Members. It is consistently contrary to the provisions of Article 36 (1) of the Charter of Fundamental Rights and Freedoms and Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, since, in particular, those citizens were not allowed to seek their rights before an independent and impartial court by setting up completely unrealistic deadlines.
However, the time limits set out in the provisions of § 5 (2), (4) of Law No 87 / 1991 Coll. cannot be abolished by the Constitutional Court on the ground that the application for annulment has not been lodged. However, even if such a proposal were to be made, the repeal of those time limits would render both provisions irrelevant. Even taking into account this, the Constitutional Court concludes that the protection of constitutionality corresponds to the above conclusion, according to which the current time limits relate to the enforceability of the Constitutional Court's finding, namely, on 1 November 1994. This gives sufficient respect to the equal rights of all citizens, including citizens who live abroad, who must be assumed to be well informed and can apply them in a realistic and timely manner.
In this context, the Constitutional Court also addressed the question of whether deleting parts of the provisions of Sections 5 (2) and 5 (4) of the contested law is not retroactive and whether it does not infringe the principle of legal certainty that can be derived from Article 1 of the Constitution of the Czech Republic. The case under trial is about rectification or atonement of past injustices, and part of that is the restitution of property. The correction is carried out by specific laws governing individual sections of life, while respecting the principle that earlier standards will not be abolished retroactively, but that only certain consequences of their earlier application will be eliminated. It is true that the intervention itself in the legal situation created by the old standards in the previous period already has a certain aspect of retroactivity. The Act No. 87 / 1991 Coll., as amended by the laws amending it and supplementing it, does not, however, retroactively intervene in the very legal order of the critical period (i.e. from 25 February 1948 to 1 January 1990), as it concerns only the consequences associated with the effects of the legal order and nothing else.
Legal science recognizes retroactivity by right and retroactivity by wrong. True retroactivity involves cases where the rule of law also reflects the establishment of a legal relationship and claims arising from it before it is effective. Incorrect retroactivity is that the legal relationships of both substantive and procedural law which arose under the validity of the old law are, in principle, governed by that law until the new law is effective; However, after its effectiveness, it shall be governed by new law. However, this principle applies only as long as the other final provisions of the rule of law do not provide otherwise, taking into account the specificities of certain legal relations.
If the Act No. 87 / 1991 Coll., as amended by the laws amending it and supplementing it, finds it to be a retroactivity, then it is only a retroactivity that is incorrect, which is acceptable from the point of view of legal certainty. The design of the remedy (rehabilitation) consists in determining the authorised person, the obliged person, the need to call on the debtor within the time limit laid down, the obligation to conclude a specific agreement on the issue of the case, and the need to bring an action, within the time limit which is forfeited, for the debtor to enforce the signature of such an agreement if the debtor has refused to conclude the agreement on the issue of the case. It is therefore not a classical vindication, although it is a claim to issue a case which is based on lex specialis (Act No. 87 / 1991 Coll., as amended by the laws amending it and supplementing it). This provision also implies recognition of the validity of the former rule of law and, if there is no enforcement of the right to issue the case, it remains in the legal situation created and it is not possible to apply any other legal provision, even the general provision.
It is clear that these considerations do not only concern Act No 87 / 1991 Coll., on non-judicial rehabilitation, as amended by the laws amending it and supplementing it as a whole, but also relate to the consequences of the deletion of the words "from the effective date of the Act ', as yet contained in the provisions of § 5 (2), (4) of that Act.
Therefore, the Constitutional Court concluded that the deletion of those words in the provisions of Sections 5 (2) and 4 of Act No. 87 / 1991 Coll., as amended by the laws amending and supplementing it, does not constitute an inadmissible retroactivity. Otherwise, the whole of that law would have to be considered inadmissible retroactive. However, in the case under trial, as has already been mentioned, it can only be a retroactivity that is wrong, which is generally considered acceptable in both legal theory and practice.
Therefore, pursuant to Article 87 (1) (a) of the Constitution and Article 70 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court shall, on 1 November 1994:
1. in the provisions of § 3 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, part of the sentence after (second) comma in the words "has permanent residence in its territory" and in the provisions of § 3 (4) of the same Act, as amended by the laws amending it and supplementing it (before the application of Act No. 116 / 1994 Coll. designated as paragraph 2), part of the sentence in the words "have permanent residence in its territory,"
2. in the provisions of Sections 5 (2) and 4 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it, the words "from the date of application of this Act."
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to attach a different opinion on its behalf to the decision on the application for annulment of the provisions of § 5 paragraphs 2 and 4 of the contested law under § 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was used by the following judges: JUDr. Vladimir Čermák and JUDr. Vlastimil Ševčík.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 164 / 1994 Coll., on the application for annulment of part of the provision § 3 paragraph 1, part of the provision § 3 paragraph 2 and part of the provision § 5 paragraph 2 and § 4 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended by the laws amending it and supplementing it |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.08.1994 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0