The Constitutional Court found no 185 / 1997 Coll.

Motion denied.

The appellant lodged a constitutional complaint against the judgment of the Regional Court in Prague of 30 January 1996 No. 20 Co 751 / 95-44, in conjunction with the judgment of the District Court of Praha- west of 4 October 1995 No. 4 C 352 / 95-27, which rejected his action for the issue of the House No. 363, the building lot No. 459, the garage with the building lot No. 460 and the garden No. 462, all in the cadastral territory of V., with the justification that the complainant did not demonstrate the citizenship of the Czech Republic and thus did not comply with one of the conditions of Law No 87 / 1991 Coll., on extrajudicial rehabilitation, as amended. At the same time, the complainant submitted a proposal to abolish the provision expressed in § 3 (1) of Act No. 87 / 1991 Coll., as amended, in the words "if he is a citizen of the Czech and Slovak Federal Republic 'and the provision expressed in § 3 (4) of that Act" if he is a citizen of the Czech and Slovak Federal Republic'.

On the grounds of his proposal to abolish the provisions cited in the Act on Exjudicial Rehabilitation, he stated that the Constitutional Court had already, in its decision of 12 July 1994, which repealed the permanent residence condition in Act No 87 / 1991 Coll., as amended, concluded that, from the words of the preamble to the Act, "the scope for the exclusion of certain entities from the scope of those who fulfil the characteristics of a restitution title," i.e. neither for the exclusion of persons without citizenship. Similarly, the complainant submits that the conclusion of the Constitutional Court remains that "between the definition of the concept of entitled person under § 3 (1) and (4) of the contested law and the text and meaning of its preamble are incompatible ', since, the complainant continues to ensure that the text of the law is actually fulfilled by the preamble, the condition of citizenship must be abolished. He also admitted in his constitutional complaint that Article 11 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter ") allows the law to provide that certain items can only be owned by citizens or legal persons established in the Czech and Slovak Federal Republic, while the citizen is a citizen under Article 42 (1) of the Charter, but this restriction does not apply in general, but only in respect of certain matters defined in the law. In the event of a conflict between such an arrangement, the complainant and the declared will of the State to rectify the most serious property injustices must have priority in the State claiming to be the rule of law to rectify the injustices committed. In this context, he referred in particular to Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and equality in rights under Article 1 of the Charter. In other statements of his proposal, he stressed that the persons who were prevented from participating in restitution had lost their property in the same way as those who fulfilled the conditions of the law when both cases were the same injustice. Each division is then, according to the complainant, discriminatory and therefore contrary to Article 3 (1) of the Charter. According to the complainant, the discriminatory nature of the contested parts of the provision is, in particular, apparent from the fact that the de facto only difference between those persons who, according to the current regulation, are entitled to restitution and those who do not have this right is only that in which country the persons themselves or their parents have decided to live after leaving the Communist-controlled Czechoslovakia. He also addressed in his constitutional complaint the issue of our citizens living in the US, where the citizenship of the United States of America is linked to the loss of citizenship of the former, which, according to the complainant in a democratic state, is unthinkable to charge the persons concerned. In this context, he also pointed out the importance of the Czechoslovak emigration living in the US, which he described as the driving force of both war unions, including financial assistance. Then, in his constitutional complaint, he pointed out that his family, even at the time of the threat to the Republic by Nazi Germany, took patriotic positions, which led in 1942 to prevent his property and then his subsequent postwar return. As regards the issue of the unconstitutional nature of the contested provisions, the complainant further stated that this condition, as well as the condition of permanent residence, is contrary to Article 14 (1) of the Charter as it ignores freedom of residence and movement. Finally, he again pointed out the contradiction between the contested provisions with Article 1 of the Charter, which guarantees equality of rights for all people, and Article 1 of the Constitution, which states that the Czech Republic is a rule of law, based on respect for the rights and freedoms of man, which the contested law infringes by excluding a certain number of persons from the possibility of seeking recovery of their original property.

According to the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, an application may be filed together with a constitutional complaint for the annulment of a law or any other law or provision thereof, the application of which resulted in a fact which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or, where applicable, to another law.

Pursuant to Article 78 (1) of Act No 182 / 1993 Coll., where a motion for the annulment of a law pursuant to Article 74 has been submitted together with a constitutional complaint, the Chamber shall suspend the proceedings and refer the motion for the annulment of the law to the full to a decision pursuant to Article 87 (1) (a) or (b) of the Constitution.

The Second Chamber of the Constitutional Court was primarily concerned with whether the conditions of the provision cited in Section 74 were met. It concluded that the proposal to abolish the provision set out in Section 3 (1) of the Act on extrajudicial rehabilitation was "if it is a national citizen of the Czech and Slovak Federal Republic 'and to abolish the provision set out in Section 3 (4) of that Act by the words" if the citizens of the Czech and Slovak Federal Republics are "was filed in accordance with the provisions of Section 74, as its application led to the decision of the Regional Court in Prague by this complaint. Therefore, by order of 30 October 1996, sp. zn. II. ÚS 159 / 96, the Senate suspended the proceedings for a constitutional complaint and the proposal for the annulment of the provision set out in Article 3 (1) of the Act on extrajudicial rehabilitation was," if the national citizen of the Czech and Slovak Federal Republic is a citizen of the Czech and Slovak Federal Republic', and the withdrawal of the provision set out in Article 3 (4) of the same law was, "if the citizens of the Czech and Slovak Federal Republic were," if they were citizens of the Czech and Slovak Federal Republic ', he referred the full court of the Constitutional Court to a decision pursuant to Article 87 (1) (a) of the Constitution.

Since the Judge-Rapporteur did not find any grounds to reject the application for annulment of the Act, the proposal was served to the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Articles 42 (3) and 69 of Law No 182 / 1993 Coll. and Article 28 (1) of the Act, although the laws whose partial annulment is proposed were issued by the Federal Assembly of the Czech and Slovak Federal Republic, because the succession of the Parliament of the Czech Republic results, on the one hand, from Article 3 (1) of the Constitutional Law of the Czech National Council No 4 / 1993 Coll., on measures relating to the demise of the Czech and Slovak Federal Republic, on the other hand, from the Constitution of the Czech Republic.

The Chamber of Deputies of the Parliament of the Czech Republic - its President, Ing. Miloš Zeman - stated in its statement that the Czech and Slovak Federal Republic was the only state of the Eastern European bloc to deal with the issue of compensation for property and other injustices incurred in the previous period, as stated in the explanatory note to the contested law. The difficulty of dealing with the issue of compensation was manifested not only when discussing the bill but also in the need for amendments. It further stated that, by its nature, this was an exceptional and one-off law, which was based on the principle of at least partial reduction of the injustices incurred between 25 February 1948 and 1 January 1990. This was based on the validity of the legislation during that period and, if some were cancelled, they did not cancel with effect from the outset, but with effect from the date of the repeal of the provision. The aim, according to the Chamber of Deputies, was only to eliminate the consequences of the application of earlier regulations during the relevant period. For these reasons, it is therefore not possible to talk about the recovery in the previous situation or the issue of the expropriated case. Since the purpose of the law was not to eliminate all the injustices but only to mitigate them, they could only be implemented to the extent that the internal indebtedness of the State did not deepen. From this point of view, only Czechoslovak state citizens were offered compensation, which was consistent with the Chamber of Deputies and international customs. It is also stated in the Chamber of Deputies that it cannot be considered that the condition of citizenship would be contrary to our rule of law because any person who did not wish to lose his or her property was allowed to restore citizenship within a sufficiently long period of time. That fact fully complies with the provisions of Article 3 (2) of the Charter under which everyone has the right to decide freely on their nationality. Moreover, when the Constitutional Court, in its finding No 164 / 1994 Coll. assessed the interpretative importance of the preamble to the definition of the concept of an authorised person under the provisions of § 3 (1) and (4) of the Law on extrajudicial rehabilitation, it concluded that the legal space for the circle of authorised entities had been narrowed, provided that the condition of permanent residence was laid down, since the above provision was not in accordance with the preamble, but the Constitutional Court also based on Article 11 (2) of the Charter, which provides for the possibility for the law to restrict the acquisition of certain items into the property of citizens or legal persons with their registered office in the Czech and Slovak Federal Republic of the Czech Republic of the Republic of the Czech Republic of the Czech Republic of the Slovak Republic of the Czech Republic of the Czech Republic, while Article 42 (1). From these conclusions, the Chamber of Deputies concluded that, by deleting the permanent residence condition, sufficient legal space was provided for the beneficiaries to exercise their restitution rights and that the abolition of the nationality condition would be contrary to our legal order. Finally, it is stated that the legislature acted in the belief that the law adopted was in accordance with the Constitution and our legal order and that it is up to the Constitutional Court to examine the constitutionality of the contested parts of the provisions of Act No 87 / 1991 Coll., as amended, and to give a decision in the context of the draft.

The Constitutional Court first examined how Article 68 (2) of Act No. 182 / 1993 Coll., where the contested law was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. At the time of the legislature, the powers of the legislature were given by the provisions of Articles 29 et seq., 102 et seq., et seq. of Constitutional Law No. 143 / 1968 Coll., on the Czechoslovak Federation, as amended. From the House of the Federal Assembly and the reports submitted on the 13th Joint Meeting of the People's House and the House of Nations, which the Constitutional Court requested in the office of the Chamber of Deputies of the Parliament of the Czech Republic, it was found that a sufficient number of Members took part in the meeting at which the law was voted, the law was adopted by the necessary number of votes, signed by the relevant constitutional officials and duly declared in the Collection of Laws. The individual provisions of the law which the complainant proposes to abolish have thus become a valid part of our legal order and are, as is apparent from Article 1 (1) of the Constitutional Act of the Czech National Council No. 4 / 1993 Coll., still.

The Constitutional Court dealt with the constitutionality of the definition of a group of authorised persons in the Act on extrajudicial rehabilitation in its findings in the case under Sp. Pl. ÚS 3 / 94 (ÚS CR: Collection of Found and Resolution - Volume 1 C. H. Beck Praha, 1994, p. 279 - 291). At the beginning of his argument, he assessed the interpretative importance of the preamble to Act No. 87 / 1991 Coll., as amended, which shows that the aim of the Act on extrajudicial rehabilitation is to "attempt to mitigate the consequences of certain property and other injustices' which occurred between 1948 and 1989. The first question raised by the Constitutional Court in this context was whether the" mitigation "of the consequences of" some "injustices can only be understood in relation to the heading and intensity of the property intervention, in particular the ownership of citizens, during the relevant period, or whether the legal scope for narrowing the circle of authorised entities with regard to their permanent residence can also be seen. The Court answered the question in the negative when it found that the scope for the exclusion of certain entities from the scope of those which fulfil the characteristics of a restitution title could not be inferred from that wording of the preamble to the law. In the opinion of the Constitutional Court, the framework for the possible limitation of the circle of beneficiaries is given only by the provision of Article 11 (2) of the Charter, according to which the law may provide that certain items may only be owned by citizens of the Czech Republic. It then concluded from that provision that the Charter in that provision" does not empower the legislator to determine further conditions for the acquisition of ownership (whether under the restitution process or in general) '. A contrario therefore applies that Article 11 (2) The Charter empowers the legislature to determine the condition of citizenship in the acquisition of ownership in the context of the restitution process [the heading of the matters laid down by the law to which the right to issue cases by persons with national citizenship (the Czech and Slovak Federal Republic and the Czech Republic respectively) is defined in Section 6 of the Act on extrajudicial rehabilitation]. At another point in the preamble to the Constitutional Court's finding in Pl. ÚS 3 / 94, it is consistently stated that the condition of permanent residence is "contrary to Article 11 (2) of the Charter, 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'.

Following the conclusions contained in that finding by the Constitutional Court, even in the present case, the Constitutional Court is not to derogate from the grounds, the following can be stated:

According to Article 11 (2) of the Charter, "the Act may also provide that certain items may only be owned by citizens or legal persons established in the Czech and Slovak Federal Republic '(whereas Article 42 (1) of the Charter and Article 1 (2) of the Constitutional Law of the Czech Republic No. 4 / 1993 Coll. are nationals of the Czech Republic and the territory of the Czech Republic). Article 11 (2) The Charter is therefore a special provision on the constitutional principle of equality between all entities regarding the acquisition and protection of property rights (an example of its incorporation into the law is the provision of § 17 of Foreign Exchange Act No. 219 / 1995 Coll.). It is precisely Article 11 (2) of the Charter, which creates a constitutional space for legislators to restrict the circle of beneficiaries in restitution legislation.

The aim of the restitution legislature was not only to mitigate some of the property wrongs committed by the Communist regime, but also to understand restitution as one of the forms of privatisation. In the condition of citizenship, therefore, the legislature's efforts to make restitution were reflected when the presence of a restituent was given, and thus the likelihood of caring the proper economy for the restituted property. Article II of Act No. 88 / 1990 Coll., amending and supplementing the provisions on the acquisition and withdrawal of Czechoslovak citizenship, enabled the possible restituents to obtain them with the effects of ex tunc in the period from 29 March 1990 to 31 December 1993, by simply communicating their interest in Czechoslovak (or from 1 January 1993 on Czech) citizenship. Thus, sufficient space was created under national law for the exercise of restitution rights under the Law on non-judicial rehabilitation and for persons who did not fulfil the nationality requirement.

Any Article 11 (2) The Charter creates a constitutional space to limit the property rights of stateless persons of the Czech Republic, which must be interpreted in the light of Article 4 (4) of the Charter, i.e. with regard to the requirement to minimise any constitutionally acceptable restriction of fundamental right or freedom, strictly. Following the legal construction of the Law on extrajudicial rehabilitation (preferring the issue and subsidiary in the event of the impossibility of granting a financial compensation), it is therefore the task of the democratic legislator to seek the scope to mitigate the consequences of certain property injustices committed by the Communist regime even for stateless persons of the Czech Republic.

When assessing the constitutionality of the contested provisions of law The Constitutional Court examines their compliance not only with constitutional laws but also with international treaties under Article 10 of the Constitution.

In this context, it concerns, in particular, the compliance of the contested provisions of the Act on extrajudicial rehabilitation with Article 26 of the International Covenant on Civil and Political Rights ("the Covenant ') and Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention').

In its Decisions of 19 July 1995 No 516 / 1992 (Šimonek) and 23 July 1996 No 586 / 1994 (Adam), the United Nations Committee on Human Rights in Geneva concluded that, in the case of Law No 87 / 1991 Coll., there was no reason to justify the legislator's decision to distinguish between victims of citizenship confiscation. It therefore considers the condition of citizenship to be incompatible with the prohibition of discrimination under Article 26 of the Pact, which, according to the Committee, does not require exactly the same treatment, but requires that there be sufficient grounds for a different approach.

On the contrary, the European Commission on Human Rights in Strasbourg, in its Decisions of 4 March 1996 No 23131 / 93 (Brežný v. Slovak Republic), of 11 April 1996 No 28390 / 95 (Pezoldová v. Czech Republic), of 13 May 1996 No 23899 / 93 (Nohejl v. Czech Republic) and of 13 May 1996 No 23063 / 93 (Jonas), stated that interference with property law took place at a time when the Czech Republic (or Czechoslovakia) had not yet taken over guarantees for respect of human rights. It further noted that under the Convention there is no right to restitution of ownership and since discrimination under Article 14 The Convention is only possible in the context of an infringement of any other substantive right guaranteed by the Convention, it is not possible to deduct, in the case of a condition of citizenship and permanent residence under the restitution rules, a breach of the prohibition of discrimination. Therefore, if there is no right to restitution of ownership under the Convention, the Commission considers that the restitution is entirely in the hands of the State as a sovereign.

The Constitutional Court has interpreted in a number of its decisions the content of the constitutional principle of equality. It was identified in them (namely in the findings in cases referred to in sp. zn. Pl. ÚS 16 / 93 (ÚS ČR: Collection of finds and resolutions - volume 1 C. H. Beck Praha, 1994, p. 179), Pl. ÚS 5 / 95 (ÚS ČR: Collection of findings and resolutions - volume 4 C. H. Beck Praha 1996, p. 218), Pl. ÚS 9 / 95 (ÚS ČR: Collection of findings and resolutions - Volume 5 C. H. Beck Praha, 1997, p. 137), with a view to the constitutional principle of equality, as expressed by the Constitutional Court of the Czech and Slovak Federative Republic (ÚS ČSFR, 1992, p. 179): "It is a matter of the State to decide less in the interests of the group. But even here, he must not go any further... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. '

The Constitutional Court thus rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean it" [Pl. ÚS 36 / 93 (Czech Republic: Collection of finds and resolutions - Volume 1 C. H. Beck Praha, 1994, p. 179)]. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The first one sees the elimination of the libel.

The second point of view follows from the legal opinion expressed in the case at issue under point Pl ÚS 4 / 95 (ÚS CR: Collection of finds and resolutions - volume 3 C. H. Beck Praha, 1995, p. 209): "inequality in social relations, if it is to affect fundamental human rights, must achieve intensity, doubting, at least in a certain direction, the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter, one of the political rights referred to in Article 17 et seq. of the Charter, etc., is also linked to the violation of equality" [Coincidentally Pl. ÚS 5 / 95 (CR: Collection of finds and resolutions - Volume 4 C. H. Beck Praha, 1996, p. 217 - 218)]. The second point of view in assessing the unconstitutionality of a law establishing inequality is therefore the fundamental concern of one of the fundamental rights and freedoms.

The principle of equality is governed by Articles 2 (1) and 26. Equality according to the first of the provisions quoted is of an accesoric nature, i.e. applies only to equality in the Pact enshrined rights, the right of ownership is not included among them. Article 26 provides for equality before the law and for the exclusion of discrimination. Citizenship is not included in the demonstration list of grounds excluding unequal access.

The United Nations Committee on Human Rights, in its repeated opinion, admits the application of Article 26 The Pact of Inequality is only subject to the exclusion of libel, or if this is based on reasonable and objective distinguishing marks. As such, the Constitutional Court considers the consequences of Article 11 (2) of the Charter as well as the objectives of the restitution legislature and, finally, the legislation on citizenship under Article II of Act No 88 / 1990 Coll.

As regards the appellant's alleged infringement of Article 14 (1) of the Charter, it must be noted that the condition of citizenship in the Act on non-judicial rehabilitation is not a restriction on freedom of movement and residence [contrary to the condition of permanent residence, which was the finding of the Constitutional Court in the case under point Pl. ÚS 3 / 94 (ÚS CR: Collection of Finances and Resolutions - Volume 1 C. H. Beck Praha, 1994, p. 291) deleted]. This freedom is guaranteed to the citizens of the Czech Republic not only at the level of constitutional but also at the level of legal regulations (in particular by the provisions of Sections 231, 232 and 233 of the Act No. 216 / 1991 Coll., on travel documents and travel abroad, as amended by Act No. 150 / 1996 Coll.).

For all the above reasons, the Constitutional Court proposed the annulment of the provision set out in § 3 (1) of Act No. 87 / 1991 Coll., as amended, in the words "if he is a State citizen of the Czech and Slovak Federal Republic" and the repeal of the provision set out in § 3 (4) of the same Act, he rejected "if they are nationals of the Czech and Slovak Federal Republic."

The right to give a different opinion on the finding in the report on the hearing and its connection to the decision, stating its name under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was exercised by Judge JUDr. Iva Brožová.