The Constitutional Court found No. 242 / 2010 Coll.
The Constitutional Court found of 1 July 2010 on the application for annulment of Article 29 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural assets, and on the declaration of unconstitutional inaction by Parliament of the Czech Republic
Valid
The Constitutional Tribunal found
Text versions:
17.08.2010
242
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 1 July 2010 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Ivan of the Janů, Vladimir Kórka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodém, Pavel Rychetský, Miloslav Excellent and Michaela Židlická, on the motion of a group of senators of the Senate of the Parliament of the Czech Republic to abolish Article 29 of Act No. 229 / 1991 Coll., on the modification of property and other agricultural property, and on the expression of the anti-constitutional inactivity of the Parliament of the Czech Republic in the Chamber of Parliament of the Czech Republic as parties to proceedings
as follows:
I. The proposal to abolish Article 29 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property is rejected.
II. The long-term failure of the Parliament of the Czech Republic to adopt a special law which would settle the historical property of churches and religious societies is unconstitutional and infringes Article 1 of the Constitution of the Czech Republic, Article 11 (1) and (4), Article 15 (1) and Article 16 (1) and (2) of the Charter of Fundamental Rights and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.
Reasons
Recital of the applicant's proposal and argument
1. The Group of Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the appellant") submitted an application for the initiation of proceedings pursuant to Paragraph 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), in which it requests the Constitutional Court to state that:
"The long-term failure of the Parliament of the Czech Republic to adopt specific legislation governing the treatment of property the original owners of which were churches, religious orders and congregations, infringes Article 1 (1) of the Constitution of the Czech Republic, Articles 4 (1), 11 (1), 4 of the Charter of Fundamental Rights and Freedoms and Article 1 (1) of Additional Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms."
2. It also proposes that the Constitutional Court annul Article 29 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural assets (hereinafter referred to as the "Soil Act '). This provision, including the title, is correct (the applicant states the wrong text according to ASPI, not according to the Collection of Laws):
"Property of the Church
Property, the original owner of which was a church, religious society, order and congregation, cannot be transferred to other persons until the laws on this property have been adopted. "
3. According to the appellant, Article 29 of the Soil Act states that it was not the intention of the legislator to address the issue of so-called church restitution in the Soil Act. Since the non-negligible part of the property was originally owned by churches, religious orders and congregations, the legislator stated explicitly in the Land Act that this property would not be dealt with by the Land Act, but in other laws that were yet to be adopted. According to the appellant, the legislature intended to adopt laws within a short period of time to define the status of churches, the relationship of churches and the state, the financing of churches, and, accordingly, the restitution of the original church property. Since the legislator assumed that the original ecclesiastical property (or part thereof) would be issued to the churches, the provisions of Paragraph 29 of the Soil Act have a so-called blocking character, since this property cannot be handled (cannot be transferred). The duration of this transitional period of the restriction on ownership is not limited by law.
4. In particular, the appellant points out that it does not consider the wording of Paragraph 29 of the Soil Act to be an unconstitutional text in the form in which it was adopted and at the time it was adopted. However, it considers an unconstitutional situation where the legitimate expectation of this nature was not met only by the bridging clause as a result of the legislator's long-term inaction, thereby preserving a situation which was only to be temporary for a period - at the time of the proposal - exceeding 15 years. In this regard, the appellant sees a contradiction with the requirement of legal certainty (Article 1 (1) of the Constitution), since Article 29 of the Land Act does not create such certainty in legal relations, but by delaying the intended legal regulation into a uncertain future it brings a significant element of uncertainty to legal relations, which can only be tolerated for a limited, transitional period.
5. In Article 29 of the Land Act, the appellant considered that the legislator was obliged to enact laws which would deal with legislation relating to property whose original owners were churches, religious orders and congregations. The fact that no such law has yet been adopted is the result of the long-term inactivity of the legislature. In this respect, he referred to the finding of the Constitutional Court, sp. zn.
6. Paragraph 29 of the Land Act, according to the appellant, creates ownership inequality. A part of the owners - especially the municipalities - cannot dispose of their property freely in the long term. The blocking provision also makes it impossible, for example, to organise ownership relationships in which the blocked property would be transferred to the respective church or in which the authorised church would validly renounce that property and allow the owner registered in the property register to "unblock it." According to the appellant, this situation is also intended to interfere with the right to self-administration, as municipalities cannot use the blocked assets for public funding projects and European Union funds. This is in breach of Articles 4 (1), 11 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') and Article 1 (1) of Additional Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention'). The appellant further referred to the conclusions of the finding of page 2 of the ÚS 528 / 02 (the legislator's obligation to issue a special law) and the finding of page 5 of the ÚS 5 / 03 (as regards the timeliness of the limitation of fundamental law).
7. In view of the need for adoption by the contested provision of the envisaged law in the ordinary legislative process, the appellant proposed to postpone the enforceability of the finding on 31 December 2008. At the same time, he proposed a preferential hearing within the meaning of Article 39 of the Constitutional Court Act.
Observations of the parties
8. On the application, the two parties submitted comments on the invitation to the Constitutional Court. The Chamber of Deputies of the Parliament of the Czech Republic, in its observations of 12 July 2007, signed by the President of the House, Ing. Miloslav Vlček, merely stated that the proposal was approved by the constitutional procedure of 21 May 1991 by the necessary majority of Members of the Federal Assembly, signed by the relevant constitutional authorities and duly declared. The Law under review was thus adopted within the limits of the Constitution laid down by competence and in a constitutional manner. The statement also contains only a reference to the finding of page II of the ÚS 528 / 02 and a reminder that the proposal does not contest the constitutionality of Paragraph 29 of the Land Act, but a state where it was not fulfilled.
9. On behalf of the Senate, his chairman, MUDr. Premysl Sobotka, who stated, first of all, that the concept of restitution was based on the principle of the return of property on certain conditions and not on the automatic renewal of ownership rights without further procedure. At that time, there was no constitutional or other law that would bind the legislator to such a move. In this context, he recalled the importance of the preamble to the Soil Act and the content of Article 29 itself, by which the legislature's will to mitigate the consequences of property injustices on land and other agricultural property, the original owner of which was the churches, religious orders and congregations, and at the same time the will to block transfers of that property until the adoption of legal adjustments. He also pointed out the finding of the II ÚS 528 / 02 and its importance in terms of highlighting the State's commitment to meet legitimate expectations on the part of religious legal persons. It also reminded the Senate of its activities in this direction (a public hearing on this issue in April 2007).
Oral proceedings before the Constitutional Court and procedural variations
10. On 1 July 2010, a public oral hearing took place at the Constitutional Court, from which representatives of the parties of the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic apologized.
11. The representative of the appellant did not make any suggestions for further evidence within his framework. In his recap of the proposal, he stressed the provisional nature of the contested standard and the difference between the legislator's silence and the legislator's omission, and this is a second case in the present case. This condition has lasted more than 19 years. He recalled the broader context of state and church relations, the question of the independence of churches from the state and, in this respect, the conclusions of Professor Treter. The applicant's representative further drew attention to a certain parallel of the situation under consideration with the earlier problem of deregulation of rents. Finally, it maintained its proposals submitted in the original application, with the Constitutional Court setting out the date on which the contested provision is repealed, as it were.
12. At the meeting of the plenary of the Constitutional Court, the originally appointed Judge-Rapporteur Jiří Mucha presented the report together with the motion for annulment of the contested provision. However, the qualified majority of judges envisaged by the provisions of Paragraph 13 of the Constitutional Court Act did not speak for this proposal, which requires a majority of nine votes for the decision under Article 87 (1) (a) of the Constitution. By decision of the President, within the meaning of Article 55 of the Law on the Constitutional Court, there has been a change in the place of the Judge-Rapporteur and a new judge has been appointed to draw up the finding by which Judge Ivan Jana became Judge.
Presumption of discussion of the proposal and constitutionality of the legislative procedure
13. The Constitutional Court concludes that the proposal is formally in line with the requirements of the Law on the Constitutional Court. It is the duty of the Constitutional Court to first examine whether the legislation to which the application relates has been approved within the limits of the Constitution laid down by competence and in a constitutional manner (Section 68 (2) of the Constitutional Court Act). However, this can only be done if the constitutional arrangements on the basis of which the legislation under review was adopted are in force. Paragraph 29 of the Land Act applies in the original version. It was adopted by the Federal Assembly of the CSFR on 21 May 1991 and published in the Collection of Laws on 24 June 1991 under Constitutional Act No. 143 / 1968 Coll. This Constitutional Law was repealed by Article 112 (2) of the Constitution of the Czech Republic (hereinafter the Constitution) on 1 January 1993. Therefore, the Constitutional Court no longer addressed the question of meeting these two conditions.
Formal assessment of the proposal
14. The Constitutional Court has examined the proposal both from the point of view of the arguments put forward by the appellant and from the constitutional legal aspects of others. It concluded that the veracity of the application for annulment of the contested provision was not given (operative part I), but the appellant's argument (or its intention) was of constitutional importance, which led the Constitutional Court to comply with the appellant in a separate manner (operative part II). It was led by the following considerations.
15. In the present case, the appellant submitted an argument in which the petit constitutes only a means of achieving the actual objective. This is not the removal of Paragraph 29 of the Land Act as a provision of non-constitutional, but the removal of a situation where, as a result of the long-term inactivity of the legislator, the legitimate expectation created by this bridging provision has not been fulfilled. This situation thus does not create certainty in legal relations, as would be the case in Article 1 (1) of the Constitution, while at the same time affecting other constitutionally guaranteed positions of other legal entities, in particular municipalities. The appellant does not argue in the reasoning of its proposal that the content of this provision is contrary to any part of the constitutional order. By its proposal, it seeks to achieve a state that meets legitimate expectations based on the legislator's commitment to mitigate the consequences of property injustices on land and other agricultural property, the original owner of which was churches, religious orders and congregations. In his view, the repeal of Paragraph 29 of the Soil Act, in conjunction with the finding of long-term unconstitutional inaction by the legislature, is intended to lead to this objective.
16. The Constitutional Court, in its settled case-law, takes the view that it is bound by the petition and not by its justification. In this context, he therefore had to deal with the question of whether it was possible to repeal a provision which the appellant itself did not consider unconstitutional. The intervention of the Constitutional Court in such a case is not possible, as it would mean that the Constitutional Court is leaving the role of so-called negative legislator and entering the field reserved only to legislators who are positive, i.e. Parliament of the Czech Republic. Article 87 (1) (a) of the Constitution and Article 70 (1) of the Law on the Constitutional Court, together with the conclusion that the law or its individual provisions are contrary to the constitutional order, link the possibility of a satisfactory finding of the Constitutional Court - that is to say the annulment of the contested provision. Article 88 (2) The Constitutional Tribunal's judges are bound only by the constitutional order and by the law which lays down the rules of procedure before the Constitutional Court. If the provisions of Paragraph 29 of the Land Act had not been found to be unconstitutional, there would have been no grounds for a satisfactory finding, but for rejecting the proposal or rejecting it as manifestly unfounded. It can therefore be summarised that the arguments put forward by the appellant call on the Constitutional Court to examine the constitutionality of the contested provision in the light of the broader context (failure to adopt another law). The abstract review of the constitutionality of legislation - and the powers of the Constitutional Court - are not designed to fully replace possible unconstitutional loopholes in the future (except to provide protection in individual cases). It is not possible to expect the "constitutionalisation" of such a gap in the law of interpretation, as expressed by the Constitutional Court, and thus the solution to the problem. The Constitutional Court would inappropriately enter the field of a positive legislator.
17. At the same time, the Constitutional Court is aware that the failure to adopt the envisaged special law affects a wide range of different bodies, while in the abstract review of the standard, even if the Constitutional Court finds no grounds for its annulment, it cannot be ruled out that there will be such an individual case of application (s) of the contested provision, which will trigger further constitutional provisions.
Recapitalisation of the case law of the Constitutional Court in relation to Article 29 of the Soil Act
18. The Constitutional Court has already explained its conclusions on the interpretation of the provisions of Section 29 of the Land Act and the consequences of its existence in the context of the claims of churches and religious societies. In principle, the development of this case-law was characterised by two competitive approaches, which differed to the extent of the possibility of judicial power (at that time) to intervene in complex and complex social and political issues, where the centre of responsibility for the adoption of legislation lies primarily with the legislator.
19. The view that the provisional act consisting solely of the adoption of Act No 298 / 1990 Coll., on the modification of certain property relations of the Greek laws and congregations and the Archbishop of Olomouc, as amended by Act No 338 / 1991 Coll., (hereinafter referred to as "Act No 298 / 1990 Coll.") and the contested provision of Paragraph 29 of the Law on Soil and, at the same time, the continued absence of the Act on the Historical Property of the Churches (i.e. the failure to act of the legislator) is not on the obstacle to the simultaneous protection of the property rights of the church bodies to which the so-called Act No 298 / 1990 Coll. diverging opinions on the opinion of Plen. zn. Pl. ÚS- st. 22 / 05 of 1.11.2005 (ST 22 / 39 SbNU 515; 13 / 2006 Coll.) * *); These and all other decisions quoted by the Constitutional Court are available in the electronic database NALUS http: / / nalus.ujud.cz], has been overcome. A competitive view prevailed, which, when highlighting the legislator's primary obligation to regulate the issue of so-called church restitutions, considered the integrity of the judiciary (protection of individual claims) before the adoption of a special law to be an impossible judicial activism [find sp. zn. II. ÚS 528 / 02 of 2.2.2005 (N 23 / 36 SbNU 287); Opinion of the plenary of 1 November 2005 (sp. zn. Pl. ÚS- st. 22 / 05; resolution of 19 January 2006 sp. zn. II. ÚS 687 / 04 (not published in the SbNU) and a number of decisions subsequent).
20. The Constitutional Court therefore stated in the above-mentioned finding that "[the general courts] failed to consider that the transfer of the property of the churches is covered by the mandatory provision of § 29 of Act No. 229 / 1991 Coll., according to which the property, the original owner of which was the church, religious orders and congregation, cannot be transferred to other persons until the adoption of the law on that property. The Land Act therefore assumes that agricultural property previously owned by religious legal persons will be dealt with by a separate law and protected until that law is issued. This property must therefore be covered by the regime of restitution laws and therefore there is no room for actions to determine ownership in the absence of an urgent legal interest. Nor can it be inferred from the fact that the State was not able to issue a special restitution law, although Act No. 229 / 1991 Coll., which had already entered into force on 24 June 1991, foresees the issue of such a law. The State must, however, fulfil its obligation to issue a restitution law resulting from the provision of the Land Act cited, concerning church property, because it must meet legitimate expectations on the part of church legal entities based on a legal provision." This conclusion (in competition with the finding of sp. zn. IV. ÚS 298 / 05 - see above) was subsequently confirmed by the opinion of sp. zn. Pl. ÚS-st. 22 / 05 (see above), which expressed, in particular, the nature of Act No 298 / 1990 Coll. as a restitution law, since the restitution purpose of the Act was fulfilled through the listing of the beneficiaries and the assets (transferred) concerned. Moreover, the opinion was taken over by part of the statement of reasons for the finding in point II.II of the ÚS 528 / 02 in the part in which the legislature's obligation to issue a restitution law is expressly stated, as it must meet legitimate expectations on the part of religious legal persons based on legal provisions. It is clear from this, and above all from the brief point of view of the opinion, that the purpose of the opinion was not to draft any other new legal conclusions, but to internalise one of the legal opinions already expressed, namely a different opinion on the finding sp. zn. IV. ÚS 298 / 05 and the legal conclusion of the finding sp. zn. II. ÚS 528 / 02, which was in competition with the legal opinion of the finding sp. zn. IV. ÚS 298 / 05. That finding of the legislature's obligation to adopt a restitution law and thus to meet legitimate expectations on the part of church bodies is consistently reproduced in a later case-law of the Constitutional Court [cf. Resolution sp. zn. II. ÚS 687 / 04; and resolution sp. zn. II. ÚS 230 / 05 of 16 March 2006; Resolution No IV of 19 June 2006; Resolution sp. zn. I. ÚS 679 / 03 of 10 May 2007; Resolution sp. zn. I. ÚS 1652 / 07 of 18 July 2007 (not published in the SbNU); Point 29 of the sp. zn. IV ÚS 34 / 06 of 21 November 2007 (N 201 / 47 SbNU 597); Resolution sp. zn. IV. ÚS 158 / 08 of 6 May 2008; Resolution sp. zn. II. ÚS 2904 / 08 of 7 January 2009 (not published in SbNU) and a number of others; last found on 24 June 2009 sp. zn. I. ÚS 663 / 06].
21. In any of its decisions, the Constitutional Court did not raise doubts as to the constitutionality of the provisions of Paragraph 29 of the Land Act, although it had repeatedly had the opportunity to do so. On the contrary, on the basis of the interpretation of this provision, it consistently draws its conclusions in relation to the guarantees of a constitutionally consistent settlement of the historical assets of churches. Therefore, a possible finding of the unconstitutionality of the contested provision in its consequences would mean a fundamental and surprising change of caselaw, as it would in principle lose the basis of the opinion of Plenary Pl.
Identification of the purpose of the provision of Section 29 of the Soil Act
22. The earlier considerations contained in the case-law of the Constitutional Court have already highlighted the interpretation of the purpose of the contested provision, which the Constitutional Court has now reached in a special procedure on the application for annulment of part of the legislation.
23. It is clear from the generally well-known course of the legislative process in relation to the historical assets of churches in 1990 and 1991 that the provisions of Paragraph 29 of the Soil Act are the result of an objective need to adopt such comprehensive legislation, the preparation of which, in view of the broader context of the state's relationship with churches, requires a conceptual approach, and it was not appropriate to combine laws aimed at mitigating property injustices in recognition of the State's responsibility for the past and on the basis of specific political considerations, in a period when the deetatisation of assets in the state had to be an essential element of the economic transformation initially centrally planned economy. Specific legislative proposals to settle the historical assets of churches were not successful in the complexity of the problem. The parliamentary debate shows that the non-inclusion of churches among persons authorised in general restitution regulations with the aim of subsequently adopting a special law in their favour was a predeclared intention [From the speech of the Minister of Economy of the Government of the CSFR Vladimir Dlouhý at the 14th Joint Meeting of the FS of the CSFR on 5 April 1991 (press No 547), the third area is the area of authorised persons. Here I would like to mention the church and the municipalities, although the rapporteurs will also mention this. The Government considers that the problem of resolving the Church must be supported by a separate law at Federation level (...) '(read in connection with the debate on Prints Nos 393 and 643); this and others in the found quoted stenographies and prints are published in the Joint Czech-Slovak Digital Parliamentary Library at http: / / www.ps.cz]. According to the Government's view at the time, this approach was even (in the light of the legislative design of the already adopted Act No 298 / 1990 Coll.) the result of a special regard for churches and religious societies, which should not be burdened by a relatively complicated process of applying restitution entitlements, which was foreseen for the issue of the property by general restitution laws [by the Deputy Prime Minister Pavel Rychetsky at the 13th joint meeting of the FS on 20 February 1991 (press No 477, draft law on extrajudicial rehabilitation): "I think that the important question is whether we can reconstitute the property of churches and religious societies or not. The Federal Government, as the first restitution law, submitted after 17 November, presented to the Assembly a law on the property ratios of certain orders and conventions. So the federal government has clearly demonstrated its clear intention to restore ownership of churches and religious societies. It has done so by a new law that requires nothing from an authorised entity. By law, the property of the Church is surrendered, it does not need to prove anything in any period of time, under any substantive conditions. Here I have a law that is clearly formulated as a law in which, on the one hand, the bodies are justified, on the other hand, the bodies are compulsory, and in the event of a conflict, an independent court is entitled to judge and interpret this law. The government does not want churches to be put in this position, the government does not want them to be limited, in addition, by any period in which, if they do not exercise their claim, their claim completely and once and for all ceases to exist, and the government continues to admit and never denied that it cannot agree to such a fundamental change in the curriculum of the law, if it is a change that affects only other governments, not the federal government.'; See Common Czech-Slovak Digital Parliamentary Library, link above].
24. For this reason, the rule of law also contains other provisions regulating (restrictive) the disposition of property, the original owner of which was not a State, which also foresees the adoption of specific rules for the detailed regulation of claims of other beneficiaries. The provision of § 3 (1) of Act No. 92 / 1991 Coll., on the conditions for the transfer of the State's assets to other persons, as amended, which reads: "The object of this Act is not property to be returned to legal persons by special provisions. 1) Nor is the object of this Act the property which passed on to the State after 25 February 1948 from the ownership of churches, order and congregation and religious societies." In the attached footnote the provision refers to "for example [to] Act No 298 / 1990 Coll., on the treatment of certain property relations of the Greek Order and the congregations and archbishop of Olomouc."
25. It follows from the meaning of the contested provision and from its interpretation by the Constitutional Court (establishing the above-mentioned caselaw) that its purpose is not merely to "block" a certain part of the State's assets (in part also assets registered by third parties, including municipalities), for example, to maintain a particular property status quo. The substance of the contested provision must be seen, in particular, in the legislature's commitment (promise) to adopt, at a time-delayed time, legislation on the settlement of historical assets of churches and religious societies, which takes into account the objective specifics of the material in question and consumes the provisions of Article 29 of the Soil Act. Dispository restrictions with historical church property serve only to protect this property until the adoption of a special law. The purpose of the contested provision is based both on the specific historical circumstances of the creation of the so-called restitution legislature, since this unique process accompanying the most fundamental social changes can be assessed solely in the period contexts [cf. typically the finding of sp. zn. Pl. ÚS 14 / 94 of 8.3.1995 (N 14 / 3 of SbNU 73; 55 / 1995 Coll.) or other decisions concerning the legality and legitimacy of the decisions of the President of the Republic] and the later interpretation by the Constitutional Court in cases sp. II. ÚS 528 / 02, sp.
Identification of the constitutionally protected interests concerned
26. On the part of entities (distinct from the State) which are registered as owners of a particular part of the property which is affected by the available restrictions under Paragraph 29 of the Land Act, Article 11 of the Charter of Fundamental Rights and Freedoms under which everyone has the right to own the property, while the ownership of all owners has the same legal content and protection. Expropriation or forced restriction of property rights is possible in the public interest, by law and for compensation (cf. Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms). In the case of municipalities, which the appellant points out in particular, a conflict with Article 101 (3) of the Constitution may also be raised, as the restriction of the ownership rights of municipalities as local authorities may be prevented from exercising the law of the local authorities unhindered (Article 8 of the Constitution).
27. In the case of the churches and religious societies concerned, this is not only the general practical and symbolic importance of the adoption of laws "on the mitigation of certain property injustices," that is, the moral commitment of the democratic rule of law to persons affected by the systematic violation of fundamental rights at the time of the communist regime, which is often one of those which the Czech Republic owes to its current democratic and legal nature, but at the same time - as in the former economic base of church and religious activity - on the particular trivial historical reality of fulfilling the explicit obligations of the State towards (historical) churches and religious societies which have taken over by Act No 218 / 1949 Coll., on the economic security of churches and religious societies, as amended regulations (see. § 1, 4, 6, 8, § 11 (1) and § 12), on the one hand, and the requirement for the material of guarantees of the church and the subsequent provisions. In relation to the legitimate expectations (interests of property) of religious legal persons, these are Articles 11 of the Charter and Article 1 of Additional Protocol No 1 to the Convention.
28. Furthermore, due to the lack of action of the legislator, the principle of legal certainty and the protection of trust in law arising from the basis of the material rule of law under Article 1 (1) of the Constitution may be considered. In the above context, Article 4 (4) of the Charter may also be considered, according to which when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. Such restrictions shall not be misused for purposes other than those for which they have been established.
Self-examination of constitutionality
29. The above stated purpose of Article 29 of the Land Act must be monitored in the context of the value basis of the restitution and rehabilitation legislation and the case law of the Constitutional Court. The primary value bases of the legislature incorporated into the preamble and initial provisions of the restitution and rehabilitation laws and of Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its opposition. The Constitutional Court stated explicitly the illegitimacy of the regime and its acts in the years 1948-1989 in the key finding sp. zn. It should also be pointed out that the issue of restitution under consideration is not seen by the Constitutional Court, even with a distance of two decades, as a question of historical injustice, which would be out of the reach of the instruments of the rule of law. For any assessment of acts adopted in the relevant period after 25 February 1948, the primary reference criterion is, in particular, the period of knowledge of fundamental rights and freedoms, as established and explicitly formulated in the international community after World War II. Contrary to the injustices that appear only in the application of later standards, for the relevant period, the correction of acts of the communist regime is not only a moral issue, but the direct and continuing consequences of such acts have specific legal relevance [to the adequacy of only the moral justification of rectification of "historical injustices" polemically such as Wyman, K. M. Is there and moral justice for Redressing Historical Injustice? In: Vanderbilt Law Review, January 2008, p. 128-194]. At the same time, the centre of responsibility for the specific resolution of the property restitution lies primarily with the legislator, not primarily with the Constitutional Court, which, in its powers of appeal, can only (possibly) correct the legislative solution adopted by the legislator, not replace the absence of legislation, even at the initiative of the appellant, who is himself a representative of legislative power. In other words, the Constitutional Court must reject the attempt to draw itself into a political struggle in which a certain legal issue serves to pursue various political objectives.
30. In its established case-law, the Constitutional Court has repeatedly concluded that state power - in relation to regulatory legal acts in particular - is governed by the order of proportionality (proportionality) and the prohibition of legislative arbitrage. In doubt about the constitutionality of the law, the Constitutional Court therefore assesses the purpose (objective) of such intervention in relation to the resources used, the criterion for this assessment being the principle of proportionality, which is manifested by the prohibition of excessive interference in rights and freedoms [cf.
31. These considerations are consistent with the review of the constitutionality of the sub-constitutional regulation in three methodological steps [cf., e.g. the finding of sp. zn. Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 CollNU 61; 98 / 2004 Coll.) and a number of others]: The first is the assessment of the simple right of suitability, the content of which is the assessment of the chosen normative device in view of the possible fulfilment of the intended purpose. If the legislative instrument is not capable of achieving the intended purpose, the legislature is a manifestation of insolence, which is considered contradictory to the rule of law. The second step in the application of the principle of proportionality is to assess the simple right of need, which follows the analysis of the plurality of possible legislative means in relation to the intended purpose and their subsidiarity in terms of the limitation of the Constitution of a protected value - a fundamental right or a public good. If the legislature of the intended purpose is to achieve alternative normative means, the constitutionally conformist is the one who limits the constitutional value to the minimum. If the simple right under consideration, on the one hand, pursues the protection of one of the constitutionally protected values, on the other hand, it limits another, the third aspect of the principle of proportionality, which is the measurement, is the methodology of considering these in a conflict of standing constitutional values.
32. However, the Constitutional Court is also aware that not every provision of the rule of law can be tested according to a pre-defined formula. In view of the broader context of the contested provision, since it is part of the "one-off" restitution and rehabilitation legislation, which is implemented for a substantial part at the time of such qualitative social changes, where at least partial correction of past injustices predetermines the nature of further democratic developments, the conclusions are made subject to a further review of individual and specific cases below.
33. At the first stage of the review, the Constitutional Court examines the contested provision in relation to the eligibility of its purpose (suitability of the chosen instrument). Its essence is to consider intervention from the point of view of the possible fulfilment of the intended purpose. The provision under examination must be able to achieve the intended objective of protecting another fundamental right or public good. If the legislation is not objectively capable of achieving the purpose pursued, it is a manifestation of the legislature's insolence, which is considered contradictory to the rule of law.
34. The democratic legislature, when drawing up provisions to mitigate (in particular) property injustices, is generally limited, on the one hand, to the factual situation of the cases in question (their actual existence) and, on the other hand, to the imperative of minimising harm on other rights of protected interests (e.g. public interest), on the other hand, to fundamental rights in relation to the emergence of new property injustices (whether or not any party); e.g. finding sp. zn. Pl. ÚS 71 / 04 of 17.5.2005 (N 109 / 37 SbNU 421; 272 / 2005 Coll.), part III. B), in relation to persons different from the State who may have acquired good faith in the meantime following unlawful State intervention.
35. The legislator was forced to consider the extent to which the system of restitution legislation (in the broad sense of the word) is intrinsically coherent and uncontradictory both from an objective point of view and from the point of view of the timing of the adoption of individual sub-regulations. These post-revolutionary legislation are therefore also characterised by provisions aimed at enabling the actual or legal effects of another future law.
36. In addition to the contested § 29 of the Soil Act and the already mentioned provision § 3 (1) of Act No. 92 / 1991 Coll., for example § 4 (2) of Act No. 172 / 1991 Coll., on the transfer of certain items from the property of the Czech Republic into the ownership of municipalities to prevent conflicts of property rights of restituents (original owners) and municipalities (potential new buyers). Paragraph 8 (6) of the Act on non-judicial rehabilitation (cf. sp. zn. Pl. ÚS 25 / 98 of 10.3.1999 (N 38 / 13 SbNU 269; 57 / 1999 Coll.)) also repealed the provision that "A matter declared a national cultural monument shall not be published until the Czech National Council and the Slovak National Council adopt a new law on the administration and protection of cultural monuments. ', as well as the repealed provision of § 11 (5) of the Act on Soil (cf. In these latter cases it was the elimination of the conflict between the restituent property right and the public interest in the protection of cultural monuments.
37. First of all, it is clear in the case under examination that the abolition of Paragraph 29 of the Land Act would allow the transfer of historical property to third parties by churches, thereby significantly jeopardising, if not impossible, property compensation through natural restitution (as one of the key methods of mitigating property injustices). In practice, the transfer of ownership of the original church property to third parties (acquiring such property in good faith) would entail a substantial reduction of the legislature's discretion on methods of any future property settlement, including possible increased claims on the state budget.
38. Thus, if the legislator had determined that the transfer (transfer) of assets, the owners of which were at the relevant date of the church and religious society, or of their legal person, was affected by absolute invalidity as an act of contra legem (in cases going against the meaning of the property settlement), it followed the perfectly reasonable purpose of the contested provision in relation to the provision of material ground for the future law on the settlement of historical assets of churches, or a broader legislative solution of the property settlement between the State and churches. In the absence of a blocking effect, that purpose could be partially or completely thwarted, since only the legal disposition of the State with the assets in question can be the basis for the adoption of "laws on such property 'in respect of the status of potential new owners.
39. In a situation where the intended purpose can be achieved by alternative means, the constitutional conformance is that which limits the constitutional value to the minimum. According to this principle, the use of only the most gentle - in relation to the fundamental rights and freedoms concerned - is permitted by multiple means.
40. Although, in general, it is a matter of the legislature as to how the injustices will be corrected and which means will be chosen (in theory, the restitution of natural or relative - or a combination of these - means), it is precisely the natural restitution of the existing "restitution legislature ', or in the protection of other fundamental rights and freedoms, the primary method [thus should not be excluded by other methods, more appropriate: cf., for example, Basic Principles and Guidelines on the Right to and Remedy and Reparation for Victims of Gross Vibrations of International Human Rights Law and Serial Vibrations of International Humanitarian Law, adopted and declared by the General Assembly of the United Nations by Resolution No 60 / 147 of 16 December 2005].
41. From publicly available data [e.g. the material for the resolution of the Chamber of Deputies No 774 of 29 April 2008 (supplement to the explanatory memorandum "Definition of the extent of the property issued and valuation of the property not issued, that is to say the extent of the financial compensation '), the Assembly. Prints 482, http: / / www.psp.cz], that the State is the wholly majority owner of the contested provisions of the property concerned, namely the property in the administration of the Land Fund of the Czech Republic, with the right of management of the forests of the Czech Republic, p., Military forests and goods of the Czech Republic, p., and the Office for the Representation of the State in matters of property. In relation to State-owned real estate, it is irrelevant to test the disposition of that property in this way, since such a restriction on the State to itself undoubtedly does not affect its constitutional position (cf. even the possible legal" obligation "of the State to own certain assets in the public interest in the sense of Article 11 (2) of the Charter). A relatively small number of the properties concerned are registered as owned by third parties, including municipalities. More detailed information on the structure of these third parties has not been submitted to the Constitutional Court.
42. The general alternative to natural restitution is the predominant emphasis on other methods of mitigating injustices, such as financial compensation of assets (relute restitution), which would not be blocked (unblocked) remains in the final ownership of the state (or other entities). This consideration - which, in theory, could mean a more moderate intervention in existing property relations, but perhaps also seemingly - does not feel called upon by the Constitutional Court in view of the fact that it has entered the fields reserved for legislators - particularly on political and economic issues. In this respect, the Constitutional Court is not responsible for assessing the appropriateness of the ratio of the restitution methods. In this sense, if the legal objective of the legislator is in the nature of the restitution (to a certain extent determined in the future in combination with other methods), the provision of the property in question does not constitute an intervention beyond the necessity of Article 29 of the Land Act. The Constitutional Court cannot, by its own reasoning, order the legislator to have certain ratios between the methods of natural and relative restitution.
43. The Constitutional Court did not find that the legislator had a "milder" means than the blocking of the property in question if it was to be, to some extent, at its future economic and political discretion, what methods of mitigating the injustices will be chosen, or what differentiation in its reasoning in relation to certain classes of property, the types of operators concerned, or other circumstances. This should not mean that the legislator should have full discretion in relation to the handling of the blocked property. On the contrary, the future legislative solution must be based precisely on weighing the legitimate interests of all those concerned. It is precisely because of their (constitutionally protected) interests, as they will exist at the time of the adoption of the legislative solution, that the legislator must choose a specific combination of methods of mitigating injustices so that, among other things, no new injustices are incurred on the part of the beneficiaries or obliged persons. It can also be pointed out, in practical terms, on the draft law on property settlement with churches and religious societies [namely: the draft law on the relief of certain property injustices caused by churches and religious societies in times of unfreedom, on the settlement of property relations between the state and churches and religious societies and on the amendment of certain laws (Law on property settlement with churches and religious societies), press No. 482], which, in the context of political discretion, proposed only the state, state organisations and the Land Fund of the Czech Republic (cf. § 4), i.e. not for example municipalities or other bodies.
44. The interest on fundamental rights must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms, if there is a conflict of fundamental law or freedom with a public interest, to exceed, by its negative consequences, the positive effects which constitute a public interest in those measures.
45. The Constitutional Court has not yet raised the question of the constitutionality or proportionality of the intervention of Article 29 of the Land Act in its case-law, but has in principle carried out its constitutional conformal interpretation.
46. Even now, the Constitutional Court did not find that the review resulted in a conclusion on the disproportion between the objectives and the resources pursued by the contested provision and the constitutionally protected interests at stake. It follows from the foregoing implicit that the purpose of the contested provision is, in itself, constitutionally consistent, and even directly desirable, if it is to atone for the property injustices committed by churches and religious societies, or if it follows the fulfilment of guarantees under Articles 15 (1) and 16 (1) and (2) of the Charter of Fundamental Rights and Freedoms (see below).
47. In relation to the largest part of the assets affected by the blocking effect and remaining State-owned, there is no question of the intervention of constitutional law, in particular as regards the very availability with blocked assets. The State cannot rely on property rights as fundamental rights to itself, especially if it has acquired the property concerned only at the cost of violating internationally accepted standards of protection of fundamental rights and freedoms and its own laws. In this context, even in theory, a good faith or similar subjective element on the part of the State cannot be summed up, since the State is objectively aware of its right. Therefore, it cannot be regarded as an unconstitutional intervention, even if the State (in fact or in law) does not transfer a reserved part of the property formally owned by it.
48. In particular, in relation to municipalities that are registered as owners of originally church property, the Constitutional Court finds that the blocking of such property is not an arbitrary legislature which, on the basis of its own political considerations or on the basis of a different objective, intends to intervene against specific municipalities or against the overall level of implementation of the right to self-government. These municipalities are concerned by the historical existence of ownership pluralism before 1948. In particular, it cannot be concluded without further stating that the limitation of transfers of specific individual properties in the property of the municipality would mean without further limitation the right to self-administration in relation to a particular municipality.
49. The Constitutional Court now places a fundamental emphasis on the different nature and legal fate of the property, which was owned by persons from the municipalities before the relevant period, since it was rightly the subject of (whether implemented or unimplemented) the democratic legislature's consideration of the natural restitution of third parties, on the one hand, and the so-called historical assets of the municipalities, on the other.
50. The question of the recovery of the municipality (general concept of municipal establishment) with the necessary provision of material base in democratic conditions responds to the changes made by the Government Decree No. 4 / 1945 Coll. and n., on the choice and competence of national committees, and in particular by Act No. 279 / 1949 Coll., on the Financial Management of National Committees. In Paragraph 30 (2), it stated that "the municipal capital to date would cease to be of that nature ', thus completing the legal and factual liquidation of the elements of the local authorities. Its renewal took place in 1990 in connection with the adoption of Constitutional Act No. 294 / 1990 Coll., amending and supplementing Constitutional Act No. 100 / 1960 Coll., the Constitution of the Czechoslovak Socialist Republic, and Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation, and shortening the term of the national committees. The Constitutional Law No. 100 / 1960 Coll. was amended in Article 86 in particular in that" The foundation of local government is a municipality' [1] and that "The municipality is a community of citizens. He is a legal person; he has his own property with which he manages himself. [...] '[paragraph 2]. Subsequently, Constitutional Act No. 556 / 1990 Coll., amending Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation, enshrined in Article 4 (7) of the amended Act authorising national councils to adopt laws which determine which of the assets of the Czech Republic and the Slovak Republic are the property of the municipalities. The Act became Act No. 172 / 1991 Coll., for the Czech Republic, on the transfer of certain items from the property of the Czech Republic to the property of the municipalities, which, within the meaning of § 1 and 2 of the former Act, transferred to the municipalities (including with some exceptions) the property owned by the municipalities on 31 December 1949, i.e. the so-called historical property of the municipalities.
51. Under the provisions of § 4 (2) of Act No. 172 / 1991 Coll. "The property of the municipalities shall also not be transferred to the property of the Czech Republic, for which the beneficiary shall claim entitlement under a special rule. '. In relation to municipalities, this is a reservation which, in its sense, is intended to prevent conflicts of rights and rights of municipalities (as potential new buyers) and beneficiaries (future restituents). The Constitutional Court has therefore repeatedly stated in its case law in the context of restitution disputes that the municipality cannot derive its ownership right under Law No. 172 / 1991 Coll. where the properties in question do not constitute the so-called historical ownership of the municipality [cf. sp. zn. II. ÚS 411 / 99 of 9.2.2000 (N 23 / 17 of SbNU 167); I. ÚS 84 / 05 of 1.2.2006 (N 29 / 40 of SbNU 233)]. The fact is that the interpretation of the provisions of § 4 (2) of Act No. 172 / 1991 Coll. also recorded certain fluctuations. For example in Resolution sp. zn. III. ÚS 630 / 06 of 22.3.2007 (U 4 / 44 SbNU 769) The Constitutional Court, referring to the caselaw cited there, stated, inter alia, that, pursuant to the provisions of § 4 (2) of Act No. 172 / 1991 Coll., which refers to special (restitution) rules, it refers to" not only to special regulations already issued but also to subsequent rules without limitation. "Similarly, the earlier resolution of 13 November 1997, sp. zn. IV. ÚS 373 / 97 (not published in SbNU), with reference to judicial practice, stated first of all that" the municipalities did not become its owners in the case of the restitution of the property and gave the beneficiaries the status of State as having held them on 24 June 1991. "Such an interpretation has attempted to prevent a real conflict between the restituent and the municipality from eliminating the effects of only the formal transfer of the assets concerned to the municipality.
52. By contrast, a number of other decisions of the Constitutional Court, according to which according to Act No. 172 / 1991 Coll. ownership of real estate affected by subsequent restitutions (which were initiated, for example, by the later Land Act) to the municipality of de jure, are transferred, but together with the obligation "to issue property to eligible persons under the restitution rules' [cf. Resolution of 19 November 2009 sp. zn. III. ÚS 1357 / 09 (in SbNU unpublished); the finding sp. zn. IV. ÚS 346 / 98 of 12.10.1998 (N 122 / 12 SbNU 187); Findings sp. zn. II. ÚS 2277 / 07 of 21.5.2008 (N 95 / 49 SbNU 419); order of the Constitutional Court of 31 October 2007 sp. zn. III. ÚS 801 / 06; order of 16 August 2007 sp. zn. III. ÚS 1602 / 07; order of 27 July 2000 sp. zn. IV. ÚS 124 / 99; order of 17 January 2002 sp. zn. IV. ÚS 477 / 01; of 1 March 2000 sp. zn. I. ÚS 448 / 98 (not published in SbNU)]. However, the eventual misinterpretation of this issue does not appear to be essential for the purpose of the restitution process. In addition, it is appropriate to refer to the wording of the provisions of Section 6 (5) of the Land Act under which" If the property has been transferred to the municipality, the beneficiary has the right under that law to the municipality. '(for example, the order of 28 September 1998 sp. zn. IV. ÚS 157 / 98; order of 19 May 1999 sp. zn. II. ÚS 104 / 99 (not published in SbNU), including the rejection of the application for annulment of § 6 (5) of the Land Act). It is therefore clear from the context of the adoption of the various restitution rules and the constant case law of the Constitutional Court that, contrary to the return of the historical assets of the municipalities, the transfer of other assets to the municipalities was of a very specific, formal nature, when the status of the municipality as a person required in the restitution process was never called into question by the Constitutional Court. Moreover, in constitutional order, the right of municipalities cannot be found to guarantee that their relationship with the historical assets of churches will strengthen as time passes. From Article 101 The Constitution does not in any way entitle the municipalities to historical property of churches and religious societies. On the contrary, the Constitutional Court has already stated explicitly in the past that the issue by the municipality of the property in the restitution process is not interference with the local authorities within the meaning of Article 101 (4) of the Constitution (Order of 23 March 1999 sp. zn. IV. ÚS 392 / 98 (in SbNU not published)). In any of these decisions, as is already evident, the Constitutional Court has not found a breach of the law under Article 11 of the Charter.
53. In view of the above-defined purpose of the contested provision and the hitherto role of municipalities in the restitution process, where they also act as compulsory persons, the blocking of certain specific assets, even if registered as the ownership of municipalities, in general does not appear to be disproportionate. In this respect, the interests of the municipalities themselves, on the one hand, and of the autonomous churches and religious societies, on the other hand, cannot be contradicted, since the general development of the municipalities is not conditional on the ownership of the original church properties directly by the municipalities, but can be equally well served by the management of any third party.
54. In an abstract review of the constitutionality of the Constitutional Court, the Constitutional Court is not able to objectively demonstrate or hypothetically model all the conceivable situations which the contested provision may give rise to in an individual case. The subject of the assessment cannot now be the specific cases of individual owners in which, taking into account specific circumstances including, for example, the relevance of the acquisition title, the existence of good faith or the role of the entity concerned in the restitution process, the Constitutional Court may specify its assessment in the future [to a similar reference to the individual review, e.g. the finding of sp. zn. Pl. Pl. Pr. of 4 December 2008 sp. zn. I. ÚS 428 / 06 (N 215 / 51 CollNU 673); of 25 June 2009 sp. zn. I. ÚS 89 / 07; of 5 August 2009 sp. zn. I. ÚS 566 / 07].
55. In relation to the general principle of legal certainty and the protection of trust in law (requirement for certainty and clarity of the rule of law), the overall legislative quality of the contested provision must also be considered. An important objection to uncertainty as to the determination of the future circle of beneficiaries and the circuit of blocked (issued) property or other conditions of natural restitution may be rejected. The Constitutional Court ruled out its objective uncertainty or inclarity by adopting a certain interpretation of the contested provision in the previous caselaw. When the contested provision refers to "churches, religious societies, orders and congressions', there is no rational interpretation other than the fact that they are entities existing with their own legal personality under the law in force, whether they were understood as religious legal persons within or beside churches and religious societies, which were subject to a substantive right to property from which the church and religious society benefited from the means of fulfilling their objectives and which they therefore felt as property injustices. In relation to them, these assets are those which de jure or de facto transferred to the State during the relevant period from 25 February 1948 to 1 January 1990 (cf. Section 4 (1) of the Soil Act); § 1 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation; but also Article 2 (1) of Act No. 119 / 1990 Coll., on Judicial Rehabilitation) due to property injustices [cf., for example, the introductory phrase of Act No. 298 / 1990 Coll.; preamble and provisions of § 6 (1) of the Soil Act; preamble and provisions of § 1 and 6 of Act No. 87 / 1991 Coll.; § 1 of Act No. 403 / 1990 Coll., on the mitigation of the consequences of certain property injustices]. The definition of the heading of the property in question in Article 29 of the Soil Act is sufficiently certain, since the existence of a right in rem (or the waiver of the right to property which has been wronged) during the period in question is objectively legally conclusive, and it is indecisive that the public authorities do not keep a complete separate list of the assets in question, which is not even a legal reason.
56. Finally, it is clear that the contested provision of Paragraph 29 of the Soil Act does not contain a specific deadline for the adoption of the Act on originally church property. The period during which the property in question is blocked from the effectiveness of the contested provision is determined only relatively, in relation to the adoption of that special law. The Constitutional Court notes that, in general, such a procedure is not primarily excluded. Rather, it is a question of legislative technique and its suitability, with the legal reference to a special law which is yet to be established, always containing an element of relative legal uncertainty about the content of such a law, but it is justified by the limited human possibilities of executive and legislative power to prepare and adopt only a limited number of laws at a given time. From today's point of view, the legislative non-standard design of the contested provision is not surprising in the context of the level of restitution legislation in the early 1990s. In this context, it must be pointed out that there are constitutional doubts as to the fulfilment of the requirements laid down for the generality of the law as well as, for example, the so-called Bill No. 298 / 1990 Coll., which cannot be bridged in the proportionality test other than by reference to exceptional reasons for its adoption [as stated by the Constitutional Court in its sp. zn. Similar exceptional reasons - arising from the characteristic circumstances encountered by the legislator after 1989 - the Constitutional Court also covers the present case.
57. Therefore, on the basis of the above, the Constitutional Court found no grounds to comply with the application for annulment of Paragraph 29 of the Land Act, since that provision is not an unconstitutional provision. In the context of the constitutional context, he found that both the purpose and the means contained in the contested provision would be consistent with the constitutional principles, which is not disputed by the appellant when he states that "do not consider the wording of Paragraph 29 of the Soil Act as an unconstitutional text in the form in which it was adopted and at the time when it was adopted. However, consider it an unconstitutional situation in which the legitimate expectation of this nature was not met only by a bridge clause due to the long-term inactivity of the legislator, thereby preserving a situation which was only to be temporary for a period exceeding 15 years. '
58. The legal reality of the passage of time, as the appellant points out, has in this case constitutional legal consequences not in the constitutionality of the contested provision itself, but in the event of failure to comply with that provision, the gradual escalation of the consequences of the absence of regulation in the sphere of the group of beneficiaries of the standard, possibly up to the intensity of the unconstitutionality. In such a situation, the annulment of the contested provision does not change the legal status of the beneficiaries of the legal rule, but on the contrary, their position (legal certainty) may further deteriorate as a certain range of legal relations remains unregulated.
59. The passage of time in the present case and the lack of action associated with it by the legislature were not grounds for the annulment of the contested standard, but they were the basis for the second operative part of this finding, by which the appellant requested to state Parliament's unconstitutional inaction.
Consequences of time in the relevant case law of the Constitutional Court
60. The Constitutional Court, in its case-law, affects cases where a qualified legal fact consisting in the course of time leads to the intervention of the Constitutional Court, either by an appeal (annulment of the contested regulation) or by an interpretative (declaration of unconstitutional inaction by Parliament). From the first group of cases, the appellant himself points to the finding of Pl ÚS 5 / 03 (see below) and Pl. Pl. ÚS 8 / 02 of 20.11.2002 (N 142 / 28 SbNU 237; 528 / 2002 Sb.) and the finding of Pl. Pl. ÚS 6 / 05 of 13.12.2005 (N 226 / 39 SbNU 389; 531 / 2005 Sb.). A second type of approach can be considered as a finding in the case of Sp.
61. In case sp. zn. Pl. ÚS 5 / 03 of 9.7.2003 (N 109 / 30 SbNU 499; 211 / 2003 Coll.) The Constitutional Court annulled the provisions of Sections 3 and 6 of Act No. 290 / 2002 Coll., on the transition of certain other items, rights and obligations of the Czech Republic to regions and municipalities, civil associations active in the field of sports and related changes and amending Act No. 157 / 2000 Coll., on the transition of certain items, rights and obligations from the property of the Czech Republic, as amended by Act No. 10 / 2001 Coll., and Act No. 20 / 1966 Coll., on the care of the people, as amended. This was due to the inadequacy of the restriction of the ownership of the regions and municipalities to the assets transferred to the municipalities and regions under the reform of the public administration, which was seen by the law at the same time as obliging municipalities and counties to use these assets only for the purpose for which they were used at the time of the transfer of ownership, for a period of 10 years. The Constitutional Court found that, in the case of transferred real estate, the restrictions on ownership should only be minimised for the "transitional period '. However, this is a substantially different situation in the present case. In the case of § 3 and § 6 of Law No 290 / 2002 Coll. this was a purposeful limitation on the assets transferred by the State to the municipality without indicating any other extraordinary disposition with that property in the future, so the transfer was to be relatively permanent. On the other hand, in the present case, where the adoption of a constitutionally consistent solution to the relief of property injustices caused by churches and religious societies plays a fundamental role, municipalities are sufficiently informed, on the basis of the existence of the contested provision of Paragraph 29 of the Land Act, of the potential natural restitution of that property or part of it, both on the basis of the very text of the provision of Section 29 of the Land Act and the case law of the Constitutional Court and its development. In the case sp. zn. Pl. ÚS 5 / 03 The Constitutional Court found that the use of the transferred assets for a purpose only for a period of 10 years (the intensity of the obligation imposed) was not balanced by any other value. In the present case, however, rather than the need to remove one effect of the contested provision, it found the need to balance a number of constitutionally protected interests, which cannot be done without the active involvement of the legislator.
62. Furthermore, the Constitutional Court considered the conclusions it made in the case of the application for annulment of the provision of Section 8 (6) of the Act on extrajudicial rehabilitation under sp. zl. This provision stated that "A matter declared a national cultural monument will not be published until the Czech National Council and the Slovak National Council adopt a new law on the administration and protection of cultural monuments." The proposal was granted in the same way as the proposal in the case sp. zn. In the latter finding, the Constitutional Court held that it was not possible to consider the legislature to have adopted a new law in the area of the administration and protection of cultural monuments, but it is an arbitrary and discriminatory procedure, when it is precisely this condition, moreover vaguely and contrary to the principles of law-making expressed in the rule of law, which imposes the possibility of a restitution claim. The Constitutional Court, too, found the fundamental differences of the case under consideration. First of all, it is clear that, in relation to the original owners of the "blocked" property in the above cases, the blocking of the issue was established, even though the law governing the issue - i.e. Act No. 20 / 1987 Coll., on State Memorial Care - existed and gave the State sufficient tools to protect cultural values while respecting the rights of the restituents. Therefore, the provisions cited were found to be unjustified restrictions and discrimination against restituents. In the present case, however, the contested provision serves not primarily as an obstacle but as a guarantee of future legal (restitution) arrangements, while at the same time referring to a rule which does not yet exist. By abolishing the provisions cited in the Land Act and the Law on Exjudicial Rehabilitation at the time in the abovementioned cases, the Constitutional Court removed an unfounded obstacle to the issue of the case to the entitled person, but in the present case, in the absence of a special law to remedy the defect - the fulfilment of legitimate expectations - it would not have achieved anything.
63. In the light of the arguments put forward by the appellant in the constitutional complaint, the possibility of rectification of the alleged unconstitutional state is now not by the abolition of a legal provision, such as the repeal of Part Five of Act No. 99 / 1963 Coll., the Civil Code, as amended [cf. sp. z. zl. ÚS 16 / 99 of 27.6.2001 (N 96 / 22 of the SbNU 329; 276 / 2001 Coll.], when the Constitutional Court also failed several times to appeal to the legislature to remove and bring the law of the administrative justice into line with the international obligations of the Czech Republic. In the present case, the Constitutional Court opposes itself to the view that, by abolishing the contested provision, it would not contribute to a constitutional solution (balancing) to relations.
64. In a different position, the Constitutional Court is now in a different position to the proceedings in the case sp. zn. Pl. ÚS 6 / 05 (the finding of 13 December 2005 - see above), when it found that the time limits laid down in Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Act No. 253 / 2003 Coll., limit the exercise of the right of authorised persons under § 11 (2) of the Land Act on the issue of the replacement land, although these rights do not constitute an effective procedural remedy. This procedure was characterised by the legislator by the Constitutional Court as the arbitrator, contrary to the constitutional principle of the protection of the legitimate trust of a citizen in law, which is a component of the rule of law (Article 1 (1) of the Constitution), and in the relevant context, by the principle of legitimate expectation in the application of the property law under Article 1 of the Additional Protocol to the Convention. In the present case, the beneficiaries of the provisions of Section 29 of the Land Act also do not have an effective means of protecting the law, but its application is not limited by a deadline which could be abolished as an unconstitutional one.
65. Finally, in the present case, it is not the equivalent of the initially tolerated unconstitutionality of the transformation of the use of relationships into rental relationships, where, over time, the legislation became increasingly contrary to the protection of property rights [cf. The inconstitutionality of the current state of affairs is seen by the Constitutional Court in the failure to adopt the required legislation, not in the adoption of constitutionally unconformal legislation, that is, insufficient legislation.
66. In view of the practical consequences, the annulment of the contested provision would provide protection only to the interests of one group of addressees of the standard. Protecting the interests of churches and religious societies - as well as the legislative purpose of the contested provision - would thus be completely abandoned, as any further transfers of historical church property would make the actual restitution considered significantly more difficult if not impossible. Thus, in complete shock, the responsibility for settling historical ecclesiastical property would be transferred to the churches and religious societies themselves (or the former individual entities of property law) through a large number of individual litigation. This is a path that the Constitutional Court has once rejected, but not by denying claims to church bodies, but by interpreting in which it preferred legislative solutions to this complex and internally interconnected issue. The Constitutional Court cannot replace the legislature by asserting its own political will and, in principle, positively adapting certain areas of legal relations in line with interests that are not sufficiently addressed. In order to balance the interests of a wide range of people in different situations in the future, the instrument available to the Constitutional Court under § 70 (1) and (2) of Act No 182 / 1993 Coll. The repeal of the provision for the adoption of a special law in the future will not remedy the absence of positive legislation.
67. The Constitutional Court has therefore chosen a solution which explicitly identifies the constitutional relevance and urgency of the interests of the municipalities and third parties whose disposition with the former church property is limited, as well as churches and religious societies whose historical assets, unlawfully confiscated by the Communist regime, are involved. At the same time, however, it notes that the abolition of the contested provision of Paragraph 29 of the Land Act would be contrary to the principle of proportionality in the material rule of law, as the benefit of such a procedure would be considerably uncertain as a result of (further) complicating the future settlement of historical assets by churches and religious societies, even in view of the economic situation of the State.
Unconstitutional inaction of the legislator
68. The Constitutional Court was therefore faced with an assessment of how to respond to a possible finding (according to the appellant) of the legislator's unconstitutional inaction as a result of the passage of time. The appellant submits a petition for an analogous decision in the case sp. zn. Pl. ÚS 20 / 05 (see above), which, inter alia, found the anti-constitutional inaction of the Parliament of the Czech Republic on the failure to adopt a special law in the field of regulated rent, when the Constitutional Court did not accept the annulment of the contested legislation. Although Paragraph 696 (1) of the Civil Code provided for the adoption of a special law, it was not issued. This maintained the state of unconstitutionality. The Constitutional Court, however, concluded that the grounds for the annulment of Paragraph 696 (1) of the Civil Code are not given, since "Paragraph 696 (1) of the Civil Code itself, which merely predates the adoption of a new regulation, is not unconstitutional, the unconstitutional inaction of the legislator, which results in a constitutionally unacceptable inequality and ultimately a breach of constitutional principles."
69. In the quoted find sp. zn. Pl. ÚS 20 / 05 The Constitutional Court further stated: "The second level of the appellant's objections, based on the allegation of an unconstitutional loophole in the legislature, should also be taken into account because the envisaged legislation has not yet been adopted. As a result of the failure to act of the legislature, it may create an unconstitutional state, if the legislator is obliged to adopt a certain legal regulation, and thereby intervene in the law - Constitution - of a protected interest. In doing so, the obligation for legislators may result directly from the constitutional level (e.g. in ensuring the implementation of, or protection of, fundamental rights and freedoms) as well as from the level of" ordinary "laws in which express verbis itself has imposed that obligation. [...] It can therefore be concluded that, under certain conditions, the consequences of a loophole (lack of legislation) are unconstitutional, especially when the legislator decides to modify a particular area, that intention will be expressed in the law, but will not adopt the envisaged regulation. The same conclusion applies when Parliament has adopted the declared amendment, but it has been abolished because it did not meet the constitutional criteria and the legislator has not accepted a constitutional conformal compensation, although the Constitutional Court has given it sufficient time (18 months). Moreover, it remained dormant even after this deadline and did not adopt the necessary legislation until today (even after more than 4 years)."
70. In the present case, the Constitutional Court is based on the above conclusions, which distinguish anti-constitutional inaction from "normal" inaction by the legislator in the sense that there must be an obligation on the part of the legislator to regulate a certain range of legal relations, which may be based either on a simple law, where the legislator has expressly imposed such an obligation, or directly from the constitutional order, provided that the failure to regulate a certain range of relationships results in constitutional legal consequences.
71. On the basis of the above considerations, the Constitutional Court notes that, in the present case, both the failure to fulfil an explicit obligation under the law and the failure to act in the field of material guarantees of fundamental rights and freedoms. This is reflected in three separate planes.
Obligations of the legislature resulting from the promise in the provisions of Section 29 of the Land Act and the case law of the Constitutional Court
72. The first level determining the constitutional evaluation is the legislature itself (cf. the quoted part of the finding of sp. zn. Pl. ÚS 20 / 05) the issue of settlement of historical assets of churches and religious companies, which appeared in the text of the contested standard as well as the present intention of the legislature, supported, for example, in the stenographic records of the discussions of the relevant chambers of Parliament since 1991 when the contested provision became effective, in practice since 1990, when Law No 298 / 1990 Coll., already in its time presented as a provisional measure [except for cited, see the debate on prints concerning the peripheral historical property http: / / / www.pspp.cz: e.g. the Deputy Prime Minister of the Czech and Slovak Federal Republic of Germany, Dr J. Miklošek, Drsc., at the Interpel submitted to the Chamber of the people of the European Union of... Act No 298 / 1990 Coll. (...) does not affect by far all the property of orders and congressions and only solves the return of ownership of objects which the Order and the congregation needed to begin their activities. Right when dealing with orders and congregations, it was agreed that this was the first stage of the return of confiscated property, or that this was not the final solution to the property rehabilitation of churches and religious associations. (...), "Printing 272; On the contrary, from a recent time to compare, for example, the explanatory report on the draft law on the mitigation of certain property injustices caused by churches and religious societies in times of infreedom, on the settlement of property relations between the state and churches and religious societies and on the amendment of certain laws (Act on property settlement with churches and religious societies), the Convention. Press No. 482, which also sees the need for law in considerations of both economic and (constitutionally) legal law, including the fulfilment of legitimate expectations of churches and religious societies and the" promise of the legislator '].
73. The constitutional importance of this fact is undoubtedly known by the legislature from the case-law of the Constitutional Court, at the latest from 2005, when the Constitutional Court stated in full concrete and explicit terms that "The State must, however, issue its obligation to issue a restitution law resulting from the cited provisions of the Land Act, concerning church property, because it must meet legitimate expectations on the part of church legal persons based on the legal provision." [The finding of 2 February 2005 sp. zn. II. ÚS 528 / 02; Opinion of 1 November 2005, sp.
74. The Constitutional Court has repeatedly held that the principle of the protection of legitimate expectations (in terms of the protection of trust in law) is firmly bound by the principles of the rule of law and therefore follows from Article 1 (1) of the Constitution. The Constitutional Court considers it appropriate to recall that social philosophy has come to the conclusion that, if there are uncertain limits to legitimate expectations based on the law, freedom is also uncertain (cf. Rawls, J., Justice Theory, Prague, Victoria Publishing, 1995, p. 145). Protecting legitimate expectations is an integral part of the rule of law. The rule of law, as well as legal certainty as one of its attributes, is a precondition for a state in which everyone, both natural and legal persons, can have confidence in the law on the basis of which they can plan and realise their interests in real time. It is clear that both the sudden change of rules [cf. sp. zn. Pl. ÚS 2 / 02 of 9.3.2004 (N 35 / 32 CollU 331; 278 / 2004 Coll.)] and the failure to adopt the foreseen rules have a similar negative impact on legal certainty and consolidation of trust in law.
75. From a comparative point of view, not even a typical international comparison, rather a comparison with a common "Czechoslovak element," it is appropriate to point out the fate of the defendant - quite identical - of the provision of Paragraph 29 of the Soil Act in the Slovak Republic after the division of the Czechoslovak Federation. This provision is now practically consumed in Slovakia by the adoption of Act No. 282 / 1993 Z. z., o zmíerních niektorných výkrívdy společnost a religious society, which came into force on 1 January 1994, and Act No. 503 / 2003 Z., on the return of ownership to the land which came into effect on 1 May 2005. In view of the specific activity of the Slovak legislator, the existence of the provision of Section 29 of the Soil Act, as it is clear, did not raise questions about the confidence in the activity of the legislator and the constitutionality of any legislative inaction, as the obligation contained in the provision of Section 29 of the Soil Act was fulfilled. This also confirms the purpose of the contested provision, as the Constitutional Court has recapitated above.
76. The urgency of the public interest in eliminating the legal uncertainty arising from the provisional legal situation (Act No 298 / 1990 Coll. in conjunction with Paragraph 29 of the Soil Act) is now beyond the tolerable and justifiable limit. The failure to adopt a special law, to which the legislature has explicitly committed itself, for 19 years, although the Constitutional Court has been alerted to the difficulty of its inactivity, is a manifestation of an inadmissible legislative commitment and infringes Article 1 (1) of the Constitution.
Obligation of the legislator to protect legitimate expectations
77. The second level of the same commitment of the legislator is a mechanism, such as the one that was dealt with by legally significant claims of the (not only) church and religious societies with regard to the specific model chosen for the overall concept of restitution legislation in Czechoslovakia after 1989. The vast majority of acts by which the communist state completely took away the churches and religious societies' economic autonomy would not have stood up not only in view of the already undoubted international standard of fundamental rights, but also in the light of the Czechoslovak laws of the period. Even at the time, the transfer of ownership could not have been founded by taking over the case without legal justification, plus by a State which could not have been in good faith throughout the holding.
78. The Constitutional Court notes that, in addition to the explicit legal basis in the provision of § 29 of the Land Act, the legitimate expectations of churches and religious societies are based on the general concept of the restitution process after 1989, which neither in the individual restitution provisions [cf. Interpretation in the find of sp. zn. Pl. ÚS 15 / 98 of 31.3.1999 (N 48 / 13 of the SbNU 341; 83 / 1999 Coll.) nor in a number of others], nor as a whole, cannot be interpreted to the detriment of the whole groups of entities (persons) which, apart from the wrongs of property, have survived long periods under systematic and permanent pressure of totalitarian state power in all their (remaining) activities.
79. It is of particular importance to the present case that, according to the case law of both the Constitutional Court and the European Court of Human Rights, the established case-law of the courts and the interpretation contained therein must be regarded as a law in the material sense and as part of the relevant legal standard [cf. the Constitutional Court's finding, sp. zn. II. ÚS 566 / 05 of 20.9.2006 (N 170 / 42 SbNU 455); IV. ÚS 611 / 05 of 8.2.2006 (N 34 / 40 of SbNU 281); Decision of the European Court of Human Rights in Kruslin v France of 24 April 1990, No 11801 / 85, Series A No. 176-B; Müller and Others v Switzerland of 24 May 1988, 10737 / 84, Series A No. 133; Markt Intern Verlag GmbH and Klaus Beermann v Germany, 20 November 1989, No 10572 / 83, Series A No. 165; unless otherwise stated, the European Court of Human Rights (Commission) decisions cited are published in the HUDOC database at http: / / www.echr.coe.int]. In the present case, as well as the existence of legitimate expectations (property interest) of the church bodies concerned, results from both the legal provision and the established interpretation and application practice (case law of the Constitutional Court, to which the ordinary courts systematically refer).
80. It should be noted here that, although the concept of legitimate expectations may be of a special nature in the consideration of different Constitutional courts or of the European Court of Human Rights, it is therefore not entirely freely interchangeable with similar theoretical constructions in other jurisdictions (ésperance legitime; legitimate expedation), its relevant substance is the property interest which falls under the protection of Article 1 of the Additional Protocol to the Convention (and Article 11 of the Charter). According to this Article: "Any natural or legal person shall have the right to use his property peacefully. No one may be deprived of his property except in the public interest and under the conditions laid down by the law and general principles of international law. The previous provisions shall not prevent States from adopting laws which they consider necessary to regulate the use of property in accordance with the general interest and to ensure the payment of taxes and other charges or fines. '; The term" property "contained in the first part of Article 1 of the Additional Protocol to the Convention has an autonomous scope which is not limited to the ownership of tangible assets and does not depend on the formal qualification of national law. It may include both" existing assets' and various assets, including claims, on the basis of which the complainant may claim that at least "legitimate expectations' are to achieve effective use of ownership. The protection provided for in that Article is therefore not only a acquired property, i.e. existing property, but also a legitimate expectation of acquiring such property. Central rule when considering the applicability of Article 1 The Additional Protocol to the Convention takes account of the specific and individual circumstances of the case which, in summary, should have established the property interest protected by Article 1 of the Additional Protocol to the Convention [Iatridis v Greece [GC], judgment of 25 March 1999, No 31107 / 96, paragraph 54, ECHR 1999-II; Beyeler v Italy [GC], of 5 January 2000, No 33202 / 96, No 100, ECHR 2000- I; Broniowski v Poland [GC], No 31443 / 96, No 129, ECHR 2004-; Anheuser-Busch Inc. v Portugal [GC], No 73049 / 01, No 63].
81. Article 1 of the Additional Protocol to the Convention in the interpretation of the European Court of Human Rights does not impose a general obligation on the Member States to return the assets transferred to them before the ratification of the Convention. Nor does it constitute a restriction on the Member States in determining the extent of the property restitution and determining the conditions under which the property will be returned to the original owners [Jantner v Slovakia, judgment of 4 March 2003, no. 39050 / 97, paragraph 34]. On the other hand, however, if, after ratification of the Convention (Protocol), a Contracting State adopts legislation allowing the ownership of confiscated property to be fully or partially restored, that law may establish new property rights under the protection of Article 1 of the Additional Protocol to the Convention. The same applies in respect of measures relating to restitution or compensation of property resulting from a law adopted before the ratification of the Convention (Protocol), provided that this law remains in force even after the ratification of the Convention (Protocol) [Broniowski v Poland [GC], of 22 June 2004, No 31443 / 96, paragraph 125, ECHR 2004-Maltzan and Others v Germany (dec.) [GC], of 2 March 2005, No 71916 / 01, 71917 / 01 and 10260 / 02, paragraph 74 (d), ECHR 2005-; Kopecký v Slovenska [GC], 28 September 2004, No 44912 / 98, paragraph 35 (d), ECHR 2004-IX.
82. Furthermore, as regards the concept of legitimate expectations, given the different concepts of this institute in different jurisdictions, it is possible to mention, for example, a different concept of legitimate expectations in the case-law of the European Court of Justice (Court of Justice of the European Union), which is fundamentally out of line with the case-law of the Constitutional Court and the European Court of Human Rights. While respect for legitimate expectations in the case-law of the European Court of Justice is one of the most frequently relied on principles of Community / EU law, its application is typical only in specific areas, particularly in the field of agriculture and employment [see Tridimas, T. The General Principles of EC Law. Oxford University Press, 2000, p. 169]. This principle is particularly important in the context of retroactive application of the law. However, it can also be invoked in other contexts, but only to the extent that the Community / EU itself has previously created a situation that has created legitimate expectations. Such expectations may arise on the basis of earlier legislation or on the basis of the conduct of Community institutions, and this principle can only be invoked if the legislation or conduct of the institutions concerned is an immediate cause of legitimate expectations. Legal expectations can be a source of substantive rights, which distinguishes itself, for example, from the principle of legal certainty, which is rather a general and interpretative principle. While respecting the above general assumptions, the European Court of Justice has laid down the concept of legitimate expectations in its case-law in such a way that it must take a certain form from the point of view of who can rely on it, at what time, to what extent and in relation to which rights. For example, in the judgment of the Court of First Instance of T-199 / 01, G contre Commission de Communautes européennes of 7 November 2002, paragraph 38, it states that reference is made to previous caselaw and that the right of legitimate expectations is linked to three conditions - the person who invokes it must be provided by the Community public administration with precise, unconditional and identical guarantees resulting from legitimate and reliable sources, and that such guarantees must be such that they give rise to legitimate expectations in respect of whom they are addressed and, finally, those guarantees must be provided in accordance with the applicable standards. However, those conditions relating to the concept of legitimate expectations as defined in the judgment of the Court of First Instance T-199 / 01, G contre Commission de Communautes européennes must be understood in the narrow context of the present case, namely in the context of an employment dispute in which the reimbursement of medical expenses to an official of the European Commission has been refused.
83. The Constitutional Court, in its finding of 8 March 2006, sp. zn. Pl. ÚS 50 / 04 (N 50 / 40 SbNU 443; 154 / 2006 Coll.), stated that "the principle of legitimate expectations, in accordance with the case law of the European Court of Human Rights, is clearly based on the concept of protection of legitimate expectations as an asset claim which has already been individualised by an individual legal act, or is individualised directly under the law '(cf. Case C. Finally, on the subject under consideration, the Constitutional Court expressed its views in the caselaw already cited [finding of 2 February 2005 sp. zn. II. ÚS 528 / 02; Opinion of 1 November 2005 sp. zn. Pl. ÚS-st. 22 / 05, by confirming the conclusions of the previously cited finding; Resolution of 19 January 2006, sp. zn. II. ÚS 687 / 04 (not published in the SbNU); and a number of subsequent decisions), stating that" The State must, however, issue a restitution law resulting from the provision of the Act on Land, in respect of church property, comply with it as it must meet legitimate expectations on the part of church legal persons based on legal provisions. "In the present case, the Constitutional Court therefore imports legitimate expectations (interest in property) from a specific legal provision supported by a long-term interpretation by the Constitutional Court.
84. In the main judgment of the Grand Chamber of 22 June 2004 in the Broniowski case against Poland [GC], No 31443 / 96, ECHR 2004- which has a pilot character and whose supporting conclusions cannot be forgotten in the present case - the European Court of Human Rights assessed the situation of the complainant, who, in short, failed to apply his claim for compensation for the property which his family lost after World War II. This interest in property was supported by the rule of law (the legislator's promise) and the case law of the highest judicial offices. As a result of the procedure and in particular of the failure of a State which has not adopted the corresponding - legal order foreseen - law according to which compensation could be decided was found to infringe Article 1 of the Additional Protocol to the Convention.
85. For the Constitutional Court's findings, it appears essential that the European Court of Human Rights has qualified the lack of action of the legislator as a legal intervention within the meaning of the general rule of the first sentence of Article 1 (136, 145, 146) of the judgment. It pointed out that the context of the quoted article also contained a positive obligation on the State to ensure the exercise of the property rights in question, taking into account the fair balance between the competing interests of the individual and the entire company [paragraph 143- 144]. Any interference with the law guaranteed by the Convention must pursue a legitimate objective, while respecting the principle of fair balance, which is the property of Article 1 of the Additional Protocol to the Convention. It also stated that national authorities, for their direct knowledge of society and its needs, have wide discretion in identifying the public interest in balancing the conflicting rights and interests, except in situations where their judgment clearly lacks a reasonable basis [paragraph 149; referring to James and others against the United Kingdom, of 21 February 1986, No 8793 / 79, Series A no. 98A; The Former King of Greece against Greece [GC], judgment of 23 November 2000, No 25701 / 94, ECHR 2000-XII. These measures are also valid for fundamental changes to the system, such as the transition of the country from totalitarian regime to a democratic form of government, and the reform of the political, legal and economic structure of the state as phenomena that inevitably include the adoption of economic and social legislation with broad social implications. When applying Article 1 The Additional Protocol must be made an overall assessment of the various interests concerned, taking into account that the Convention is intended to safeguard rights which are "effective and effective." In assessing the admissibility of the intervention, it is not only the specific conditions of compensation that need to be assessed, but the parties' practice and the resources used by the State and their implementation. In this context, the European Court of Human Rights pointed out that uncertainty, whether by law, administrative procedures or the practice of public authorities, is a factor that must be taken into account in assessing the state's progress. With regard to the issues of public interest at issue, State authority must act at the right time, appropriately and consistently [paragraph 151; with reference to the Vasilescu judgment against Romania of 22 May 1998, No 27053 / 95, paragraph 51, ECHR1998- III; Beyeler v Italy [GC], of 5 January 2000, No 33202 / 96, paragraph 110 in fine, 114 and 120 in fine, ECHR 2000-I; Sovtransavto Holding v Ukraine, 25 July 2002, No 48553 / 99, par. 97-98, ECHR 2002-VII].
86. In the present case, the European Court of Human Rights has repeatedly considered historical factors, the specificity of the period in question when the State had to deal with the problems of political, economic and social transformation, as well as the large extent of the claims at issue, and has acknowledged the exceptional difficulty of the situation requiring comprehensive political decisions [cf. paragraphs 155- 163]. In addition, the European Court of Human Rights admitted that, in situations where the solution requires the adoption of a contested law with significant economic implications for the whole country, national authorities must have considerable discretion not only in the selection of measures to protect and regulate ownership relationships, but also in the choice of appropriate time to implement them. The choice of such measures may include the necessary decisions to limit the amount of compensation for the property seized to a level below its market price. Article 1 Thus, the Additional Protocol does not ensure the right to full compensation under all conditions [paragraph 182; with reference to James and Others v United Kingdom, 21 February 1986, No 8793 / 79, paragraph 54, Series A n. 98A].
87. Furthermore, the European Court of Human Rights stated that, although fundamental reforms of the country's political and economic system and the state of public finances can justify a significant reduction in compensation paid (for properties lost by the complainant and others after 1945), the Polish State was not able to provide sufficient explanation in relation to Article 1 of the Additional Protocol to the Convention, for which reason it has failed permanently for many years to realise the complainant's claim, as well as thousands of others [paragraph 183]. The rules and principles resulting from Article 1 of the Additional Protocol to the Convention require that the European Court of Human Rights states not only respect and apply consistently and predictably the laws which they have adopted but also, as a result, ensure legal and factual conditions for their implementation. The same principles have given the Polish State a commitment, within a reasonable time, by appropriate means and consistently fulfilling the legislative promise to settle the claims in the public interest [184]. The fact that the complainant had already received a small part (around 2%) of the compensation, did not find the European Court of Human Rights to be deprived of the possibility of obtaining at least a reasonable part of the claimed value [paragraph 186 in fine].
88. In addition to the statement on infringement of Article 1 of the Additional Protocol to the Convention, the European Court of Human Rights has stated that the infringement originates in a systemic problem consisting of failure of domestic legislation and practice [Subpart 3]. By another statement, the European Court of Human Rights imposed an obligation on the Polish State, through appropriate legal measures and administrative practice, to ensure that the property right in question is implemented also in relation to its other holders, or instead to provide them with adequate compensation [operative part 4].
89. The above-mentioned legal conclusions of the European Court of Human Rights also affect the status of beneficiaries of the contested provision of Paragraph 29 of the Land Act, who have been repeatedly assured of the future settlement of historical assets by the churches of state power, by the position and explicit promises made by the supreme authorities of the executive and individual constitutional authorities, and in particular by the legislator himself, through the promise contained in the legal standard. In this climate, the Constitutional Court then refused to resolve the legislature's promise in a case-by-case manner through individual legal proceedings, which, given the large number of potential disputes, would have actively fulfilled the purpose of the law that will only arise in the future. The key element in this matter is the trust in law, the specific interpretation of which the church bodies have repeatedly been assured by the public authority, including explicit decisions of the Constitutional Court [the decisions already mentioned: the finding of 2 February 2005 sp. zn. II. ÚS 528 / 02; Opinion of the plenary of 1 November 2005, sp. zn. Pl. ÚS-st. 22 / 05, accompanied by a reference to the previous finding; Resolution of 19 January 2006 sp. zn. II. ÚS 687 / 04; decision of 24 June 2009 sp. zn. I. ÚS 663 / 06; and a number of other decisions].
90. What the Constitutional Court refers in its caselaw to as a legitimate expectation [cf. quotation marks provided by the concept of right to credit in the operative part of Sub-3 of the Broniowski judgment] is undoubtedly a lasting and specific property interest falling within Article 11 of the Charter and Article 1 of the Additional Protocol to the Convention. The failure to realise this property interest (or to obtain compensation) for a period of 19 years thus, in the opinion of the Constitutional Court, meets the point of unconstitutionality, consisting of omission by legislation to resolve the systemic and complex problem that the legislator has repeatedly been brought to the attention of the Constitutional Court. The legitimacy of the purpose of this intervention (inaction) may have lasted for a certain transitional period at the time of the adoption of the most fundamental steps of social transformation, but the ad infinitum is not sustainable. By the way, it seems extremely cynical to counterclaim that the parties concerned cannot now rely on their property rights because they did not properly defend their interests by the available legal means immediately after intervening in law between 1948-1989. A similar argument exposes the essence of legal and political changes after 1989 to fundamental doubts about their meaning and closes its eyes to the role of the courts in (church) political processes as willing executors of party orders [cf. "in particular, the finding of 2 February 1999, sp. zn. II. ÚS 66 / 98 1999 (N 18 / 13 SbNU 123), which, in relation to the similarly" inconsistent "complainant, attentively noted that" the continued application of property rights to real estate of relatively high value would certainly lead to the simplest means of the State used at the time - i.e. the removal of the right-holder, without any justification. "; On this point, the Constitutional Court found, in general, on 21 December 1993, sp. zn.
91. The Constitutional Court admits that a particular specificity of this subjective property right can, even in the light of the legislature's discretion, arise from the very organisational nature of the individual church or religious society, where a particular form of settlement may not be directed towards individual entities, but also towards the church or religious society as a whole, as appropriate. Despite the above, the legislator must respect the principles arising from Article 11 of the Charter and Article 1 of the Additional Protocol to the Convention, according to which the amount of compensation set in proportion to the value of the compensated property must not be a sign of the legislature's desire, but must reflect the principle of proportionality (or fair balance). Where the property injustices formally caused by an individual church legal person have been intended and implemented, taking into account the organisational structure and internal links of the churches, as an act of unlawful repression against the whole (relevant) church, the legislature's positive responsibility and the discretion of the appropriate form of regulation of these overall relations, subject to the provision of judicial protection in a particular case. If, as an alternative to this, a high number of individual litigation is considered, thousands - which would be the practical consequence of the transfer of responsibility from the legislator to the courts in the repeal of Paragraph 29 of the Land Act - doubt the Constitutional Court would, after many years of these proceedings, even if, in fact, most of the assets were owned by churches and religious societies, even the original moral and economic purpose of restitution was fulfilled or the interests of municipalities or third parties were to be taken into account to the desired extent.
Obligation of the legislator under the obligation to protect fundamental rights and freedoms
92. Although the Constitutional Court recalled in several of its decisions that the so-called restitution legislature is generally based on the concept that there is no constitutional claim for restitution and that such a claim does not result from the international obligations of the Czech Republic, in the case in point. The Constitutional Court also noted that the failure to act by the legislator (not to fix a question) is unconstitutional if it causes further direct unconstitutional consequences.
93. Article 2 (1) of the Charter guarantees religious pluralism and religious tolerance, or separation of the state from specific religious beliefs (principle of confestively neutral state). The principle of religious pluralism and tolerance is expressed in Articles 15 (1) and 16 of the Charter of Fundamental Rights and Freedoms. The central principle of the confessions of a neutral state is implemented by a cooperative model of state and church relations and their mutual independence. For the following considerations, it is essential whether and to what extent economic self-sufficiency constitutes a material presumption of independent exercise of the rights guaranteed in particular by Article 16 (1) and (2) of the Charter. The constitutional order of the Czech Republic does not only contain the imperative of the independence of the state in churches and religious societies (as part of the ideological and religious neutrality of the state), but also the requirement of the independence of churches and religious societies in the state in fulfilling their objectives.
94. The Constitutional Court considers the formal legal continuity, but also the clearly stated value discontinuance of the Czech State with the previous undemocratic regime [the finding of 21 December 1993 sp. zn. Pl. ÚS 19 / 93 (see above)], as a general commitment of the democratic and legal state, expressed in Article 1 of the Constitution and, in particular, in the various provisions of the Charter of Fundamental Rights, to ensure not only formal but also a real renewal of material guarantees of the exercise of fundamental rights and freedoms, where, in spite of the fundamental human rights content in international ius cogens, the State had failed. However, the adoption of the Charter of Fundamental Rights and the signing up to other international instruments for the protection of fundamental rights is not a point zero in which the obligation of the State, if necessary, actively creates conditions for the implementation of fundamental rights. On the contrary, the historical context of the situation in which they are currently and because of the State cannot be taken into account in relation to individual holders of basic law. In other words, it would be contrary to the concept of development and strengthening of fundamental rights if social change would repeatedly lead to lower standards of fundamental rights on the basis of ignoring the historical causes of the current situation. The history of democratic and legal states cannot consist of thick lines behind the past, but lessons learned from past experiences must be shown in guarantees of not repeating past mistakes in the future.
95. In this regard, the Constitutional Court understands the overall process of restitution (in the broad sense) after 1989 not as a purely political intention, which would only be part of (the necessary) liberal economic transformation, in which it would primarily fulfil the function of deetatizing social wealth, but also as a process of restoring material guarantees of fundamental rights manifested, for example, in the functioning of civil society [the accent to the first concept is observed in most countries of Central and Eastern Europe and considers the functioning market economy as a measure of success of the transformation, for example Posner, E. A. - Vermeule, A. Transnational Justice as Ordinal Justice. In Harvard Law Review, Vol. 117, No. 3, January 2004, p. 765-825; In relation to the Czech Republic in particular, even in the case of external observers, it is possible to observe criticism at the expense of the human rights aspect: Williams, R. C. The Contemporary Right to Property restitution in the Context of Transitional Justice. Occasial Paper Series, International Center for Transition Justice, May 2007, p. 11-23, http: / / www.ictj.org].
96. With regard to the relationship of churches and religious societies as such to the constitutionally guaranteed freedom of religion, the Constitutional Court notes that, for the purposes of completeness, Article 15 (1) ("Freedom of [...] religion is guaranteed.") and Article 16 (1) of the Charter, according to which the exercise of religion or belief is guaranteed privately or publicly, by worship, teaching, religious acts or by the maintenance of the ceremony, either alone or together with others (recognition of the legal personality of such a community by law, is already the consequence of these safeguards, since in a State cannot be implemented without entering into legal relations) [cf., for example, the finding of 18 June 2003 sp. The European Commission on Human Rights also stated that for the purposes of Article 9: The Convention seems to be a different view of the churches and their individual members only artificially designed, and therefore the churches themselves have been individually granted rights under Article 9 (1) of the Convention, since through churches and religious societies they exercise their fundamental rights as believers [X. & Church of Science v. Sweden, App. 7805 / 77, 16 Eur. Comm'n H.R. Dec. & Rep. 68 (1979), quoted according to Evans, C. Freedom of Religion under the European Convention on Human Rights. Oxford: Oxford University Press, 2001, p. 13-14). The Constitutional Declaration of Freedom of Religion without guarantees of institutional, for example without reflection of the element of the law of association or without respect for the necessary functional property of individual religious entities, would provide religious freedom only illusorily.
97. The churches and religious societies are therefore holders of fundamental rights and, in the context discussed, are also eligible to act as property rights bodies. In relation to the historical nature of the Church's assets, it is possible to point out the available doctrine opinions which do not consistently import the character of church property as ownership of state [The issue of ownership of the Catholic Church and restitution of church property (Masaryk University in Brno); Assessment of the question of religious property (University of West Bohemia in Pilsen, Faculty of Legal); Expert opinion (Institute of State and Law of the CAS); Legally historical expertise of Charles University in Prague legal status of so-called Catholic church property in the second half of 19th and 20th century in the territory of today's Czech Republic; the expertise is published in an annex to the Assembly. Press No. 858 "Report of the President of the Temporary Commission of the Chamber of Deputies on the Commission's activities between 13 June 2008 and 31 March 2009"]. The ownership of churches in this respect is not particularly decisive whether they were legal persons of public or private law [The Holy Monasteries (Holy Monasteries) against Greece of 9 December 1994, No 13092 / 87, No 301A, No 13984 / 88].
98. The Constitutional Court has already confirmed in its case-law that the activities of churches cannot be limited solely to the performance of a cult, but that constitutional protection (Article 15 (1), Article 16 (1) and (2) of the Charter) also enjoys their traditional activities of general benefit, education, health, social, charitable, etc. [finding sp. zn. I. ÚS 146 / 03 of 18.6.2003 (N 115 / 31 SbNU 33); Findings sp. zn. Pl. ÚS 6 / 02 of 27.11.2002 (N 146 / 28 SbNU 295; 4 / 2003 Coll.); Findings sp. zn. Pl. ÚS 2 / 06 of 30.10.2007 (N 173 / 47 SbNU 253; 10 / 2008 Coll.)]. This can be compared, for example, with the view of the German Federal Constitutional Court, according to which "Freedom of Religious Religion in itself, in addition to the freedom of an individual, necessarily includes freedom of association in organisations for the purpose of common public religion, especially freedom of religion for churches in their historically formed form and on the basis of their mission (BVerfGE 42, 312). Not only religious societies, their sub-organisations or their legally independent establishments, but also legal persons with a view to carrying out charitable tasks in the realisation of one of the fundamental requirements of religion (see BVerfGE 19, 129; 30, 112; 42, 312; 46, 73), are entitled to submit a constitutional complaint to protect the fundamental right to the unimpeded exercise of religion." [BVerfGE 53, 366]. In this context, for example, "the concept of the Catholic Church includes the exercise of religion not only in the field of faith and worship, but also freedom to develop and operate in the world, which corresponds to its religious tasks. This includes particularly charitable action. Active love for neighbors is a fundamental task for Christians and Christian churches as a fundamental function. It does not only include church-based hospital care, but is generally oriented towards securing the necessary people, including their education and education, according to basic religious requirements (BVerfGE 70, 138; BVerfGE 57, 220). The historical role of churches in society is also reflected in the case law of other Constitutional Courts [cf. Decision of the Constitutional Court of the Italian Republic of 11 April 1989, ITA-1989-R-001; decision of the Constitutional Court of the Republic of Lithuania of 13 June 2000, LTU-2000- 2-006; decision of the Constitutional Court of the Republic of Hungary of 27 February 1993, HUN- 1993- 1-003; designation according to CODICES database http: / / www.codices.coe.int].
99. It should also be noted that the European Court of Human Rights in the Holy Monasteries case against Greece of 9 December 1994, No 13092 / 87, No 13984 / 88, Series A No 301A, found, in assessing the expropriation of the economic land of the monasteries concerned, primarily a breach of the guaranteed protection of property interests under Article 1 of the Additional Protocol to the Convention, not of the rights under Article 9 of the Convention. In addition, however, the Constitutional Court adds that this individual conclusion (separation of property rights from religious freedom) is practically not transferable in the abstract assessment of the legislator's inaction on the now considered - diametrically different - issue. In this part of the preamble to the finding, the Constitutional Court assesses (a) the broader constitutional context of the Czech constitutional order (b), taking into account the overall intensity of the intervention, which, for the most part, the non-disclosure of property may mean in material guarantees of the level of religious freedom (c), taking into account the existence of other guarantees of rights under Article 16 (1) and (2) of the Charter.
100. k point (a) The Constitutional Court notes that the Czech Republic is, pursuant to Article 1 (1) of the Constitution, a democratic rule of law based on respect for the rights and freedoms of man and citizen. First of all, it follows from that principle that the Constitutional Court must base itself on the national or international rules which provide the highest standard of protection for fundamental rights and freedoms. The reference criterion is now primarily Article 16 (1) and (2) as a special provision on Article 15 (1) of the Charter. The degree of specificity of these provisions reflects the previous bitter experience that has been brought about by ignoring formally granted fundamental rights at the time of the communist regime in Czechoslovakia, while building on human rights standards achieved in civilized countries. The interpretation of these provisions has been repeatedly drawn into the case law of the Constitutional Court.
101. To consider paragraph (b) above, it must be noted that it is not an individual intervention against one entity or group of entities at the moment, but that the substance of the property injustices prevents all economic and significant parts of the other assets intended for the activities of churches in society, which negatively affected the whole segment of the company and, as a result of further measures, eliminated the exercise of essential elements of the basic law. The Constitutional Court therefore takes into account in its reasoning that, when the Church and Religious Companies were treated as a united-led intervention by the Communist State, where the primary object of illegal repression was not so much an individual entity of property law (a religious legal person), but their whole and position in society, rather than their property nature, but rather the nature of their existence, this fact is reflected in their different status following a change in social and legal circumstances and in the nature of claims, or in the obligation of a new democratic legislator to correct them. The legislator therefore faces the consequences of the intervention, which was not a single exception in relation to the areas of religious life in Czechoslovakia, but a rule, or a direct idea, as it was [...] opium of the people in the case of religion. Cancel religion as illusory happiness of the people means asking for its true happiness "[Marx, K. Introduction to the criticism of Hegel's philosophy of law. In Marx, K., Engels, B. Files. St. 1. State Publishing of Political Literature, Prague, 1956, p. 401-402]. The demise of a materially determined religion as a remnant of a lower degree of social development was then associated with the removal of private ownership of the means of production throughout [Engels, B. Anti- Dühring. In Marx, K., Engels, B. Files. Svoboda, Prague, 1966, p. 310). In addition to the practical so-called church policy, the" ideal "was even promoted to the constitutional standard by the Constitutional Act No. 100 / 1960 Coll., the Constitution of the Czechoslovak Socialist Republic, whose Article 16 expressly stated that" All cultural policy in Czechoslovakia, the development of education, education and teaching are conducted in the spirit of scientific world opinion, Marxismus-Leninism, [...]. "The historical reality - in which the Constitutional Court refers to the widely available professional work of historical and legal histories - thus relativises the view of property injustices isolated in relation to individual affected entities, but their massive nature penetrates the very essence of religious freedom. The overall scope of the blocked church property, if it is evident, is the vast majority of the historical property of churches and religious societies, as well as in the comparative process with the guarantees of Article 16 (1) and (2) of the Charter, results in an unconstitutional state of the country. in relation to the Church's right to freely choose the form and extent of its activities and thus" manage its affairs independently of the state authorities. "
102. Even when considering (c) mechanisms such as the state practices so-called economic security for churches. This is done on the basis of Act No. 218 / 1949 Coll., on Economic Security of Churches and Religious Companies by the State, as amended, according to which the State had and is to fulfil a number of obligations under Sections 1, 4, 6, 8, 11 (1) and 12, including, for example, the rights and obligations from the transition of patronage to the State (in a constitutionally permissible scale), including in relation to purely cultural activities. It cannot be ignored that the so-called economic security of churches was designed from the outset as one of the instruments of eliminating the economic independence of churches and religious societies, with the direct intention not of fulfilling religious freedom, but of combating it through direct executive control of religious life and economic oppression. The purpose and application of Act No. 218 / 1949 Coll. was presented by the then Secretary-General of the Communist Party of Czechoslovakia Rudolf Slanský at the meeting of the Regional Secretaries of the KSČ on 15 September 1949:... "[...] We took the bishop's land. We took all the press from the church. We've put a commissioner everywhere in the conservatory. We closed church schools, not a single church school was opened this year. Now we're taking away their monasteries. We're locking up a priest. [...] Now, for example, another important measure - a new salary bill for priests. We'll still discuss it under what conditions and who we pay. I think our work in the church section is positive [...] It would be good for you to have such black lists of the biggest hitters in the counties and counties. Remember, if not today, then tomorrow, we'll need that. The party learned a lot politically" [quoted according to Kaplan, K. State and Church in Czechoslovakia 1948-1953. Institute for Contemporary History of the CAS, Prague, Publishing, Brno, 1993, p. 98, Note 190]. At the same time, the so-called economic security of churches was considered a temporary measure, in the spirit of the above-mentioned ideological bases, as evidenced, for example, by the fact that Law 218 / 1949 Coll. did not foresee at all the process of state recognition or registration of churches and religious societies of new [also for example Hájek, J. On the issue of the legal circumstances of churches in CSSR. Administrative law, No 1986, No 6, p. 369: "the legislation (...) is based on recognition of the temporary degree of social development of the conditional existence of religious feelings (...) '.
103. At this point, the Constitutional Court summarises, although this is not a direct subject of constitutional review at the moment, that the so-called economic security model of churches and religious societies, if it were used as a fully-fledged alternative to settling historical assets of churches and religious societies, is not a sufficient guarantee of the freedoms under Article 16 (1) of the Charter, in particular the independence (s) of churches and religious societies in the State under Article 16 (2) of the Charter. In order to understand these considerations correctly, it must be stressed that the Constitutional Court does not now carry out an economic analysis of the claims of the competent churches under Law 218 / 1949 Coll. in relation to the actual performance of the State, but generally refers to a mechanism whereby it is solely a state which grants to the churches and religious societies concerned by the law a number of titles of economic security, but at the same time it itself determines, de facto, the total amount of such expenditure will be spent, thus practically unilaterally deciding on the degree of economic dependence of the churches and religious societies concerned on the State [cf., for example, the opinion of the Ministry of Culture contained in the Supreme Audit Office No 08 / 20: The submission of the budget of individual CNS was therefore cancelled as the State is unable to finance all financial needs of churches and religious societies, "http: / / www.nku.cz; to the importance of so-called economic security for the exercise of rights arising from religious freedom.
104. Moreover, in the absence of a reasonable settlement of historical ecclesiastical property, where, as a result of its own inactivity, the State remains a dominant source of income for the churches and religious societies concerned, without any apparent link to the proceeds of the historical assets held by the churches, in its consequences it infringes Article 16 (1) The Charter on the freedom to show faith in society through public action and traditional forms of religious, public-service activities, using relevant historically formed economic resources, and in particular Article 16 (2) of the Charter, in the economic component of ecclesiastical autonomy. This is both a legal opinion and a doctrine advocated, as compared to that of Syllova, J. On the interpretation of Article 16 of the Charter of Fundamental Rights and Freedoms. In: Kolar, P., Cross, J. (eds.). A settlement between state and church. CEVRO Institute, Prague, 2009, p. 9: The legislator intended to "restore and rehabilitate the status of churches that have been marginalised over the last 40 years and give them autonomy in the decision they lost during the totalitarianism period. The legislator was aware of the fact that the wording containing the word 'independence' contained in this provision is the only way to strengthen autonomy in the position of churches, at least constitutionally, in a situation where a centuries-old educational and educational activity has been irreparably interrupted, where the property used by the churches has been nationalised and the influence of the churches on it has been annulled. The paper provision was a programme to be completed by achieving the true independence of churches. [...] Independence of churches may also be interpreted in a grammatical manner so as to have property which would enable them to perform their basic ecclesiastical functions independently so that everyone has the right to express their religion or faith freely, either alone or together with others, privately or publicly, by worship, teaching, religious acts or by preserving the ceremony. '
105. It should be noted at this point that the Constitutional Court of the Republic of Hungary also took a similar view in its decision of 12 February 1993, No 4 / 1993. One of the notable conclusions was that the then contested restitution law - defining the headings of the returned property for their purposes consistent with the traditional functions of the churches - pursued primarily "the damage caused by the state in relation to the constitutional right to the free exercise of religion and not the damage caused by the property law." At the same time, he stressed that the historical role of churches in society and the public-oriented nature of their activities is to some extent different from other natural or legal persons (taking into account the nature of their property), while allowing their comparison - in terms of the requirement of independence from the state - with local authorities (municipalities), which are also, as a whole, inseparable from the individual right of the citizen to self-determination (understand: self-government) [cf. Part III of the Decision; according to English translation on the pages of the Constitutional Court of the Republic of Hungary http: / / www.mkab.hu].
106. In other words, the consequences of inaction by the legislator are not only reflected in the narrow property sphere (historical) of churches and religious societies (Article 11 of the Charter, Article 1 of the Additional Protocol to the Convention), but also in the effective limitation of independence and independence from the State (church autonomy) guaranteed by Article 16 (2) of the Charter for the exercise of the freedoms guaranteed by Article 16 (1) and Article 15 (1) of the Charter. The Constitutional Court considers it unacceptable that the view that (from a historical point of view) the wide-ranging freedom of thought, conscience and religion, as derived from Czech constitutional order and international standards, and as it is protected by the general courts and the Constitutional Court, should justify a certain lower level of economic autonomy of churches and religious societies. Thus, perhaps the existence of a current higher level of fundamental rights and freedoms in comparison with the situation of the former (on 25 February 1948) could serve as an argument for not admitting property compensation.
107. In the light of the above, the Constitutional Court found sufficient grounds to establish Parliament's unconstitutional inaction, which it no longer considered appropriate to develop in equal detail other aspects of the issue, among which it must be pointed out in particular the question of the rationality of the reasons for the de facto different treatment of entities which by the will of the legislature became eligible under Act No 298 / 1990 Coll., and of the religious legal persons of others, which are part of both the Catholic Church and the churches and religious societies concerned, taking into account that this inequality is being enhanced by the length of the time when those other legal persons are referred to a law which does not exist. Nor can the reasoning of mitigating certain injustices be dominated by an irrational arbitrary legislator establishing inequality.
108. In relation to municipalities and third parties who are currently registered owners of blocked historical ecclesiastical property, Parliament's long-term inaction may give rise to individual anti-constitutional effects on the basis of specific circumstances that the Constitutional Court, in view of the many imaginable situations, cannot affect by a general statement. Even if the legislature remains primarily responsible for the legislation of the material concerned, given the complexity of the relations and the restraint of the Constitutional Court in order to give its possible appeal a positive indication of the legislature's future decision, the provision of adequate protection to the specific individual claims of the persons concerned in the future (together with the general courts) shall not be waived if the legislator does not adopt a constitutional solution.
Conclusion
109. For the reasons set out above, the Constitutional Court found that the contested provision of Paragraph 29 of the Land Act is not in itself unconstitutional, as it pursues a constitutionally conformal purpose and does not contain excessive means of achieving it. At the same time, however, he found that Parliament's failure to act on the non-adoption of the law envisaged by Article 29 of the Land Act, which would settle the historical property of churches for 19 years, infringes Articles 1 of the Constitution, 11, 15 (1), 16 (1) and (2) of the Charter of Fundamental Rights and Freedoms and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.
110. The Constitutional Court has not found the grounds for the priority consideration of the application within the meaning of Article 39 of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Vladimir Krórek, Jiří Mucha, Jan Musil and Pavel Rychetský to decide.
*) NB: Collection of finds and resolutions of the Constitutional Court, Volume 38, Found No. 156, p. 241
* *) NB: Collection of finds and orders of the Constitutional Court, Volume 39, Opinion No 22 / 05, p. 515, published under No 13 / 2006 Coll.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 242 / 2010 Coll., on the application for annulment of Article 29 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural assets, and on the declaration of unconstitutional inaction by Parliament of the Czech Republic |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.08.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0