The Constitutional Court found No. 278 / 2004 Coll.
The Constitutional Court of 9 March 2004 found on the application for annulment of Part Two of Act No. 229 / 2001 Coll., entitled "Amendment of Civil Code Article II"
Valid
The Constitutional Tribunal found
Text versions:
05.05.2004
278
FIND
The Constitutional Court
On behalf of the Czech Republic
On 9 March 2004, the Constitutional Court decided in plenary on the proposal of the District Court in Příbram to repeal the "Part Two" of Act No. 229 / 2001 Coll., entitled "Amendment of the Civil Code Article II,"
as follows:
Part Two of Act No. 229 / 2001 Coll., entitled "Amendment of the Civil Code Article II ', is deleted on 31 December 2004.
Reasons
The District Court in Příbrami submitted an application for the annulment of Part Two (Article II) of Act No. 229 / 2001 Coll., amending Act No. 219 / 2000 Coll., on the assets of the Czech Republic and its presentation in legal relations, as amended by Act No. 492 / 2000 Coll., and certain other laws, for a conflict with the Constitution of the Czech Republic (hereinafter the Constitution).
It did so in connection with the decision to bring an action against the defendant of the Czech Republic against the defendant, represented by the Office for the Representation of the State in Property Matters, based in Prague 2, Rashínová nábří 42, on the determination of the property right to the building plot No 99 - a built-up area of 361 m2 in the municipality i k.o. J., held at the Regional Court in Příbrami under sp. zn. 7 C 139 / 2001.
The essence of the dispute is that the applicant, as owner of building No. 26 (mixed goods store) in the municipality of J., also feels to be owner of the above-marked building plot, which is partly located under that building. As owner of this property, the Czech Republic is registered with the right of permanent use for the benefit of the claimant on the property certificate No 98, which is maintained for the municipality and for the municipality. The plaintiff seeks to determine the property for that land because he considers that he has become its owner under Act No. 103 / 2000 Coll. - specifically under Paragraph 879c (1) of the Civil Code (hereinafter referred to as "Citizen Z '). According to that provision, the right of permanent use of the land under Paragraph 70 of the Economic Code, built by a building or a building owned by the person for whose benefit it was established, which is in force on the date of entry into force of this Act (i.e. 1 July 2000), is changed one year from the date of application of the Act to the ownership of the legal person for which it was established. As the claimant has requested, pursuant to Paragraph 879c (4) of the Civil Code, a change of the right of management to property rights within the time limit set by the State, a change in its right of permanent use of land to property law has taken place. This does not change the fact that § 879c Citizen was abolished by Part Two of Article II of Act No. 229 / 2001 Coll., since this provision is a retroactive standard which cannot be taken into account.
The District Court in Příbrami (hereinafter referred to as "the applicant ') agreed with the applicant's legal opinion and added that on 1 July 2000 the bodies referred to in Section 879c of the Civil Code were given the right to apply for the conversion of the relationship of use into ownership and that right lasted until 30 June 2001 inclusive. Although that provision was repealed with effect from 30 June 2001 by Part Two of Article II of Act No. 229 / 2001 Coll., the right of ownership of those entities was not withdrawn (this would have occurred only from 1 July 2001), they were withdrawn retroactively from the right to apply for the conversion of the right of use to the right of ownership. This was a law already acquired within the meaning of Article 1 of the Constitution. In the appellant's view, this amendment was made by the legislator in a constitutionally inadmissible form of so-called retroactivity, contrary to Article 1 of the Constitution. All entities fulfilling the conditions of Paragraph 879c of the Civil Code were disadvantaged by the abolition of this provision because they were deprived of the right already granted by law, i.e. the right to acquire the right of ownership. By abolishing the parts of the second Article II of Act No. 229 / 2001 Coll., the right of other entities (in particular natural persons to whom the housing and non-residential premises have been transferred pursuant to Act No. 72 / 1994 Coll., which regulates certain co-ownership relations with buildings and certain ownership relations with apartments and non-residential spaces and complements certain laws (the Housing Act), as amended), to the creation of property rights in the building or house owned by them pursuant to § 60a and pursuant to Act No. 229 / 2001 Coll. On the contrary, only the situation based on the provisions of § 879c of the Civil Code and under § 879d and 879e of the same law will be restored.
The Constitutional Court first examined the formal terms of the application. The application was lodged by the District Court in Pribrami in connection with its decision-making activities in the case of the plaintiff against the defendant of the Czech Republic for the determination of the property rights. Act No. 219 / 2000 Coll., on the property of the Czech Republic and its presentation in legal relations, as amended by Act No. 492 / 2000 Coll. and Act No. 229 / 2001 Coll. The application was therefore made by a legitimate appellant and fulfils the conditions of Article 95 (2) of the Constitution and Article 64 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court). The proposal also fulfils the conditions of admissibility under Section 66 of the Constitutional Court Act.
In accordance with the provisions of Section 69 (1) of the Constitutional Court Act, the Constitutional Court requested the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
According to the Chamber of Deputies of the Parliament of the Czech Republic, the legislator's intention was to remove the interpretative problems which occurred in practice in the application of Section 879c of the Civil Service. These were in particular questions as to whether the land was to be owned as it was registered under a parcustoms number in the real estate register or as to the uncertainties of the land for which the right of material burden was created on 1 January 2001 pursuant to § 21 (5) and (7) of the Housing Act. It was also a question of an advantage only to certain entities within the group of legal entities which, as at 1 July 2000, had benefited from State-owned land and inconsistencies consisting of not excluding the transfer of ownership to the whole of the land, although there is, for example, a very small part of the operation of the building. By adopting Act No. 229 / 2001 Coll., a relatively wide range of entities were allowed to benefit from the preferential method of acquiring land in the form of the obligation to conclude a donation agreement by the State. The subject of the donation is thus the same as those of the State which form a functional unit with listed objects. The definition is wider than that of Section 879c. According to Section 879c of the Civil Service Office, the property right to land would not be established until 1 July 2001, so that the removal of that provision would not remove the property right.
On the question of retroactivity, the Chamber of Deputies referred in particular to the finding of the Constitutional Court of 4 February 1997 sp. zn. Pl. ÚS 21 / 96, published under No 63 / 1997 Coll. and published in the Collection of Finances and Resolutions of the Constitutional Court ("the Reports of the Decisions'), Volume 7, Found No 13, and Found of 13 March 2001 Sp. Pl. ÚS 51 / 2000, Dec. No. 128 / 2001 Coll. and Published in the Collection of Decisions, Volume 21, Found No 42. The legislator was led by an effort to achieve a fair and balanced solution providing a higher level of legal certainty to a wider range of entities. The legal effects of the contested provision can therefore only be characterised as false retroactivity. The provisions of legislation of this nature do not conflict with the principles of the rule of law. Act No. 229 / 2001 Coll. was approved by the legislature on 14 June 2001 in the belief that it was in accordance with the constitutional order and the legal order of the Czech Republic, signed by the relevant constitutional authorities and duly declared in the Collection of Laws.
The Senate of the Parliament of the Czech Republic stated in its observations that the draft of the contested law had been referred to it by the Chamber of Deputies on 28 May 2001. The Senate discussed the bill on 14 June 2001 and in the presence of 53 senators and senators approved the bill by 29 votes in favour, 14 votes against. In the debate there were voices that the annulment of § 879c et seq. A citizen just before the expiry of that one-year period can lead to controversy about legal certainty, trust in law and retroactivity. In the end, he took the view that ownership had not yet passed and the Senate had spoken for the bill.
As regards the retroactivity of that provision, it is stated in the Senate's observations that the provisions of the second Article II of Law No 229 / 2001 Coll. do not link any legal effects with any legal fact which occurred before its effect. As of the date of application of this law, i.e. on 30 June 2001, no person was created a subjective or property right. Therefore, the repeal of Paragraph 879c did not result in any interference with the so-called acquired rights. The acquisition of the right of ownership was conditional on the submission of an application to the competent State authority and on the expiry of time, according to § 879c of the Citizen. The second condition, i.e. the expiry of time, was not fulfilled at the time of the entry into force of Act No. 229 / 2001 Coll. although only one day. This follows from the provision of Paragraph 122 (2) of the Citizen, according to which the end of the period determined according to the flight falls to a date which coincides with the date on which the event from which the period begins, in particular on 1 July 2001.
In this context, the Senate pointed out that the provisions of § 879c et seq. Citizen, even if marked as transitional, is published in the ECR, Volume 21, Found No 43 / 2001 Coll. (the finding of 10.1.2001 sp. zn. Pl. ÚS 14 / 2000, in the Reports of the Decision, Volume 21, Found No 4) and No 128 / 2001 Coll. (see above) of the provisions incorrelated to the Civil Code, and can be considered as such the annulment. It is therefore difficult to recognise the separate existence of the provisions of the parts of the second Act No. 229 / 2001 Coll., since the repeal of § 879c et seq. Citizen Z became part of the Civil Code. It is generally clear from the case law of the Constitutional Court that the annulment of a provision by the Constitutional Court cannot result in a "revival 'of the provision in force the day before the annulment of the annulled provision in the Collection of Laws. In this context, the question arises as to whether, for formal procedural reasons, a proposal on the basis of which the Constitutional Court should" abolish' the "repeal clause 'is possible. This is a negative of a negative, the result of which could lead to a" positive', namely the restoration of the previous adjustment, which should not be possible in the light of the above.
In its observations, the Senate pointed out that the Constitutional Court is deciding, pursuant to Article 87 (1) (a) of the Constitution, to abolish laws or their individual provisions if they are contrary to constitutional order. As a result of its decision, the vacuum, or the room for possible decision-making, is legislative and not positive legislation. It is also appropriate to take into account that the legislator's intention to dispose of the State's assets after the repeal of § 879c et seq. Citizen, already expressed by amendment to the State Property Act by the insertion of Sections 60a and 60b and by the provision of Section 1 of Article IV of Act No. 229 / 2001 Coll.
The Constitutional Court pursuant to Article 87 (1) (a) of the Constitution shall decide on the repeal of laws or their individual provisions if they are contrary to the constitutional order. In this proceeding, the Constitutional Court assesses the content of the law or other legislation in terms of their compliance with the constitutional laws and ascertains whether they have been adopted and issued within the limits of the Constitution laid down by the jurisdiction and by the constitutionally prescribed procedure (Section 68 (2) of the Law on the Constitutional Court). Therefore, the Constitutional Court first referred to the question of whether the law in respect of which the appellant contends to be unconstitutional was adopted and approved under the conditions laid down in Paragraph 68 (2) of the Constitutional Court Act.
From the report on the 36th meeting of the Chamber of Deputies of the Parliament of the Czech Republic of 25 May 2001 The Constitutional Court found that the Chamber of Deputies of that day approved the resolution by which it gave its assent to the proposal of Members of Zdeněnek Horník and others to issue a law amending Act No. 219 / 2000 Coll., on the property of the Czech Republic and its presentation in legal relations, as amended by Act 492 / 2000 Coll., and certain other laws, according to the House Press 828, as amended by the approved amendments. In the vote, order number 491 of the 171 Members present voted in favour of 168 Members, against anyone.
It follows from the Senate communication that the bill was delivered to it on 28.5.2001 and approved by the Senate on 14.6.2001.
The law was delivered to the President of the Republic for signature on 15 June 2001. The President signed the Act on 26 June 2001. The Approved Act was delivered to the Prime Minister on 26 June 2001 and declared on 29 June 2001 in the Collection of Laws, amount 85, under number 229 / 1001 Coll., with effect from 30 June 2001. It is therefore established that the contested law was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Following this preliminary finding, the Constitutional Court decided to examine the content of the contested provision in the second Article II of Act No. 229 / 2001 Coll. from the point of view of its consistency or conflict with the constitutional order of the Czech Republic and concluded that the proposal was justified.
The appellant of the contested provision reads as follows: "In Act No. 40 / 1964 Coll., Civil Code, as amended by Act No. 58 / 1969 Coll., Act No. 131 / 1982 Coll., Act No. 94 / 1988 Coll., Act No. 188 / 1988 Coll., Act No. 103 / 2000 Coll., Act No. 87 / 1990 Coll., Act No. 105 / 1990 Coll., Act No. 104 / 1995 Coll., Act No. 118 / 1995 Coll., Act No. 89 / 1996 Coll., Act No. 94 / 1996 Coll., Act No. 227 / 1997 Coll.
Paragraph 879c was incorporated in the Civil Code by Part Five, Article VII (Amendment to the Civil Code) of Act No. 103 / 2000 Coll. of 4.4.2000 and Sections 879d and 879e of the Civil Code of the Civil Code of its amendment by Act No. 367 / 2000 Coll. of 14.9.2000. Paragraph 879c was part of the Civil Code from 1.7.2000 (i.e. from the effective date of Act No. 103 / 2000 Coll.) until 30.6.2001, i.e. until the effective date of Act No. 229 / 2001 Coll.
In short, the provisions of Sections 879c, 879d and 879e have been removed from the text of the Civil Code. In order to better understand the problem, it seems desirable to quote the exact texts of the repealed Sections 879c to 879e, from which the problem depends:
(1) The right of permanent use of the land pursuant to § 70 of Act No. 109 / 1964 Coll., Economic Code, built by a building or building owned by the person for whose benefit the right of permanent use was established and the land for which it is based, if such land is related to the operation of that building or construction which is in progress at the date of entry into force of that Act, shall be amended by one year from the date of application of that law to the ownership of the legal person for which that right was established.
(2) The provisions of paragraph 1 shall apply mutatis mutandis to the right of borrowing or renting which has replaced the right of permanent use of the land, provided that it has been established for the benefit of the housing cooperative or for the benefit of whoever has transferred the apartment or the non-residential space to the property pursuant to Section 23 of the Housing Act.
(3) Where the right of permanent use established for a single parcel has been combined with more than one person, they shall become joint owners with the same shares in accordance with paragraph 1.
(4) If the legal person for whose benefit this right has been established does not request the State to change that right of ownership within one year of the date of application of this law, the right referred to in paragraph 1 or 2 shall not be changed to ownership and the right of permanent use shall cease to exist within one year of the date of application of that law.
The person for whose benefit the right of permanent use was established for the purposes of § 879c also means the housing cooperative of citizens or associations of citizens, which have been created or deemed to be created under the Act No. 83 / 1990 Coll., on the association of citizens, as amended, if such housing cooperative or association of citizens has transferred the right of permanent use referred to in § 879c (1).
Paragraph 879c (1) shall apply mutatis mutandis to the right of borrowing or renting provided for in Paragraph 879c (2) set up by 31 December 2000 at the latest for the benefit of those who have been transferred the apartment or the non-residential space into possession under Section 23 of the Housing Act. The change of such right of borrowing or ownership lease takes place on 1 July 2001.
The appellant's argument is that the provision of Paragraph 879c of the Citizen granted the entities listed here the right to apply for the conversion of the exploitation relationship into the right of ownership and that right, as already acquired to them, was withdrawn by the contested provision of Law No 229 / 2001 Coll.. According to the appellant, this has become an unacceptable form of retroactivity, contrary to Article 1 of the Constitution.
The questions of retroactivity were addressed by the Constitutional Court in a number of its findings. Perhaps the most extensive consideration of this issue was in Case 63 / 1997 Coll. (see above), which can be referred to in this context. The Constitutional Court has, among other things, expressed the postulate that the fundamental principles defining the category of rule of law include the principle of protecting citizens' trust in law and the associated principle of prohibiting the retroactive application of legal standards. The prohibition on the retroactivity of legal standards in the field of criminal law is expressly provided for in Article 40 (6) of the Charter of Fundamental Rights and Freedoms, its activities for other sectors of law must be derived from Article 1 of the Constitution. A legal standard may be considered retroactive if it sets out the legal consequences for such factual conditions that occurred before the effective date of that standard.
In the present case, the conditions of fact can be regarded as those laid down in Section 879c of the Civil Code for the transfer of the right to property at 1.7.2001. The acquisition of ownership under § 879c of the Citizen was subject to two conditions (§ 879c (1) and (4)). The first condition was the submission of an application to the competent state authority and the second was the expiry of time, i.e. one year from the effective date of Act No. 103 / 2000 Coll., i.e. from 1.7.2000. That period would have been met on 1 July 2001. However, this did not happen because the fulfilment of this second condition was excluded by Part Two of Article II of Act No. 229 / 2001 Coll. published on 29 June 2001 in the Collection of Laws, in an amount of 85, with effect from 30 June 2001, interfering, inter alia, with the whole of Section 879c. Thus, the legislator was able to rule out the legal consequences foreseen in Section 879c of the Civil Service Tribunal in the event of a one-year period prior to the end of that period. It was a procedure which, however, did not withdraw the right of ownership from any of the entities to which the benefits of Paragraph 879c of the Citizen, since it had not been established. The right to issue the land to property, which was established by § 879c et seq. A citizen on 1 July 2000 would not be established until 1 July 2001. Thus, by repealing the above-mentioned provisions of the Civil Code, the contested part of Act No. 229 / 2001 Coll. was not withdrawn.
In a dispute dealt with by the Pribram District Court, the applicant was found to have made the relevant application. He therefore fulfilled the first condition, but was not allowed to fulfil the second condition because Law No 229 / 2001 Coll. in part the second Article II did not allow it to be fulfilled since 30 June 2001. In this context, it should be concluded that the application pursuant to Paragraph 879c (4) of the Civil Code did not constitute a right of ownership within the time limit set by the applicants. The Constitutional Court therefore does not consider the contested provision of the Act to be retroactive.
However, it follows from the above that in the period since the effectiveness of Act No. 103 / 2000 Coll. (i.e. from 1.7.2000) all entities which fulfilled the conditions of § 879c, which had been incorporated by that Act into the Civil Code and followed it, had a legitimate expectation that they would become owners of the land covered by the § 879c to 879e Citizen scheme after one year, i.e. from 1.7.2001. The legislature's practice intervened in this legitimate expectation only one day before the expiry of the period in which the acquisition of ownership rights would take place. This means that those who acted in confidence in the conditions laid down by the State in advance were confronted with a completely different state practice just the day before the expiry of the deadline.
In this context, the Constitutional Court refers to the case law of the European Court of Human Rights in Strasbourg (hereinafter the ECHR) concerning the application of Article 1 of Additional Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter the "Additional Protocol '). Under 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 conditions laid down by law and by the 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 The Additional Protocol 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 (see the 2002 ECHR decision in Case J Broniowski v Poland). It may include both" existing assets' and assets, including claims, on the basis of which the complainant may claim to have at least "legitimate expectations' (ésperance légitime / legitimate expedition) to achieve effective use of property rights (see Gratzinger and Gratzinger v Czech Republic, 2002 or Zvolský and Zvolská v Czech Republic, 2001).
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. It is common ground that, in such legitimate expectations, all the bodies governed by the scheme were under Section 879c Citizen until 30 June 2001. The acquisition of assets did not take place only as a result of an arbitrary procedure by the legislator, which changed the rules the day before the expiry of that one-year period.
Here it seems useful to point out the specifics of the development of property rights to land in the former Czechoslovakia after 1948. In order to achieve socialisation of the soil, the State gradually created various "utilization institutes" for the land that was intended to displace private ownership ideologically considered historically overpowered. In the case of State-owned land, these utilities were in particular "interim management of national assets'," law on the management of national assets', also referred to as "administration of national assets'," right of permanent use of immovable national assets' or "right of personal use of land '.
The Interim Administration of National Property was governed by Decree No. 61 / 1986 Coll., on the Interim Administration of National Property, as amended. The right of management of national property or its administration was governed by the provisions of § 63 et seq. of Act No. 109 / 1964 Coll., Economic Code, and by the Decree implementing this Act No. 119 / 1988 Coll., on the Management of National Property, as amended.
The right of permanent use of immovable national property was also governed by the Economic Code in Paragraph 70 (1), according to which parts of national property could be transferred free of charge to permanent use to organisations other than state, in particular cooperative or civil associations. The right of personal use of the land was regulated in § 198 et seq. of Act No. 40 / 1964 Coll., i.e. Citizen Z.
Despite the fact that these institutes were called users, they were essentially institutions corresponding to the right of ownership or replacing the right of ownership. This applies in particular to the "right of permanent use of immovable national property 'and to the" right of personal use of land'. The legislator was also aware of this, because one of its first steps in the restoration of classical ownership institutions was the amendment of the Civil Code implemented by Act No. 509 / 1991 Coll., which had been transformed into ownership of a natural person (§ 872 Citizen Z).
In the area of the law on the permanent use of immovable national assets under Section 70 of the Economic Code, development was somewhat more complex and lasted considerably longer. With regard to this property, Section 876 (1) of the Civil Code, which also brought its amendment by Act No. 509 / 1991 Coll., established that the relationship of permanent use under § 70 of Act No. 109 / 1964 Coll., the Economic Code, is to be assessed according to the existing rules until the date of the issue of the Special Act.
Here too, the legislator brought the possibility of transforming this right into the right of ownership law No. 103 / 2000 Coll. in Part Five, by including the provision of § 879c. Act No. 367 / 2000 Coll., which incorporated two new provisions in the Civil Code, i.e. Sections 879d and 879e, with effect from 1.1.2001, contributed to further clarification.
As already noted above, the right to issue the land to property, which was established by the provisions of § 879c et seq. Citizen Z would not have been established until 1 July 2001. By abolishing the above-mentioned provisions of the Civil Code, the contested part of the second Act No. 229 / 2001 Coll. was not withdrawn, so the property was not disposed of. On the other hand, the entities to which the benefits of Paragraph 879c of the CičZ were attested lived until 30 June 2001 in a legitimate expectation that they would become owners of the land concerned free of charge the following day. This expectation was therefore real, completely legitimate and very strong, which is supported, among other things, by the above-mentioned overview of the transformation of certain land-use relationships into ownership relationships.
Based on the above considerations The Constitutional Court concludes that the legislature's said practice was an intervention in the legitimate expectations of the abovementioned bodies within the meaning of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.
Under this condition, i.e. if intervention has taken place, it must be examined whether such intervention has been conditional on the existence of a public interest. Any interference with the use of the right or freedom conferred by the Convention for the Protection of Human Rights and Fundamental Freedoms must pursue a legitimate objective. The principle of fair equilibrium, which is Article 1 of the Additional Protocol itself, presupposes the existence of a general interest (see Beyler v Italy, 2000).
According to the Chamber of Deputies, the aim of the adoption of Act No. 229 / 2001 Coll. was to eliminate the interpretative problems that occurred in practice in the application of § 879c CičZ. These were in particular questions as to whether the land was to be owned as it was registered under a parcustoms number in the real estate register or as to the uncertainties of the land for which the right of material burden was created on 1 January 2001 pursuant to § 21 (5) and (7) of the Housing Act. It was also an advantage for certain entities within a group of legal entities that used State-owned land as at 1 July 2000 and for inconsistencies consisting of not excluding the transfer of ownership to the whole of the land, although there is, for example, a very small part of the operation of the building. During that annual period, the legislator realised some problems related to the transfer of land pursuant to § 879c of the Civil Code and the whole solution to the issue of the transformation of land by legal persons in permanent use included in the law on the property of the Czech Republic its amendment by Act No. 229 / 2001 Coll. This also follows from the explanatory memorandum to Part Two (amendment of the Civil Code) of Act No. 229 / 2001 Coll., according to which the aim of the present regulation, the effect of which will take place only on 1 July 2001, was to cancel and deal with the free transfer of land in a comprehensive manner in the amendment to Act No. 219 / 2000 Coll., on the property of the Czech Republic and its appearance in legal relations, as amended.
However, Law 229 / 2001 Coll. dealt with the "comprehensive free transfer of land 'by making it possible for one group of selected entities to obtain land free of charge, making it significantly more difficult for other groups to obtain it. This law is according to its designation an amendment to the Act on the Property of the Czech Republic No. 219 / 2000 Coll. In fact, it mainly regulates the acquisition of state-owned land into the ownership of housing cooperatives, owners of family houses, owners of flats, garages and non-residential premises in houses, if these are on state property.
While Paragraph 879c of the Civil Code allowed the acquisition of ownership of all non-state legal persons who had permanent use of State land under Section 70 of the Economic Code, the acquisition was maintained only by the entities mentioned in the above paragraph by Act No 229 / 2001 Coll.. The remaining entities, i.e. in particular consumer or production cooperatives and civil associations, have lost that possibility by abolishing Paragraph 879c. While, for the effectiveness of § 879c, all the operators using the land under the scheme of § 70 of the Economic Code were in an equal position, the amendment brought about by Act No. 229 / 2001 Coll., caused their fundamental inequality.
Law No. 229 / 2001 Coll. in the fourth part (transitional provisions) of Article IV (1) and (2) provided that the existing relationship of permanent use under Paragraph 70 of the Economic Code, which did not change into a loan under Paragraph 59 (1) of the Act No. 219 / 2000 Coll., on the assets of the Czech Republic and its presentation in legal relations, was to be converted into a loan for a fixed period of up to and including 1.1.2004.
Although this loan is subject to the arrangements for the loan agreement in § 659 et seq. Citizenship free of charge but only for a limited period, i.e. up to 1.1.2004, as mentioned above. The possibility to acquire the property free of charge is given to these entities in accordance with the procedure laid down in § 59 (2) of Act No 219 / 2000 Coll., but only if the conditions of § 22 (2) of the same Act are fulfilled, under which the case can be transferred free of charge only in the public interest or where the transfer is more economical than any other way of dealing with the case or where a special rule so provides.
The adoption of Act No. 229 / 2001 Coll. therefore significantly exacerbated the position of entities in legitimate expectations under § 879c. Not only did they not acquire ownership, but they entered the temporary borrowing scheme from the permanent use scheme and the possibility of obtaining the land free of charge made it significantly more difficult for them to obtain the land by being mainly linked to the public interest, but not sufficiently defined.
Although it is clear from the constant case law of the Constitutional Court that it is for the State to decide that it will confer less advantages on one group than on others, it must not proceed arbitrarily and its decision must result in it doing so in the public interest and not, for example, in order to cover the deficiencies in the administration (see the judgment of 1.12.1999 in the sp. zn. Finally, the Chamber of Deputies itself confirms that the aim of the amendment was, among other things, to solve the interpretative problems related to the future application of Paragraph 879c of the Citizen, adopted less than a year ago.
The contested amendment therefore transformed the equality of the parties concerned, which lasted until 30 June 2001, into an inequality between the various groups of those entities. This inequality does not, according to the Constitutional Court's conclusion, correspond to any public interest. The interest in the advantage of one group of entities and the current disadvantage of the group of the other in a situation where all operators were at the same starting line provided for in Section 879c of the Citizen, cannot be of such public interest. The Constitutional Court considers the inequality thus introduced, which cannot be found to be of public interest, to be a breach of Article 1 of the Charter of Fundamental Rights and Freedoms, which expresses the principle of equality in rights.
In the Beyler case against Italy in 2000, the ESLP intervened in the right to peaceful use of property under Article 1 The Additional Protocol stated, inter alia, that "In order to be compatible with the general standard referred to in the first sentence of Article 1, such interference must ensure a" fair balance 'between the requirements of the general interest of the Community and the imperative of protecting the fundamental rights of the individual. Moreover, the need to assess the issues of fair balance only arises when it appears that the incriminated interference has respected the principle of legality and has not been arbitrary. "
In the same case, the ECHR pointed out that legality constitutes a fundamental condition for the compatibility of the measure which is being affected with Article 1 of the Additional Protocol. This calls for the interference of a state body in the right to use property to be lawful. The principle of legality also implies the existence of sufficiently accessible, precise and predictable standards of national law (see Heinrich v France, 1994).
In the light of the above principles governing the ECHR case-law, the Constitutional Court concluded that the provisions of Act No. 229 / 2001 Coll., which are proposed for annulment, do not comply with the above-mentioned criteria of legality, in particular the principle of predictability. The legislator's intervention shows strong signs of insolence. Such a procedure distorts trust in law, which is one of the fundamental attributes of the rule of law. The legislator's procedure did not comply with the fundamental principles of the rule of law, which include the principle of the predictability of the law, its clarity and the principle of its internal inconsistency.
Thus, according to the conclusion of the Constitutional Court, Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms was infringed by the legislature's procedure described above. Indeed, in accordance with the legislation laid down in Section 879c of the Civil Service Act from 1.7.2000 to 30.6.2001, the parties in question assumed that they would be entitled, in accordance with the provisions laid down in Section 879c of the Civil Service Act, to acquire property which they had used permanently until now. However, the amendment to the law brought a very different solution the day before the end of that annual period, as pointed out above.
The amendment of the Civil Code implemented by Part Two of Article II of Act No. 229 / 2001 Coll., as described above, also infringed one of the fundamental principles of the rule of law, namely the principle of legal certainty and trust in law, as set out in Article 1 (1) of the Constitution. By changing the rules practically the day before the deadline set for the acquisition of the right, the legislator resigned from his moral obligation to set an example in respect of the law.
Considering all the above reasons, The Constitutional Court complied with the application and annulled the contested legal provision pursuant to Article 70 (1) of the Constitutional Court Act on Conflict with Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, Article 1 (1) of the Constitution and Article 1 of the Charter of Fundamental Rights and Freedoms.
In the procedure for the control of standards, the Constitutional Court acts as the so-called negative legislator, entitled to derogate only in the event of compliance with the application of the contested legislation (see the finding of 12.2.2002 sp. zn. Pl. ÚS 21 / 01, published under No 95 / 2002 Coll. and published in the ECR, Volume 25, No 14). Therefore, the repeal of the contested regulation can only result in its "exclusion" from the law of the Czech Republic and not in the actual constitution of a new regulation in the form of "exploitation" of the regulation previously repealed.
In a particular case, however, this is the abolition of the derogatory provision of Act No. 229 / 2001 Coll. In this context, the Constitutional Court points out its finding of 30 November 1994 sp. zn. Pl. ÚS 5 / 94, published under No 8 / 1995 Coll. and published in the ECR, Volume 2, Found No 59. In that finding, the Constitutional Court annulled paragraph 198 of Act No. 292 / 1993 Coll., which amended and supplemented Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code). Paragraph 198 of that Act deleted from the Code of Criminal Procedure § 324, which provided for a decision to change the way in which the sentence was enforced. This derogation of the derogatory provision of paragraph 198 of Law No 292 / 1993 Coll. resulted in "rehabilitation 'of § 324 of the Penal Code, which is part of it up to these days. It can therefore be borne in mind by the appellant that by abolishing part of the second Article II of Law No 229 / 2001 Coll., the situation based on the provisions of § 879c, 879d and 879e CičZ will be restored.
However, this would result in significant legal uncertainty not only in the rights of the entities covered by Sections 879c to 879e of the Civil Code, but also in third parties' rights. Therefore, the Constitutional Court postponed the annulment of the contested provision of Act No. 229 / 2001 Coll. until 31 December 2004 in order to provide Parliament of the Czech Republic with sufficient time to adopt adequate legislation.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | Constitutional Court found No. 278 / 2004 Coll., on the application for annulment of Part Two of Act No. 229 / 2001 Coll., entitled "Amendment of Civil Code Article II" |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.05.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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