The Constitutional Court found No. 289 / 1999 Coll.

Motion denied.

On 2 April 1999, the Constitutional Court received a proposal from a group of 51 Members of the Chamber of Deputies of the Parliament of the Czech Republic to abolish part of the provisions of Section 19 paragraph 1 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, expressed in words "if they fulfil the conditions set out in § 3 paragraph 1 or 2 of the Act, '. The Constitutional Court first verified the formal terms of the application and found from the attached signature sheet that the legal conditions of § 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court when the proposal was signed by 51 Members (not 52 as stated by the accompanying document of the appellants) were fulfilled. The application shall also be accompanied by a statement that the signed Members agree to act on their behalf in proceedings before the Constitutional Court.

The Constitutional Court further examined the formal admissibility of the proposal in terms of its content and found that the application for the annulment of part of the provision of Section 19 (1) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, is admissible in the light of Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter "the Constitution ').

The contested legal provisions are regarded by the appellants as contradictory to the rule of law (Article 1 of the Constitution), the principle of inadmissibility of the exercise of State power outside the limits laid down by law [Article 2 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ')], the principle of equality [Article 3 of the Charter and Article 26 of the International Covenant on Civil and Political Rights (" the Pact')] and the principle of the right of each to own property (Article 11 (1) of the Charter).

The subject of the proposal in terms of its content shall be the abolition of the nationality condition for persons who have been brought to justice in the event of a claim for the issue of property resulting from the annulment of the judgment on the forfeiture of property, the confiscation of a case or the prevention of a case. In the condition of citizenship, the appellants see the depreciation of public value enshrined directly in the preamble to the Act on extrajudicial rehabilitation, which is to remedy the injustices that took place between 1948 and 1989. They express their belief that, in their view, discriminatory, the condition leads to inequality, but which, contrary to Article 26 of the Pact, as interpreted by the United Nations Committee on Human Rights, is not based on reasonable and objective distinguishing marks and on the exclusion of arbitrarily. They also refer to the fact that, in addition to the loss of property, the persons who had been convicted suffered another loss of personal freedom, while highlighting this distinction, the legislature also accentuated the inclusion of the legislation governing their restitution claims in the separate third part of the Act on extrajudicial rehabilitation. The appellants are aware of the meaning of the relationship between the restitution rights of the court-treated persons under the law on extrajudicial rehabilitation, which is based on the exclusion of the possibility of the application of the objection of the maintenance of property rights by a compulsory person, but they see the state's pleas in the condition of citizenship.

By abolishing the contested legal provision, the appellants pursue an attempt to promote public value, or the moral principle according to which the injustices are to be rectified, while maintaining equality between the persons concerned. They also monitor the elimination of inequality in the fundamental right to own property.

They also point out that the abolition of judicial statements on the imposition of a custodial sentence and subsequent statements on the confiscation of property pursuant to Act No. 119 / 1990 Coll., on judicial rehabilitation, as amended, with the effect of ex tunc, has resulted in a legally paradoxical situation for persons who have been forced to apply for property again, and for those of them who have lost their citizenship for some reason, via the faction to expropriate their property. They also point out that nowhere else in the Czech legal order other than in the context of restitution, it is not established that the effects of the statements on the abolition of unlawful judgments and subsequent statements on the confiscation of property would have other consequences for the persons who are citizens and those who have ceased to be them. The precise expression of the injustices of the current regulation is seen in those court-ordered persons whose time since the judgment was delivered, and the final judgment on judicial rehabilitation in accordance with Act 119 / 1990 Coll., as amended, after the date on which they called on the debtor to issue the case, is less than 10 years, because in this case, even in the case of the debtor, the maintenance of the property right which had originally been lost by the court-ordered persons could not have occurred. They conclude from the above that, according to the Guidelines, the procedure under Act No. 87 / 1991 Coll., as amended, would not have to be applied to this group of persons, since then the condition of citizenship results in an expropriation which is contrary to the principles of the rule of law concerning the presumption of public interest as well as the assumption of compensation.

Under Articles 42 (3) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent a motion to the Chamber of Deputies of the Parliament of the Czech Republic. This statement was served on the Constitutional Court on 31 May 1999. The President of the Chamber of Deputies, Prof. Ing. Václav Klaus, CSc., refers, first of all, to a reasoned report on the provision of § 19 of the Government Bill on extrajudicial rehabilitation, according to which the condition of citizenship for the issue of a case or the provision of financial compensation in case of mitigation of the consequences of certain property injustices corresponds to international practice. In its opinion, it is further based on the case-law of the Constitutional Court on the condition of citizenship in the restitution legislation, in particular the finding of the Constitutional Court of 4 June 1997 sp. zn. Pl. ÚS 33 / 96 (No 185 / 1997 Coll.), with only one group of persons entitled (namely in the field of criminal relations) and its retention for another group of persons that could mean the introduction of inequality between individual groups of persons. That conclusion was supported by the party to the proceedings and, in its view, by an impossible reference by the appellant to Article 11 (1) of the Charter, which lays down the right of each person to own the property, as well as the same legal content and the protection of the property rights of all owners, since the possible abolition of the nationality condition for only one group of beneficiaries would not be a fully satisfactory solution and in accordance with that principle.

The party also refers to its previous observations on the Law on extrajudicial rehabilitation, in which it gave an opinion that this legislation is a very exceptional and one-off provision, when the legislature, when approving it, based on the principle and the attempt at least partially mitigating the injustices of the previous regime. It recalls that the law merely sought to remove the consequences of the application of the earlier rules during the relevant period, and that it cannot be said to be explicitly recovered in the previous situation. It is based on a purpose which was not to eliminate all the injustices but to mitigate them, which could only be implemented to a limited extent, which included a condition for citizenship. Furthermore, the party believes that the law on extrajudicial rehabilitation seeks to respect citizens' civil, political and economic rights in accordance with internationally protected human rights and fundamental freedoms, the application and purpose of which, in the event of an attempt to rectify at least some of the wrongs committed in the past, cannot be seen as an open-ended attempt to bring things back to their original state.

The party to the proceedings on the adoption of the contested legal provision within the framework of a constitutionally defined competence and in a constitutionally prescribed manner confirmed that Act No 87 / 1991 Coll., on extrajudicial rehabilitation, as well as the laws which amended it and supplemented it, were approved by the necessary majority of legislators, signed by the relevant constitutional authorities and duly declared in the Collection of Laws. Finally, it states that the legislature acted in 1991 in the belief that the law adopted was in accordance with the Constitution, the Constitution and our rule of law and that it was up to the Constitutional Court to examine the constitutionality of the contested part of the provision of § 19 paragraph 1 of Act No. 87 / 1991 Coll., as amended, and to give its decision in the context of the proposal.

Pursuant to § 68 (2) of Act No. 182 / 1993 Coll. The Constitutional Court, when deciding on the annulment of laws and other legislation, shall examine the content of those provisions in terms of their compliance with constitutional laws, international treaties pursuant to Article 10 of the Constitution or, where applicable, other laws, and shall determine whether they have been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

Where the Constitutional Court assesses the constitutionality of the competence of the legislature and the constitutionality of the legislature process in the context of the control of the standards, Article 66 (2) of the Law on the Constitutional Court is based on Article 66 (2) of the Law on the Constitutional Court, according to which the application for annulment of laws and other legislation is inadmissible if the constitutional law or the international treaty with which the legislation under review is proposed has ceased to exist before the application of the Constitutional Court. It follows from the above that, for legislation issued before the Constitution becomes effective, the Constitutional Court is entitled to examine only their content compliance with the current constitutional order, but not the constitutionality of the procedure of their formation and compliance with the standard competence.

In the present case, the Constitutional Court is therefore confined to stating that Act No. 116 / 1994 Coll., amending and supplementing Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, and which amended the contested part of the provision § 19 (1) of the Act on extrajudicial rehabilitation, was approved (on 29 April 1994) by the necessary majority of Members of the Chamber of Deputies of the Parliament of the Czech Republic (out of 172 Members 145 voted in favour of its adoption, 3 were opposed, 21 abstained and 3 did not vote), signed by the relevant constitutional officials and duly declared in the Collection of Laws.

The Constitutional Court dealt with the constitutionality of the definition of a circle of authorised persons in the Act on extrajudicial rehabilitation in the finds sp. zn.

In the first of the above findings at the beginning of his argument, he assessed the interpretative importance of the preamble to Act No. 87 / 1991 Coll., as amended, which shows that the objective of the Act on extrajudicial rehabilitation is "an attempt to mitigate the consequences of certain property and other injustices that occurred between 1948 and 1989." The first question that the Constitutional Court asked itself in this context was whether the "mitigation" of the consequences of "some" injustices could be understood only in relation to the heading and intensity of the property intervention, in particular to the ownership of citizens in the relevant period, or whether the legal scope for narrowing the circle of authorised entities with regard to their permanent residence could be seen in it. The Court answered the question in the negative when it found that the scope for the exclusion of certain entities from the scope of those which fulfil the characteristics of a restitution title could not be inferred from that wording of the preamble to the law. In the view of the Constitutional Court, the framework for the possible limitation of the circle of beneficiaries is only laid down in Article 11 (2) of the Charter, according to which the law may provide that certain items may only be owned by CSFR citizens or the Czech Republic. It then concluded from that provision that the Charter "does not empower the legislator to determine further conditions for the acquisition of ownership (whether under the restitution process or in general) '. A contrario therefore applies that Article 11 (2) The Charter empowers the legislature to determine the condition of citizenship in the acquisition of ownership in the context of the restitution process [the heading of matters laid down by the law which is entitled to the issue of cases by authorised persons with national citizenship (CSFR or Czech Republic) is defined in Section 6 of the Act on extrajudicial rehabilitation]. At another point in the preamble to the Constitutional Court's finding in Pl. ÚS 3 / 94, it is consistently stated that the condition of permanent residence is" contrary to Article 11 (2) of the Charter, which empowers the legislature only to provide that certain items may only be owned by citizens or legal persons established in the Czech and Slovak Federal Republic'.

Following the above-mentioned conclusions of the Constitutional Court on the question of constitutionality, the condition of citizenship for the exercise of the right to issue the case under Act No. 87 / 1991 Coll., as amended, in the decision in sp. zn. The Charter is a special provision on the constitutional principle of equality of all entities concerning the acquisition and protection of property rights (an example of its transposition into the law is Article 17 of Act No. 219 / 1995 Coll., the Foreign Exchange Act), which is precisely Article 11 (2) of the Charter, which creates a constitutional space for legislators to restrict the circle of authorised persons in the restitution legislation.

In that finding, the Constitutional Court also dealt with the compliance of the provisions of the Act on extrajudicial rehabilitation, which regulates the condition of citizenship, as well as with the Pakto. The principle of equality is governed by Articles 2 (1) and 26. Equality under the first of these provisions is of an accessorial nature, i.e. applies only to equality in the Covenant of anchored rights, the right of ownership is not included among them. Article 26 provides for equality before the law and for the exclusion of discrimination. Citizenship is not explicitly included in the demonstration list of grounds excluding unequal access. The United Nations Committee on Human Rights, in its repeated opinion, admits the application of Article 26 The Pact of Inequality only on the condition of the exclusion of arbitrarily or based on reasonable and objective distinguishing marks. As such, the Constitutional Court found in sp. zn Pl. ÚS 33 / 96 considered the consequences of Article 11 (2) of the Charter, as well as the objectives of the restitution legislature and finally the legislation on citizenship under Article II of Act No 88 / 1990 Coll., amending and supplementing the provisions on the acquisition and abatement of Czechoslovak citizenship.

Following the conclusions contained in those findings, from which neither the Constitutional Court found any reason to depart, the following can be stated.

If, from the perspective of the present case-law of the Constitutional Court, the condition of citizenship for the exercise of the right to extradition under the Law on non-judicial rehabilitation does not conflict with constitutional laws or international treaties under Article 10 of the Constitution, the fundamental question must be dealt with whether the same treatment for persons treated equally in the event of the exercise of the right to extradition resulting from the annulment of the judgment on the forfeiture of property, the confiscation of a case or the prevention of a case has not infringed the constitutional principle of equality. In other words, by applying the condition of citizenship to the entire group of beneficiaries under the law on out-of-court rehabilitation, the legislator did not distinguish between entities and rights (i.e. judicial persons in the condition of citizenship), although he was convinced to do so by the applicants, it did not infringe the constitutional principle of equality.

In its well-established case-law, the Constitutional Court interprets the constitutional principle of equality from a dual perspective [Pl. ÚS 16 / 93 (ÚS 1, p. 194, 195, 205 - 206), Pl. ÚS 36 / 93 (ÚS 1, p. 179), Pl. ÚS 5 / 95 (ÚS 4, p. 218), Pl. ÚS 9 / 95 (ÚS 5, p. 137)]. The first is due to the requirement of the legislature to rule out the libel in the procedure of differentiating groups of entities and their rights, and the second to the requirement of the constitutionality of the aspects of differentiation, i.e. the inadmissibility of a fundamental right and freedoms by the legislator. In view of these criteria, it is also necessary to assess the possible unconstitutionality of the legislature's procedure if it did not distinguish between groups of entities and their rights, although it should have done so, in view of the constitutionally relevant circumstances.

In addition to the general arguments against the condition of citizenship, the appellants point to a higher degree of injustices for those who have suffered as a result of the loss of personal liberty, as well as to the legal effects of the ex tunc decision under Act No. 119 / 1990 Coll., as amended, cancelling the statements on the imposition of the custodial sentence and subsequent statements on the forfeiture of property.

Although this greater degree of injustice cannot be fully remedied by the limitation of personal freedom, its mitigation is the purpose of Special Act No. 119 / 1990 Coll., as amended, which creates a difference in the extent of satisfaction between the judicial and non-judicial rehabilitation. Therefore, it cannot be inferred from the legislature in this context that there is no distinction between the status of groups of entities (i.e. judicial persons and beneficiaries under the law on extrajudicial rehabilitation) concerning their rights which would infringe the constitutional principle of equality.

In the case of persons who do not fulfil the condition of citizenship and are therefore not entitled to issue a case under the Law on non-judicial rehabilitation, and in the case of whom the annulment of the sentence of imprisonment and subsequent claims on the forfeiture of property has been made, there is no new expropriation. Although these persons may not claim extradition under Act No. 87 / 1991 Coll., as amended, in their case apriori, the exercise of the right to reivination under the Civil Code cannot be ruled out (see the find sp. zn. II. ÚS 43 / 94, in: ÚS, Sv. 3, p. 99 - 102). The difference in the status of both groups of persons, i.e. those who have been court-martialed and who do not fulfil this condition, can be expressed as follows for the exercise of the right to issue the case. The first group under the law on out-of-court rehabilitation is favoured by the removal of the possibility of applying the objection of maintenance by a compulsory person; the second group under the civil code would be left to face this possible objection by the holder of the case.

Another reason for the rejection of the proposal to abolish part of the provision of Paragraph 19 (1) of the Law on non-judicial rehabilitation was the possible discriminatory consequences of such a decision. Amendment to Civil Code No. 131 / 1982 Coll. in Section 453a, the possibility of forfeiture of property in civil proceedings was established if the owner of the case had committed an infringement in order to permanently deprive himself of the possibility of using the case in the usual manner. This institute was then replaced in practice by the institute of forfeiture of property in criminal law, especially in cases under the then § 109 Criminal Act. Under Article 6 (1) (a) of the Act on extrajudicial rehabilitation, the withdrawal of a case under Article 453a of the Civil Code is a restitution title, the application of which is affected by the consequences of the Constitutional Court's finding in the case sp. zn. Pl. ÚS 33 / 96. The repeal of the nationality condition in § 19 (1) of Act No. 87 / 1991 Coll., as amended, would then create new discrimination for that group of persons for whom the Pl. ÚS 33 / 96 has effects of rei iudicatae.

The Constitutional Court shares the appellants' objection to the incomplete translation of Article 26 of the Pact in Decree No. 120 / 1976 Coll., which did not include "other status' as another sign excluding discrimination. However, that fact does not alter its legal conclusions, including in the light of Article 3 (1) of the Charter, which contains that emblem and by which the Constitutional Court assessed the possibility of applying the constitutional principle of equality.

For all these reasons, the Constitutional Court proposed a group of Members of the Chamber of Deputies of the Czech Republic to abolish part of the provisions of § 19 paragraph 1 of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, in words "if they fulfil the conditions set out in § 3 paragraph 1 or 2 of the Act," he rejected.

In conclusion, the Constitutional Court considers it important to point out that, although Article 11 (2) of the Charter creates a constitutional space to restrict the property rights of persons without citizenship of the Czech Republic, it must be interpreted in the light of Article 4 (4) of the Charter, i.e. with regard to the requirement to minimise any constitutional restriction on fundamental law or freedom, strictly. Following the legal design of the Act on non-judicial rehabilitation (preferring the issue and subsidiary in the event of the impossibility of issuing a financial compensation), it is up to the democratic legislature to create a scope for mitigating the consequences of certain property injustices committed by the Communist regime even for stateless persons of the Czech Republic.