Communication from the Constitutional Court No 477 / 2005 Coll.

I. Claiming of property right, in particular that requires an entry in the property register, in the absence of legitimate expectations on the part of the applicant, the preventive function of the action under Paragraph 80 (b) is not fulfilled. (c) the civil Code and therefore the urgency of the legal interest in bringing it forward is not given.

II. An action to determine the right to property cannot be circumvented by the meaning and purpose of the restitution legislation. It is not possible to apply effectively under general rules or the protection of property rights, the disappearance of which took place before 25.2.1948 and the special restitution regulation did not provide for a means of mitigating or correcting such property damage.

The complainant F. O. K., represented by Mgr. J. Z., lawyer, a constitutional complaint lodged on 17 June 2003, contested the judgment of the Regional Court in Kladno of 16 October 2002 No 15 C 57 / 2001-80 and the judgment of the Regional Court in Prague of 5 March 2003 No 30 Co 46 / 2003- 97. The constitutional complaint was accompanied by a motion to abolish paragraph 37 of Annex 3, the parts designated as the Women's Monasteries in the Czech Republic, Act No. 298 / 1990 Coll., on the modification of certain property relations of the Greek Order and the Congregations and Archbishop of Olomouc, as amended by Act No. 338 / 1991 Coll. The constitutional complaint was made under point I.ÚS 333 / 03.

The complainant lodged (8 January 2004) a further constitutional complaint (based on page II of the ÚS 14 / 04), following the call for correction of the defects supplemented on 10 February 2004, against the judgment of the Regional Court in Kladno of 16 October 2002 No. 15 C 57 / 2001-80, as amended by the amending order of 18 June 2003 No. 15 C 57 / 2001-105 and the judgment of the Regional Court in Prague of 15 October 2003 No. 30 Co 411 / 2003-117, to which the application for annulment of that provision of Part of Law No 298 / 1990 Coll. Both constitutional complaints also met the other conditions prescribed by Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.

After the Constitutional Court found that there were constitutional complaints lodged by the complainant against decisions given by the General Courts on the same subject and in substance concerning the same issue, by a resolution of the Constitutional Court of 24 February 2004 sp. zn. I. ÚS 333 / 03-12 linked the two constitutional complaints to the joint proceedings under sp. zn. II. ÚS 14 / 04 (hereinafter "the complaint ').

The constitutional complaint is directed against the negative decisions of the Court of First Instance, which have been confirmed by the decisions of the Court of Appeal, on the action of the complainant seeking the determination of his property right to property in the section of Š. u K. v Š. s. (in the proceedings for a constitutional complaint, the defendant waived his status as an intervener by letter of 1 July 2004). The centre of gravity of the complainant's argument lies in the allegation that these properties did not go to the State of Confiscation because the confiscation procedure had not properly taken place, namely that the complainant had never ceased to be their owner, and the steps that the Czechoslovak State further took in the allocation procedure on these properties are not valid. If the State has not validly transferred the complainant's property to the defendant in the dispute, they have not acquired a right of ownership which the State could withdraw later and, after years, allow it to be renewed under Act No. 298 / 1990 Coll., as amended by Act No. 338 / 1991 Coll. The complainant contends that the two courts which decided on his application infringed his rights guaranteed by Article 11 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), Article 36 (1) and (2) of the Charter in conjunction with Article 4 and Article 90 of the First Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '), by not applying the provisions of Paragraph 109 (1) (c) of the Civil Code (hereinafter referred to as" the Constitution') to the complainant for Proposed evidence to demonstrate the conditions of application of that provision, and thus the conclusion of their decision is based on it on the provision of the law which is contrary to the Czech Republic's constitutional order. The complainant considers, for the reasons set out above, that the provision of paragraph 37 of Annex 3, the parts designated as the Women's Monasteries in the Czech Republic, Act No 298 / 1990 Coll., as amended by Act No. 338 / 1991 Coll., has been incorporated into the Act by mistake, since the legislature did not have information that the property referred to in that paragraph was not owned by the State, and for this reason it cannot be disposed of under the Act, since this would involve the expropriation of the original owner without meeting the presumption of public interest and the granting of compensation for the expropriation and therefore has to be cancelled for its contradiction with Article 11 (4) of the Charter.

In this context, the Second Chamber of the Constitutional Court came to a legal opinion, partly deviating from the legal opinion set out in the Constitutional Court's finding of 20 March 2001 sp. zn. I. ÚS 539 / 98 [Collection of finds and resolutions of the Constitutional Court ("the Reports of the Judgments'), Volume 21, Found No 46], according to which" for the legal relations of persons who are not legal persons under Act No 87 / 1991 Coll., as amended, this law cannot have the character of a special law ', and also in the Constitutional Court's finding of 21 December 1998 sp. sp. v. IV. ÚS 403 / 98 (Reports of Decisions, p. In other words, the existence of special restitution rules does not preclude a general rule procedure in such a case.' The two findings were based on the legal opinion of the general courts (set out in particular in the decision of the Supreme Court sp. zn. 22 Cdo. 560 / 99 of 21 August 2000, In: Legal perspectives No 11 / 2000, p. 524 - 525 - the decision is directly cited in the decision of the Supreme Court. These findings deal only with the relationship of the restitution regulations (Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended) and the regulations of the general (Civil Code) where the State took over at the relevant time (between 25.2.1948 and 31.12.1989, see Section 1 of Act No. 480 / 1991 Coll., on the period of deprivation) and where there was a direct conflict between the application of the restitution claim and the action for the establishment of property rights, they could therefore be satisfied with the determination of the speciality of the restitution regulations which is stated in their legal statements. The second Chamber takes the view that this conclusion, despite the same legal situation, is not applicable in all cases, since it is not possible to claim assets beyond the limits laid down by the laws in force, i.e. outside the rules of restitution (in particular Act No 243 / 1992 Coll., which regulates certain matters relating to Act No. 229 / 1991 Coll., on the property seized (or nationalised), when taken over by the State prior to the period defined by Act No. 480 / 1992 Coll., on the period of non-freedom. However, the findings cited do not provide for any time limit or limit on the legal opinion expressed, in principle, the procedure by which the former owner of the property which he had lost before the relevant period of time, by means of general arrangements, is allowed.

The Second Chamber of the Constitutional Court takes the view that, despite the fact that there is only partial opposition to the stated legal opinion, it is necessary to proceed in accordance with Article 23 of the Law on the Constitutional Court, as the cited legal opinion has serious legal consequences in view of its commitment to further decision-making by the Constitutional Court.

The findings quoted are based on the interpretation of positive law - the lex specialis derogat legi generali principle, but this fundamental legal principle - where there is special legislation, the general regulation cannot be used - to some extent ignored and reached the opposite conclusion. The interpretation described concerned only the individual provisions of the restitution rules, not their application as a whole, taking into account the objective pursued by the legislature, which is to clearly define the range of relations that can be retrofitted and to leave others in the state in which they were at the time of adoption of the restitution standards. Such a narrowing of the subject of the regulation of the so-called restitution rules only to legal relations arising from the implementation of the legally defined facts is contrary not only to the direct intention of the legislature to remedy both certain statutory property injustices arising during the relevant period, as well as the settlement of property relations (e.g. § 1 of Act No. 229 / 1991 Coll., on the modification of property relations to land and other agricultural property, as amended, but could lead to a preamble to the Act No. 87 / 1991 Coll., on the non-judicial rehabilitation of, inter alia, the name itself as well as well as the wording of § 1 of Law No. 172 / 1991 Coll., on the transfer of some of the property of the Czech Republic as well as other provisions governing the transfer of the property rights of the State to the physical organisation or the church of the Church, where they were owned by 1948), its constitutional authority.

The contested opinion reflects not entirely uniform case law of the General Courts, including the Supreme Court, when part of the case law on the use of proprietary actions seeking to determine ownership of matters which have been brought before the relevant period, even without legal justification, is not permitted, but part of the case-law considers that this possibility can be accepted, and this contradiction in the case-law has not yet been resolved. [A partial but not sufficient solution is contained in the unifying opinion of the Grand Chamber of the Civil College of the Supreme Court of 11 September 2003 sp. zn. 31 Cdo. 1222 / 2001: "The entitled person whose property has been taken over by the State during the relevant period from 25.2.1948 to 1.1.1990 without legal justification cannot seek protection of property rights under the general rules (in particular § 126 (1) Citizen), even in the form of the determination of property rights under § 80 (c) of the General Court."]

The Constitutional Court, without addressing the temporal aspect, eventually opted for the opinion of the General Courts described in the decision of the Supreme Court sp. zn. 22 Cdo. In particular, by Law No 229 / 1991 Coll. the aim expressed, namely to regulate property relations with the soil as such, including their settlement by mitigating the injustices that have been made in the relevant period, does not constitute a conventional interpretation and it is necessary to look at the defined relationship of the speciality more widely.

The provisions which were intended to mitigate at least some of the mostly property injustices caused by the period after 25 February 1948 (Act No. 87 / 1991 Coll., Act No. 229 / 1991 Coll., Act No. 243 / 1992 Coll., Act No. 403 / 1990 Coll., on the Reduction of the Consequences of Certain Property Injury, Act No. 298 / 1990 Coll., Act No. 173 / 1990 Coll., which repeals Act No. 68 / 1956 Coll., on the Organisation of Physical Rehabilitation and, where applicable, Act No. 212 / 2000 Coll., Act No. 172 / 1991 Coll., on the Relief of Certain Property Influences, and on the Amendments to Act No. 243 / 1992 Coll. In its constitution, the legislator was based on the factual situation in 1990 or a little later, aware not only at that time of the non-disappearing reasons that led him to such interference in property rights, but also the need to limit the change in ownership relations so as to remain proportionate to the purpose that was pursued by it and which is best expressed in the provisions of § 1 of Act No. 229 / 1991 Coll. and the preamble of Act No. 87 / 1991 Coll., namely the targeted and precisely defined change in the division of assets that existed at that time. The will thus clearly expressed has even more serious content, as it was not required to do so. Although the property injustices which he intended to alleviate (not rectify) were, in principle, contrary to the principles of the rule of law in the previous period, neither the Constitution nor any other legislation required that this property be recovered or compensated for, nor that any changes be made to that effect in the legal order. It was the free will of the State to allow the former owners of the property in question to seek its return, since its ownership rights and the ownership rights of the persons who acquired the property in the meantime are not dependent on the unconstitutional standards or procedures which originally established them. Thus, the mere anchoring of the restitution claims was a State benefit - precisely defined in terms of time and substance. Any challenge to this definition results in the contested act of the State as such (cf. finding of the Constitutional Court of 16 December 2004 sp. zn. III. ÚS 107 / 04 will be published in the ECR, Volume 35, Found No. 192). This was also expressed by the Hungarian Constitutional Court (Decisions 27 / 1991 of 20 April 1991 and 15 / 1993 of 12 March 1993). The European Court of Human Rights then did not dispute in its decisions such a threshold, but clearly stated (for example, in the Decision of 7 March 2003 Jantner v Slovakia, the decision of 22 June 2004 of Broniowski v Poland) that Article 1 of Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms, guaranteeing the protection of property rights, "cannot be interpreted as restricting, in any way, the freedom of the Contracting States to choose the conditions under which they will recover assets transferred to them before they have ratified the Convention. Nor does it restrict their freedom to determine the scope of the restitution standards and the conditions under which the property may be refunded to persons who have been deprived of it." The right to restore ownership is therefore no longer guaranteed by it.

However, in the findings sp. zn. I. ÚS 539 / 98 and sp. zn. IV. ÚS 403 / 98 described the conclusion, a passing restitution legislature as a whole and giving priority to the partial interpretation of individual provisions, results in a permanent and purposeful narrowing of the subject matter of regulation of these rules and, as a result, the spread of legal uncertainty in those relations which, according to the conclusions of the case law of the General Courts, are not the subject of such a substantive, temporal or personal nature. In particular, it was accepted that, outside the framework of the restitution rules and the facts defined by them, the general courts should assess the validity and effects of the administrative or other acts on the basis of which the State acquired ownership. Thus, the courts take the view that, through the primacy of today's legal theory, based on the facts that occurred a few decades ago, and hence on a difficult evidentiary situation, they assess the actions of the administration at the time and their consequences.

In addition, the Constitutional Court found that I ÚS 539 / 98 ("The legal conclusion according to which the State acquires cases in accordance with § 6 (2) of Law No 87 / 1991 Coll. of the case into property without legal justification by physical occupation is unsustainable from a constitutional legal point of view. The purpose of the restitution regulation is to try to mitigate at least some of the property injustices arising during the relevant period, and that sense would clearly be denied if a new reason for the State's ownership right was established in the restitution regulation itself. As is apparent from the grammatical classification of the provision of § 6 of the Act cited, paragraph 1 of the Regulation regulates cases where, during the relevant period," the case has passed on to the State ', whereas, according to paragraph 2, the obligation to issue the case also applies to cases where the State has taken over the case without legal justification.' It is therefore clear that the meaning of paragraph 2 of that provision is not to establish a new title of acquisition for the State, but to regulate the cases of possession of the case by a State which, without a legal reason, has occurred. ") by mixing two legal terms - the right of ownership itself and one of its attributes, i.e. entitlement to its protection - admitted the status quo of current legal relations with the soil.

The right of the persons entitled under the restitution rules shall be exercised only at the time of issue of the case. This is in fact legalized by the transfer of assets to the State, regardless of what was the title for that transition, and only in cases expressly mentioned in the restitution laws is the original acquisition title of the State, of course, for fulfilling others in the law mentioned above, the ground for returning the case. The restitution laws essentially legalised the State's ownership of assets acquired by the State by confiscation, nationalisation and other property measures, regardless of the fact that it would otherwise have been possible, in some cases, to exercise ownership of such assets under the general rules. At the same time, this excluded the possibility of exercising these rights differently, i.e. under the general rules, since this provision is a special arrangement for general rules.

At the same time, the basic restitution law, which is the law on out-of-court rehabilitation, explicitly excluded property from restitution, which switched to the state before the deadline. Therefore, it is not true that this law does not deal with assets other than those that were transferred to the State only during the relevant period, but actually concerns all assets of the State that owned the State at the date of adoption of the Act and which it acquired during the period until the end of 1989. By excluding in the preamble the correction of property injustices' from periods even further away, including those on the citizens of German and Hungarian nationality ', he enacted that this property was State-owned and that it could not be claimed under the general rules.

The Constitutional Court has repeatedly pointed out that the restitution rules constitute a complex and must always be interpreted in their context, in view of the objective set out by their adoption (see, for example, the finding of sp. zn. It can be considered that the result of their adoption and subsequent application should also be the establishment of legal certainty in ownership relations. Such a requirement is necessary for the continued existence of the Czech Republic as a rule of law, the fundamental pillar of which is also the principle of legal certainty. The Czech Republic also commits this principle in the relationship and in the framework of the commitments undertaken when entering the European Union. Although the Constitutional Court has established a tendency to rectify injustices to the greatest extent possible, it has always been within the framework of the regulations which are adopted to mitigate those injustices and, in particular, this must be emphasised, given the state's legitimate will to remedy those injustices which occurred between 1948 and 1989, at a time defined as the period of non-freedom by Act No 480 / 1991 Coll., at a time of totalitarian system applied by the Communist Party, not by others. This will of the State is clearly defined by the restitution laws, and only within the material and temporal scope of these laws designated by them is correction permissible. In its decision of 23 February 2005 sp. zn. II. ÚS 114 / 04 (to be published in the ECR, Volume 36, Found No 32) The Constitutional Court found that "pursuant to Article 1 The Constitution is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen. One of the fundamental pillars of the rule of law is legal certainty. Under this visual angle, property disputes must be assessed in particular where the grounds for questioning are not at present but in events that occurred decades ago. In the present case, the owners who have been using the property for an uninterrupted 40 years are suddenly confronted with the situation that their property rights are being questioned on the basis of circumstances which did not affect and which they could not even know. On the contrary, out of all the circumstances known to them, they could only conclude that they had acquired their rights in accordance with the applicable laws. Their good faith that they have acquired the law from the state in accordance with the law must be protected and, in the interests of legal certainty, it cannot be accepted to interpret the absolute nullity of legal acts which, over decades, return legal relations to the ancient past. An interpretation of the general rules which would lead to an extension of asset restitutions beyond the requirements of the restitution rules cannot be accepted. 'At the same time, he concluded, without reestablishing any time limit, that" such a conclusion does not contradict the previously stated view that the existence of restitution rules does not prevent the exercise of property rights under the general rules. This conclusion applies only to those cases where the right under the restitution rules could not be invoked.' The second Chamber of the Constitutional Court was based here on the above-mentioned opinion of the Grand Chamber of the Supreme Court, without needing to define further issues for its decision, including the time limit already mentioned, as it was a question of the transfer of ownership in 1967, i.e. within the time frame of the restitution rules.

However, with this generally valid conclusion, it cannot be done without further resolution of similar property disputes in terms of maintaining the principle of legal certainty. In fact, if the legislature expressed its obvious intention to limit the injunction by not only establishing the legal conditions on the part of the persons entitled and of the persons required and in terms of substance, but above all the time limit of 25 February 1948, the date of the takeover of state power by the Communist regime, the date from which legal and social changes to the establishment of an undemocratic regime are based, the right of judgment can be given to the legislature so clearly expressed, that such a fundamental interference in the ownership relations before that date would not be socially desirable and would not be necessary from the point of view of the objectives of the restitution legislation, and, if this need for further in terms of the matter addressed (for example, the Jewish property), it would not already be necessary in the way of the law in its defined cases of breakthrough for that time limit (Law No 243 / 1992 Coll.

The Constitutional Court must recall that even in the period prior to the defined date, in particular the period 1945 to 1948, it cannot be seen as a period of legal or social calmness, since this period is characterised by an extensive effort to reconstruct the state's situation in terms of the settlement of the legal and economic order affected by the war and the post-war period, often inconsistent and chaotic attempt to adapt this order to changes already occurring, including the transfer of masses of inhabitants in border areas related first to the forced departure of the Czech people following the conclusion of the Munich Agreement into the interior and current depopulation of the German population on the basis of the adopted international order. However, this effort must also now be seen from the point of view of historical, legal and social views of then and not today. This opinion was already expressed by the Constitutional Court once in its assessment of the constitutionality of the Presidential Decree No. 108 / 1945 Coll., on the confiscation of hostile assets and National Recovery Funds, as amended, (the Constitutional Court's finding of 8 March 1995 sp. zn. In other words, the order of the past cannot be brought to justice by the order of the present, which is already taught by other experiences, draws on these experiences and looks at many phenomena and evaluates them with time apart. ") Thus, in order to protect the law for which there was a legal procedural way, which is undoubtedly the particular nature of administrative decisions, both in the instance and in the courts, it cannot be used subsequently after such a means can no longer be invoked, the way of an action whose purpose is different.

An action for the determination of a right [Paragraph 126 of the Civil Code, in conjunction with § 80 (c) o. s.], was and is an instrument for protecting subjective rights from unauthorised interference. It is a lawsuit by its nature preventive (cf. Hora, J.: Czechoslovak civil law procedural. Episode I. Teaching on organisation and jurisdiction of courts. All Hrd, Prague 1922, p. 154 - 155, Bures, J., Drápal, L., Mazanec, M.: Civil Code of Procedure - commentary. Episode 6. C. H. Beck, Prague 2003, p. 259) - its purpose is to avoid situations of uncertainty about a right or its performance, and its importance is purely practical - establishing a certainty in threatened legal relations, with more to be taken into account than in enforcement actions in order not to abuse it (Hora, J.: Czechoslovak civil procedural law. Episode I. Teaching on organisation and jurisdiction of courts. All-Held, Prague 1922, p. 154: "It is not possible to invoke the activities of the court solely because of decisions of academic questions or because of the satisfaction of an interest which has not been recognised by the legal order."). In particular, for this defence, a certain quality of the action for the determination of the right of the applicant's (complainant's) applicant's (complainant's) urgent legal interest in the intended determination, which must be brought about by a situation which causes the applicant's legal situation to become or becomes uncertain, is called into question. This was also the case with the wording of the relevant legal provision - § 228 c. CS. [NB: Law No 113 / 1895] on civil proceedings in civil matters of law (Civil Code of the Court) expressly stated that the claimant must have a legal interest in "the legal relationship or the law or authenticity of the document being established as soon as possible ', and the requirement that an interest be given as quickly as possible in the proceedings becomes the subject of evidence (cf. Serious 1357). As a basic condition for the application of a designation action under § 80 (c) o. s. o., today's judge examines it. In fact, once the law has already been infringed, the preventive protection of the applicant's position has no meaning, since it cannot, in principle, prevent disputes which could arise in the future or which are already imminent. The Constitutional Court, which, in general and for decades, identifies itself with a valid preamble to both theory and practice, concluded that" an urgent legal interest can only be taken in principle if, without a court of established determination (that a legal relationship or law exists), the right of the applicant is either threatened or his legal status becomes uncertain, which, in other words, means that he or she must either be subject to a legal relationship (law) already in existence (at least at the time of the decision) or to a procedural, possibly material legal situation in which, objectively in an already existing legal relationship, may be threatened, or for a certain status of his or his or his / her position may be subject to specific damage. "(Opinion of the Constitutional Court of 20 June 1995 sp.

At the same time, however, the current case-law has stabilised on the view that an urgent legal interest can be considered to be given wherever a court decision is the basis for registration in the property register. This conclusion reflected the current legal regulation of the registration of property rights in the cadastral property register, and at the same time the procedure of the cadastral authorities, which refused to access the registration of property rights on the basis of a court decision on the issue of the case, although the reason for that decision was to be the property right of the person to whom the property was issued by the court decision. It is still the case that the urgent legal interest in determining whether or not there is a right is not given where performance can be claimed. Therefore, if a person claims to be the owner of the case, including the real estate, he cannot exercise his right by an action for determination, but only by an action for performance, which is an action for property. From the point of view of the protection of property rights, the owner registered in the property register and the owner not registered may not be in another situation. The urgency of legal interest in the operative part is given only if the right to property is established in a property right dispute and depends only on the fact that such a statement is a basis for registration in the register. Therefore, the urgency of the legal interest does not depend on the need for the identification of ownership, but on the fact that the rules on the cadastral do not allow the cadastral to be registered as a property right on the basis of an opinion which meritoriously solves ownership of property entered in the cadastral property.

Therefore, although it is possible to make a change in the registration of property rights on the basis of a decision on a designation action, the applicant's (complainant's) overriding legal interest cannot be inferred from that fact alone. This is the case where the legal relations of the applicant with regard to the matter were affected with certain consequences a few decades ago, not today, and they have not become uncertain now, but it is precisely through an action to determine the right of ownership and by questioning the acts on the basis of which the right of the applicant has expired that the right of the present owner is put in doubt. The application for protection is therefore not an instrument of prevention, but a tool to replace the legal means of protection not used or unsuccessful at their time and to call into question the lawfulness before 60 years of public law; In fact, it is not aimed at establishing legal certainty on the part of the applicant, but at distorting it on the part of the current owner of the case (cf. in this respect, the conclusions in the above mentioned finding of the Constitutional Court, sp. zn. II. ÚS 114 / 04). The legal certainty of all persons, as well as the maintenance of the necessary authority of the State, requires that the final decision of the court or administrative authority on the basis of which a person acquires or ceases to be the property of the case be an unquestionable legal fact having an effect on the future, whether or not a written copy of such an act still exists. Otherwise, it would have been possible to claim its defects after the deadline for its shredding had expired, destroyed or lost. The current register of registered owners, not only for a long time, which has elapsed since the waiver of ownership of a person who is currently seeking it through designation or similar actions, would be primarily a long-term deformation of ownership, possession and maintenance rights, as well as a challenge to the importance and commitment of library (cadastral) entries unilaterally disadvantaged, since in most cases they cannot comply with the requirements to prove the facts that occurred more than half a century ago. The construction of the burden of the claim and of the burden of evidence in the context of civil proceedings in today's form would then be more than justified to burden a party who would be challenged by such claims. Where confiscation (its process, effects, legality) is challenged by the determining action under Decree No. 12 / 1945 Coll., on confiscation and the accelerated distribution of the agricultural property of Germans, Hungarians, as well as the traitors and enemies of the Czech and Slovak peoples, or Decree No. 108 / 1945 Coll., or acts of revision of the first land reform, it must be stressed that the burden of proof here was on the owner of the confiscated property, which was opposed to confiscation in order to prove that it was not subject to the legal conditions for confiscation, at the time of confiscation. However, by requiring the determination of ownership rights, the same or its descendants (or other persons claiming their legal interest) shall be removed and transferred to the other, already disadvantaged party of the dispute. If, in principle, a review of the public law procedure, which was a title for the transfer of property law, were to be accepted beyond the defined framework both in time and in substance, this would mean granting to the general courts authorisations which they did not have at the time of issuing such an act. For example, according to the decision of the Supreme Court of ČSR Rc 187 / 47 of 5 February 1947, it was not for the courts to deal with the issue of confiscation (in view of the fulfilment of the legal conditions) or provisionally [concurrently Serious 625; also in relation to Decree No 12 / 1945 Coll. of the Supreme Court of 28 May 2003 sp. zn. 22 Cdo 683 / 2002, publ. In: The set of decisions of the Supreme Court, Sv. 26, C 1959:... "(court) nor is it currently appropriate for it to assess the existence of confiscation assumptions under that decree in the property protection proceedings."]

The present procedural rules deliberately set a time limit within which an act or its effects can be challenged by law, otherwise, if that period is missed, the decision of the public authorities is final (in relation to administrative decisions, the principle of the regularity of the administrative decision applies), including the effects which have occurred on its basis. If this period were to be called into question, as well as the effects of the act itself, there would be no certainty or limit, whether in substance, but in particular a time limit, which would prevent the former owners of the case or their descendants from seeking property which they had ever lost at any time - for example, on the basis of the renewed establishment of the earth (1627) or the steps of the first land reform (Act 215 / 1919 Coll., to prevent the large property of the land), with reference to their defects, invalidity or ineffectiveness, i.e. the absence of such a title.

In this context, it can be pointed out once again the purpose of the restitution rules, which only broke this deadline. However, only in their context and in order to achieve their stated objective, i.e. to mitigate some of the injustices caused by the Communist regime, can, as the Constitutional Court has also repeatedly stated, call into question an administrative act or determine the consequences of its absence. The Constitutional Court has granted the General Court the power to assess the legality of the confiscation orders only in the context of restitution claims proceedings in view of the incoming restitution titles, i.e. only in the context of special proceedings, in particular the procedure under the law which was adopted by the legislator to mitigate the injustices arising in connection with the application of Decree No. 12 / 1945 Coll., or Decree No. 108 / 1945 Coll. Act No. 243 / 1992 Coll., adopted on the basis of the authorisation contained in § 7 of Act No. 229 / 1991 Coll., thus allowed for the correction of certain other property injustices resulting from the validity or special application of certain laws or for other reasons (including certain issues of confiscation under Decrees No. 12 / 1945 and No. 108 / 1945 under Part One of the Act), but only some and within the time limit previously established.

In the view of the Constitutional Court, the passage of time itself is such a fact that even if, in all cases, the termination of the relationship with the case cannot be linked to it in the sense of law or vice versa, the effects of the case must be acknowledged. The importance of time as a legal fact in terms of the requirement for the stability of ownership relations was underlined by the legislator in the restitution rules when, on the one hand, it decided to allow for a breakthrough in ownership relations, on the other hand, the application of claims under those rules limited the relatively short period of time for the exercise of the restitution claim, which it had forestalled.

The distortion of the concept of ownership and its content, which took place after 1948, also affected the effects of legal acts (whether individual or normative) occurring prior to that period, since the Institute itself was deprived of some of the attributes in force until then, including the effect of time on the change of rights or their content. The then legal science, in line with the applicable legislation, held an opinion which is now restored by the theory of property law, which is "more content that links to the concept of ownership, virtually the existence of ownership as a category of legal, social, economic" (Sedláček, J., Rouček, F.: Comments on the Czechoslovak General Civil and Civil Law Code applicable in Slovakia and in Podkarpatské Rusi. Prague 1935, II. part, p. 198 et seq.). The need for recognition of ownership as a social category, which must come into conformity with its legal concept, was understood in the context of a situation where someone treated the matter as an owner, was recognised (often also by the State and its authorities) as an owner and is fundamentally convinced of its proper ownership, although the legal situation may be different. This problem has been addressed throughout the existence of advanced legal orders - in principle since Roman times (here by the Institute of Honorary or Praetorian Property). Further solutions sought legal theories in institutions of legitimate possession and perseverance. These institutes together with the time limitation of the ownership action against the so-called library owner [as a form of praescriptio tabularum according to § 61 - 67 of the Law of 25 July 1871 (ref.: Act No 95 / 1871 of, on the introduction of the General Law on Land Books) - see Randa, A.: Law of Owners under Austrian law, IV. Corrected edition. Praha 1889, str. 113 et seq., concurrently Sedláček, J., Rouček, F.: Comments on the Czechoslovak General Civil and Civil Law Code in force in Slovakia and Podkarpatské Rusi. Prague 1935, II. part, p. 537 et seq.] and the protection of the acquirer in good faith were perfectly natural in the legal order with a certain, uninterrupted tradition and there was no dispute about their necessity or effect. However, with the effectiveness of the Civil Code of 1950 (Note: Act No. 141 / 1950 Coll.) was rejected, thereby taking another step in the deformation of property law and its protection for several decades.

However, it is clear that the effects of the passage of time occurred regardless of whether or not they were sought by law, since these effects of public law as the title of the transfer of ownership or the transfer of ownership (irrespective of the existence or correctness of the title of that transfer) were not contested in any review (or it was unsuccessful), and further changes in legal relations have occurred on the basis of such an act (whose accuracy was not contested). The period that has elapsed since 1948 has been longer than half a century and has far exceeded the established endurance periods in any period of time, both for maintenance of proper and extraordinary (i.e. maintenance of untitled). It can therefore be considered that the facts before that date and the legal consequences thereof, unless they have been affected by the application of the special law No 243 / 1992 Coll. in taxiously defined cases, are completed from the point of view of international law (G. Jellinek), and they must also be recognised from the point of view of national law. Thus, any alleged injustices before the decisive period cannot be reparable by today's legal means. The Constitutional Court has already said this in its decision of 25 October 2001, sp. zn. IV. ÚS 437 / 01 (not published): "The Constitutional Court is aware that neither the administrative authorities nor the courts are entitled to direct interference and to abolish final decisions from the previous period. By way of exception, however, in restitution cases, the Constitutional Court took the view that, as regards administrative acts adopted in the so-called applicable period, those authorities were entitled to assess the impact of these decisions in the light of the relevant restitution titles mentioned in the restitution rules (the finding in the case sp. zn. III. However, such a restitution case is not the case with the complainant, while the Constitutional Court does not share its belief that the findings in restitution cases must also be respected when deciding on the designation actions. The public authorities in the complainant's case were therefore not obliged to examine whether the relevant (declaratory) administrative decision on whether the conditions for confiscation under Decree No. 108 / 1945 Coll. were fulfilled was issued in accordance with the legislation in force at the time. The Constitutional Court considers that the conditions for confiscation have not been fulfilled in the case of the complainant or her grandmother. However, it is also of the opinion that in 1946, when the confiscation notice was issued, the Czechoslovak Republic was a democratic state, and therefore nothing prevented the complainant's grandmother from taking advantage of the possibility of lodging an appeal with the relevant regional national committee within the meaning of § 1 (4) of the Decree. If it did not act in this way, the administrative decision in question cannot, in the current legal situation, be reversed by a determining action. This conclusion is also in line with the applicable system of restitution rules, which is an expression of the legislator's will to limit the correction of the property injustices committed to those which occurred during the so-called operative period, i.e. from 25.2.1948 to 1.1.1990. The Constitutional Court recalls that if a dispute which began before that period (for example, a dispute on the validity of confiscation) had been completed, it held with its decisions those who became clear that there had subsequently been an abuse of the President's decrees, such as the arbitrary annulment of a decision in favour of the owners or their legal successors [see, for example, the finding in the case sp. zn. IV. ÚS 309 / 97 '(ref.: Reports of decisions, Volume 11," cited in the statement of reasons for the constitutional complaint].'.

Confiscation according to Decrees 12 / 1945 Coll. and 108 / 1945 Coll. was a legal act which cannot be assessed from the point of view of defects in its subsequent administrative (declaratory) decisions unless expressly permitted by law. In fact, in the case of confiscation under Decree No 12 / 1945 Coll., the confiscation was usually carried out directly by law without administrative proceedings, if the owner of the case had already been designated by the State authorities as the person whose property was subject to confiscation (see the order of the Constitutional Court of 24 June 2003 sp. zn. II. ÚS 155 / 03, not published), and if he did not propose that the administrative decision be taken or that such a declaratory decision be taken by the administration itself. The allegation of defects in the confiscation procedure of the decision is not in itself in a position to call into question the effects of confiscation, since the legal title of the transfer of ownership is not this administrative act but the decree itself.

By providing protection to the alleged property right which expired almost 60 years ago, the legal certainty of persons who, during that period of ownership of the case (whether or not a property registered in the cadastral register) gained from the State or the previous owner would be undermined and can rely only on the principle of trust in the cadastral registration. In such cases, the refusal to protect the alleged right cannot be contrary to Article 11 of the Charter. It must be pointed out here that the Charter was being established and also that the legislator's obvious intention to anchor protection, in particular, of what was previously violated on a mass scale. This article is, in particular, a response to previous interventions of totalitarian power into ownership, as was the case with the first preformulation of the Charter - Declaration of Human Rights and Citizen of 1789, or the Universal Declaration of Human Rights of 1948, as well as Protocol 1 of 1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms. It is indisputable that none of the above documents had in mind the provision of protection to a long-overdue and often forgotten formal law; otherwise it would not be possible to endure.

In the present case, it is not an expropriation, as has been pointed out many times, but an end to the possibility of exercising protection as a result of a long period of time (similar to maintenance); if the person who lost the property as a result of its withdrawal by the State did not seek protection in court (and, at least between 1945 and 1948, there was such an option) or was not successful, he cannot legitimately expect, after many decades, that his right of ownership could be restored. The Czech Republic is obliged to defend the legal interests of persons subject to its jurisdiction - that is to say, in particular, an interest in ensuring that the current legal situation is not questioned and that there is no uncertainty as to ownership, possibly the validity of other property transfers. In the event that the State has in the meantime transferred the assets acquired in this way to a third party (e.g. under the Act ČNR No. 172 / 1991 Coll., on the transfer of certain items from the property of the Czech Republic to the property of the municipalities or in privatisation), it also follows from the principle of legitimate expectation that this owner must be given the possibility of maintaining a certain legal situation and should be given protection against any change of that condition which he could not reasonably expect. Otherwise, in a situation where there was no certainty as to whether ownership of real estate could be acquired without the risk that the owner would not subsequently be declared to be owned by someone who was deemed to have ceased to exist more than half a century ago, and this situation could not be foreseen with the greatest possible care at the time of the transfer, the State would not have fulfilled that obligation.

It is therefore not possible to challenge, outside the specific laws defined by the framework, the ownership rights of the persons who acquired them from the State by calling into question the legal facts before that distortion of the rule of law, whether or not the transfer of ownership was reflected in the entries in the public registers for that purpose (land books, property registers, patents and others). It is not possible to give priority to the formal property right before the material ownership, supported by the registration in the real estate register, which occurred almost 60 years ago, if doubts about its demise are raised only because the deformation subsequently occurred.

Such a procedure could not be possible not only in terms of the rights protected by Article 11 (1), as well as by the second Charter, Article 11 (3), but in particular with regard to Article 1 of Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights has repeatedly made clear, through its decisions in interpreting this article, even in relation to the Czech Republic, that the Convention, or The Protocol covers the protection of existing assets (existing assets, biens actuels), not "the expectation that the survival of former property rights, which has long been impossible to exercise effectively" (see decisions of the European Court of Human Rights against Germany, 1997, Malhouse against the Czech Republic, 2000, Gratzinger and Gratzinger against the Czech Republic, 2002, and others). Thus, the interpretation of the European Court of Human Rights gives priority to maintaining legal certainty for persons to whom the attribute of existing property attaches and who can be acknowledged "legitimate expectation that this situation will be maintained" (see, for example, Michael Stretch v United Kingdom, 2003).

The Constitutional Court is responsible in a negative way for the question of whether the protection of property rights, which had been annulled before 1948, can be invoked by calling into question the legal facts on the basis of which such termination took place, and therefore not by the methods laid down in the restitution rules, but by the use of general civil law institutions (i.e. actions for the determination of the law, as well as proceedings for the removal and action for the issue).