The Constitutional Court found No 531 / 2005 Coll.
The Constitutional Court's finding of 13 December 2005, published on 20 December 2005, on the application for annulment of Sections 13 paragraphs 6 and 7 of Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Part Three of Act No. 253 / 2003 Coll., amending Act No. 95 / 1999 Coll., on the Conditions for the Transfer of Agricultural and Forestry Property from State Property to Other Persons and on the Amendment to Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended by Act No. 357 / 1992 Coll., on the Inheritable Tax Tax and Real Estate Tax, as amended by Act No. 253 / 2001 Coll., and some other laws
Valid
The Constitutional Tribunal found
Text versions:
29.12.2005
531
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 13 December 2005 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the amendment of the Senate Group of the Czech Republic Parliament and the Members of Parliament of the Czech Republic on the abolition of § 13 paragraphs 6 and 7 of Act No. 229 / 1999 Coll., on the conditions of the transfer of agricultural and other agricultural land, in the version of Act No. 569 / 1991 Coll., on the Pozemil Fund of the Czech Republic, in the version of the Act, and the Act of the Act on the Act on the Act of the Czech Republic of the Czech Republic, and of the Act of the Act of the Czech Parliament of the Czech Republic, the Act on the Act on the Act on the Act of the Act of the Act of the Act on the Act of the Act of the
as follows:
Article 13 (6) and (7) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 253 / 2003 Coll., and Article VI of Act No. 253 / 2003 Coll., as far as they concern persons entitled to another land under Section 11 (2) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended by Act No. 183 / 1993 Coll., and their heirs, shall be deleted from the date of the publication of this Decision.
Reasons
Definition and recap of the proposal
The Constitutional Court received on 7 February 2005 a proposal from a group of 24 senators of the Senate of the Parliament of the Czech Republic, on whose behalf Senator RNDr. J. S., and a group of 57 Members of the Chamber of Deputies of the Parliament of the Czech Republic, on whose behalf it is entitled to act as a Member of the Ing. V. N., on both represented by JUDr. P. S., on the abolition of Article 13 (6) and (7) of Act No. 229 / 1991 Coll., on the tax on property and property transfer, in the version of Act No. 253 / 2003 Coll., and the provisions of Article VI of Part Three of Act No. 253 / 2003 Coll., as amended, and Act No. 357 / 1992 Coll.
After the applicants recap the course of the adoption of the contested law in the Parliament of the Czech Republic, they refer to the explanatory report on its proposal, according to which it was designed in response to the experience of selling state land under Act No. 95 / 1999 Coll. Its main aim was to enable the completion of the process of settlement of restitution claims under Act No. 229 / 1991 Coll. (hereinafter also the "Soil Act ') in the foreseeable future, the modification was intended to bring into line, for this purpose, the disposing authorisation under Act No. 229 / 1991 Coll., No. 569 / 1991 Coll. and No. 95 / 1999 Coll. In favour of the adoption of the legislation in question, efforts were made to speed up and streamline the sale of state agricultural land and the prompt settlement of restitution claims, while pointing out the need to implement the maximum transfer of land in the seven-year transitional period following entry into the European Union.
According to the appellants, the stated objectives, which were to be achieved by amending the provisions of § 13 (6) and (7) of Act No. 229 / 1991 Coll., appear at first sight to be correct, but in fact those provisions are suppressing and limiting the rights of the restituents, including those of their rights that have already been acquired. The contested legal regulation does not distinguish in any way between the land transferred by the State as owner and participant in a private relationship to other persons and the land which the State is obliged to give to the beneficiaries - restituents - on the basis of restitution rules. The maximum simplification of the procedure for the transfer of state land was then achieved by removing the problem of outstanding restitution. But, in the opinion of a group of senators and a group of Members, restitution must be seen not as an obstacle to privatisation, but also as one form of privatisation.
The purpose of the Land Act is to issue a specific land to the restituents and only exceptionally, if the circumstances foreseen by the Land Act are not possible, the Land Fund of the Czech Republic (the Land Fund) transfers to the beneficiary free of charge other land owned by the State in accordance with the procedure laid down in § 8 (4) of Act No 284 / 1991 Coll., if possible in the same municipality in which the majority of the land is situated and agrees with the beneficiary.
According to the appellants of the amendment to the Land Act No. 253 / 2003 Coll., it significantly intervened in the exercise phase of the restitution process, exacerbated the position of the restituents - the creditors of the State - as compared to other natural and legal persons in the position of the creditors of the State, as well as in relation to several tens of thousands of beneficiaries, who have already been able to satisfy their claims in the past in one or other form, in which they see an infringement of 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, as well as well as the principles of equality under Article 1 of the Charter of Fundamental Rights.
Referring to the factual findings contained in the finding of the Constitutional Court sp. zn. III. ÚS 495 / 02, the appellants consider that the Land Fund had acted incorrectly in the management of the entrusted property of the State before the adoption of Law No 253 / 2003 Coll. and had also acted incorrectly in the fulfilment of the obligations arising from the restitution laws. In that finding, the Constitutional Court stated the following:
"The Constitutional Court took advantage of the legal possibility and established a publicly available audit conclusion of the Supreme Audit Office of the Czech Republic (SAO), which resulted in conclusions on the error of the Fund in the application of Section 11 (2) of the Soil Act. The SAO, on the basis of an inspection carried out from August 2002 to March 2003, stated that:..." In the case of the rights of the beneficiaries - the original owners to transfer other land free of charge pursuant to § 11 (2) of Act No. 229 / 1991 Coll., 44.9% of the restitution claims were settled (as at 31.12.2002), which were decided on in a final decision. It follows from Act No. 253 / 2003 Coll., amending Act No. 229 / 1991 Coll. and some other laws that, if the Land Office's decision became legal before 6.8.2003, the deadline for the transfer of land expires on 31 December 2005. At the same time, this law resets the two-year deadline for the right to transfer another land free of charge, thereby setting a deadline for the so-called "restitution period." When exercising the right to a free transfer of another land, the restituent is referred only to the offer of PF CR, which is significantly limited in connection with the sale of state land.... The Fund transferred with reference to the provisions of § 11 (2) free of charge other land to persons who do not have the status of authorised person under Act No. 229 / 1991 Coll..... Transfers have also been carried out in municipalities where all the restitution claims of the beneficiaries are not yet settled, even outside the so-called public offer.... The Fund, when selling state land, infringed the obligations of the State-owned property manager when it exceeded the legal authorisation laid down by law by selling state-owned land to persons on the basis of the priority law applicable to them but for whom they did not comply with the legal conditions.... the Fund has preferred the sale of state land to the settlement of rights of beneficiaries under restitution. Authorised persons may also enter into an offer or competition in the sale of land, but in the sale of land the restituents have the status of applicant, not a creditor. The price of land on sale shall be determined in accordance with a price regulation other than restitution, which depends on the price regulation effective at 24.6.1991. The State, through the Fund, sells agricultural land at a minimum price, even if the obligations of the State under the restitution laws are not fulfilled. "(amount 3 of the Bulletin of the Supreme Audit Office, 2003:" 02 / 14 Real estate of the State under the administration of the Land Fund of the Czech Republic "; page 218 - 219, also" control conclusion '; obtained from http: / / www.nku.cz / kon-zvery / K02014.pdf).'
The appellants further argue with the letter of the President of the Executive Committee of the Land Fund Ing. J. M. of 9.4.2004 No PF 14294 / 04- 1064 / MI, addressed to Senator RNDr. J. S., which did not, however, submit to the Constitutional Court and did not propose to state its content as evidence that at 31 December 2003 at least 39% of all restitution claims with a total volume of CZK 2.660,6 million were still outstanding. They then conclude that the contested legal provisions affect a relatively wide range of restituents.
They are aware of the fact that the Land Fund makes an offer about four times a year, but they do not consider it to be an address, it is not directed towards specific restituents, but only a sort of list of state agricultural land, which the Land Fund offers at a particular time to transfer to the ownership of other persons, regardless of the title of the transfer. They argue that even those restituents applying for land are not satisfied for various reasons, in particular because of the absence of an offer in an appropriate location, or because of the supply of unsuitable land, or because the Land Fund prefers persons who make claims on the land offered by other titles when transferring land.
Furthermore, the appellants point to the inequality between the group of restituents whose claim will be met and the other group whose claim will not be met, even in cases of objective difficulties not attributable to either the debtor (State) or the creditor (beneficiary).
They accentuate the fact that, in general, if the debtor is obliged to refrain from acting in order to frustrate the satisfaction of the creditor, it follows from the constitutional principle of equality that the State, as a debtor, must also not thwart the satisfaction of creditors of claims whose existence has been confirmed by a decision of a public authority. They point out that this is a private relationship in nature, and it is constitutionally contradictory for the State to adopt a significantly more favourable position in this context than that of all other debtors in the private sector. They also criticise the concept of the Land Act, according to which the undertaking's offer itself is not even addressed to the creditor, i.e. the beneficiary, but leaves it to the State whether it will offer its land to another group of persons, or to seek out land suitable to satisfy its claim.
However, according to the appellants, the amendment of Act No. 229 / 1991 Coll. implemented by the provisions of Articles V and VI of Act No. 253 / 2003 Coll., significantly impaired the position of the persons who were entitled to the free transfer of another land - creditors, without any justification, and conferred an advantage on the State as debtor, by limiting its obligation to comply with it in time, regardless of whether the State did not fulfil its obligation as a result of its failure to act or the malfunctioning of the authorities which it entrusted with its tasks. In their view, the temporal limitation of the obligation of the State, which the appellants refer to as the limitation period, is unacceptably linked to the possibility of inaction.
Paragraph 11 (2) of the Land Act, according to which the transferred land is to be, if possible, in the same municipality where most of the original land is located and the transfer of such land must be agreed by the beneficiary, provides, according to the appellants, for the acceptance of any land, even non-compliant, land or financial compensation. In addition, the contested provisions necessarily divide the beneficiaries of the entitlement to the free transfer of land into two groups, namely the group of those whose entitlement will be satisfied within the statutory period and those who will not meet their claims within the final period. According to the appellants, the beneficiaries will not be able to directly influence their inclusion in the group or group, so the State will treat the individual citizens in the same position in a different way without any objective justification for such differences. That procedure, according to their belief, shows signs of insolence, is a violation of the constitutional principles of equality and the rule of law, in particular the principle of the predictability of the law, its clarity and internal inconsistencies.
The contested provisions of the Land Act, according to a group of Senators and a group of Members, remove the legitimate expectations of the issue of property which is also protected by the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and replace it by financial transactions at prices as at 24.7.1991, i.e. prices which do not correspond to prices according to which this property can be expropriated, therefore it is not about expropriation for compensation, but about the withdrawal of assets and their replacement completely disproportionate financial compensation. Paragraph 13 (6) and (7) of the Soil Act and Article VI of Law No 253 / 2003 Coll. therefore, according to their belief, also affect the rights deriving from that Protocol to the Convention.
For that group of 24 Senators of the Senate of the Parliament of the Czech Republic and a group of 57 Members of the Chamber of Deputies of the Parliament of the Czech Republic, the provisions of § 13 paragraphs 6 and 7 of Act No. 229 / 1991 Coll., on the modification of ownership relations with land and other agricultural property, as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Part Three of the Act No. 253 / 2003 Coll., amending Act No. 95 / 1999 Coll., on the transfer of agricultural and forestry land from State property to other persons and amending Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended by Act No. 357 / 1992 Coll., on the inheritance tax and the tax on property transfer, as amended by Act No. 253 / 2001 Coll.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations of 15 March 2005, the President of the Chamber of Deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek notes that in the explanatory report on the draft law No. 253 / 2003 Coll. it is stated that its purpose is to enable the completion of the process of settlement of restitution claims under Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural assets, as amended, to be completed shortly. According to him, the time limits did not reduce the beneficiaries to their property rights nor were they based on their unequal status, as the applicants contend. The problem of the existing widespread failure to satisfy the entitlement of beneficiaries to replacement land is seen in a different aspect to that indicated by the applicants, in fact that the interest in the land offered is low despite the improvement of conditions and the approaching term 'restitution dots'. In his view, only the land within the municipalities or the land for which non-agricultural use can be expected in the future, while some beneficiaries do not reflect on the Land Fund's offers in the long term, others are interested, yet for various reasons their claims have not been met, for example because they choose an attractive land for which more than one person is interested.
It shall further inform the existing Land Fund procedure, which has processed the supply of land in such a way that the structure of the land offered corresponds to the structure of the entitlements, so that beneficiaries can take advantage of their absolute advantages. It states that, although the compensation is to be granted for agricultural land, the interest of many beneficiaries is concentrated only on land for which, in view of local conditions and other circumstances, non-agricultural use can be expected and which is insufficient due to the extent of the claims. Many beneficiaries prefer cash and sell their claims, others wait for better offers. It further notes that the persons who bought the restitution rights have a large percentage of the claims, and those persons, whether legal or physical, are only interested in the issue of very lucrative land.
The purpose of introducing the time limit set by the President The Chamber of Deputies was to encourage beneficiaries to become significantly more active so that the restitution process could be completed as soon as possible and that the outstanding restitution claims would not be an obstacle to the development of economic relations and ties and would not bring uncertainty into ownership. The contested provisions of the Soil Act appear justified in view of the need to establish a time-frame for ending the restitution requirements and thus to create a clear environment on the soil market. It states for that reason that the current arrangements in this area constitute a sufficient framework and scope for the priority satisfaction of beneficiaries, which does not consider the abolition of the provisions in question introducing the so-called "restitution period 'to be a solution to the situation, but a proper and rapid satisfaction of the rights of beneficiaries by the Land Fund.
On the basis of the reasons so set out, the party to the proceedings is of the opinion that the conditions laid down in the contested provisions of the law ensure adequate protection of the rights of the beneficiaries and do not create inequality in the ability to satisfy the various entities according to the extent of their claims. It points out that some of the specificities of the Land Fund as a debtor and beneficiaries as creditors must be seen precisely in the specificities of restitution.
The President of the Chamber of Deputies further confirmed, in accordance with the requirements contained in the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, that Act No. 253 / 2003 Coll., which contains in Part Three of the Amendment to Act No. 229 / 1991 Coll. and Article VI, was approved by the necessary majority of Members of the Chamber of Deputies of the Parliament of the Czech Republic, was signed by the relevant constitutional authorities and duly declared in the Collection of Acts. Finally, it notes that, in that context of the case, the view that the law under examination has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner, as well as the view that the legislature has acted in the belief that the law adopted complies with the Constitution, the constitutional order and the international treaties by which the Czech Republic is bound, while it is up to the Constitutional Court to assess the constitutionality of that law in the context of the submitted proposal and to give its decision.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. The introduction of its observations of 18 March 2005 by its chairman, MUDr. Premysl Sobotka, recalls the purpose of Act No. 229 / 1991 Coll., which was primarily to mitigate the consequences of certain property injustices that occurred against owners of agricultural and forestry property between 1948 and 1989, to restore original property relations to the soil, thereby improving the care of agricultural and forestry land and to adjust ownership relations to land in accordance with the interests of rural development and the requirements for landscape and environment creation. Unlike Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, the mitigation of the consequences of property injustices was not in the issue of the case, but in the restoration of the property right to the seized goods, with the owner being free to implement his property right.
The main aim of the promoters of the Bill No. 253 / 2003 Coll. was to enable completion of the process of settlement of restitution claims, to streamline the process of sale of land by reducing its administrative burden and to lay down criteria for applying the priority of the landowners in such a way that the first person with a claim for replacement land in the location where the original land was located, and in the next place the lessee with a limited claim for transfer was in turn.
The submitted proposal by a group of Senators and a group of Members then states that the draft law governing the termination of the deadlines for the settlement of ownership relations with land and other agricultural assets was the subject of extensive discussions in the Senate, in particular in the committees to which the draft law was assigned for discussion, also during the plenary session of the Senate on 26 and 27 June 2003. In particular, it was noted that a significant part of the transfer of agricultural parcels had already been carried out by means of restitution titles, transfer to municipalities and other institutions, or by sale without any link to restitution claims. At the same time, it was pointed out that at the time the draft law was discussed, the restitution claims for land were not settled under Act No. 229 / 1991 Coll., while the introduction of the so-called "restitution dot" was seen as an expression of an attempt to end the land transfer process for the beneficiaries, albeit at the same time limiting the claims of a group of beneficiaries only on financial settlement while withdrawing the possibility of land being issued. On the other hand, there were serious concerns, according to the President of the Senate, that the introduction of a "restitution dot" would affect those who, while not entitled to return their original land for legal reasons, but expressed an interest in the replacement land, which could not have been issued to them without fault - for example, because the demand for some replacement land exceeded the supply. It was also argued that interfering with the Soil Act in the proposed way was dangerous in terms of divergence of the state in the present already established interpretation of the Law and the case law of the Constitutional Court. In some speeches, the concerns about the breach of equal rights in access to business have been allayed, because, in their view, the admission of the so-called "restitution dots" significantly favours and favours the lessee over those who do not have leased land, and although they are running, they cannot buy it unless the lessee with a preferential right declares that they are not interested in land. In this context, a request was made to re-evaluate the terms of the sale of state land to tenants in order to find a more balanced relationship between the different groups of interested parties to purchase land in order to avoid discrimination.
The above reasons, according to the President of the Senate, led in the detailed part of the debate to the submission of an amendment, which deleted the part amending Act No. 229 / 1991 Coll., i.e. the "restitution period."
In its observations, the Senate notes that the draft law amending Act No. 95 / 1999 Coll., on the conditions for the transfer of agricultural and forestry land from state ownership to other persons and amending Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended, and Act No. 357 / 1992 Coll., on the tax of inheritance, donation and property transfer tax, as amended, as amended, as amended by Act No. 253 / 2001 Coll., and certain other laws, on 27 June 2003, at its 7th session Resolution No. 150 returned to the Chamber of Deputies, in vote No. 38, in which of the 64 Senators and Senators present, 60 and nobody opposed.
The basis for decision-making according to § 48 paragraph 2 of Act No. 182 / 1993 Coll.
On the basis of the provisions of Section 48 (2) of Act No 182 / 1993, the Constitutional Court requested information from the Land Fund concerning the current overview of the settlement of claims for land not issued under the Land Act, as well as the summary of legal disputes between beneficiaries of the Land Act and the Land Fund.
According to the Communication of the Chairman of the Executive Committee of the Land Fund Ing. J. M. of 28 November 2005 No. PF 2258 / 05MI-64297 of the total amount of the claims for land not issued from the decision of the district land offices of CZK 7.346.154,44 on 18 November 2005, the balance of outstanding claims for land not issued amounts to CZK 1.872.183,08, of which the balance of direct claims amounts to CZK 6660.432,31 and the balance of the claims transferred is CZK 1.211.750,77. In 2004, the settlement of direct claims in the value of CZK 115.833.02, the transferred claims in the value of CZK 395.606.98 was settled in 2005 (on 18 November 2005), the direct claims in the value of CZK 108.892.17, the transferred claims in the value of CZK 465.212.03. In 2004, the share of the transferred claims settled was 77,35% of the total amount of the claims settled, which was 81,03% for the period 1 January 2005 to 18 November 2005.
In 2004 and 2005, the Land Fund introduced the so-called structured offer, i.e. it offered land in municipalities from which claims for land not yet settled, with the exception of Prague and some major cities, which offered more land in all municipalities than those of beneficiaries. The structured offer thus represented CZK 1.495.200 in 2004, CZK 3.035.210 in 2005, despite this targeted offer, the interest of beneficiaries for the land offered was around 24% in 2004 and around 26% in 2005.
According to the communication of the Chairman of the Executive Committee of the Land Fund, the claim under Section 11 (2) of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll., was met by a total of 360 actions against the Land Fund, of which 9 actions until 31 December 1999, 28 actions from 1 January 2000 to 30 April 2005 and 323 actions from 1 May 2005 to 24 November 2005. Disputes initiated in 2005 have not yet given a final ruling on the matter, in respect of disputes brought about in the past and definitively concluded, reference is made in the Communication to the case-law of the Supreme Court, according to which entitlement to the provision of replacement land does not include the right of the beneficiary to choose the replacement land (2 Cdon 522 / 96, 26 Cdo 1478 / 2000 and others).
In order to provide an opportunity to comment on it, the communication by the Chairman of the Executive Committee of the Land Fund Ing. J. M. of 28 November 2005 No. PF 2258 / 05MI- 64297 was delivered to the appellants and interested parties (Section 60 (3) of Act No. 182 / 1993 Coll.).
This opportunity was used by the appellants and, in the submission received by the Constitutional Court on 9 December 2005, they stated that, however they did not intend to question the statistics provided in the communication from the Chairman of the Executive Committee of the Land Fund, they considered it necessary to point out that the allegation of a substantial overhang of the supply of suitable land above the amount of claims could only be accepted from the point of view of the country-wide statistics. In the country-wide comparison, both the cadastral territory is located next to each other, where much more land has been offered than corresponds to the extent of outstanding claims in this area, and the cadastral territory is also included, where no land has been offered at all. The claims in question are illustrated by the appellants on the example of several cadastral territories in the former district of Nová Jicin, where the Land Fund did not offer any land at all as compensation, while noting that there are also areas where the Land Fund and no suitable land were available. In conclusion, they believe that if the decision of the Constitutional Court in the present case were to be based on a communication from the Chairman of the Executive Committee of the Land Fund, it would be necessary to clarify in a substantial way, in particular the general statement relating to the entire territory of the Czech Republic, the situation of the settlement of claims for land not issued in smaller territories, preferably according to former counties.
Abandonment of oral proceedings
According to the provisions of Paragraph 44 (2) of Law No 182 / 1993 Coll., the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. Since both the parties, i.e. the appellants, via their legal representative, received by the Constitutional Court on 30 November 2005, as well as by persons entitled to act on their behalf in the submissions received by the Constitutional Court on 2 December 2005, and the party to the proceedings in the observations of the President of the Chamber of Deputies of the Parliament of the Czech Republic served by the Constitutional Court on 1 December 2005 and the President of the Senate of the Czech Republic served by the Constitutional Court on 8 December 2005, they have expressed their consent to the termination of the oral proceedings and, furthermore, since the Constitutional Court considers that further clarification cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Derogation of the contested legislation
According to the provisions of § 13 (6) of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll.: "The beneficiary has the right to transfer the land owned by the State within 2 years from the date of the legal authority of the Land Office decision. Where the right to transfer the land is not decided by the Land Office, the beneficiary shall have the right to transfer the land owned by the State within 2 years from the time when the Land Fund was first entitled to transfer. 'According to paragraph 7 of that legal provision:" After the expiry of the period referred to in paragraph 6, the right to transfer a State-owned land shall cease.'
Pursuant to Article VI of Act No. 253 / 2003 Coll.: "If the Land Office's decision has acquired legal authority or entitlement to the transfer has been exercised before the application of the Act, the time limit for the transfer of the land expires on 31 December 2005. '.
Conditions for the applicant's active legitimacy
The proposal for the repeal of Article 13 (6) and (7) of Act No. 229 / 1991 Coll., on the treatment of property relations with the State, as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Part Three of Act No. 253 / 2003 Coll., amending Act No. 95 / 1999 Coll., on the Conditions of Transfer of Agricultural and Forestry Land from State Property to Other Persons, and amending Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended, and Act No. 357 / 1992 Coll., on the Tax Inheritable, Tax and Tax on Real Estate Transfer, as amended, by Act No. 253 / 2001 Coll., and some other laws, was introduced by a group of 24 Senators of the Senate of the Czech Parliament of the Czech Republic, on behalf of which is entitled to act Senator. On the part of the appellants, it can therefore be concluded that the conditions of the active legitimacy for the procedure for checking standards under the provision of § 64 paragraph 1 (b) of Act No. 182 / 1993 Coll.
Constitutional conformity of competence and legislative process
In accordance with the provisions of Section 68 (2) of Act No. 182 / 1993 Coll., as amended, the Constitutional Court is required to assess whether the contested law, its individual provisions, or any other legislation or its individual provisions have been adopted and issued within the limits of the Constitution of the established competence and the constitutional procedure.
It was found from the Parliament's press and shorthand reports, as well as from the observations of the party, that the Chamber of Deputies approved the draft law at its third reading at its 16th meeting on 22 May 2003 by Resolution No 505, when 118 Members and Members voted against it.
On 27 June 2003, the Senate, at its 7th meeting in Resolution 150 of the Law in question, returned to the Chamber of Deputies with amendments, in vote 38, at which of the 64 Senators and Senators present, 60 of them voted in favour of the proposal and no one opposed it.
The Chamber of Deputies voted on the Senate's motion for a refunded law at the 198th meeting of 22 July 2003, with 124 votes from 196 Members present, when they voted against 57, remaining on the text of the bill referred to the Senate (Resolution No 621).
The law in question was signed by the relevant constitutional authorities and was duly declared under No 253 / 2003 Coll. in an amount of 86 Collection of Laws, which was circulated on 6 August 2003, and under Article VII it became effective on the date of its publication, i.e. the date of circulation of the relevant amount of the Collection of Laws.
Content compliance of the contested legal provisions with the constitutional order
Reason and purpose of the Soil Act
The purpose and purpose of the Soil Act according to its preamble is to mitigate the consequences of certain property injustices that have occurred against owners of agricultural and forestry assets between 1948 and 1989, to improve the care of agricultural and forestry land by restoring the original property relations with the land, as well as to adjust ownership relations with the land in line with the interests of rural economic development as well as with the requirements for landscape and environmental creation.
The Act on non-judicial rehabilitation, compared to the Law on Soil the second of the key "restitution laws," defines its purpose more closely in the preamble. It considers it to alleviate the consequences of some property and other injustices which occurred between 1948 and 1989.
The difference in purposes is also consistent with the difference in the legislative mechanism for mitigating the injustices of the Communist regime.
Under the Law on non-judicial rehabilitation, a natural person is entitled to issue a case if he fulfils the conditions for being a legitimate person (§ 3), if the case is held by a obliged person (§ 4), if the legal conditions for the issue of a case (§ 6) and finally no legal grounds for the non-extradition are given (§ 8 (1) to (4)). If there are reasons for not giving up the issue under previous conditions of restitution, the granting of financial compensation is provided in a subsidiary manner (Section 8 (5)).
According to the Land Act, a natural person is entitled to the issue of land if he fulfils the conditions for being an authorised person (§ 4), if the land is held by a obliged person (§ 5), if the legal conditions for the issue of land (§ 6) and finally no legal grounds for the non-issuance of land are given (§ 11 (1)). Since the purpose of the Act is not only to mitigate the injustices, but also to restore the countryside, in the event of the existence of grounds for not issuing the land, the right to free transfer of another land into the ownership of the beneficiary is established (§ 11 (2)). Only land which is not issued under this law and for which another land cannot be provided to the beneficiary, the Land Act provides for a second subsidiary claim in order to qualify for financial compensation (Section 16 (1)). In cases of compliance with the conditions for the issue of the original or replacement land, the Act provides for the possibility for beneficiaries to settle claims by transferring property rights to property owned by the State and the administration of the Land Fund [§ 18a, § 17 (3) (a) of the Soil Act].
Design points
The first point is the objection to the inequality based on the contested legal provisions, namely the inequality of threefold: on the one hand, the inequality of the absence of a reasoned distinction between the land which the State, as owner and participant in a private relationship, transfers to other persons, and the land which the State is obliged to issue to the eligible persons - restitution - on the basis of the restitution rules, on the other hand, the inequality between the group of restituents whose entitlement is satisfied and, finally, the inequality between the price of the replacement land and the amount of any financial compensation.
The second point is the objection to the constitutional principle of protecting a citizen's legitimate trust in law (legitimate expectations), both from the point of view of the principle of prohibition of arbitrage and legal certainty (arising from the principle of the rule of law) and from the point of view of the law resulting from the Additional Protocol to the Convention (protecting and property claims).
Aspects of review of the constitutionality of time limits
The subject matter of the proposal for the control of the standards is the legal provisions which impair the deadline for the exercise of the right to issue replacement land under Section 11 (2) of the Soil Act.
In the decision sp. zn. The Constitutional Court stated in the most general sense on the concept of a time limit as a legal fact: "The purpose of the legal institution of the time limit is to reduce entropy (uncertainty) in the exercise of rights or powers, the time limit on the state of uncertainty in legal relations (which plays, in particular, an important role in proving the case of disputes), to speed up the decision-making process with a view to realising the intended objectives. These reasons led to the introduction of deadlines thousands of years ago."
The Constitutional Court then expressed a fundamental legal opinion defining the scope of the constitutional review of the legal provisions which lay down the time limits, in the decision sp. zn. Pl. ÚS 46 / 2000 (Collection of Decisions, Volume 22, Found No 84; Declared under No 279 / 2001 Coll.) in the context of the assessment of the constitutionality of the deadline for the application of the claims arising from the Law on Judicial Rehabilitation (Section 6 of Law No 119 / 1990 Coll.): "The mission of the Constitutional Court consists in the control of the Constitution. In this context, this court can only abolish non-constitutional provisions or parts of them, but it is not its task to reparate the consequences of the failure by the appellant to exercise his right within the prescribed period. The abolition of time limits violates the rule of law, as it significantly interferes with the principle of legal certainty, which is one of the fundamental essentials of the current democratic legal systems. The deadline itself cannot be unconstitutional. However, it may appear this way in the light of specific circumstances. The appellant's claim that he did not have confidence in the Czechoslovak courts and did not have the necessary information and therefore within the time limit laid down in Article 6 of Act No. 119 / 1990 Coll., on judicial rehabilitation, did not apply his right in time does not deprive him of his obligation to comply with the applicable legal standards. '
The tenor of that view therefore lies in the fact that the prima facie period does not, without further, exhibit and cannot show signs of unconstitutionality, which can only be given by the "specific circumstances' of the case under consideration, in other words, the assessment of the constitutionality of the period is a contextual assessment.
These "specific circumstances', i.e. the aspects of the contextual assessment of the constitutionality of the deadline according to the previous case law of the Constitutional Court, are:
1. the inadequacy of the time limit in relation to the time limit for the application of the constitutionally guaranteed right (s) or, where applicable, the defined time limit for the limitation of subjective right. From that point of view, the Constitutional Court in the decision sp. zn. Pl. ÚS 5 / 03 (ECR 30, Volume No 109; published under No 211 / 2003 Coll.) annulled the provisions of Sections 3 and 6 of Act No 290 / 2002 Coll., which constituted a disproportionate restriction on property law, a breach of Article 11 (1) in conjunction with Article 4 (4) of the Charter (the constitutionally conformal court considered, in the context of the case at hand, that such a restriction would constitute only a strictly necessary period of time which could be understood by so much as a minimum period of time, and clearly prima facie, a "transitional 'period, but not a period of ten years);
2. Insolence by the legislator when setting a deadline (its anchoring or cancellation). In this respect, the Court of First Instance in the case sp. zn. Pl. ÚS 2 / 02 (ECR 32, p. 35; cited under No 278 / 2004 Coll.), in which it referred to the annulment of the provisions of § 879c to § 879e of the Civil Code (hereinafter also "the Circular ') by Act No. 229 / 2001 Coll., by which the legislature intervened in the legitimate expectations of the entities' precisely defined by the Court of First Instance, only one day before the expiry of the period in which the acquisition of ownership law would have taken place, as a result of the fact that the bodies having acted in trust in the predetermined terms of the European Court of State, were confronted with the Court of State's wilful procedure only day before the expiry of that period;
3. The constitutionally unacceptable inequality of two groups of entities resulting from the abolition of a certain legal condition for the exercise of the right for its unconstitutionality, which does not, as a result of the expiry of the time limits, open the right without further possibility of the exercise of the right. It is based on the "specific circumstances" thus understood, in the finds sp. zn. The Constitutional Court, by abolishing the provision setting out the beginning of the period for the application of the restitution claim, opened the possibility of applying them also to those beneficiaries who, as a result of the condition of permanent residence, could not successfully exercise the original claims within the time limits. In this context, the Court held that "these persons were therefore effectively excluded from the scope of the beneficiaries who could claim financial compensation and were therefore - compared with other beneficiaries - unconstitutionally disadvantaged and found themselves in an unequal legal position '.
Therefore, the Constitutional Court's task in the present case is to assess whether, in the case of legal provisions which lay down the time limit for the exercise of the right to issue replacement land under Paragraph 11 (2) of the Land Act, "specific circumstances' resulting in their contradiction with the constitutional order are forfeited or not. For" specific circumstances "sub 1 and 2 can be regarded as an adequate test of the inadmissibility of extreme disproportionality (Rational Basic Test), sub 3, then a test of the procedure resulting from the principle of proportionality (respect classification) [for that distinction see the finding of the Constitutional Court sp. zn. München 1993, p. 116 et seq.; J. E. Nowak, R. D. Rotunda, Constitutional Law.
Legal system for the issue of land replacement
The Land Act on the attainment of its objectives, which has already been established, is to mitigate the consequences of certain property injustices that have occurred against owners of agricultural and forestry assets between 1948 and 1989, to improve the management of agricultural and forestry land by restoring the original property relations with the land, as well as to adjust ownership relations with the land in accordance with the interests of rural development and in accordance with the requirements for landscape and environment creation (preamble), also monitors the application of the principle of the priority of the return of indigenous land and other property to eligible persons and the principle of the priority of natural compensation in the event of impossibility of such publication. These principles are reflected in the provision of § 11 (2) of Act No. 229 / 1991 Coll., as amended, according to which, where land cannot be issued, "the Land Fund shall transfer to the beneficiary free of charge other land owned by the State in accordance with the procedure laid down in § 8 (4) of the Czech National Council Act No. 284 / 1991 Coll., on land and land offices, as amended, if possible in the same municipality in which the majority of the land is situated, if the beneficiary agrees."
If the beneficiary gives his consent to the transfer of the replacement plot offered, the Land Fund shall be liable for such compensation in kind. Paragraph 8 of Act No. 284 / 1991 Coll., according to which the replacement parcel is to be provided, shows that this parcel is to correspond to the replaced plot with the area and the same quality. The replaced plot is therefore determined in a generic way.
The issue of a replacement plot is therefore linked by the law to the land modification mechanism, the discrepancy of the offer is limited by the condition of subsidiarity (according to which offers in another location are possible in the absence of corresponding offers in the original site) and by the consent of the authorised person.
On the question of the relationship between the transfer of land transferred by the State as owner to other persons and the transfer of land which the State is obliged to issue to the legitimate persons - restituents - on the basis of the restitution rules, the Constitutional Court adopted an opinion in the decision of 4 March 2004 on page III. If the Fund applies the opposite interpretation, it is found outside the scope of the powers conferred on it by the law (cf. Article 2 (2) of the Charter). Such interpretation cannot stand in systematic interpretation. The Act (§ 2 (1) of Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended) orders the Fund to act only in the framework of the Land Act, the purpose of which is to satisfy the rights of the beneficiaries. The later legislation adopted in the Land Transfer Act, taking into account the principles of protection of legitimate expectations and legal certainty, could not change anything... In other words, the Fund must not in fact give priority to the procedure under the Land Transfer Act over the fulfilment of the State's obligations under Paragraph 11 (2) of the Land Act, which the State has recognised, since this is contrary to its scope in the discharge of the State's obligations under the Land Act. The purpose of the Soil Act cannot be a reference to the Speciality of Act No. 95 / 1999 Coll. Paragraph 1 (2) (a) of Act No 95 / 1999 Coll. (according to which this Act regulates the Land Fund procedure for the transfer of agricultural parcels to beneficiaries) appears to be interpreted in the light of the principles of protection of material interest (Article 1 of the Additional Protocol to the Convention) and legal certainty and in the light of Article 19 (1) of the Land Transfer Act, which declares the integrity of the Soil Act. '
The fundamental issue arising from that legal opinion is the question of the legal instruments which are appropriate for the beneficiary to secure his claims on the Land Fund, in particular to ensure their priority.
According to the same opinion of the case-law and the doctrine of the transfer of land is not an administrative decision, the relationship between the Land Fund and the beneficiary is not a power relationship, but is characterised by the equality of the two entities, is a relationship of private law, the relationship between the debtor and the creditor (cf. judgment of the Supreme Court of 10.5.2000 sp. zn. 24 Cdo 212 / 2000, the resolution of the Special Chamber according to Act No. 131 / 2002 Coll., on the decision of certain jurisdiction, of 24.11.2004 sp. According to the judgment of the Supreme Court of 10.5.2000 sp. zn. 24 Cdo 212 / 2000 on the legal relationship between the beneficiary and the Land Fund in the transfer of land replacement land cannot be applied directly by the Land Adjustment Act.
However, according to settled case-law, the beneficiary of a civil action cannot claim the issue of a particular plot of land chosen by himself (cf. Judgment of the Supreme Court of 29.1.1997 sp. zn. 2 Cdon. 522 / 96, Order of the District Court of Prague 8 of 2.8.2000 sp. zn. 8 C 165 / 2000, judgment of the Regional Court of Ústí nad Labem of 29.2.2000 sp. zn. 35 Co. 4 / 2000; In its judgment of 18.1.2001 in Case C-1478 / 2000, the Supreme Court expressly stated: "The entitlement to supply land does not include the right of the beneficiary to choose from the Land Fund. It is up to the Land Fund to notify which State-owned land may be provided as replacement land. This notification cannot be considered as a proposal to conclude a contract for the transfer of land.)
If the creditor is not given the option of choice, that is to say the possibility of a specific definition of the petit, then the question of which claim can be claimed by the creditor in a given private legal relationship by a judicial action must be answered. The doctrine responded to the problem by the following legal structure: "If the beneficiary wants a replacement land from the Land Fund, he can sue for the obligation of the Land Fund to conclude a contract to transfer such land. Law No 229 / 1991 Coll. provides for an obligation to conclude a contract, but does not provide for the means of concluding it. Therefore, the general scheme applies. According to the provisions of § 161 (3) o. s., the final judgment imposing a declaration of will replaces... In the absolute lack of special provisions in Act No. 229 / 1991 Coll.... we will... work all the way to the Civil Code as the most general private law law, and in order that the law or anything else does not impose on the Land Fund, which of the land in the same municipality (if more than one is left) has an obligation to transfer it to the entitled person. However, if a commitment is made in several ways, the debtor has the right to choose under Paragraph 561 (1) of the Act.... In this situation, petit actions must necessarily be alternative and include (with a link or) all the consideration of the land coming in the town register" (M. Kindl, restitution in judicial practice. Praha 1997, p. 20).
On the basis of the opinion of the Court of Justice in Decin in Case No 19 C 155 / 2000, the Court of Justice has held that the beneficiaries may claim their claim against the Land Fund in the form of a free transfer, provided that it is established that, within an acceptable period of time, their legitimate claims have not yet been met or have not been initiated at all in relation to their handling, and that "the action to replace the will of the land transfer agreement in the form of a free transfer of charge depends on the entitlement of the beneficiaries to provide the land, then, in the light of the accuracy, certainty and clarity of the application (petit), there is a need to conclude the plea, which cannot be obtained by stating the relevant land which may be the subject of the transfer to the beneficiaries. The Court of First Instance is then bound by the extent of the compensation which the applicants have claimed in the proceedings, whereby the parcels specified in the application (petition) will be taken over by those parcels in respect of which the conditions for their free transfer to the applicants are given, in the aliquot of the land (valuation) of the land not issued, with the possibility that the defendant is entitled (alternatively) to issue to the applicants and other land in the same municipality, which would be applicable in the present case. The alternative petit at the initial stage of the challenge, where the beneficiaries do not know whether or not a restitution claim has been claimed on the land or whether for other legal reasons it cannot be issued, meets the criteria for the court to be able to formically discuss the case with the possibility that, at the relevant stage of the dispute (after the verification of the appropriate land which may be the subject of a replacement or a free transfer), the beneficiaries may modify their claim by virtue of the available action (§ 95 o. s.). The use of an alternative petition thus precludes the consideration that the claimants are seeking only specific land (land) without a substantive title, but that they exercise their right of entitlement to the free transfer of land pursuant to § 11 (2) of Act 229 / 1991 Coll. '.
In the already cited finding sp. zn. III. ÚS 495 / 02 The Constitutional Court has assessed the merits of the title for the issue of specifically determined land by authorised persons under Section 11 (2) of the Soil Act. He stated that "the claims of complainants for the issue of replacement land were not satisfied in the long term. The courts had an obligation to examine whether this situation was not the result of the Fund's wilful or even wilful nature in implementing the Soil Act. In doing so, they had to deal with the objections that the Fund had no interest in the issue of land because it benefited from their administration and that its public offers were unable to satisfy the legal claims of the beneficiaries, which are thus effectively forced to waive their claim for financial compensation. Such action by the Fund is a clear violation of Article 2 (2) of the Charter and Article 2 (3) of the Constitution, respectively. 'It further stated that, although the relationship between the Land Fund and the beneficiary under Paragraph 11 (2) of the Land Act is a relationship of private law (i.e. a controlled principle of equality), it cannot be taken into account that the Land Fund is" a public institution because it fulfils a public purpose' and, therefore, "if the general courts are to fulfil their constitutional obligation to provide protection to the legally protected interests, they must examine whether the State or its authorised persons (fulfilling the obligations of the State) are in favour '.
In this context, the Constitutional Court also took a position on the relevant case-law of the General Courts: On the legal opinion of the Supreme Court contained in the decision of 18.1.2001 sp. zn. 26 Cdo. 1478 / 2000, according to which "entitlement to the provision of replacement land does not include the right of the beneficiary to choose the replacement land ', the" notification of the Land Fund of the Czech Republic, which may be granted as replacement land, is not a proposal for the conclusion of a contract, "The Constitutional Court stated that" this legal opinion must be applied and interpreted in a constitutional manner', the decision of the Supreme Court of First Instance (which took over its earlier legal opinion of 29 January 1997 sp. The reference to the Supreme Court's legal opinion cannot be used to legitimise such a procedure for the allocation of replacement land, which, viewed from an objective point of view, would be arbitrary or discriminatory. Discrimination or negligence in the allocation of land is unlawful and the infringement cannot be granted judicial protection. An action seeking the issue of a particular plot of land may constitute the sole means of defence against libel. The Constitutional Court also recalls that the constitutional ban on the denial of justice implies the obligation of the general courts to fill the loopholes in the laws where the opposite would lead to a de facto non-enforceable claim. Moreover, another judgment of the Supreme Court of 22.2.2002, sp. zn. 28 Cdo. 1847 / 2001, shows that the Supreme Court is also aware of the obligation to ensure the enforceability of the claim under Paragraph 11 (2) of the Land Act. "
At the conclusion of that finding The Constitutional Court expressly stressed the limitation of its review of constitutional issues, respected the maximum non-substitution of the function of general courts in the interpretation and application of simple law, and therefore stated the following: "The Constitutional Court concludes that, even if the General Court further held that the action cannot be a specific parcel, it must also take into account its obligation (taking into account the prohibition of refusal of justice or the obligation to provide protection for legitimate expectations) to lead complainants to the adjustment of the petition so that, in the event of the success of the complainants, it is possible to impose on the Fund the obligation to issue, at a specific time, the court, so that its value resulting from the size, location and quality of the original land is as close as far as possible to the present value of the original land. This requirement is already based on Article 11 (2) of the Land Act, which presupposes the consent of the beneficiary to the land offered. It must also be recalled that rules have always been in force for the administration of state property, which are now expressed in the Law on the Property of the Czech Republic, according to which" Property must be used effectively and economically to perform the functions of the State and to carry out specified activities; otherwise the property can be used or disposed of only under the conditions laid down by special law or by this law. "The Fund cannot ignore the already existing obligations of the State which it has assumed under Paragraph 11 (2) of the Land Act. '
Ratio decidendi
Therefore, the caselaw of the general courts on the title of the witness to the right to issue a replacement plot pursuant to Article 11 (2) of the Soil Act can be generalized by a two-pronged statement: it can only be regarded as relevant and established if it defines the title as negative (i.e. if it does not consider the transfer of the replacement plot to be an administrative decision and excludes the entitlement of the beneficiary to provide the land to the Land Fund in the form of their choice); If, in certain previous decisions, the General Courts have defined the title of an authorised person in a positive manner, the case-law cannot be discussed for the time being.
According to the provisions of § 13 paragraphs 6 and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., the right to transfer the land owned by the State shall be granted to the beneficiary within 2 years from the date of the legal authority of the Land Office's decision; if the Land Office does not decide on the transfer, within 2 years of the date on which it was able to exercise the right to the Land Fund for the first time, this period shall be forfeited.
Where the Land Office's decision was of legal authority or the right to transfer was exercised before the application of Act No. 253 / 2003 Coll., i.e. before 6 August 2003, pursuant to Article VI of that Act, the time limit for the transfer of land expires on 31 December 2005.
Article VI of Act No. 253 / 2003 Coll. therefore established for the realisation of the right to issue a replacement plot for cases in which the Land Office's decisions, as a title for the issue, became effective before the date of the entry into force of Act No. 253 / 2003 Coll. (i.e. on 6 August 2003) as well as in cases where another title for issue was given also before the date of entry into force of Act No. 253 / 2003 Coll. (i.e. 6 August 2003), a minimum period of two years, four months and 25 days (i.e. until 31 December 2005).
Paragraph 13 (6) and (7) of the Soil Act then provides for a period of two years for those cases in which the Land Office's decision, as a title for the issue, will become legal after the date of the entry into force of Act No. 253 / 2003 Coll., and for those cases where another title for the issue is given also after the date of entry into force of Act No. 253 / 2003 Coll.
It is necessary to recall at this point the draft points of the group of Senators and of the group of Members, both the objection of the lack of a reasoned distinction between the land which the State, as owner and participant of a private relationship, transfers to other persons and the land which the State is obliged to give to the beneficiaries - on the basis of the restitution rules - and, secondly, the inequality between the group of restituents whose entitlement will be met by the State as well as their group whose claim will not be met [both in cases of objective difficulties which are neither attributable to the debtor (State) nor by the creditor (legal certainty), as well as in cases arising from the law flowing from the law of the Fund], as in respect of the constitutional principle of protection of the constitutional trust (legitimate expectations).
Objection first and third The Constitutional Court has already fully accepted the following maximum for the constitutional assessment of all three objections in the sp. zn. III. ÚS 495 / 02:
Without calling into question the Land Fund's claim on the adequacy of the "structured offer 'to satisfy the rights of beneficiaries under Article 11 (2) of the Land Act (see the Communication from the Chairman of the Executive Committee of the Land Fund Ing. J. M. of 28 November 2005 No. PF 2258 / 05MI-64297), and also without calling into question the appellants' claim on compliance with the principle of vigilantibus iura by the beneficiaries, the Constitutional Court takes the view that there is no evidence enabling it to verify those claims in the standard control procedure. Such verification is only conceivable within the scope of the taxation of an effective procedural remedy to protect the right, the purpose of which is to verify the adequacy of the offer to a particular beneficiary. Such a means of procedure may, on the one hand, be based on explicit legal provisions and the corresponding application practice, or may be developed and established by the caselaw itself.
The analysis of the relevant arrangements contained in the Soil Act as well as the relevant case-law of the General Court and the Constitutional Court can only conclude that neither of the alternatives is met.
In this context, the legal doctrine is also of the opinion: "The whole process of providing other land is linked - apart from legal, organisational and territorial technical requirements - with significant subjective influences that may, in consequence, raise doubts about objectivity in the process of the specific territorial offices of the Land Fund of the Czech Republic.... One conclusion can be drawn from the indication of all these - and in many and beyond the analysis of the applicable legislation - considerations can, in my view, be drawn. The legislator's idea that there is nothing simpler than to provide another land for the land not issued to the beneficiary appears to be at least naive. However, if the legislation in force is based on this principle of material compensation, appropriate attention should also be paid to the regulation of the procedure in which it is intended to take place. This, in my view, has not yet been achieved in relation to the process of providing other suitable land (despite all the previous more or less successful amendments to the relevant provisions of the Soil Act)." (I. Breakthrough, restitution of property according to the Land Act. Prague 1997, p. 194.)
For beneficiaries under Section 11 (2) of the Land Act, it follows from that conclusion that, for the exercise of the right to issue a replacement parcel, there is no effective process (in other words, it is at the level of the simple right to establish a subjective right without entitlement, or without the procedural possibility of obtaining it). For the Constitutional Court in the procedure concerning the control of standards (review of the constitutionality of the provisions of Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and by Article VI of Act No. 253 / 2003 Coll.), it follows that the time limits laid down in Sections 13 (6) and 7 of the Act No. 229 / 1991 Coll., as amended by Law No. 253 / 2003 Coll., and the provisions of Article VI of Law No. 253 / 2003 Coll., are limited in time to the application of the law on the right of persons entitled to the provision of the law on the provision of the law on the provision of the provision of the law on the provision of the law on the provision of land of which does not constitute an effective procedural instrument, which, from the point of view of the principle of the constituency of the constituency of the law of the law of the law.
At the same time, the contrario also applies constitutional conformity by a reasonable period of time of the limited possibility of exercising the right of an authorised person (restituent) to issue a replacement plot under Section 11 (2) of the Soil Act, subject to the validity of an effective procedural remedy to protect that right.
In this context, the Constitutional Court reiterates repeatedly that such a procedural instrument may be based, on the one hand, on an explicit legal basis and corresponding to its application practice, or may be developed by the caselaw of the general courts itself. The requirement of constitutional acceptance of its judicial establishment is that the subject matter of the action be defined, that the procedural means in question be stabilised to protect the law in the courts' decision-making practice and that their decision-making is foreseeable.
Financial compensation functions
Financial compensation in key restitution laws, which must be regarded as being Act No. 87 / 1991 Coll. and Act No. 229 / 1991 Coll., from the point of view of the original intentions of the legislator did not fulfil the function of the equivalent of the unpublished case or of the land.
This can also be confirmed by the content of the Joint Rapporteur of the Commissions of the People's House of the Federal Assembly of Members V. B. when discussing the draft law on extrajudicial rehabilitation at the Joint Meeting of the House of the People's and the House of Nations of the Federal Assembly of the CSFR on 19 February 1991, who stated in this connection: "We Members, from most of the committees as well as from the initiating group that worked on the proposals, have fundamentally supported the actual restitution wherever possible, but did not want to introduce financial or even, as was the original proposals, financial restitution."
Similarly, in the case of the Soil Act, its appellant was led by the same intention as in the case of the law on extrajudicial rehabilitation. In this context, the explanatory memorandum to the draft Land Act states: "For land and buildings which cannot be recovered, there will be a refund in money granted to the original owners by the central government of the Republic to the same extent and under similar conditions as compensation for out-of-court rehabilitation."
The principle of the priority of natural restitution before the financial compensation resulted in the construction of both of the abovementioned restitution laws, according to which the financial compensation did not fulfil the purpose of the value equivalent for the unpublished cause or plot, and only had a symbolic satisfaction function. This construction was based on the economically limited possibilities of the state after 1989 in the form of financial compensation to mitigate certain injustices caused by the communist totalitarian regime.
The Constitutional Court refers to its extensive and established caselaw, in which it formulated the aspects of the constitutional assessment of the category of equality [see, in particular, the findings of page 16 / 93 (Journal of Judgments, volume 1, p. 25), registered under No. 131 / 1994 Coll., p. When understanding the constitutional principle of equality, he agreed in particular with the conclusion expressed by the Constitutional Court of the CSFR (Opinion sp. zn. The Constitutional Court of the CSFR saw equality as a relative category which requires the removal of unjustified differences. The principle of equality in rights must therefore be understood in such a way that legal discrimination in access to certain rights must not be an expression of pleasure, but does not imply that any right must be granted to anyone. The content of the principle of equality has thus moved the Constitutional Court into the area of constitutional acceptance of aspects of the distinction between entities and law. The first is to see the elimination of libel. The second point of view in assessing the unconstitutional nature of the law establishing inequality is that of a fundamental right and freedoms. In other words, in its case-law, the Constitutional Court interprets the constitutional principle of equality in terms of both accessorial and non-accessorial equality. Therefore, certain legal arrangements which favour one group or category of persons compared with others cannot be regarded without any further violation of the principle of equality. The legislature has some scope to consider whether such preferential treatment will anchor. It must ensure that the favourable approach is based on objective and reasonable grounds (legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means of achieving it (legal advantage) (see, for example, the judgments of the European Court of Human Rights in Abdulaziz, Cabales and Balkandali, 1985, § 72; Lithgow, 1986, § 177; Inze, 1987, § 41).
Based on those aspects of the constitutional assessment of the category of equality, since the distinction between the bodies and the rights in the case at hand was based on objective and reasonable grounds by the legislature, the appellant's objection that the contradiction of the contested legal provisions with the constitutional order is seen in the unconstitutional inequality between the price of the replacement plot and the amount of any financial compensation cannot be attested.
Modification of rationis decidendi: legal status of stages
In order to interpret the provisions of Paragraph 11 (2) of the Land Act already in the course of the 1990s, the legal doctrine adopted an opinion (see L. Kopák, J. Švestka, Consideration of the possibility of the transfer of restitution rights to agricultural land, Legal Perspective, 6, 1995, p. 224), according to which claims under the Land Act "are a right of performance from an obligation legal relationship, which is generally governed by the Civil Code (§ 488 - § 852) ', and therefore" can be referred to on the basis of Paragraph 524 of the Order; this assignment does not prevent the provision of Paragraph 525 (1) of the Act from the law referred to that effect.', "After the transfer of the right to fulfil the obligation, not only the obligation of the compulsory person, but also all the rights which he had been given at the time of referral (§ 524). Such rights shall include the right to choose an alternative performance, unless that choice has already been made by the consumer. 'Finally," the right to substitute land under Section 11 (2) of the Land Act cannot be regarded as a claim covered by Section 33a, since the citation of Section 33a concerns only a claim for which adequate financial compensation is granted. However, claims for the repayment of the restituted land or the issue of replacement land must be considered as claims under Paragraph 488 of the Act.'
This interpretation was subsequently confirmed by the amendment of Act No. 95 / 1999 Coll., by Act No. 253 / 2001 Coll., which laid down in Article I (5): "Paragraph 1 (2) (a) reads as follows: (a) the Land Fund procedure for the transfer of agricultural parcels to beneficiaries who have acquired a right to another land pursuant to Section 11 (2) of Act No. 229 / 1991 Coll., on the modification of ownership relations with land and other agricultural property, as amended (hereinafter referred to as the Land Act) and to natural or legal persons to whom that right has been transferred or transferred (hereinafter referred to as authorised persons), '. Thus, that legal provision ranks a subset of persons entitled under Paragraph 11 (2) of the Soil Act, a subset of their heirs and, finally, a subset of successors into the total set of" beneficiaries'.
The explanatory memorandum to the interpretation of the provision in question then stated the following: "The adjustment is a confirmation of the possibility of transferring claims to other land '.
The fundamental question to be answered in this context is whether the derogatory reasons in favour of the annulment of the provisions of Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Law No. 253 / 2003 Coll. affect not only the beneficiaries under Section 11 (2) of the Land Act, but also the promoters. In other words, if the reason for the unconstitutionality of the contextual deficit of the legal time limits laid down in those provisions, consisting of the absence of an effective means of procedure for the protection of the law, is to apply to both the beneficiaries under 11 (2) of the Soil Act, as well as the stages, or not.
The established practice of general courts in a comparable context [in the assessment of the grounds for exemption from income tax pursuant to § 4 (1) (g) of Act No 586 / 1992 Coll., on income taxes, as amended, in the case of proceeds from the sale of issued real estate] distinguishes between the rights of original restituents and stages: "The income from the sale of real estate acquired under the Act on the modification of property relations to land and other agricultural property may not be exempt from tax under the Act on the treatment of land and other agricultural property, if the tax entity acquired by a subsidiary of the restitution claim made under the provisions of the Civil Code - the Regional Court of 2 September 2003 sp. '(judgment of the Municipal Court of Prague of 10 June 2003 sp. On the grounds of this distinction, the Regional Court in Ústí nad Labem, in its judgment of 27 March 2003, sp. zn. 15 Ca 201 / 2001, states:" The common feature of income exempted under the Income Tax Act is the fact that income which does not in fact represent an increase in the assets of the tax entity, since it is compensation for the assets taken in the past, is income obtained by the sale of the property.'
That caselaw of the General Courts, which distinguishes the legal status of the original restituents and successors, was subsequently confirmed by the Constitutional Court (order sp. zn. I. ÚS 406 / 2000, sp. zn. IV ÚS 439 / 04). The Constitutional Court pointed out that the distinction in question is justified by the fact that "Article 4 (1) (g) of the Income Tax Act shows that the legislature's intention to grant the tax exemption to those previously affected to whom the property was returned rather than to others; real estate issued pursuant to a special provision, as it means the provision cited, shall be considered as real estate issued to authorised persons on the basis of the legal facts established for the purpose of the removal of the resulting property injustices and not real estate issued from another title already derived" (Ref. IV, ÚS 439 / 04).
The purpose and purpose of the legal structure, according to which claims under the Land Act are entitled to be fulfilled by a binding legal relationship, which is generally governed by the Civil Code (§ 488 - § 852) and can therefore be referred on the basis of § 524 Circular Act., was to extend the fan alternatives to satisfying the claims of the restituents. However, it cannot be concluded that the purposes of the Soil Act, as enshrined in its preamble, would also affect the stages. Therefore, the same reasoning as that of the general courts when assessing the reasons for the exemption from income tax pursuant to § 4 (1) (g) of the Income Tax Act also applies. In the present case, the pecuniary purposes of the cession are different from the purpose of the issue of the replacement plot under 11 (2) of the Land Act for the original restituents. When transferring the claims in question, the transferors had to be aware not only of the possible advantages, but also of the risks of such a cession with regard to the method of supply and allocation of land by the Land Fund, on their part in the assessment of the constitutionality of Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and Article VI of Law No. 253 / 2003 Coll. cannot be established as a contradiction with those legal provisions with the constitutional principle of the protection of the legitimate trust of a citizen in law which is a part of the rule of law (Article 1 (1) of the Constitution), or in the relevant context of a conflict with the principle of legitimate expectation in the application of property law arising from Article 1 of the Additional Protocol to the Convention.
Formation of the operative statement
The ratio of the decidence of the finding in question therefore affects only part of the total range of persons covered by the provisions of Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and Article VI of Act No. 253 / 2003 Coll., which are authorised persons under 11 (2) of the Land Act (i.e. the original restituents) and their heirs, and are not progressive.
The repeal of Sections 13 (6) and 7 of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and Article VI of Act No. 253 / 2003 Coll. in their completeness would also affect persons for whom the derogatory reasons do not speak.
In the decision No 80 / 1995 Coll.), which was then followed by the case-law in the procedure for the control of standards, the Constitutional Court defined the concept of a legal provision by which it understood any part of the text of the legislation with a normative content, that is to say, an expression containing any language means of expression of the legal standard or of one of the components of its factual nature (e.g. a circle of entities or situations) or a legal consequence (i.e. legal obligation or penalty).
Paragraph 1 (2) (a) of Act No. 95 / 1999 Coll., as amended by Act No. 253 / 2003 Coll., introduced the legislative abbreviation "Authorised Persons', on the one hand, for persons entitled to another land under Article 11 (2) of the Soil Act and, on the other hand, for natural or legal persons to whom that right has been transferred or has been transferred.
Paragraph 13 (6) and (7) of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and Article VI of Act No. 253 / 2003 Coll. therefore implicitly implicates the definition of the set of its addressees by a subset of persons entitled under 11 (2) of the Land Act and their heirs, and by a subset of stages.
In comparable cases, the Constitutional Court in its depositions sp. zn. Pl. ÚS 34 / 04, sp. zn. Pl. ÚS 43 / 04 (published under No. 355 / 2005 Coll. and No. 354 / 2005 Coll. and both will be published in Volume 38 of the Reports) annulled certain legal provisions only for a well-defined subset of the total set of its addressees, namely the subset for which the derogatory reasons indicated.
On the basis of the above-mentioned grounds, the Constitutional Court for a conflict with the constitutional principle of the protection of the legitimate trust of a citizen in the law which is part of the rule of law (Article 1 (1) of the Constitution), as well as the principle of legitimate expectation in the application of property law under Article 1 of the Additional Protocol to the Convention, provided that the provisions of Article 13 (6) and (7) of Act No. 229 / 1991 Coll., as amended by Act No. 253 / 2003 Coll., and Article VI of Act No. 253 / 2003 Coll., as far as they apply to persons entitled to other land under Article 11 (2) of Act No. 229 / 1991 Coll., as amended by Act No. 183 / 1993 Coll., and their heirs, annulled.
Under Article 58 (1) of the Law on the Constitutional Court, the findings by which the Constitutional Court decided on the application for annulment of a law or other legislation or their individual provisions pursuant to Article 87 (1) (a) and (b) of the Constitution are enforceable on the date of their publication in the Collection of Laws, unless the Constitutional Court decides otherwise. In the present case, the Constitutional Court ruled that the finding would take effect on the date of its publication [by analogy, it did so in the case sp. zn.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court No 531 / 2005 Coll., on the application for annulment of § 13 paragraphs 6 and 7 of Act No. 229 / 1991 Coll., on the treatment of property ownership of land and other agricultural property, as amended by Act No. 253 / 2003 Coll., and the provisions of Article VI of Part Three of Act No. 253 / 2003 Coll., amending Act No. 95 / 1999 Coll., on the conditions for the transfer of agricultural and forestry land from State ownership to other persons and amending Act No. 569 / 1991 Coll., on the Land Fund of the Czech Republic, as amended, and Act No. 357 / 1992 Coll., on the tax on inheritance, tax and property transfer tax, as amended by Act No. 253 / 2001 Coll., and some other laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.12.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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