Found at the Constitutional Court of the Czech Republic No. 55 / 1995 Coll.

Motion denied.

The appellant R. D., referring to the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, together with a constitutional complaint against the judgment of the Regional Court in Ústí nad Labem, the branch of Liberec, of 26.10.1993 No. 29 Co. 647 / 93-30, also submitted an application for the initiation of proceedings under § 64 (1) (d) of the Act cited. In his proposal, he stated that the Regional Court in Ústí nad Labem, contrary to the constitutional law currently in force and to the constitutional law in force in 1945, declared that the decree of the President of the Republic No. 108 / 1945 Coll., on the confiscation of enemy property and National Recovery Funds, was a valid part of "our rule of law ', while declaring that that decree was" the legal act under which the property was confiscated'. According to the Constitutional Charter of 1920, power belonged only to the National Assembly and its two chambers. At the time of the dissolution of a House or from the end of its term of office until the reestablishment of the House, and for the period during which their session was adjourned or terminated, it took urgent measures, even if otherwise required by law, and exercised the power of a government and executive 24-member executive committee composed of 16 Members of the Chamber of Deputies and eight members of the Senate. The Committee was responsible for all matters within the legislative competence of the National Assembly, but it was not entitled to amend constitutional laws or impose new permanent financial obligations or to dispose of state property by its measures. No constitutional body other than the currently listed National Assembly or its 24-member Executive Committee has been given legislative powers. Therefore, whatever Dr. Edvard Beneš was, or at the time of the decrees, even the President (and in the legal opinion of the appellant, he was not and could not have been, since he abdicated on 5 October 1938 and after him was duly elected by another President of the Czechoslovak Republic), he could not be endowed with legislative powers either as a private person or as President of the Czechoslovak Republic. Therefore, if he was issuing any acts, they were at the most administrative acts of power of government and executive, issued in contravention of the constitutional law in force at that time and zero from the very beginning. If socialist law science, and immediately before it, is influenced by the so-called National Socialist Revolution, allegedly taking place in 1945, i.e. its acts referred to as acts of revolutionary legislation, it should be noted that there is no revolutionary legislation, only revolutionary violence without law. These acts, thus being assessed, were therefore at most acts of violence, not of law. Contrary to the fundamental principles of the rule of law, one person was also granted to be a legislator and a power of government and executive. The Decree of the President of the Republic No. 108 / 1945 Coll., which was applied in the cited judgment of the Regional Court in Ústí nad Labem, the branch of Liberec, is also contrary to Articles 2, 3, 4, 11 and 24 of the Charter of Fundamental Rights and Freedoms, concerning the application and limits of state power, national rights, the limits of fundamental rights and freedoms, as well as the right to own property. For all these reasons, the appellant proposed that the Constitutional Court declare Decree No. 108 / 1945 of the President of the Republic Coll. to be a zero act from the very beginning. If, despite the legal principles of Europe's civilised societies, the Constitutional Court considered that it was a legal act or even a law, it proposed to abolish this legal standard.

The intervener, R. B., in his proposal to abolish the provisions of Paragraph 2 (5) of Decree No 108 / 1945 of the President of the Republic, stated that this standard is anti-democratic and essentially anti-human by its nature and focus. In order for the State not to have to refrain from joint ownership in cases where the conditions of the decree would otherwise only affect parts of real estate, the legislation came to its aid with such a non-cultural structure. The disabled co-owner has been excluded from his ability to defend himself. This principle of the decreed decree is directly contrary to Article 17 (2) of the Universal Declaration of Human Rights following Article 55 (2). (c) UN Charter, Article 1 (1) of the Additional Protocol of 20.3.1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as in breach of the Declaration of the Rights of Children, in particular its Principles 2 and 8, since at the time of confiscation the applicant was a minor.

The intervener JUDr. J. S., in his proposal to abolish the provisions of § 1 and 2 of Decree No. 108 / 1945 of the President of the Republic, stated that Dr. Beneš was not entitled to issue presidential decrees in 1945 because, according to the Constitution of 1920, he was not elected President by the National Assembly at that time.

The Chamber of Deputies of the Parliament of the Czech Republic, acting on behalf of its President, PhDr. Milan Uhdem, expressed itself in such a way that Decree No. 108 / 1945 of the President of the Republic was issued within the limits of the authority of the Head of State at the time when the National Assembly was not established and forms a valid part of our legal order. The authorisation of the President of the Republic for the period of validity of the provisional state establishment, where necessary, to issue provisions amending, repealing or renewing the laws on the Government's proposal in the form of decrees co-signed by the Prime Minister or by the members of the Government in charge of their performance, is given by the Constitutional Decree of the President of the Republic of 15.10.1940 No 2 / 1940 of the Notices, on the provisional exercise of the powers of the legislature, published in the Collection of Laws and Decree of the Czechoslovak State under No. 20 of 1945. All the decrees of the President of the Republic were subsequently approved by the Provisional National Assembly of the Czechoslovak Republic by the Constitutional Act of 28.3.1946 No. 57 / 1946 Coll., which approved and declared the decree of the President of the Republic. The President of the Republic's decrees were therefore issued in a constitutional, constitutional manner, and are a valid part of our rule of law.

The Senate of the Constitutional Court, which dealt with the Constitutional Complaints of R. D., by order of 27.5.1994 No. IV. ÚS 56 / 94-15 of the proceedings under § 78 (1) of Law 182 / 1993, suspended and the motion for annulment of the President of the Republic No 108 / 1945 of the Constitutional Court's decree for a decision under Article 87 (1) (a) of the Constitution.

First of all, the Board of the Constitutional Court dealt with the question of compliance with the provisions of § 74 of Act No. 182 / 1993 Coll., on which the appellant relied on his proposal. This provision provides that, together with a constitutional complaint, an application may be made for the annulment of a law or other legislation or of its individual provisions, the application of which involves a fact which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or to a law in the case of another legislation. At this point, the plenary of the Constitutional Court concluded that the condition relating to the authorisation to file an application for annulment of a law or other legislation was fulfilled in the present case.

The first of the fundamental questions in the present case is whether the contested decree, namely the decree of the President of the Republic of 25 October 1945 Coll. was issued within the limits of legitimately defined powers or, as the appellant contends, it was contrary to the fundamental principles of the rule of law, since its extradition was carried out by an executive body in breach of the constitutional law in force at the time. In this context, it should be noted that the basis on which the law of the Czechoslovak Republic was based was the Law of 28 October 1918 No 11 / 1918 Coll. on the establishment of a separate Czechoslovak State. This basis of Czechoslovak law could not in any way be called into question by the German occupation, not only because the provisions of Articles 42 to 56 of the Rules of Law and the customs of ground war, which are annexed to Annex IV. The Hague Conventions of 18 October 1907 set out the precise limits in which the occupant could exercise state authority on the territory of the occupied state, but mainly because the German Empire as a totalitarian state, governed by the principle expressed by the Rosenberg theorem - The law is what serves German honour - it exercised state power and created the rule of law, in principle, already on the side of their materially valuable base. This is perhaps best described by two of the imperial laws of 1935, namely the Law on the Protection of German Blood and Honor, and the Act on Reich Citizenship, in which the eminent emphasis is placed on the purity of German blood, as a precondition for the further existence of the German people, and in which, as a Reich citizen, only a national of German or related blood is defined, proving by his behaviour that he is willing and capable of faithfully serving the German nation and empire. On the other hand, the constitutional requirement of the democratic nature of the Czechoslovak State in the 1920 constitutional charter describes the concept of a political-scientific nature (which is juristically difficult to define), but that does not mean that it is meta-jurist and that it does not have legal obligations. On the contrary, as a fundamental characteristic of the constitutional constitution, the constitutional principle of democratic legitimacy of the state was built over and before the requirement of formal legal legitimacy in the Constitutional Charter of the Czechoslovak Republic of 1920.

Thus, it was not that the Czechoslovak rule of law clearly preferred the primate of the national rule of law that its constitution would stand undeniably on the opinion of its own absolute sovereignty and independence from any other rule of law, so that the Czechoslovak constitutional legislature could, while maintaining only the prescribed forms of norm, establish anything - namely, regardless of the rules of international law. Indeed, as has already been stated, the principle of democratic legitimacy of the state establishment was enshrined in the 1920 constitutional charter, the principle already in the preamble to that charter ("because we want to join the community of nations as a member of an educated, peaceful, democratic, progressive ') underlines the link with the value order, which is also the basis of the international legal order. This value basis of the 1920 constitutional charter and its openness to international law is documented beyond any doubt by the regulation of rights and freedoms, as well as the regulation of the protection of national, religious and racial minorities. On the contrary, in the value view of how it was created during and shortly after World War II, there was a belief of the necessity of sanctions for the Nazi regime and compensation, or at least a mitigation of the damage caused by the regime and the war events. In this respect, too, Decree 108 / 1945 of the President of the Republic Coll. does not contradict the" legal principles of the civilised societies of Europe in force in this century, "but is a legal act of its time based on the international consensus.

At these moments, among other things, the reason why, even under occupation, the Czechoslovak State and its legal order were internationally recognised and why foreign political leadership was also in a position to emphasise the continuity of Czechoslovak law. By the forced behaviour of the Czechoslovak state, starting with the threats of the attack war by Hitler - which was contrary to this time in force, even to Germany itself, the binding, Briand-Kellogg's pact - by adopting the Munich Agreement, through the forced resignation of President Benes to the path of President Hacha to Berlin, the State was losing its credible democratic legitimacy, because its behaviour was clearly diverted from the position of a constitutional sovereign, namely the people who made their will to live in a democratic state, among other things, in mobilization in 1938. It is in this fact that one can see why any of these unfortunate acts, even if they were carried out in formal compliance with constitutional procedures, cannot be considered legitimate. After the break of the Czechoslovak Republic and its constitutional establishment, the democratic formation of the constitutional power of the people in the Republic has made it impossible for many years. In this respect, we did not differ from a number of other European countries whose exiles, as well as legal acts issued by them, were internationally recognised on a broad scale for these reasons, in accordance with the generally recognised legal principle that acts created under duress are considered to be zero.

What, moreover, can be considered decisive in the present case is that, at a time when it has already been created and it has also been internationally recognised This Decision shall enter into force on the date of its adoption. In 1940, the President, the Government and the Council of State, the Czechoslovak Government issued a resolution of 3.12.1942 on the further validity of the presidency of the President of the Republic of Dr Edvard Beneš, with the following content: "In its meeting of the Ministerial Council of 3 December 1942, Prime Minister Msgre Dr. Jan Šrámek announced: On 18 December 1942, the seven-year term of the current President of the Republic of Dr Edvard Beneš, who was duly elected President of the Republic at the meeting of the National Assembly of 18 December 1935, expires. President Dr. Edvard Beneš gave up his presidency on 5 October 1938, but the Czechoslovak Government, in agreement with the faithful citizens of the Czechoslovak state, never considered this resignation valid because it was unlawfully enforced. Therefore, the President of the Republic, Dr Edvard Beneš, has remained the head of the Czechoslovak State continuously since 18 December 1935 and has been recognised as the head of the State by the governments of the United Nations and the governments of other states. The Prime Minister further stated that, pursuant to Article 1 of Law No 161 / 1920, the National Assembly is convened by the Prime Minister to elect the President of the Republic and that, therefore, the Act requires him to take care of the early election of the new President. Looking for paragraph 3 (58) of the Constitutional Charter and Article 2 of Act No 161 / 1920, election meetings of the National Assembly are to be convened not earlier than 4 weeks and not later than 14 days before the end of the President's term. Since this meeting cannot be convened under the circumstances, the Prime Minister proposed that the Government should act as follows: According to paragraph 5 (58) of the Constitutional Charter, which reads:" The former President remains in office if the new President has not been elected ', the current President of the Republic, Dr Edvard Beneš, duly elected by the National Assembly on 18 December 1935, remains in his presidency until the election of the new President can be made. In this way, the Government decided by all votes and at the same time ordered the Prime Minister to announce its resolution to the President of the Republic, the Czechoslovak people, the State Council and the international public. "(OJ III, 1942, p. 17).

The resolution of the Czechoslovak Government may be added to the fact that the abdication of President Edvard Beneš took place in the "period of infreedom ', which refers to the period from 30.9.1938 to 4.5.1945 (Constitutional Decree of the President of the Republic of the Czech Republic of the Czech Republic dated 3.8.1944, No 11 / 1944, the annex to the Decree of the Minister of Interior No. 30 / 1945 Coll., Government Order No. 31 / 1945 Coll.), in the period following the Munich Agreement of 29.9.1938, which was also confirmed by the Treaty between the Czech and the Federal Republic of Germany on Good Neighbourhood, published by Decree No. 94 / 1974 Coll., in Article 1 (Nulita Munich Agreement of 29 September 1938). In addition to international recognition, the Provisional Government of the Czechoslovak Republic, represented by the President, the Government and the State Council, received support from domestic and foreign resistance and from the Czechoslovak people in general. With regard to international recognition, the first place should be to state a letter from the British Foreign Minister Halifax to President Beneš of 21.7.1940, in which he informs him that," in response to the request of the Czechoslovak National Committee, the Government of His Majesty in the United Kingdom is pleased to recognise the Interim Czechoslovak Government, formed by the Czechoslovak National Committee in that country, and to establish contacts with him "(OJ L 1, 10, p. 4). In a letter from A. Eden of 18.7.1941, addressed to Minister Jan Masaryk, the king decided to entrust an extraordinary envoy to Dr Benes as President of the Czech Republic, and that the British Government considered the legal status of the President and Government of the Czech Republic to be identical to that of the State Allied Heads of State or Government. In a letter from F. D. Roosevelt, Dr Beneš, of 30 June 1941, Dr. Edvard Beneš, President of the Czechoslovak Interim Government, is listed as the" addressee. "On 26 October 1942, the United States of America officially informed Minister Jan Masaryk that recognition by the United States should be considered internationally fully and definitively. The Soviet Union also fully recognised the Czechoslovak Interim Government in July 1941. In addition to the UK, it recognised the Czechoslovak Republic, represented by the Interim Government in London, de jure either by explicit recognition or by establishing diplomatic contacts, 27 states. The Czechoslovak Republic, although its authorities could not exercise state power in the occupied territory, had its own foreign army, declared war on the powers of the Axis and became one of the founders of the UN.

In particular in his speech of 24 July 1940, three days after the recognition by the British Government of the Interim Czechoslovak Government of the Czech Republic, he literally stated: "We did not know Munich and everything he had done, we defended and defended the principle that the Czechoslovak Republic, the Republic of Masaryk, lived and existed even after Munich. Our entire legal system internationally - legally and politically - is therefore continuing, for us legally is not my departure from office and country, for us there is no breaking of the republic, there is nothing legally and politically for us that violent Nazism did to us after 15 March 1939. I solemnly declare these political and legal principles and stress that they apply to all of us, members of our state and our nation, to the Czechs, Slovaks, Germans and Carpathos, as well as to others at home. I also declare non-existent and unjust all that we have been illegally and unconstitutionally forced to do since Munich."

This Beneš Declaration is in full compliance with the Constitutional Decree of the President of the Republic of 21.7.1940 on the establishment of the State Council, as the Advisory Council of the Provisional State Constitution of the Czechoslovak Republic (No 1 / 1940 OJ of 4.12.1940), as well as the Constitutional Decree of the President of the Republic of 15.10.1940 No 2 / 1940 of the Provisional State Constitution of the Czechoslovak Republic (published under No. 20 / 1945 Coll.), which, in the provisions of § 1, states the technical impossibility of maintaining the normative procedure under the head of the Second Constitutional Act of the Government (until it is possible to implement the provisions of the Second Constitutional Act of 29 February 1920 on the legislative power, the President of the Act of the Republic shall be the acts which he is required for the period of validity of the Provincial Government, if it is required by the approval of the National Assembly of the President of the Czech Republic. This document suggests a clear intention to return as soon as possible, even as regards the legislative process, to the procedure set out in the 1920 Constitutional Charter, and is therefore based on the validity of the 1920 Constitutional Charter, with the result that legislative powers under this Constitutional Charter will be created after the liberation of the Republic in accordance with the provisions of its second Title. Article 2 of the Constitutional Decree of the President of the Republic of 15.10.1940 No 2 / 1940 shall apply. Article was extended by the Constitutional Decree of the President of the Republic of 22.2.1945 No 3 / 1945 OJ No No 3 / 1945, on the exercise of the legislative power in the transitional period, until the provisional legislature of the Czechoslovak Republic is established.

As regards the legislative process itself, relating to the decrees of the President of the Republic, it should be noted that the decrees were prepared by the Government and, as a rule, also discussed by the State Council. Pursuant to the provisions of Article 3 of the Constitutional Decree of 27.10.1942 No 12 / 1942, OJ L 211, 14.8.1942, p. In the exercise of legislative power, the President of the Republic was obliged to "request an advisory report from the State Council, unless the Government had already done so 'in the preparation of the relevant proposal. After the annulment of the State Council on 4 April 1945 (Decree of the Prime Minister of 4 April 1945 No. 2 / 1945 Coll.), the decrees - according to the nature of the case and the territorial scope of their validity - were also discussed in the Slovak National Council. In accordance with these rules, decrees have always been mentioned by reference to the fact that they are issued" on a proposal from the Government', "after hearing the Council of State 'or" in agreement with the Slovak National Council'. Like the laws, they were also co-signed by the Prime Minister and the members of the Government in charge of their performance, in the event of a constitutional decree by all the members of the Government (Article 2 of Constitutional Decree No 2 / 1940, OJ L 140, 5.6.1998, p. Their specific character was given only by an exceptional situation, which has resulted in a failure to exercise all state power, including the power of legislative, German occupation. In a given historical situation and context, so the decrees were the only way to make decisions with the legal power and power of the law. Similarly, other occupied countries dealt with the legislative process during the German occupation. It is not without meaning to point out the law itself of 28 October 1918 No. 11 / 1918 Coll. which was issued by the National Committee and which nevertheless became the basis of the rule of law of the Czechoslovak Republic.

The intention to return to the legislative process under the title of the second constitutional charter is also clearly stated in the provision of § 1 of the Decree of the President of the Republic of 26.10.1940 No 4 / 1940 of the Journal of the Czech Republic, on the regulation of the public declaration of newly issued legal provisions of the Czechoslovak Government, which states that the public announcement of the newly issued legal provisions of the Czechoslovak Government until the resumption of the regular constitutional life of the Czechoslovak Republic is determined in addition to the Collection of Laws and Regulations of the Official Journal of the Czechoslovak Republic. The principle of formal legal continuity with the pre-Munich rule of law is also contained in the President's Declaration pursuant to Article 64 (1) No 3 of the Constitutional Charter, on the state of war between the Czechoslovak Republic and the states which are at war with the United Kingdom, the Union of Soviet Socialist Republics and the United States of America (OJ III, p. 1, p. 7), as well as in acts of amnesty and of the Assurance which the President granted on 24 December 1941 under the law applicable to him by virtue of § 64 (1) of the Constitutional Charter in the field of military justice and military disciplinary and disciplinary proceedings, or in the field of civil law (see also OJ III, p. 1, p. 7 and 8). The obvious continuity element can also be noted in the Government Resolution of 3.12.1942, which dealt with the issue arising from the passing of the seven-year term of the President of the Republic on 18.12.1942. In this resolution confirming Dr. Edvard Beneš as head of state until the time when, according to the Constitution and Act No. 161 / 1920 Coll. on the election of the President of the Republic, the election of the new President will be possible, there is a reference to § 58 (5) of the Constitutional Charter governing such a case. From the point of view of formal legal continuity, i.e. the connection to the pre-Munich legal order, the constitutional decree of 3.8.1944 No 11 / 1944, OJ No (published under No 30 / 1945 Coll.), on the restoration of the legal order, which concerned both "domestic rules' and" state regulations', was also of fundamental importance. This decree distinguishes between three types of legislation, namely the constitutional and other legislation of the Czechoslovak Republic, issued until 29.9.1938 (pre-Munich law), the provisions issued in the field of the Czechoslovak legal order (i.e. in the territory of the Czech Republic) at the time of the lack of freedom (i.e. from 30.9.1938 to 4.5.1945) by the authorities of the second Republic, the German Empire, the Protectorate and the Slovak Republic (the law of the period of non-freedom) and, finally, the regulations issued in the form of the decrees of the President of the Republic under the London Constitution (the law of state establishment of foreign). Whereas Article 1 (1) of the abovementioned Decree states that they come from the free will of the Czechoslovak people and are therefore Czechoslovak legal order, Article 2 of the Decree on the rules issued at the time of non-freedom states that they are not part of the Czechoslovak legal order, but that they remain "for a transitional period ', with the exceptions provided for in Article 2 (1). Whether there is such an exemption is decided by the applicant court or administrative authority (Article 3). However, what is important from the point of view of the present case is what is provided for in this decree in Article 2 on the provisions of the" State Constitution of Foreign Affairs': if these regulations have the power of law, they form part of the Czechoslovak rule of law, but are subject to ratification, i.e. approval by the relevant constitutional authorities. This ratihabics was also subject to the constitutional decrees themselves constituting the London Institute (No 1 / 1940 and No 2 / 1940 of the Nov.). For other decrees issued under this Constitution (i.e. pursuant to Article 2 of Constitutional Decree No 2 / 1940 of the Official Journal), it is then stated that they will cease to be valid six months after the date on which the National Assembly is to meet, unless they are to be reapproved and declared as laws (Article 5 (2) of the Decree), and can be abolished and amended by the mere law and by the decrees of the President of the Republic designated as constitutional. However, this provision should not in any way affect the provisions of Article I of the Act establishing the Constitutional Charter No 121 / 1920 Coll. (Article 5 (3) of the Decree). The constitutional decree of the President of the Republic of 23 June 1945, published under No. 22 / 1945 Coll., also testifies that both the President and the Government have followed the principle of legal continuity with pre-Munich law. In Paragraph 1 of this Decree, the Government was empowered to determine which constitutional decrees of the President of the Republic (excluding the Constitutional Decree of 15.10.1940 No 2 / 1940 of the Official Journal of the Czechoslovak Republic and the Constitutional Decree of 22.2.1945 No 3 / 1945 of the President of the Republic), and the decrees of the President of the Republic, the Government Regulations and other laws which were published in the Official Journal of the Czechoslovak Republic remain in force, change their effectiveness and territorial validity and have them published in the Collection of Laws and Regulations. However, the essential point is that the Constitutional Decree of the President of the Republic of 3.8.1944 No 11 / 1944, OJ C 374, 17.12.1944, p. Article of the Act underwent both the ratification and constitutional decrees of the so-called London Constitution, which, in its consequence, meant that the law of 28 October 1918 No. 11 / 1918 Coll. and No. 1920, as well as the Constitution of 1920, remained the basis of the Czechoslovak legal order. This also follows from the Government's explanatory memorandum to that decree, which states that the additional approval of foreign legislation by the domestic legislator will implement the legal principle on which the liberation struggle of the Czechoslovak State, the principle of legal continuity, is based.

Also the Constitutional Decree of the President of the Republic of 4.12.1944 of the OJ No 18 / 1944, on the National Committees and the Provisional National Assembly, published under No. 43 / 1945 Coll., refers in the opening declaration to the authentic constitutional instruments of the Czechoslovak Republic and states in Article 2: "The Provisional National Assembly shall be established from the national committees on the basis of the elections, as the Provisional Legislative Body to which the Government will be accountable. Its composition, the way in which it is established and its scope shall be laid down in a specific constitutional decree. '; It also became the Constitutional Decree of the President of the Republic of 25 August 1945 on the Interim National Assembly, published under No. 47 / 1945 Coll., which, in relation to the Constitutional Charter of 1920, created this Charter, although the unknown legislative body and entrusted with the jurisdiction of the National Assembly under that Charter and other laws, including the right to amend the Constitution, provided that it is only" if necessary' (Article 2 (2) of the Decree). What is important, however, is that this decree also respects a continuous basis in its content or material sense. The Constitutional Decree No 47 / 1945 Coll. reflects, on the one hand, that, in view of the post-war situation and changing economic and social circumstances, it was no longer possible to implement the ratification of the legislation of the foreign state on the basis of the Constitutional Charter of 1920, but, on the other hand, it does not constitute a foreign element from the point of view of the Charter, which, as has already been mentioned, is an important emphasis on the principle of democratic legitimacy. Article 2 (1) of this Decree empowering the Interim National Assembly to confirm the President of the Republic in his capacity until the new election of the President of the Republic, which also became a unanimous resolution of the Interim National Assembly of 28 October 1945. It was President Beneš who, in his graduation speech on 15 December 1945, pointed out the emphasis our foreign political leadership has always placed on the continuity of Czechoslovak law. However, this is also confirmed by Act No. 12 / 1946 Coll., approving, supplementing and amending the provisions on the renewal of the rule of law, in which the Interim National Assembly approves and redecides as a decree of the President of the Republic of 3.8.1944 No 11 / 1944, OJ No L 344, p. The final end with regard to the decrees of the President of the Republic is the Constitutional Act No. 57 / 1946 Coll., which approves and declares the decree of the President of the Republic. Pursuant to Article I (1) of the said Constitutional Act, the Provisional National Assembly approves and declares as a law the Constitutional Decree and Decree of the President of the Republic, issued pursuant to Article 2 of the Constitutional Decree of the President of the Republic of 15 October 1940 No 2 / 1940 of the OJ (No 20 / 1945 Coll.), including, if this has not already happened, the Constitutional Decree. As referred to in Article I (2) of the aforementioned Constitutional Act, all decrees of the President of the Republic must be regarded as law from the outset, constitutional decrees as constitutional law. Although this could no longer be a ratihabics under the provisions of Article 5 (1) of the Constitutional Decree of the President of the Republic of 3.8.1944 No 11 / 1944, In addition, since the Constitutional Officer was understood by the National Assembly in accordance with the Constitutional Charter of 1920, the requirement of legal continuity was made by approving and declaring a law as regards the President's decrees, it was possible to deal with the condition set out in Article 5 (2) of the Constitutional Decree of the President of the Republic of 3.8.1944 No 11 / 1944 of the President of the Republic of the Republic of the Czech Republic. In addition, the provisions of Article I (1) of Constitutional Law No 57 / 1946 Coll. also apply to the Constitutional Decree of the President of the Republic of 15.10.1940 No 2 / 1940 OJ No No 2 / 1940, and in paragraph 2 of that Article, the validity of all decrees of the President of the Republic from the outset is emphasised. In addition, according to Article 112 (1) and (3) of the Constitution of the Czech Republic, the constitutional laws in force in the Czech Republic on the effective date of the Constitution have only the power of the law.

However, for the continuity of the legislation contained in the President's decrees with pre-Munich law, it is particularly clear what constitutes one of the fundamental conditions of this continuity, namely the consensus of the Czech nation with both value and legal connection to the Masaryk Republic. While Nazi Germany sought to disrupt and destroy the fundamental principles of the Czechoslovak legal and political order, it confirmed our domestic and foreign resistance, following the legacy of our legions in the First World War, as well as the negative attitude of the entire nation towards the occupants, with the exception of a group of traitors and collaborators, that our people wish to live in a democratic and legal state whose major development stage was the pre-Munich Republic. This position included the knowledge that democratic values maintain their nature and quality only on the basis of continuity, on the basis of a kind of common language, on the general agreement with these values and principles. If the principles of the rule of law were accepted by the Czech nation on the basis of a general consensus, it was also true that they could be abandoned and confused by others only on the basis of a valid social consensus, not through violence and terror.

All these considerations and facts therefore led the Constitutional Court to conclude that the Provisional State Constitution of the Czechoslovak Republic, established in the United Kingdom, must be seen as an internationally recognised legitimate constitutional body of the Czechoslovak State, in whose territory the occupied Reichsbad power was prevented by the enemy from exercising the sovereign state power of Czechoslovak, based on the constitutional charter of the Czechoslovak Republic, as provided for by the Constitutional Act No. 121 / 1920 Coll., as well as from the entire rule of the Czechoslovak law. As a result, all the normative acts of the Provisional National Assembly (Constitutional Act of 28.3.1946 No. 57 / 1946 Coll.), are the expression of the legal Czechoslovak (Czech) legislative power and the efforts of the Czechoslovak nations to restore the constitutional and legal order of the Republic, are completed. Therefore, to appeal unconditionally, even as regards the legislative process, for the period when the Czechoslovak State was forced to curtail and later completely occupied, and when it gradually lost its political representation, is completely absurd. In its consequences, such an assessment would mean denying the nation under birth its natural right to fight against the occupying aggressor, including the resistance of the guard. To what the occupying aggressor has already been able to do or intended to do, it is sufficient to indicate the occupation of the rest of the Czechoslovak state in the form of the Protectorate of Bohemia and Moravia by the Reich-German Defence Power, the closure of Czech universities and the planned "Endlösung" of the future of the Czech nation. The extermination of Lidice and other acts of violence were sufficient to make it clear that, despite the "all legal principles of civilised societies of Europe in force in this century," not only the Czechoslovak state, but also its peoples themselves, faced the serious question of their physical existence at all.

In response to the other appellant's claim that the President's decree 108 / 1945 Coll., as well as the other decrees issued by Dr Edvard Beneš, contradicted the legal principles of the civilised societies of Europe and that they should therefore be regarded as acts not rights but violence, in other words that they lack the nature of law at all, such as, even in the general sense, to emphasise the fundamental moment relating to any assessment of the past; What comes from the past, while it also has to stand up in the face of the present in value, this assessment of the past cannot be a judgment of the present over the past. 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 from these experiences and looks at many phenomena and evaluates them with time apart. From this point of view and in the context of all contexts and events at the time of Nazi occupation, and in the period closely following it, the decree of the President of the Republic of 25.10.1945 No. 108 / 1945 Coll., the publication of which was nothing but a measure, in this historic situation and on the basis of the then applicable rule of law, responding to the previous liquidation of the state sovereignty, independence, integrity and democratic-Republican state form of the Czechoslovak Republic, the destruction of the principles of a democratic, rule of law, included in the Constitutional Charter of the Czechoslovak Republic of 1920, by the Nazi regime, which, with its ideology of the world rule of the people and this ideology, undermines of millions of human lives, represents one of the most destructive totalitarian systems in the history of mankind. It should therefore be considered as wholly consistent and legitimate that every democratic political system, as already pointed out by T. G. Masaryk, has not only the need but also the obligation to defend the foundations on which it is based, as has actually happened in pre-Munich Czechoslovakia, for example by issuing Act No. 50 / 1923 Coll. on the protection of the Republic, and a number of other measures, including military mobilization in 1938. In view of the wording of the provisions of Paragraph 1 (1) of Decree No 108 / 1945 of the President of the Republic Coll., there is no doubt that this decree, as its objective, followed the consolidation of those fundamental democratic and legal principles as it is directed against their enemies. This commitment to defend and develop the Czech Republic is also explicitly expressed in the preamble to the Constitution of the Czech Republic, maintaining and developing an important element of continuity in this and in this area.

Another fundamental question here is whether there is an essential functional, mutually dependent relationship between this objective, namely the establishment of a democratic rule of law, and the means used, in our case, by confiscating enemy property, in other words, whether the device used corresponds to the objective pursued or, on the other hand, whether there was such a difference between them where the device used proves to be already inadequate in relation to the objective. The question of the adequacy of the chosen device is a question of the limit for which no means in the session can go - the goal cannot go any further if it is to challenge the goal itself. Therefore, in order to maintain a functional relationship between the objective and the means, it is essential that the device used is of the same kind or genus as the objective, in other words, that it is also reversed and allow development in its tactical elements, in our case for democracy. From this point of view, the decree of President of the Republic No. 108 / 1945 Coll. can therefore, as a legislative act, be regarded only if it does not contradict in its essence the intentions of a democratic rule of law.

As regards the above question, it should be pointed out what the title of Decree No. 108 / 1945 Coll. (about the confiscation of enemy property...) that their hostility to the Czechoslovak Republic or to the Czech and Slovak peoples is a determining aspect in the definition of the entities of the confiscated property, the fact that, in the case of the entities referred to in Paragraph 1 (1) (1) (a) of the Decree - i.e. the German Empire, the Kingdom of Hungary, the public law under German or Hungarian law, the German parties to the Nazi, political parties to the Hungarian and other departments, organizations, establishments, personal associations, funds and special-purpose assets of these regimes, or related to them, have an irrefundable nature, whereas, for the entities referred to in the provisions of § 1 (1) (2) of the decree, i.e. persons of the physical nationalities of the German or of the Hungarian, the law, the nature of the repayable. In view of the provisions of Paragraph 1 (1) No 3 of the Decree, the property is confiscated, regardless of nationality, even of those natural and legal persons who have engaged in activities against the State sovereignty, independence, integrity, democratic-Republican state form, security and defence of the Czechoslovak Republic, which have been inciting or seeking such activities or other persons of their own volition, deliberately supported by any German or Hungarian occupants or who, at the time of the increased threat to the Republic (§ 1 (3) of the President of the Republic (§ 18) of the President of the Czechoslovak Republic, on the punishment of Nazi criminals, traitors, traitors and their legal persons, and on extraordinary people's courts), have held a germanalisation or a madrivalry on the territory of the Czechoslovak Republic of Czechoslovakia or have been hostile to the Czech Republic of Czechoslovakia or to the Slovak Republic of the Slovak Republic of the Slovak Republic or to the Slovak Republic. The relationship of hostility is therefore not conceived on a national basis in the decree of President of the Republic No. 108 / 1945 Coll. because the Nazi or fascist system, as already stated, is paying for the enemy here in the first place, and the democratic-Republican state form is also the object of protection. Thus, although the decree primarily refers to the German Empire and the people of German nationality, it actually has a more general dimension and can be considered as one of the documents reflecting the struggle between democracy and totalitarianism. The dividing line is here, on which side who stood; Therefore, the enemy is not considered, even if, for example, a German nationality, who has taken an active stand in defence of democracy or has been hit by a totalitarian regime, on the other hand, the enemy is qualified as the one who, regardless of the nationality of any nation, has actively opposed democracy.

In this context, it is also necessary to consider whether the contested contradiction with the "legal principles of civilised societies of Europe 'cannot be seen in the fact that the decree of President of the Republic No 108 / 1945 Coll. is clearly based on the presumption of the liability of persons of German (and also Hungarian) nationality, whereas for persons of other nationalities the burden of proof is on the part of the authority determining whether or not the conditions for confiscation of their property are met. Already in the introduction here, the emphasis needs to be placed on the fact that, even for those of German nationality, this is not a presumption of" guilt, "but a presumption of" responsibility. "Indeed, the category of" responsibility "clearly goes beyond" guilt, "and therefore has a much wider, value, social, historical and legal dimension in this respect. In order to define the category of responsibility, it is crucial to know that an individual himself is responsible for his or her life attitudes, his or her social and value decisions, and that no one can assume that responsibility, even society or history itself. Every man's fate is that he is thrown into power conditions, and that position implies his responsibility to assert the power that pursues human rights. The reason underlying social, political, moral, and, in some cases, legal responsibility is also the neglect of cooperation in the structuring of power regimes, inaction in the fight for power in the sense of the service of law. That is why, in a democracy, the political system is based on an institutionally specific idea of the shared responsibility of all people for the fate of the entire human society, which is why the aspect of responsibility is intersecting more or less with all spheres, individual personal life, law and politics. It is not only its general nature, but also its internal security resulting from the entity's internal relationship with social negotiations and its consequences, that is an essential feature of the order of duty and responsibility in democracy. Only for the standards to which the individual contributes to the spontaneity of his or her thinking and actions can he or she feel in the right sense answered. On the other hand, in the totalitarian system that Nazi Germany represented, responsibility was institutionally transferred to the ruling elite, although it actually felt relieved of any responsibility.

This is where the question needs to be asked: to what extent, and in what sense, gas chambers, concentration camps, mass extermination, humiliation, killing and dehumanizing millions are responsible only for the Nazi movement, or are all those who profited silently, followed its orders and did not oppose them. The black and white scheme of the exclusive responsibility of Nazi leaders and the lack of responsibility of all others hardly exists. As other European states and their governments, unable and unwilling to face Nazi expansion have been involved in the creation and development of Nazism since the beginning of Nazi expansion, the German nation itself is primarily responsible for it, even though few of those who actively and bravely opposed it have been found in its ranks. However, there seems to be a substantial difference between the responsibility of the "rest of the world" and the responsibility of the German people, between silence and passivity of one and silence and rather activity of the other, which also plays a significant role in the question of the burden of proof. It was a substantial part of the German nation that, in many ways, participated directly and consciously in the creation of power structures in Nazi Germany, the expansion of Nazi Germany against Czechoslovakia, and in general on Nazi intentions and acts leading to the world's fate at stake. Even life in the political darkness does not justify total social resignation and apathy: if a society is controlled by a tyrant, it is often because it has neither the courage nor the ability to manage itself. The human world can only be preserved if everyone bears their share of responsibility, a part that no one can take for it. In the 1930s, for the Czechoslovak Republic of Fatal, for years, it could or rather should have been obvious to every citizen that, under the guise of propaganda and lies by Nazi Germany, one of the historically important clashes between democracy and totalitarianism, a conflict in which everyone is responsible for the position he takes and what social and political role he will take over, namely the role of defender of democracy or actor of its destruction. As Emerson may have already pointed out,... "although man would be completely dazzled by the sun's heat of truth, even blinded, he cannot avoid its light enough to see no more." This also applies to German citizens in pre-war Czechoslovakia, and especially to them, as the fire that unleashed Nazism was the work of a large part of their nation and its leaders. All the more so, they should have shown their loyalty to the Czechoslovak Republic, which they were citizens of, their loyalty to, perhaps, the last democratic system in Central Europe, and promoted this loyalty to a fundamental political principle.

How was it really? It should already be pointed out at this point that it is not the task of the Constitutional Court to examine and evaluate Czech-German relations, as they were created, formed and changed for centuries. The Constitutional Court was faced with the question of the position taken by the people of Czechoslovakia of German nationality in the crisis of the 1930s and whether the decree of President of the Republic No. 108 / 1945 Coll. constitutes an adequate, constitutionally and validly justified response to this position, as long as it is consistent with the legal principles recognised at this time by civilized nations. At this point, it should be pointed out that the Czech-German conflict, at this time already contained the conflict of democracy and totalitarianism, resulted in a disastrous only Munich agreement for the Czechoslovak Republic, which resulted, among other things, in the forced departure of roughly half a million Czechs from border areas to the rest of the Republic. If the Czechoslovak Republic became merely an object of this agreement, the same cannot be said of the citizens of Czechoslovakia of German nationality, who were involved in the secession of border areas from Czechoslovakia and their integration into the German Empire as important actors, because they provided Hitler the West with their political positions with an acceptable argument for the necessity of culling Czechoslovakia. In this critical period, the Czechoslovak Republic was a state whose democratic foundations could not be doubted. While many of our citizens of German nationality could still appear to be a foreign element in this period, they were given sufficient and effective constitutional space by the structure of their political system to reject and clearly express their leaders from their opinions, namely that they do not want to go to the German Empire and do not wish to be associated with it precisely for its, at this time, already apparent, violence and brutality of a totalitarian character. The development after 1938, however, went in a different direction. While in the former border regions, the German population has shown complete loyalty to Nazi Germany, in the Protectorate of Bohemia and Moravia there have been persecution and terror, to which Mr. Frank has contributed a great deal, even the role of State Minister for the entire occupied territory. His name is also associated with the tragedy of Lidice and Ležák and the repression following the assassination of Heydrich.

Etabulation of the totalitarian system is always a massive attack on humanity and history itself. In the case under examination, Germany and most of its people were the assailant; Without the broad support of the vast majority of the German people he received, Hitler and his Nazi party would remain a mere marginal phenomenon. In this extremely dangerous nature, the fact that it becomes a social phenomenon threatening the 'fate of all life on earth' (preamble to the Charter of Fundamental Rights and Freedoms), is also the reason why efforts to eliminate all sources of totalitarianism require extraordinary legislative measures. In other words, in such situations, it is always about eliminating the causes of totalitarianism, the removal of its outbreaks, which could lead to recurrence with all its terrible features. These exceptional legislative measures must naturally distinguish between "guilt 'and" responsibility'; Thus, in the Czechoslovak legislature, it also became a distinction between retrieval decrees requiring proof of individual guilt and confiscation decrees consisting, in respect of natural persons, of a refutable presumption of individual responsibility. The fact that the decree of President of the Republic No. 108 / 1945 Coll. is based on the presumption of responsibility of the people of German nationality does not therefore constitute a discriminatory nature, but merely an adequate response to the aggression of Nazi Germany, a response which was intended to mitigate the consequences of occupation, prevent possible new approaches to totalitarianism, and strengthen social and moral consciousness by proving that sanctions should always be linked to the violation of any responsibility. If Decree 108 / 1945 of the President of the Republic Collects the concept of German nationality at all, this must also be extended to post-war situations where the defeated Germany was under the control of the victorious powers and later divided into zones, and therefore the use of the concept of German citizenship in a situation where the German State did not exist was problematic. Thus, the move to the concept of "German nationality" was not a "genetic" judgment in the decree, but a response to the post-war circumstances, particularly the problems of German citizenship. It is for this reason that the decree cannot be seen as a kind of genocide standard, because it was directed against those who supported the Nazi state by their behaviour, whatever form it had. With this shift from national to national level, both the presumption of responsibility of the people of German nationality and the apparent inequality between "Czechs" and "Germans." What matters is that the Germans were obliged to help the intentions of a totalitarian state from their citizenship, which required such loyal behaviour against the German Empire unconditionally, while the Czechs and members of other nationalities, constitutionally bound by the loyalty of democracy, had to act against the Czechoslovak statehood and democracy of their own will. This rebuttable presumption of responsibility is, moreover, not a foreign element in the law, as it can also be recorded in other areas, with a political area that is hardly comparable, but which holds a common feature in that it creates a source of a particular type of specially qualified danger (the rebuttable presumption of responsibility is found in international and national law, for example in the field of the regulation of a specific type of liability for damage). If there is a presumption of responsibility in such areas, the more appropriate is where there is, socially and historically, the fate of mankind. Therefore, although these are hardly comparable, it cannot be doubted that the law itself tends to assume liability in such exceptional cases.

The liability category is linked to a penalty which is a fundamental condition for that category to fulfil its social function. Responsibility without penalty would be reflected in the existence of social consciousness so negatively that it would probably mean, at least in certain areas, its destruction. The decree of the President of the Republic No. 108 / 1945 Coll. is undoubtedly such a sanction; Although at first sight it appears to be of a "property" nature, it undoubtedly contains an important social and ethical subtext. However, given the nature, in this case analysed, of the liability, the decree cannot be regarded as a criminal standard or a criminal penalty, even if the confiscation of the property was without compensation. Such a criminal standard was without doubt the decree of the President of the Republic No 16 / 1945 Coll., as amended (see Decree of the Minister of Justice No 9 / 1947 Coll., on the full text of the decree of the President of the Republic on the punishment of Nazi criminals, traitors and their pavers, and on the extraordinary people's courts and decrees of the President of the Republic on the National Court, Annex I, II to that decree), which imposed a court in connection with the conviction for a crime in that decree to declare the forfeiture of the whole or part of his assets in favour of the State [§ 14 (c)]. This decree therefore followed the punishment of the persons mentioned in it, with the fact that the conviction for the crimes in that decree was linked, for the condemned unfavourable, other consequences (for example also the loss of civil honour), whereas the decree of the President of the Republic No. 108 / 1945 Coll. only the confiscation of this property, the confiscation of which was evidently related to the damage caused by the Czechoslovak Republic by Nazi aggression and occupation (see the Potsdam Agreement of 2.8.1945 on Reparations from Germany, the establishment of the Inter-Allied Reparation Office and the refund of Monetary Gold, published under No. 150 / 1947 Coll.).

Another fundamental question is: can such sanctions, in principle, be contrary to the rights and freedoms of those who clearly violate them and who are therefore themselves responsible? In other words, can the right to freedom, for example, be claimed by those who self-destruct by their behavior? It was the crueliness of the Nazi regime and the events of the Second World War, as well as all the experience gained from this time, which required the answer to this question already in Article 30 of the Universal Declaration of Human Rights and in this Article, and the subsequent and identical Article 5 (1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as Article 17 of the Convention on Human Rights and Fundamental Freedoms, as amended by Protocols No 3, 5, 8, which states: "Nothing in this Convention can be interpreted as giving the State, Group or individuals any right to engage in acts aimed at the destruction of any rights and freedoms which are recognised here, or to a greater extent than the Convention provides'. It is at this level that we can see the starting point for conclusions of a more general nature and in the present case; If former Czechoslovak citizens of German nationality have also participated in the destruction of the rights and freedoms of other Czechoslovak citizens, then it is only completely consistent that their rights and freedoms could not be completely investigated in the current conflict, naturally while maintaining the session goal and means, because such social and also destructive" naivety "would necessarily result in catastrophic consequences. The" legal principles of the civilised societies of Europe in force in this century 'invoked by the appellant is therefore also the right to draw the necessary sanctions from the attack on democracy and on human rights and freedoms.

To add that the property penalty, such as the confiscation of hostile property situated in the territory of the Czechoslovak Republic, has its historical context, in particular in the sense that the Potsdam Convention of 2 August 1945 has been decided to remove the German population or part of it from Poland, Czechoslovakia and Hungary to Germany (Title XIII), and that this agreement has also been decided on German reparations in the spirit of the Jalta Conference resolution, which provides that Germany will be forced to replace, as far as possible, the damage and suffering caused by the United Nations and for which the German people cannot avoid liability (Title IV). These points of the Potsdam Agreement are followed by the Agreement on Reparations from Germany, on the establishment of the Inter-Allied Reparation Office and on the Return of Monetary Gold, negotiated in Paris on 21 December 1945 among 18 countries, including the participation of Czechoslovakia, which was published under No 150 / 1947 Coll. In Part I, Article 6 And this Paris Agreement provides that "each signatory government shall retain in the form it chooses, or dispose of in such a way that it cannot return to German property or under German control, and shall deduct that property from its share of the reparations... '. Article 6 of Part I" In implementing the provisions A above, the property which was the property of a country which is a member of the United Nations or of its members who were not members of Germany at the time of the annexation or occupation of that country by Germany or its entry into war shall not be deducted from its reparations...'. In the present case, therefore, the confiscation of hostile assets has not only a national legal basis in the Presidential Decree No. 108 / 1945 Coll., which admits the refusability of the presumption of liability and, moreover, the ex-perpetrator, but only against those persons for whom it has been definitively decided that the conditions for confiscation under that decree are met (§ 1 (4), but is also based on the international consensus expressed in the already cited documents of the Potsdam Conference and Paris Arrangement. It was therefore not an arbitrary disposal of assets whose inadmissibility was established only in Article 17 of the Universal Declaration of Human Rights. The moment of insolence also plays an important role in considering the legitimacy of confiscation of enemies' property; points to the legitimacy of the disposal of property if, in addition to the fulfilment of other conditions, it is not possible to consider such an act arbitrary. The fact that, on the part of Czechoslovakia, in the context of the war events and the attitudes of the victorious powers were not such insolence, the mere "cloaking" of general interest, which, in fact, infringes the fundamental rights of the individual, is hardly doubtful.

Even democracy cannot do without the use of power, because it provides it with one of the important opportunities, namely the chance to face "evil," infiltration, the advent of totalitarian elements, and then to enable them to be removed. Democracy, too, is one form of political government - otherwise it could not function at all as a political system - but this form is so different from the totalitarian form that both can hardly be referred to as common denominator. Democracy is directed towards the government of all - even if it will never be achieved - it follows to allow access to power positions for all social units. However, opening up this approach cannot constitute a state of government. State power is also forced in democracy to maintain positive elements associated with the element of power, respond to the ambivalence of social processes and legally penalise acts and acts of destructive forces that go beyond the scope of the law. If totalitarianism represents an attack on humanity and history, democracy is required to respond adequately to such an attack. The positive nature of such a response is primarily dependent on the establishment of values which are of some kind a consensus in society.

Therefore, in the conflict of a democratic and totalitarian political system, as represented by the conflict between Czechoslovakia and Nazi Germany, the state power of democratic Czechoslovakia could no longer be achieved without the subsequent legal measure, as also represented by the aforementioned decree. For 20 years, this democracy has left the power process open to conflict and social equalisation, and has institutionally secured political bases and various national speeches. In principle, this openness was also reflected in relation to the citizens of German nationality. After a period of violent occupation by Nazi Germany and as a result of the losses and wounds suffered by Czechoslovakia, Czechoslovak state power had no other way to deal with the consequences of Nazi occupation and war events, at least to some extent. The way in which it did so was entirely in line with the value perception already expressed in the preamble to the 1920 Constitutional Charter ("to secure the blessing of freedom by the next generation") and was also supported by international consent, particularly by Western democracies, clearly expressed in the decisions of the Potsdam Conference.

In other words, as has been manifested more and more in historical development by understanding and safeguarding human rights and freedoms, in society, it fulfils important social functions, regulatory, classification, programme and control functions, so important as to qualify for one of the basic conditions of social affairs; It ensures continuity of historical and social development, and thus the very structure of the company itself. The importance of these social functions of values also provides an explanation of why one of the nodal points of conflict between democracy and totalitarianism is precisely the area of values, and why massive totalitarian tendencies are concentrated in this direction in particular. If totalitarianism seeks to dominate society, it cannot achieve this objective without simultaneously establishing an inverse value system that is directed not only over history but over human society itself. From this point of view, the fight for values proves to be a fight not only for democracy, but also for the essence and continuity of man. German Nazism, too, has reached deep into its arsenal in this fight, and in its theory and practice it can be seen by Plato as the genius-like destruction of the "blood lust" that has reached its satisfaction not only in the inhumanity of concentration camps, but also in the cruelty of the extermination war. Terms such as Führertum, Volkstum, Volksgemeinschaft represent here only some of the ideology characters, declaring manifestly the right of the Nordic race to world domination. For rituals that accompany the Nazi "value order," a tendency to destroy was hidden, and from the roots to disprove everything truly valuable, everything that allows individuals to self-awareness and social orientation, everything that prevents them from becoming a mere object. The destruction of human autonomy can also be seen as the meaning and purpose of Nazi propaganda creating a world of mere appearances even in the environment of victims of Nazism in concentration camps presented to the international public as a device for reeducation and work.

In the system of social values, freedom is the important place, which shows us as a provoking element and at the same time the condition of social development; its lack or even total absence implies always slowing down or even stopping social movement. In its deepest foundation, freedom and awareness of duty and responsibility are coformed; inspires man to achieve the highest goals, but at the same time lets him know that in his principle he places limits primarily on himself. Under this visual angle, the Constitutional Court also sees the question of the limits of human rights and freedoms and the examination of their substance and meaning, as historically also emerged at the time of the contested decree. Although, in every democratic society, the definition of the limits of fundamental rights and freedoms is a matter of "open" social affairs, in which even a minority is granted the right to their own political position, this right of a minority cannot be linked to any arbitrary attitude lacking a positive social subtext. Democracy would destroy itself if the minority's views and actions felt bound to measures that would already contradict its fundamental value orientation. The President's Decree 108 / 1945 Coll. is therefore not an arbitrary act from this point of view, but a sanction aimed at safeguarding the functions and sense of human rights and freedoms, their constructive social contribution and deepening the sense of responsibility. The rights of former Czechoslovak citizens had to be limited after the end of the Nazi occupation, not because they held different positions, but because these attitudes were hostile to the very essence of democracy and its value order in the overall context and in their consequences represented support for the offensive war. In the present case, these restrictions apply equally to all cases fulfilling the requirement, namely the relationship of hostility with the Czechoslovak Republic and its democratic state, regardless of nationality. If some social groups do not set any limits on the use of human rights and freedoms and thus destroy the rights and freedoms of others, then there is no choice but to legally and socially sanction such behaviour. Thus, Decree 108 / 1945 of the President of the Republic also observed the interest of political and economic stabilisation of a democratic country, impoverished by war and occupation, as well as the interest in removing other possible recessions of a similar historical situation, as well as the interest in protecting the rights and freedoms of its citizens who bear this burden and whose social and moral consciousness - necessary for the exercise of these rights - would, in the absence of such a penalty, suffer an unbeatable breach, even though in post-war circumstances, the intentions and practices of political forces seeking to establish a so-called "popular democracy" as a way to a later totalitarian regime have been hidden.

In the present case, the fact that exiled legislation, as well as the immediate post-war legislature liberated by the Czechoslovak State, is, in essence, already a closed circle of problems and issues closely related to war events and economic recovery. The normative acts from this time have thus fulfilled their purpose at the mentioned immediately post-war period, from the point of view of which they are of no current importance and are no longer of a constitutional nature (Article 5 (2) of the Constitutional Decree of the President of the Republic of 13.8.1944 No 11 / 1944, OJ No L 12 / 1946 Coll.). The legal relations established by these acts are thus not only the result of war events, but also the result of the legally manifested Czechoslovak (Czech) legislative power to monitor the elimination of the damage caused by the exceptional circumstances arising from the period of non-freedom, and are therefore responsible for the protection arising from the rules of the Czechoslovak (Czech) legal order.

On the basis of all the above findings and considerations, the Constitutional Court therefore concluded that Decree No 108 / 1945 of the President of the Republic Coll. was not only a legal but also a legitimate act at the time of its publication. Since this legislative act has already fulfilled its purpose and has no longer established legal relations for more than four decades and is therefore no longer of a constitutional nature, it is not possible to examine its contradiction with a constitutional law or an international treaty under Article 10 of the Constitution [Article 87 (1) (a) of the Constitution of the Czech Republic] today, since such a procedure would lack any legal function. Indeed, the opposite would call into question the principle of legal certainty, which is one of the fundamental essentials of the current democratic legal systems.

For all the above reasons, the Constitutional Court therefore rejected the proposal by R. D. to abolish the decree of President of the Republic No. 108 / 1945 Coll., on the confiscation of hostile assets and National Recovery Funds, pursuant to the provisions of § 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.

The interveners of R. B. and JUDr. J. S. refer to this decision.