Found at the Constitutional Court of the Czech Republic No. 6 / 1996 Coll.
Findings of the Constitutional Court of the Czech Republic of 8 November 1995 concerning the application for annulment of the provisions of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll., on the acquisition and withdrawal of citizenship of the Czech Republic
Valid
6
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 8 November 1995 in plenary in the case of the appellant Ing. P. U., represented by JUDr. P. R., and the party to the proceedings - Chamber of Deputies of the Parliament of the Czech Republic on the application for annulment of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll., on the acquisition and loss of citizenship of the Czech Republic, lodged together with a constitutional complaint against the judgment of the Municipal Court in Prague of 31 October 1994 No 38 Ca 4 / 94-13 as follows:
Motion denied.
Reasons
(substantial part)
The complainant lodged a constitutional complaint against the judgment of the Municipal Court in Prague rejecting his application for review of the decision of the Municipality of Prague of 11.8.1994 No. MHMP 70379 / OVS 1176 / 1994, which rejected his appeal against the decision of the District Office of Prague 2 of 6.6.1994 No. 606 / 4-2571 / 94. By this decision it was determined that according to the provisions of Sections 13 (c) and 17 of the Act of the Czech National Council No. 40 / 1993 Coll., on the acquisition and loss of citizenship of the Czech Republic, the complainant cannot be issued a certificate of citizenship of the Czech Republic.
At the same time, the complainant submitted a proposal for the annulment of the provisions of § 17 of the Czech National Council Act No. 40 / 1993 Coll. (whose application led to the quoted decision of the Municipal Court in Prague), according to which a national of the Czech Republic will cease to be a citizen of the Czech Republic when, at his own request, he acquired foreign citizenship except when he acquired foreign citizenship in connection with the conclusion of a marriage or birth.
The complainant stated that according to the provisions of § 3 of the Act of the National Council of the Slovak Republic No. 40 / 1993 Z.z., on citizenship of the Slovak Republic, he obtained on 30 June 1993 the choice of citizenship of the Slovak Republic. He then asked the District Office for Prague 2 to issue a certificate of citizenship of the Czech Republic and explicitly stated that he obtained Slovak citizenship as a citizen of the Czech Republic by choice on 30 June 1993. He stressed that he had shown the will only to acquire Slovak jurisdiction, but did not show the will to lose Czech citizenship. The District Office in Prague 2 decided that according to § 13 (c) and § 17 of the Act of the Czech National Council No. 40 / 1993 Coll. a certificate on citizenship of the Czech Republic cannot be issued. In the justification of its decision, the administrative authority stated that the waiver of citizenship of the Czech Republic is bound by the provisions of Sections 13 (c) and 17 of the Act of the Czech National Council No. 40 / 1993 Coll. on the acquisition of foreign citizenship, except in the law of the mentioned cases.
The complainant brought an appeal against this decision, which was rejected by the Municipality of Prague and confirmed by the decision of the administrative body in the first degree for the reasons stated by the district office.
The complainant brought an administrative action against this decision pursuant to § 247 et seq., o.s., cited the wording of Article 12 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), according to which no one can be deprived of citizenship against his will and stated that he himself has never shown the will to lose his citizenship.
By judgment of the Municipal Court in Prague of 31 October 1994 No 38 Ca 4 / 94-13, the action was dismissed. On 30 June 1993, the Municipal Court considered that the plaintiff, as a citizen of the Czech Republic, had chosen Slovak citizenship according to § 3 of the Law of the National Council of the Slovak Republic no. 40 / 1993 Z.z. Slovak citizenship and thus acquired citizenship of the Slovak Republic. In such a case, it is not decisive whether he has at the same time shown his will to renounce citizenship of the Czech Republic, since the acquisition of foreign citizenship by the Czech National Council Act No. 40 / 1993 Coll. combines without further loss of citizenship of the Czech Republic (except in the cases mentioned in question) and the applicant should have been aware of these consequences. Although the Law of the National Council of the Slovak Republic distinguishes between the choice of citizenship of the Slovak Republic and the granting of such citizenship on request, it must be assumed that the acquisition of foreign citizenship took place on the basis of the applicant's own speech. It is not only a request for citizenship of the Slovak Republic that can be seen as such a sign of will, but also the choice of such citizenship. Account must also be taken of the fact that the choice only applied to former citizens of the Czech and Slovak Federal Republic who were not nationals of the Slovak Republic on 31 December 1992. This is therefore a specific way of acquiring citizenship of the Slovak Republic and from the fact that this method is not explicitly mentioned in the provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll., it cannot be concluded that there is no loss of citizenship in such a case. For these reasons, the Court considered that the provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. is not contrary to Article 12 of the Constitution, since the acquisition of foreign citizenship, with the exception of tax cases, is linked to the expression of will, and therefore it cannot be concluded that a national of the Czech Republic is in such a case deprived of the citizenship of the Czech Republic against its will.
The complainant contested, inter alia, the conclusion of the Municipal Court in Prague that the provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. does not contradict Article 12 (2) of the Constitution. This conclusion is based on the claim that the citizenship of the Czech Republic will be abandoned by any member of the Czech Republic who, at his request, acquires citizenship of another State, since he is already aware of the consequences of this act, which is the loss of citizenship of the Czech Republic. According to the contested decision, it is not decisive whether the will to renounce the citizenship of the Czech Republic has been explicitly expressed, "since the very expression of the will to acquire foreign citizenship is linked as a legal consequence of the renunciation of Czech citizenship, it contains the will to acquire foreign nationality always including the will to lose Czech citizenship." However, in the complainant's view, that consideration does not take into account the fact that no legislation of the Czech Republic contains the principle of the prohibition of double citizenship, which it expressly admits. The citizen must undoubtedly also build on the knowledge of the regulations on the acquisition and renunciation of citizenship of the Czech Republic, but above all he relies on them to comply with the Constitution, which contains explicit provisions prohibiting the possibility of depriving anyone of citizenship of anyone against his will. Should the interpretation of the Municipal Court in Prague be accepted, which interprets Article 17 of the Act of the Czech National Council No. 40 / 1993 Coll. by the fact that the complainant of citizenship of the Czech Republic has lost his former nationality, it would mean that the provision cited is in direct conflict with Article 12 (2) of the Constitution, which prohibits any Czech citizen from being deprived of his citizenship against his will.
Thus, "deprivation 'of citizenship within the meaning of the aforementioned constitutional provision is undoubtedly understood as deprivation in any way, i.e. both ex-spouse and decision of a state body.
According to the complainant, the provision of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll. is therefore contrary to Article 12 (2) of the Constitution, since that provision links the loss of citizenship of the Czech Republic only to the acquisition of foreign citizenship, without that consequence making it conditional on the undoubted finding that the disappearance of citizenship is not contrary to the will of a national citizen. Furthermore, the contested decisions constitute a potential threat to the complainant's freedom, as regards the right not to be forced to leave its country (own country) and the right to a free return to it, namely the rights and freedoms guaranteed by:
- Article 14 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter),
- Article 3 of Protocol 4 to the Convention on the Protection of Human Rights and Fundamental Freedoms,
- Article 12 (4) of the International Covenant on Civil and Political Rights.
In this sense, the complainant considers that the contested decision and the provisions of Article 17 of the Act are contrary to the constitutional order of the Czech Republic.
Finally, the complainant submits that the application of the provisions of § 17 of the Czech National Council Act No. 40 / 1993 Coll., contained in the judgment under appeal concerning the disappearance of his nationality in the Czech Republic, constitutes an infringement of the principle of equality before the law, namely the basic right of the complainant, as expressed in Article 3 (1) of the Charter, Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 26 of the International Covenant on Civil and Political Rights.
Pursuant to Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, a motion may be filed, together with a constitutional complaint, for the annulment of a law or any other law or provision thereof, the application of which resulted in 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, where applicable, to another law.
Pursuant to Article 78 (1) of Act No 182 / 1993 Coll., where a motion for the annulment of a law pursuant to Article 74 has been submitted together with a constitutional complaint, the Chamber shall suspend the proceedings and refer the motion for the annulment of the law to the full to a decision pursuant to Article 87 (1) (a) or (b) of the Constitution.
In particular, the Senate of the Constitutional Court addressed the question of whether the conditions of this legal provision were met. He concluded that the proposal for the repeal of the law (provision of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll.) was made (together with a constitutional complaint) in accordance with that provision, since its application led to the decision of the Municipal Court in Prague by this complaint challenged. Therefore, by order of 25.1.1995 sp. zn. I. ÚS 2 / 95, the Senate suspended the proceedings on a constitutional complaint and the motion to repeal the provisions of § 17 of the Czech National Council Act No. 40 / 1993 Coll. referred the plenary of the Constitutional Court to a decision pursuant to Article 87 (1) (a) of the Constitution.
In the context of the examination of that proposal, which is decided by the plenary of the Constitutional Court, the Judge-Rapporteur identified the above-mentioned legal views of the Chamber of the Constitutional Court. The reasons for the rejection of the proposal under Article 43 of Law No 182 / 1993 Coll. were not found.
The Chamber of Deputies (President of the Chamber of Deputies Dr. Milan Uhde) pointed out that the Czech National Council Act No. 40 / 1993 Coll. was approved by the necessary majority of Members on 29 December 1992, signed by the relevant constitutional authorities and duly declared. According to the explanatory memorandum, this is a new way to lose citizenship of the Czech Republic when a citizen of the Czech Republic acquires foreign citizenship at his own request. This provision is based on the principle that each natural person should have only one citizenship. Similar legislation applies in a number of other countries.
The Chamber of Deputies also stated that the provision of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll. is based on the assumption that a citizen can request the acquisition of foreign citizenship, and loses the citizenship of the Czech Republic at the time of its acquisition. The application of a national citizen to acquire foreign citizenship is undoubtedly a voluntary and free expression of the will of that citizen. The provision of Paragraph 17 of the Act combines the legal consequences of the waiver of citizenship of the Czech Republic. Taking this into account, the provision of § 17 of the Act is fully in accordance with Article 12 (2) The Constitution because the applicant shows his will by submitting an application for foreign citizenship, in full accordance with the purpose of the quoted article of the Constitution of the Czech Republic. However, it remains a question of whether the choice of foreign citizenship can also, in a broader sense, be regarded as a "request 'for the acquisition of foreign citizenship within the meaning of Article 17 of the Act.
In this situation, the Court expressed its view The Chamber of Deputies held that the legislature acted in the belief that the law adopted was in accordance with the Constitution, the constitutional order of the Czech Republic and our legal order.
The Constitutional Court also requested the opinion of the Ministry of Interior of the Czech Republic, which is the competent department body in matters of citizenship of the Czech Republic (§ 49 paragraph 1 of Act No. 182 / 1993 Coll.).
The Ministry of the Interior stated that the disappearance of citizenship under § 17 of the Czech National Council Act No. 40 / 1993 Coll. cannot be considered as a waiver of citizenship against the will of a citizen. The removal of citizenship in this case is not decided by the administrative authorities, but merely by registering that a citizen of the Czech Republic has acquired foreign citizenship at his own request and thus no citizenship of the Czech Republic. In the opinion of the Ministry of the Interior, the citizen can decide whether to apply for foreign citizenship and thus understand the legal consequences that this will have on his citizenship of the Czech Republic.
The objection that the loss of citizenship of the Czech Republic under § 17 of the Act does not arise when a citizen has acquired foreign citizenship so-called citizenship choice is not considered relevant by the Ministry of the Interior. It is not a decisive form of acquisition of citizenship, but it is important that the acquisition of foreign citizenship was linked to the submission of a citizen's request, that is to say, a manifestation of his will, which can be formally described as a request, declaration, communication, etc.
The Ministry of the Interior has also expressed its views on the consequences of the acquisition of foreign citizenship in other states' legal systems. These are, for example, the following states:
Austria
Austrian citizenship shall cease:
1. acquisition of foreign nationality
Sweden
Swedish citizenship is lost:
1. when a person who acquires foreign citizenship has applied for such citizenship or has expressly agreed to grant it
Similarly, the situation regarding the loss of citizenship is also addressed, for example, in Denmark, Norway, the Netherlands, Australia, Bolivia and Mexico.
The Ministry of the Interior has also indicated that a new European Convention on Citizenship and Military Obligations is being prepared in the case of multiple citizenship. However, this proposal is still under discussion at the Council of Europe's expert meetings and it is difficult to determine when the final text will be completed.
Own analysis of issues
I. The Constitutional Court dealt primarily with the formal aspect of the adoption of the Czech National Council Act No. 40 / 1993 Coll. From the observations of the Chamber of Deputies of Parliament and of Parliament's prints 208 and 209 (containing a report on the 19th meeting of the Czech National Council of 29 December 1992), it was demonstrated that the Act was discussed and adopted by the Czech National Council of 29 December 1992, 155 Members voted for it and 13 Members voted against it. The Act was signed by the relevant constitutional authorities and announces in the Collection of Laws of the Czech Republic in the amount of 12 / 1993. Therefore, the Constitutional Court concluded that the Act was adopted and issued within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) in fine Act No. 182 / 1993 Coll.).
II. In order to understand the broader context of the case under examination, the Constitutional Court also addressed the reasons given by the legislature to enact the Act on the acquisition and renunciation of citizenship of Czech reputations. It is emphasised in the quoted House Prints that the fundamental principle applied in the proposed law is that every citizen should, if possible, have only one citizenship. This is based on an effort to avoid problems that are associated with dual citizenship for both the natural person and the state. For similar reasons, some other countries also prefer this principle. As a rule, in its own legislation on citizenship, it provides that if their national citizen acquires foreign citizenship at his own request, citizenship ceases to exist. When preparing the draft law, the principle laid down by Constitutional Act No. 23 / 1991 Coll., was respected that no one can be deprived of citizenship against his will. Similarly, the loss of citizenship of the Czech Republic should be understood as a result of the acquisition of citizenship of a foreign state at its own request.
A reasoned report on the government bill on the acquisition and withdrawal of citizenship of the Czech Republic states that the existing legislation is partial and does not lay down essential conditions for the acquisition and withdrawal of citizenship. For these reasons, even given the creation of a separate state - the Czech Republic - the citizenship institute needs to be readapted. It is based on the principle that natural persons should be able, subject to statutory conditions, to acquire or lose citizenship of the Czech Republic. The emphasis is on the preservation of only one citizenship.
III. The complainant first of all refers to Article 12 (2) of the Constitution, which states that no one may be deprived of citizenship against his will. However, this article responds in particular to the institution of withdrawal of citizenship before November 1989 and seeks to prevent such interference in the rights of the citizen by constitutional regulation. The purpose of the constitutional order enshrined in Article 12 (2) Thus, the Constitution was, and is, the exclusion of the possibility for the legislator to create legislation that would devise the renunciation of citizenship as a penalty for the possible unlawful conduct of a citizen. However, in the case under trial, the contested § 17 of the Czech National Council Act No. 40 / 1993 Coll. pursues another objective if it assumes that the citizen has developed his own initiative to obtain foreign citizenship. From this point of view, it is not about depriving a citizen of citizenship, but about losing citizenship by acquiring citizenship of another state. It is clear from this that the meaning of Article 12 (2) The Constitution is completely different from that of the complainant. If the complainant's interpretation of Article 12 (2) of the Constitution - as compared to Article 17 of the Act - were correct, it would mean in its consequences that the Constitution prohibits legislators from (even for futuro) excluding the existence of dual or multiple citizenship. But such a ban would be completely absurd, as it would restrict the right of a sovereign state to face bipolitism and would contradict - as stated elsewhere in this find - the international treaties currently in force and in progress in today's democratic Europe. The Constitutional Court therefore does not share the complainant's view that Article 12 (2) of the Constitution is relevant when examining the constitutionality of § 17 of the Czech National Council Act No. 40 / 1993 Coll. is relevant.
The Constitutional Court considers it essential that the acquisition of foreign citizenship in accordance with § 17 of the Act takes place by its own expression of the will of the citizen (applicant) and that the legal consequence of such speech of the will is the loss of citizenship of the Czech Republic. The provisions of the Czech National Council Act No. 40 / 1993 Coll. were properly published in the Collection of Laws and entered into general knowledge. Every citizen is obliged to know the legal order of the Republic, which can be reasonably assumed in particular for those who intend or intend to do the legal act in relation to civil citizenship. Thus, if the citizen expressed his will to acquire foreign citizenship at his own request, he must have been aware, given the clear and categorical wording of the contested legal provision - that is to say, a regulation generally binding - that de lazolata would cease citizenship of the Czech Republic as soon as it acquired citizenship of a foreign state. If, despite doing so, such an act is obliged to bear the legal consequences associated with the act in force.
The view that Article 12 (2) of the Constitution is irrelevant from the point of view of the constitutionality of Article 17 of the Czech National Council Act No. 40 / 1993 Coll. can be supported by arguments based on the grammatical interpretation of both regulations.
Article 12 (2) of the Constitution, on the one hand, and Article 12 (1) of the Constitution and Article 17 of the Act of the Czech National Council No. 40 / 1993 Coll. on the other hand, use different terms ("renunciation" of citizenship, "renunciation" of citizenship). This terminology difference suggests the intention of the legislator to distinguish two qualitatively different situations. In particular, that intention can be concluded by comparing the two paragraphs of Article 12 of the Constitution. (Article 12 (1) states that the acquisition and withdrawal of citizenship of the Czech Republic shall be governed by law. Article 12 (2) provides that no person may be deprived of citizenship against his will.) It is hardly conceivable that the legislator would use two different terms in a single provision if it did not want to create different legal consequences and thus resolve situations not the same, but different. That is also the point of the case.
As regards the fact that the general term "removal" has a different meaning from the term "disposal" in terms of contemporary Czech, it is possible to refer in particular to the professional literature of the language (cf. Journal of the Czech Language, 1989, ČSAV - Institute for Czech Language, Volume IV, p. 367, Volume VIII, p. 238). The term "depriving" has a particular meaning according to the sensitive. dictionary: by some intervention to remove action, influence someone or something, to take something away from someone, to deprive someone of something (to rid someone of the manager). In legal terminology it is known, for example, the concept of "waiving legal capacity '," waiving parental rights'. The grammatical importance of this motto and its comparison with well-known legal institutes clearly suggest that the concept of "removal" implies an external (generally power) intervention of the exunea. On the other hand, the term "disposal 'has the meaning, according to the said dictionary, in particular" lose' (what, whom), "lose '(what), the opposite of" gain': for example, lose money, property. "Lose something," unlike the term "get rid of something," it does not seem to assume the external intervention of a third party. It is therefore clear that even in terms of the grammatical interpretation of the texts compared, the protection enshrined in Article 12 (2) of the Constitution is aimed at cases where (withdrawal) citizenship is deprived by the intervention of a third party (state). Thus, this is not the case of the disappearance of citizenship, which is covered by the provisions of Sections 13 to 17 of the Czech National Council Act No. 40 / 1993 Coll.
The Constitutional Court therefore concludes that Article 17 of the Act of the Czech National Council No. 40 / 1993 Coll. does not infringe Article 12 (2) of the Constitution.
The Constitutional Court also addressed the provisions of the Charter and of the international treaties invoked by the complainant in the constitutional complaint.
Article 14 (1) The Charter provides that freedom of movement and residence is guaranteed. This freedom concerns every person, as it is a fundamental right and freedom granted by the Charter regardless of citizenship. Thus, the universal concept of this freedom itself seems to exclude the unconstitutionality of the provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. - to which the complainant points in connection with Article 14 (1) of the Charter - since the provision of § 17 concerns only the renunciation of Czech citizenship by the acquisition of foreign citizenship, so that it is not general but specific in nature. It is therefore clear that the protection of freedom of movement and residence within the meaning of Article 14 (1) of the Charter is directed at cases entirely different. This article is included in the first section of the second Title of the Charter, which is entitled "Fundamental human rights and freedoms'. These rights guarantee, inter alia, freedom of movement and residence, that is, the right of each person to move freely anywhere and to choose his place of residence freely. In fact, the text itself and the meaning of the contested provision of § 17 of the Act clearly suggest that this regulation does not prevent anyone - even foreigners legally residing in the Czech Republic - from freedom of movement and residence.
Article 3 Protocol 4 to the Convention on the Protection of Human Rights and Fundamental Freedoms provides that no one is to be expelled, individually or collectively, from the territory of the State to which he is a national citizen (point 1) and that no one is to be deprived of the right to enter the territory of the State to which he is a national (point 2). Article 12 (4) of the International Covenant on Civil and Political Rights provides that no one may arbitrarily be deprived of the right to enter his own country. The two articles referred to by the complainant relate only to the national citizens of the State concerned and are clearly aimed at completely different cases which are not covered by the contested provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll..
The Constitutional Court therefore concludes that Article 17 of the Act does not conflict with Article 14 (1) of the Charter or Article 3 of Protocol 4 to the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 12 (4) of the International Covenant on Civil and Political Rights.
Finally, the complainant points out that the judgment under appeal constitutes a breach of the principle of equality before the law in Article 3 (1) of the Charter, Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 26 of the International Covenant on Civil and Political Rights, in the "applied application 'of Article 17 of the Czech National Council Act No. 40 / 1993 Coll. in breach of the principle of equality before the law. Although that wording suggests at first sight that the complainant is merely opposed to the unlawful application of Article 17 of the Act, it can be concluded from the overall context of its submission that, in its consequences, the provisions of Article 17 of the Czech National Council Act No. 40 / 1993 Coll. itself are being challenged for contradiction with Article 3 of the Charter and with the above Articles of the International Treaties. After all, the complainant himself pointed out that the judgment of the Municipal Court in Prague stated the loss of his nationality (§ 17 of the Czech National Council Act No. 40 / 1993 Coll.), and in particular considers this legal consequence to be unconstitutional because he ignores the Constitution (Article 12 (2)) the required expression of the will of the citizen towards the demise of national citizenship of the Czech Republic. This legal fact, i.e. the loss of citizenship by law, is, in the complainant's view, discriminatory in nature, contrary to the principle of equality, so that, as the Constitutional Court considers, even from this argument, it is clear that the complainant is challenging the provisions of § 17 of the Act as well as the infringement of Article 3 of the Charter and the international treaties referred to in this paragraph.
Article 3 (1) The Charter provides that fundamental rights and freedoms are guaranteed to all without distinction between sex, race, colour, language, faith and religion, political or other thinking, national or social origin, accessories to a national or ethnic minority, property, genus or other status.
Article 14 The Convention on the Protection of Human Rights and Fundamental Freedoms states that the use of the rights and freedoms conferred by this Convention must be ensured without discrimination based on any reason such as sex, race, skin colour, language, religion, political or other sentiments, national or social origin, membership of a national minority, property, gender or other status.
Article 26 The International Covenant on Civil and Political Rights states that all persons are equal before the law and have the right without discrimination to the same legal protection. The law prohibits any discrimination and guarantees equal and effective protection against discrimination for any reason, such as race, colour, sex, language, religion, political or other beliefs, national or social origin, property and genus.
These legal provisions lay down, on the one hand, the principle of non-discrimination (for any reason) and, on the other, the principle of equality between all people before the law. However, it should be considered whether and when they enjoy these principles in the legal practice of protection.
In international and domestic law, there has been a gradual interpretation that the principles of non-discrimination and equality of people are essentially not protected in themselves, but only in the context of a breach of another fundamental right or freedom guaranteed by a constitutional law or an international treaty within the meaning of Article 10 of the Constitution. The protection provided for in Article 3 of the Charter and the cited Articles of the two international treaties is therefore not autonomous, but is of an accessorial nature vis-à-vis other rights (guaranteed by a constitutional law or that international treaty). In fact, the Constitutional Court of the Czech Republic has also consistently judged. In a comprehensive analysis of the equality category, it notes that inequality, if it is to affect fundamental human rights, must reach an intensity which calls into question the very essence of equality, as is usually the case when the violation of another fundamental right, such as the right to own property, one of the political rights, the rights of national and ethnic minorities and so on, is also linked to the violation of equality. Equality therefore generally requires a relation to other social values. Thus, the breach of the principle of equality presupposes a relationship to other fundamental rights and thus to the intensity that pushes them to the level of fundamental human rights (Constitutional Court finding of 7.6.1995 sp. zn. However, such a situation did not occur in the case under trial, as the Constitutional Court did not conclude that the contested provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. infringed other fundamental rights and freedoms, in particular those to which the complainant referred.
According to the Constitutional Court, however, those principles of non-discrimination and equality (in the sense of the legal provisions cited) would not be violated even if they were understood in isolation by the contested provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll..
The complainant's view of these constitutional principles is hardly acceptable from the point of view of the Constitutional Court's case law. Equality as a constitutional institution has always been and is a category not abstract (absolute), but only relative and cannot be understood mechanically and egalitarian. This was already stated by the Constitutional Court of the Czech and Slovak Federal Republic in Decision No 11 / 1992. It stated that "it is for the State to decide, in order to ensure its functions, to grant a group less benefits than others. But even here, they must not proceed arbitrarily." (This idea was taken over by the Constitutional Court of the Czech Republic into the finding published under the sp. zn. Pl. ÚS 16 / 93 Collection of finds and resolutions of the Constitutional Court of the Czech Republic.) However, in the case under appeal, by establishing the contested provision of § 17 in the Act of the Czech National Council No. 40 / 1993 Coll. did not take any action. The Czech legal order rightly distinguishes between the citizens of the Czech Republic and the citizens of the former, who showed their will to become citizens of another state, even though under the applicable law of the Czech Republic, they knew that the acquisition of foreign citizenship at their own request would result in the loss of citizenship of the Czech Republic. In these cases, it was a conscious act of the citizens of the Czech Republic, and if the law in force in certain aspects (such as granting the right to vote, etc.) makes the difference between the legal status of a Czech citizen and a citizen of another state (a former citizen of the Czech Republic), then the inequality is acceptable and the legal status is not discriminatory. This conclusion is also in line with the views of legal teaching and European case-law, which includes cases where a person or group of persons is treated worse than others without adequate justification. Similarly, it is noted that not every difference in treatment necessarily results in unjustified discrimination within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms; discrimination will only occur if the distinction lacks objective and reasonable justification (cf. Duffy: "Police and European Convention on Human Rights', European and international law 2 / 94-25). However, for the reasons set out above, this is not the case.
The Constitutional Court therefore concludes that Article 17 of the Act does not conflict with Article 3 (1) of the Charter, Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 26 of the International Covenant on Civil and Political Rights.
IV. Our current legislation is based on the principle of sole exclusive citizenship. This underlines the rationale for the draft government law on the acquisition and withdrawal of citizenship of the Czech Republic. In this context, reference should also be made to the finding of the Constitutional Court of 13 September 1994 sp. zn. This finding states, inter alia, that the Czech Republic dealt with the issue of the acquisition of citizenship of the Czech Republic by a national law, which is the Act of the Czech National Council No. 40 / 1993 Coll., as amended by Act No. 272 / 1993 Coll., which contains the principle of preventing double state citizenship and preventing homelessness. (This was based on the legislation in force on the territory of the Czech and Slovak Federal Republic and was based on the fact that similar principles were applied in other European laws.) It is therefore difficult to accept the complainant's categorical and generally worded assertion that no legislation of the Czech Republic or its constitutional order contains the principle of the ban on double citizenship, which they say expressly admit.
Nor can the legal situation in the field of international law be abstract for the assessment of the question under examination.
1. On this ground, bipolitism is generally considered undesirable. On the one hand, it can lead to inter-state disputes, particularly in matters of diplomatic protection, because bipolita can be considered a state citizen of several states. On the other hand, bipolitism also causes serious difficulties to bipoliteses themselves, in particular in terms of commitments to the loyalty of the State and to the performance of military services, the performance of which may require two or more States against bipolits. Third countries may, at their choice, consider the bipolita a citizen of any of the competing states, regardless of the will and interest of the bipolita itself.
2. The general practice of States may be characterised as follows:
(a) a person with multiple citizenship may not refer to his other citizenship in relation to a State of which he is also a citizen;
(b) a third State shall treat a person with multiple national citizenship as a citizen of only one State at its own choice, not at the choice of the bipolita itself or of one of the states to which he is a citizen. In this choice, countries usually follow the principle of efficiency, i.e. consider foreigners to be the citizen of the state to which they have the closest factual relationship. In Czechoslovakia, the nationality that was last acquired (§ 33 (2) of Act No. 97 / 1963 Coll., on International Private Law and Procedural Law) was decided. The same legal situation applies in today's Czech Republic (Article 1 of the Constitutional Act of the Czech National Council No. 4 / 1993 Coll., on measures related to the disappearance of the Czech and Slovak Federal Republic).
3. The efforts to exclude bipolitism are also evident from the bilateral conventions concluded in the past by the Czechoslovak Republic (or the former Czechoslovak Socialist Republic) with certain neighbouring countries, namely the USSR, Hungary and Poland. These conventions are based on the principle that:
(a) persons who also have citizenship of both Contracting Parties may choose the nationality of the Party which they wish to retain (Article 1 of the Convention between the Czechoslovak Republic and the Union of Soviet Socialist Republics on the treatment of citizenship of persons with dual citizenship published under No 47 / 1958 Coll., Article 1 of the Convention between the Czechoslovak Socialist Republic and the Hungarian People's Republic on the treatment of certain issues of citizenship published under No 37 / 1961 Coll., Article 1 of the Convention between the Czechoslovak Socialist Republic and the Polish People's Republic on the treatment of issues relating to dual citizenship published under No 71 / 1966 Coll.),
(b) the persons to whom the Convention applies will be regarded exclusively as nationals of the Contracting Party whose citizenship they have chosen (Article 7 of the CSSR - USSR Convention, Article 6 (1) of the CSSR Convention - MRL),
(c) persons who do not submit a declaration of election of citizenship within the period (provided for by the Convention) shall be considered exclusively as citizens of the Contracting Party in whose territory they live (Article 7 of the Convention of the CSSR - USSR, Article 6 (3) of the Convention of the CSSR - MRL, Article 6 of the Convention of the CSSR - PLR).
4. It can be noted that the legislation on the disappearance of citizenship of the Czech Republic is fully in line with the trend of modern democratic Europe. In this respect, the Agreement of 6 May 1963 on the limitation of cases of multiple nationality and of the armed forces in the case of multiple nationality is particularly important. It provides in Article 1 (1) that aged persons having the nationality of a Contracting Party who acquire their own free will, naturalisation, options or re-acquisition of another Party shall lose their former nationality. They shall not be entitled to retain their former nationality. Similar arrangements apply to minors. The idea of strengthening an institution of exclusive (sole) citizenship is followed by Article 4 of this Agreement, which states that no provisions of the Agreement prevent the application of any provisions which could further restrict the emergence of multiple nationality, whether incorporated or subsequently introduced in the legal order of the Contracting Parties or in any agreement, convention or contract concluded between two or more Contracting Parties.
The Czech Republic is not yet a signatory to this agreement, but its very existence clearly indicates the tendency of the Member States of the Council of Europe. On 2 January 1995, 13 States (Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden, the United Kingdom of Great Britain and Northern Ireland) ratified this Agreement and one State signed it (Portugal). Most of the countries that have ratified the Agreement are major and traditionally democratic countries.
5. The forthcoming European Convention on Citizenship and Military Obligations in the case of multiple citizenship does not mean a breakthrough into the principles still valid - albeit not for the Czech Republic - of the Agreement of 6 May 1963. The draft European Convention already recognises in the preamble the right of each State to decide whether to allow its national citizens to have one or more citizenship. Article 4 states that the internal laws of each participating State shall be based on the following guidelines: 3. - no one shall arbitrarily be deprived of their citizenship; However, in Article 6 (1), this general rule shall be further developed in such a way that a Participating State may not establish in its internal laws... a loss of citizenship by law or by the initiative of that Participating State, except in the following cases: Article 9 (2) further states that, depending on any international agreement governing citizenship - (a) each participating State shall grant its citizenship to persons who:
(i) they were nationals of the State and had permanent residence de jure and de facto in the territory of a State which ceased to exist....................................................................................
(ii) they continue to reside de jure and de facto in that territory, which has become part of the territory of that participating State.
It is clear that the quoted article does not explicitly affect the case, as no international Treaty on citizenship has been concluded in connection with the termination of the existence of the Czech and Slovak Federal Republic. However, even if such a situation were to occur, it can be pointed out that Article 9 (2) (a), cited above, states that when granting citizenship, the persons concerned may be required to renounce any citizenship of another.
On the same principle, the adaptation of Article 9 (2) (b) of the proposed European Convention is also built, which is also not directly related to the matter, but is comparable in the main idea. It provides that, in the event of a transfer of sovereign authority over the territory, any participating State shall allow its national citizens who, as a result of such transfer, may lose their "citizenship '. However, it is also the case that the internal laws of a participating State may set a time limit within which the persons concerned are to make the choice or require them to renounce any other citizenship.
It follows from that text that the new proposed regulation (which, however, does not need to be adopted in this text) does not contradict the text and purpose of existing international legislation. Therefore, the contested provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. does not contravene in this respect any further anticipated trend in international contract law in a complex area concerning the citizenship institution.
6. An adjustment comparable to the provisions of § 17 of the Czech National Council Act No. 40 / 1993 Coll. can also be found in many other countries of Europe. The following countries, for example:
Austria - Act on Citizenship (Bundesgesetzt über die österreichische Staatsbürgerschaft 1965, BGBl Nr. 250) republished under No 311 BGBl 1985 - StbG Section III - Loss of citizenship
§ 26 - Citizenship ceases
1. acquisition of foreign nationality
§ 27 (1) - Citizenship is lost on request, on declaration or express consent, if it has not previously been authorised to retain citizenship.
Finland - Act No. 401 / 1968 on Citizenship (The Finnish Nationality Act)
Section 8 (10.8.84 / 584) - Person loses his Finnish citizenship
1. where citizenship is acquired by another country on application or declaration or has given its consent of its own free will.
Sweden - Act No 382 / 1950 (Swedish Citizenship Act)
Section 7 - Swedish citizenship loses
1. any person who acquires citizenship after having applied for such citizenship or has expressly agreed to grant it.
Norway - Nationality Act No 3 of 8.12.1950 (The Norwegian Nationality Act)
§ 7 - Norwegian nationality loses
1. a person who acquires the nationality of another State on application or consent.
Denmark - Uniting Act No 457 of 17.6.1991 (Consolidation Act)
Statutory Decree (Notice) on the Law on the Acquisition of Danish Citizenship (Unifying Danish Act No 252 of 27 May 1950 on the Acquisition of Danish Citizenship, Implementing Regulation No 155 of 6.4.1978 as well as the Supplement resulting from Section 2 of Law No 326 of 4 June 1986 and Law No 159 of 18 March 1991).
Point 7 - Danish citizenship is lost
1. a person who acquires foreign nationality on application or express consent.
The Netherlands - Royal nationality law of 19.12.1984 - Netherlands Nationality Act (Bulletin of Laws, Regulations and Decrees 628) known as the Dutch Citizenship Act
Section 15 - Person of age loses his Dutch nationality:
(a) the acquisition of another nationality by free will.
It is therefore clear that the fundamental idea on which the provision of § 17 of the Czech National Council Act No. 40 / 1993 Coll. is built can be found in other European countries, which also stands on the principle of preventing the creation of dual citizenship.
At the end of the procedure, the complainant pointed out that the Constitutional Court is bound only by constitutional laws and international treaties pursuant to Article 10 of the Constitution, so that it should not take into account the laws governing the acquisition and withdrawal of citizenship applicable in other countries. It goes without saying that the Constitutional Court is not bound by the laws of these states. However, the content in the finding of quoted foreign law clearly shows what the legislative state of modern democratic Europe is. Therefore, the Constitutional Court does not intend to ignore the comparative view of the issue under examination, namely the existence and content of other comparable European legal orders. After all, this relates to the generally recognised attempt to bring the legal order of the Czech Republic closer to the legal order of other democratic countries of our continent.
On the basis of these considerations, the Constitutional Court did not find an infringement of Article 12 (2) of the Constitution or of any other complainant mentioned by constitutional laws or international treaties on human rights and fundamental freedoms in Article 17 of the Czech National Council Act No. 40 / 1993 Coll..
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 6 / 1996 Coll., on the application for annulment of the provisions of § 17 of the Act of the Czech National Council No. 40 / 1993 Coll., on the acquisition and withdrawal of citizenship of the Czech Republic |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.01.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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