The Constitutional Court found No. 83 / 1999 Coll.
The Constitutional Court found of 31 March 1999 on the application for annulment of Article 8 (4) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation
Valid
The Constitutional Tribunal found
Text versions:
11.05.1999
83
FIND
The Constitutional Court
On behalf of the Czech Republic
On 31 March 1999, the Constitutional Court decided in plenary on the proposal of the complainant O. Z. to repeal Article 8 (4) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation,
as follows:
Motion denied.
Reasons
By judgment of the District Court of Praha- west of 22 April 1996, sp. zn. 4 C 814 / 95, the complainant (applicant) decided against the defendant F. and E. E. E. ("the defendants') that the defendants were obliged to issue the complainant's house no. 67 in K. P. with construction lot no. 172 and garden no. 548 / 8, all in the cadastral territory of K. P.
By judgment of 16 January 1997 No 28 Co. 623 / 96-65, the Regional Court in Prague amended the judgment of the District Court by rejecting the action for the issue of the building plot No 172 and the garden No 548 / 8, all in the cadastral territory of K. P.,. Otherwise, the judgment of the Court of First Instance was confirmed.
By judgment of the Supreme Court of 25 November 1997 No 2 Cdon 1109 / 97-83, the complainant's appeal against that part of the judgment of the Regional Court in Prague, which was amended by the judgment of the Court of First Instance, was rejected. In the preamble to its judgment, the Supreme Court referred in particular to § 8 (4) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, according to which the land for which the right of personal use was established is not issued to the beneficiary. If, pursuant to Act No. 119 / 1990 Coll., on judicial rehabilitation, as amended, the criminal judgment, including the sentence on the forfeiture of property - as was done in the case under trial - is annulled, the rehabilitation person receives the claims arising from the said annulled statements. However, this does not constitute a renewal of the right to property in the case of the original owner, which would enable him to "take over his right of ownership" and, by virtue of the "title of owner," to demand the issue of a measure withdrawn under the ordinary law (§ 126 - formerly § 132 - of the Civil Code). Even in that case, it is said that this is a restitution claim which must be applied in the manner and under the conditions laid down by the special "restitution" Act, to which Law 119 / 1990 refers. The issue of the property under the restitution law cannot be enforced if the conditions of that law have not been fulfilled.
In the view of the Supreme Court, Paragraph 8 (4) of Law No 87 / 1991 Coll. does not distinguish between built-up and unbuilt land - as the complainant contends - and the presumption that the legislator had only unbuilt land in this case (note: the complainant's claim for the issue of built-up plot and garden was rejected in the case at hand) therefore does not have legal basis, even in the light of a logical or historical interpretation which cannot be bridged. The provision in question therefore applies to all the land to which the right of personal use has been established in the past, even though it is now due to the transformation of that right into the right of ownership of the defendant.
In a constitutional complaint against the Supreme Court judgment, the complainant stated in particular that it infringed its constitutional rights under Articles 11 and 36 of the Charter of Fundamental Rights and Freedoms ("the Charter ') and 90 of the Constitution of the Czech Republic (" the Constitution'). The complainant takes the view that Paragraph 8 (4) of Law No 87 / 1991 Coll. had its due cause and purpose only when the right of personal use existed. However, the amendment of the Civil Code implemented by Act No 509 / 1991 Coll. with effect from 1 January 1992 has repealed and replaced the Institute of Personal Use of the Land. Pursuant to Article 872 (1) of the Civil Code, it was not expressly affected by Article 8 (1) of Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural property, as amended, hereinafter referred to as the "Soil Act," which provided for the issue of agricultural land on which the right of personal use was established. Therefore, there was no reasonable reason to ensure that, when applying Law No 87 / 1991 Coll., the land for which the right of personal use was once established was not issued and that, on the contrary, land of this kind was issued under the Land Act if both categories had in common the fact that natural persons acquired such land from the State contrary to the provisions in force at the time.
The complainant further points out that the legislator, in an effort to carry out out out-of-court restitutions as quickly as possible, formulated Article 8 (4) of Law No 87 / 1991 very briefly and could not take into account the far-reaching transformation of the personal use of land owned by the later mentioned amendment to the Civil Code. The view of the Supreme Court is therefore incorrect, because it favours a "positive interpretation" and does not take into account that "by its decision it knowingly establishes an anti-sensual and totally undesirable relationship between the restituent of the house and the owner of the building and surrounding land, which has acquired all the properties contrary to the regulations at the time." The general part of the property restitution of a similar kind was allegedly carried out by out-of-court agreements and the restituents were issued houses with building land and gardens; According to some judges of the general courts, not only the buildings but also the land belonging to the buildings were issued.
Therefore, the complainant proposed that the judgment under appeal should be annulled and, at the same time, proposed that Article 8 (4) of Law No 87 / 1991 Coll. should be repealed because of "facilitating out-of-court and in particular judicial practice '.
By order of the First Chamber of the Constitutional Court of 28 April 1998, sp. zn. I. ÚS 118 / 98, the proceedings for a constitutional complaint under Article 78 (1) of Law 182 / 1993 Coll., on the Constitutional Court, were suspended and the application for annulment of that provision was referred to the full court of the Constitutional Court for a decision pursuant to Article 87 (1) (a) of the Constitution.
The Constitutional Court first addressed the question whether the formal preconditions for the validity of the contested provision of Act No 87 / 1991 Coll. In this respect, the report on the 13th Joint Meeting of the House of the People and the House of Nations (VI. electoral term, 3rd part, p. 905 and 906) and the report on the 6th meeting of the House of Nations (VI. parliamentary term, 21 February 1991, p. 28) revealed that on 21 February 1991 the law on extrajudicial rehabilitation was approved by the necessary majority of Members of the Federal Assembly (86 Members in the House of the People (against 25 Members and 13 Members abstained) and 96 Members in the House of Nations (against 24 Members and 9 abstentions). It was then signed by the relevant constitutional authorities and duly declared in the Collection of Laws. That law was therefore adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner (§ 68 (2) of Act No. 182 / 1993 Coll.). Moreover, the Constitutional Court found this already in a finding published in the Collection of Laws under No 164 / 1994 Coll. (Pl. ÚS 3 / 94) and found in the Collection of Laws under No. 153 / 1998 Coll. (Pl. ÚS 24 / 97).
A party to the proceedings - Chamber of Deputies of the Parliament of the Czech Republic - commented on the above proposal under Rule 69 of the Law on the Constitutional Court. According to Articles 48 (2) and 49 (1) of Act No 182 / 1993 Coll. The Constitutional Court also requested comments from the Ministry of Agriculture - Central Land Authority.
In its observations, the Chamber of Deputies stated that the annulment of the contested § 8 (4) of Law No 87 / 1991 Coll. would mean a fundamental breakthrough in the existing law on out-of-court rehabilitation. In view of the amendment of the Civil Code implemented by Act No. 509 / 1991 Coll., which promoted the right of personal use of the land to property law, the proposal submitted means "the abolition of one property right at the expense of another's right '. This would allegedly lead to a de facto negative legal certainty of property ownership. The proposal in question is supposed to be unconstitutional, since it is under Article 11 The Charter is only possible in the public interest, on the basis of the law and for compensation, to expropriate or restrict property rights. The complainant's proposal also allegedly goes beyond the logic of the law on out-of-court rehabilitation, the purpose of which is to partially mitigate the property and other injustices committed during the relevant period by the Communist regime.
Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, was approved by the necessary majority of Members of the Federal Assembly of the CSFR on 29 April 1991 (note: in fact the Act was already approved on 21 February 1991), signed by the relevant constitutional authorities and duly declared.
The Ministry of Agriculture - The Central Property Office stated in its argument that the contested § 8 (4) of Act No. 87 / 1991 Coll. - unlike the Land Act - does not literally rule out cases where the right of personal use was acquired by a natural person contrary to the regulations in force at the time or at a price below the price corresponding to the price regulations in force or on the basis of an unlawful advantage to the acquirer. The question is said to be whether the fact that the contested § 8 (4) of that law literally does not state the circumstances of an unlawful or unlawful right of personal use precludes the possibility of giving such land to an authorised person should it be found by the court that the described manner of acquisition of the right of personal use by the transferee or a person close to him has occurred. According to Article 4 (2) of Act No 87 / 1991 Coll., it is possible that natural persons who have acquired the case from a State which has acquired the right to dispose of it in the circumstances referred to in Article 6 of that Act may also be obliged persons when they have acquired the case either in breach of the provisions in force at the time or on the basis of an unlawful advantage of the person acquiring it. This provision therefore refers to the acquisition of a case from the State, "without the concept of acquisition being related solely to property law '. The difference in access to personal property and property owned by natural persons is allegedly based on the fact that the land in question was owned by the State at the date of application of Law No 87 / 1991 Coll. on the date of application of Law No 87 / 1991 Coll..
According to the opinion of the Ministry of Agriculture - Central Property Office the right of personal use (repealed by Act No. 509 / 1991 Coll.) was completely different from other rights of use and had many attributes of ownership. It was subject to a similar regime as the property ownership right "allocated by the State to the property ownership of natural persons': e.g. unlimited, hereditary, obtained for compensation and could also be withdrawn only under the conditions applicable to expropriation.
In the case of the acquisition of the right of personal use of the land for the construction or establishment of the garden, it is said that it is not possible to rule out cases that this happened in relation to the acquirer in the circumstances laid down in § 4 (2) of Act No. 87 / 1991 Coll. Therefore, the protection of the right of the personal use of land under Article 8 (4) of the Act should not be absolute, but should take into account the circumstances of the unlawful advantage to the acquirer similar to that of the Land Act. However, the Ministry of Agriculture - the Central Property Office did not recommend the repeal of Paragraph 8 (4) of Act No 87 / 1991 Coll. "as this could result in an unjustified withdrawal of the protection of the right acquired honestly, in accordance with the legislation in force at the time."
My own analysis:
The complainant requests the annulment of Paragraph 8 (4) of Act No. 87 / 1991 Coll. Under that provision "land for which the right of personal use has been established shall not be issued to the beneficiary '.
The Constitutional Court, when taking decisions pursuant to Article 87 (1) (a) of the Constitution, is based in particular on the principle of constitutionally conformal interpretation and application of legislation. This means that "in a situation where a provision of legislation allows two different interpretations, one of which complies with the constitutional laws and international treaties referred to in Article 10 of the Constitution and the other is contrary to it, there is no reason to repeal that provision. In its application, it is the task of all state authorities to interpret the provision in a constitutional way" (cf., for example, the find sp. zn. Pl. ÚS 5 / 96, Constitutional Court of the Czech Republic: Collection of finds and resolutions, Sv. 6, C. H. Beck, Prague, 1997, p. 203 - the finding was declared under No 286 / 1996 Coll.).
In the present case, the Constitutional Court therefore examined whether the contested provision could be interpreted and applied in a constitutional manner, so that its abolition was not necessary, or whether its constitutionally conformal interpretation and application was not possible. In this case, the Constitutional Court would have no choice but to repeal the contested provision.
In particular, the appellant contends that the contested provision only made sense at the time when the right of personal use existed and that there is no reasonable reason for the land to be issued - for which the right of personal use was once established - under the Land Act and not under Act No. 87 / 1991 Coll., if the natural persons acquired the land from the State in breach of the provisions in force at that time.
This view is not shared by the Constitutional Court.
It is true that, if there were indeed a contradiction between the Land Act and Law No 87 / 1991 Coll. that would consist in the fact that, under the Land Act, a property for which the right of personal use had been established could be issued to the person entitled (provided that... "the natural person acquired the property either in contravention of the provisions in force at the time or on the basis of an unlawful advantage '- Paragraph 8 (1) of the Land Act), whereas, under Law No 87 / 1991, the contested Paragraph 8 (4) would constitute an absolute obstacle to the issue of such land for which the right of personal use was established, there would be a contradiction of non-constitutional nature. Article 11 (1) The Charter of Owners has the same legal content and protection, which means that the legislator has expressly anchored the principle of equality of ownership. It is true that, according to the settled case law of the Constitutional Court, Article 11 of the Charter only protects the right of ownership already established, existing and not merely the claimed right to it. However, it cannot be overlooked that Paragraph 8 (4) of Law No 87 / 1991 Coll. does not relate to the existence of a property right, but only to the issue of the land to which it would be entitled in other circumstances. This means that this provision constitutes only an obstacle to the actual issue of land consisting of the fact that the original owner cannot take over his right to property, but that he only receives financial compensation (§ 8 (5) of the Act).
In these circumstances, the Constitutional Court addressed the question of whether the contradiction raised by the complainant is real or only apparent, i.e. whether it can be bridged by a constitutionally conformal interpretation or not.
In this context, the Constitutional Court finds that pursuant to § 4 (2) of Act No 87 / 1991 Coll. (to which the Ministry of Agriculture - Central Property Office also refers in its observations) "the natural persons who have acquired the case from a State which has acquired the right to dispose of it in the circumstances referred to in § 6 of the Act, in cases where those persons have acquired the case either in breach of the provisions in force at the time or on the basis of an unlawful advantage of the person acquiring it, as well as persons close to those persons who have been transferred to them. '
In the view of the Constitutional Court, this provision must also be interpreted in such a way that it does not only concern those persons who have acquired ownership of the case under the conditions set out above, but also those who have acquired personal use of the case (s). Paragraph 4 (2) of that Law does not explicitly refer to the restriction of acquisition titles only to the acquisition of ownership; Moreover, it cannot be overlooked that the right of personal use for land was entirely different from other rights of use and had many attributes of ownership. At the same time, when interpreting this provision, the very sense of restitution rules, which consists in mitigating the consequences of certain property and other injustices, must be kept in mind. In this spirit, the restitution rules must also be interpreted; This means that it is necessary to choose a way of interpretation that is oriented towards seeking to return the case to the original owners (beneficiaries) in all cases where there are no new injustices.
From this general starting point, the Constitutional Court concludes that it is in accordance with the meaning of Act No. 87 / 1991 Coll., in particular in the context of the restitution provisions of others, if the contested provision is interpreted as meaning that the land for which the right of personal use was established is also issued to the person entitled to it if it is held by a natural person who has acquired the right of personal use for it precisely in connection with the acquisition of the property on the land standing under the conditions set out in Section 4 (2) of Act No. 87 / 1991 Coll.
It is therefore clear from the above that Paragraph 8 (4) of Law No 87 / 1991 Coll. cannot be interpreted in isolation, but only in relation to the provisions of others, in particular Article 4 (2) thereof. Therefore, it can be concluded that, although the land on which the right of personal use was established, it will not be issued to the person entitled, only if it could give rise to new injustices, that is to say, if the case were to be issued by a natural person who had not acquired it from the State in contravention of the provisions in force or on the basis of an unlawful advantage of the person acquiring it, or if the case were to be issued under those conditions by persons close to those persons who were transferred to them. However, in cases of unlawful advantage or acquisition contrary to the rules in force at the time, as already stated, it is always necessary to consider cases where the acquisition of the right to use the land by persons has occurred in connection with the acquisition of the property for construction on the land standing and the property for construction is created under the conditions set out in § 4 (2) of Act No 87 / 1991 Coll.
On the contrary, it was undoubtedly not the intention of the legislature to protect the rights of those natural persons who acquired the case contrary to the provisions in force at that time or on the basis of an unlawful advantage under Article 4 (2) of Act No 87 / 1991 Coll. Thus, in practice, the public authorities cannot see Article 8 (4) of Law No 87 / 1991 Coll. as an "absolute 'obstacle to the issue of land, but only as a general obstacle, which - in a particular case - cannot prevent the issue of the case when the conditions of Article 4 (2) of the Act are met.
As regards the appellant's objection that the contested provision only made sense when the right of personal use existed, the Constitutional Court considers that it is not justified. Although it is true that, according to Section 872 (1) of the Civil Code, the right of personal use of the land by the former on 1 January 1992 has changed to the ownership of a natural person (note: this also shows a significant material proximity to the property and the right of personal use of the land, as stated elsewhere), it cannot be concluded that the contested provision is unconstitutional. Paragraph 8 (4) of Law No 87 / 1991 Coll. therefore, the Constitutional Court did not find, for that reason, the provision of Paragraph 8 (4) of the Law No 87 / 1991 Coll. did not find it unconstitutional, since it refers to the land for which the right of personal use was established in the past, although it is already in the ownership regime.
Since there is a possibility of a constitutional interpretation of the contested provision, the Constitutional Court rejected the application for annulment of Article 8 (4) of Law No 87 / 1991 Coll. (§ 82 (1) of Law No 182 / 1993 Coll.).
President of the Constitutional Court:
JUDr. Kessler v. r.
He took a different position in this case in accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, Judge JUDr. Pavel Varvarovský.
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Regulation Information
| Citation | The Constitutional Court found No. 83 / 1999 Coll., on the application for annulment § 8 (4) of Act No. 87 / 1991 Coll., on extrajudicial rehabilitation |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.05.1999 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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