1995/03/08 - Pl. ÚS 14/94: Beneš Decrees

08 March 1995

HEADNOTE:  

The Decree

of the President No. 108/1945 Coll., on the Confiscation of Enemy

Property and the Funds of National Renewal, was not only a legal but

also a legitimate act.  In view of the fact that this normative act has

already accomplished its purposes and for a period of more than four

decades has not created any further legal relations, so that it no

longer has any constitutive character, in the given situation its

inconsistency with constitutional acts or international treaties under

Article 10 of the Constitution1) (Article 87 para. 1, letter a2)) of the

Constitution of the Czech Republic) cannot be reviewed today, for such a

means of proceeding would lack any juridical function whatsoever.  To

proceed otherwise would be to cast doubt upon the principle of legal

certainty, which is one of the basic requirements of contemporary

democratic legal systems.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 

 

The

Plenum of the Constitutional Court of the Czech Republic, in the matter

of the petition of R. D., which petition sought the annulment of the

Decree of the President No. 108/1945 Coll., on the Confiscation of Enemy

Property and the Funds of National Renewal, with the Assembly of

Deputies of the Czech Republic joined as a party to the proceeding and

with the following individuals joined as secondary parties, 1) R. B.,

and 2) JUDr. J. S., decided, thusly: 


The petition is rejected on the merits.

 


REASONING


With reference to § 74 of Act No. 182/1993 Coll., the petitioner, R.

D., submitted a petition to institute a proceeding under § 64 para. 1,

letter d) of the cited act in conjunction with a constitutional

complaint against the 26 October 1993 decision of the Regional Court in

Ústí nad Labem, the Liberec Branch, file number 29 Co 647/93 30.  He

stated in his petition that, in conflict with both the current

constitutional rules and with the constitutional rules in effect in

1945, the Regional Court in Ústí nad Labem declared Decree No. 108/1945

Coll.,3) to be a valid part of "our legal order" and at the same time

declared this decree to be the "legislative act on the basis of which

the property was confiscated."  Under the 1920 Constitutional Charter,

legislative power was vested solely in the National Assembly and its two

chambers.  During any period when either chamber was dissolved or from

the expiry of one electoral term until the chamber was reconvened, and

also during any period when its session was adjourned or had expired, a

24 member Executive Committee took urgent measures, even though an Act

of Parliament would have otherwise been necessary therefor, and it

exercised governing and executive power.  This Executive Committee was

composed of 16 members of the Assembly of Deputies and 8 members of the

Senate.  This committee was competent in all matters coming within the

legislative authority of the National Assembly, however, it was not

authorized either to amend a constitutional act or by its measures to

impose permanent financial obligations (on the state) or to transfer

state property.  Other than the just-mentioned National Assembly and its

24 member Executive Committee, no constitutional body was endowed with

legislative powers.  Thus, whatever Dr. Edvard Beneš' status was during

the decisive period when he was issuing decrees, even if he was

President (and according to the legal argument of the petitioner he was

not, and could not have been, because on 5 October 1938 he resigned and

another President of the Czechoslovak Republic was duly elected after

him), not as a private citizen nor even as the President of the

Czechoslovak Republic could he be endowed with legislative authority. 

Thus, to the extent that he issued any sort of act, be they the utmost

ministerial acts of governing and executive power, they were not issued

in conformity with the constitutional rules then in force and were

invalid acts ab initio.  Thus, if socialist legal theory, and

immediately prior thereto also the legal theory influenced by the

so-called "national democratic revolution" supposedly under way in 1945,

designated his acts as acts of revolutionary legislation, it must be

observed that no revolutionary legislation existed, rather it was only

lawless, revolutionary force.  Assessed in this way, these acts were,

thus, acts of force of the highest order, and not of law.  In conflict

with all the basic principles of the law-based state, in this instance a

single person was recognized as being a legislator and at the same time

as holding governing and executive power.  Decree No. 108/1945 Coll.,3)

which the Regional Court in Ústí nad Labem, the Liberec Branch, applied

in the above-cited decision, is not in conformity with Articles 2, 3,

4, 11, and 24 of the Charter of Fundamental Rights and Basic Freedoms,

relating to the assertion of state authority and the bounds thereof, the

rights of nationalities, limitations upon the fundamental rights and

basic freedoms, as well as the right to own property.  For all these

reasons, the petitioner petitioned the Constitutional Court to declare

Decree No. 108/1945 Coll.,3) to have been an act void ab initio.  Should

the Constitutional Court, in spite of the legal canons of civilized

European societies, conclude that it was a legal act, or even a statute,

he petitioned it to annul this legal norm.

Acting on behalf of

the Assembly of Deputies of the Parliament of the Czech Republic, its

Chairman, PhD. Milan Uhde, expressed its view that the head of state had

issued Decree of the President No. 108/1945 Coll.,3) fully within the

confines of his authority at a time when the National Assembly was not

constituted so that it forms a valid part of our legal order.  For the

period during which the Provisional Constitutional Order was in effect,

where such was indispensable, the President issued enactments in the

form of decrees (on the government's proposal and countersigned by the

Prime Minister and the member of the government responsible for

implementing it), which amended, repealed or reissued acts.  His

authority for so doing was supplied by Constitutional Decree of the

President from 15 October 1940, No. 2 Official Gazette of

Czechoslovakia, concerning the Provisional Exercise of Legislative

Power, promulgated in the Collection of Laws and Orders of

Czechoslovakia under No. 20/1945.  In the end, all of the President's

decrees were approved by the Provisional National Assembly of the

Czechoslovak Republic, namely by means of Constitutional Act No. 57 of

28 March 1946, which Approved the Decrees of the President and Declared

them to Be Law.  Thus, the presidential decrees were issued in a

constitutional manner, were ratified in a constitutional manner, and are

a valid component of our legal order.

In its ruling of 27 May

1994, file No. IV ÚS 56/94 15, the Panel of the Constitutional Court

which was dealing with R. D.'s constitutional complaint suspended that

proceeding pursuant to § 78 para. 1 of Act No. 182/1993 Coll., on the

Constitutional Court, and certified his petition seeking the annulment

of Decree No. 108/1945 Coll., on the Confiscation of Enemy Property and

the Funds of National Renewal, to the Plenum of the Constitutional Court

for its decision under Article 87 para. 1, letter a) of the

Constitution.2)

The Plenum of the Constitutional Court dealt

first of all with the issue of whether the petitioner satisfied the

requirements under § 74 of Act No. 182/1993 Coll., on the Constitutional

Court, upon which his petition relied. On this issue, the Plenum of the

Constitutional Court came to the conclusion that, in the case under

consideration, the petitioner satisfied the conditions relating to

standing to submit a petition proposing the annulment of a statute or

some other legal enactment.

The first fundamental issue to be

considered in the matter at hand is whether the contested decree of the

President, that is the decree of 25 October 1945, No. 108/1945 Coll., on

the Confiscation of Enemy Property and the Funds of National Renewal,

was issued within the bounds of his legitimately prescribed powers or

whether, on the contrary, as the petitioner asserts, the issuance of it

conflicted with basic principles of a law-based state, for the

authorities of the executive branch issued it in contradiction to the

constitution in force at that time.  In connection therewith, it must be

observed that the foundation upon which the legal order of

Czechoslovakia was based was Act No. 11 of 28 October 1918, on the

Establishment of an Independent Czechoslovak State.  The foundation of

Czechoslovak law could not be put into doubt in any respect by the

German occupation, not only due to the fact that the rules in Articles

42 56 of the Regulations respecting the Laws and Customs of War on Land,

representing an annex to the IV Hague Convention of 18 October 1907,

spelled out precise boundaries within which the occupier could excercise

governmental power within the territory of the occupied state, but

primarily due to the fact that the German Reich, as a totalitarian state

governed by the principle expressed in the Rosenberg phrase, "Right is

that which serves German honor", exercised governmental power and

established a legal order which in essence deviated from the substantive

value base of the Czechoslovak legal order.  This fact is perhaps best

conveyed by two Reich's statutes from 1935, namely the Act on the

Protection of German Blood and Honor and the Act on Reich's Citizenship,

in which extraordinary emphasis is placed on the purity of German

blood, as a requirement for the continued existence of the German

people, and in which a Reich's citizen is defined as a subject of German

or related blood who by his conduct demonstrates that he is willing and

able to faithfully serve the German nation and Reich.  In contrast to

that, the constitutional requirement laid down in the 1920

Constitutional Charter that the Czechoslovak state have a democratic

character, is rather a concept of a political science character (and

which is juristically definable only with difficulty) which, however,

does not mean that it is a meta-legal concept, hence not legally

binding.  On the contrary, the constitutional principle mandating the

democratic legitimacy of the governmental system was a basic

characteristic feature of the constitutional system which as a result

meant that, in the 1920 Constitutional Charter of the Czechoslovak

Republic, this principle was ranked above and prior to requirements of

formal, legal legitimacy.

Thus, it was not the case that the

Czechoslovak legal order would have manifestly preferred the preeminence

of the domestic legal order, that its constitution would indisputably

espouse the principle of its absolute sovereignty and its independence

of any other legal order whatever, which would have made it possible for

the Czechoslovak constitutional drafters, if they had merely observed

the prescribed procedure for adopting norms, to validly prescribe

whatever they wished - irrespective of the requirements, in particular,

of international law.  For, as was already asserted, the principle of

the democratic legitimacy of the governmental system was laid down in

the 1920 Constitutional Charter, was a principle which, even in the

Preamble to this Charter ("for we desire to affiliate ourselves with the

society of nations as a cultivated, peaceable, democratic, progressive

member of it"), lays stress on its links to the system of values, which

also make up the foundation of the international legal order.  The value

foundation of the 1920 Constitutional Charter and its openness in

relation to international law is documented without any doubt by the

catalogue of rights and freedoms, as well as the rules governing the

protection of national, religious, and racial minorities.  On the other

hand, convictions concerning the imperativeness of smashing the Nazi

regime and of compensation, or at least mitigation, of the damages

caused by that regime and the events of the war, were found in the value

orientation which was formed during the Second World War and shortly

thereafter.  Thus, not even in this respect does Presidential Decree No.

108/1945 Coll., on the Confiscation of Enemy Property and the Funds of

National Renewal, conflict with the "legal canons prevalent among

civilized European societies in this century," rather it was a legal act

that was a product of its era, supported by international consensus.

Such considerations, among others, provide reasons why, even during the

occupation, the Czechoslovak state and its legal order were

internationally recognized and also why foreign political leaders

adopted positions emphasizing the continuity of Czechoslovak law.  As a

consequence of coerced behavior on the part of the Czechoslovak state,

beginning with Hitler's threats to launch an aggressive war (which was

in conflict with the Kellogg-Briand Pact, at that time a valid

international obligation and one that was binding even on Germany

itself), the conclusion of the Munich Agreement, President Beneš' forced

departure, and President Hácha's trip to Berlin, this state lost any

credible democratic legitimacy, for its conduct quite clearly deviated

from an attitude of constitutional sovereignty, that is, of a people

whose desire to live in a democratic state had been manifested by the

mobilization in 1938, among other actions.  We can see precisely in this

fact the reason why none of these disastrous acts could be recognized

as legitimate, regardless of whether the constitutional procedures were

observed when they were carried out.  After the dismemberment of the

Czechoslovak Republic and the collapse of its constitutional

foundations, the conditions that prevailed for a number of years made

impossible the democratic formation of the people's constitutive power

within the territory of the Republic.  In this respect, our country did

not differ from a number of other European countries, the exiled

representatives of which and the legal acts which they issued were, for

the above-stated reasons, internationally recognized on a large scale,

such being in accord with the generally recognized legal principle that

acts brought about by means of duress are considered null and void.

What can otherwise be considered determinative in the matter under

consideration is that, during the period when the Provisional

Constitutional Order of the Czechoslovak Republic was already

established and also internationally recognized (it comprising the

President, the government, and the State Council, as laid down in the

Constitutional Decrees of the President of the Republic No. 1, No. 2 and

in Decree No. 4 of the Official Gazette of Czechoslovakia of 1940), on 3

December 1942, the Czechoslovak government issued a resolution

"Concerning the Validity of President of the Republic Edvard Beneš'

Continuance in the Office of the Presidency", which reads as follows: 

"In the meeting of the Council of Ministers, held on 3 December 1942,

the Prime Minister, Mngr. Dr. Jan Šrámek announced:  the seven-year term

of office of Dr. Edvard Beneš, the incumbent President of the Republic,

duly elected President of the Republic on 18 December 1935 at a session

of the National Assembly, will expire on 18 December 1942.  Pres.

Edvard Beneš resigned the Presidency on 5 October 1938, however, the

Czechoslovak government, in accord with all loyal citizens of

Czechoslovakia, never considered this resignation to be valid, for it

was unlawfully coerced.  Therefore, the President of the Republic, Dr.

Edvard Beneš, has remained the head of state of Czechoslovakia without

interruption since 18 December 1935, and is recognized as the head of

state by the governments of the United Nations, as well as by the

governments of other nations.  The Prime Minister further declared that,

pursuant to § 1 of Act No. 161/1920, the Prime Minister is to convene a

session of the National Assembly for the election of the President of

the Republic and that, therefore, the act places upon him the duty to

take care that the election of the new President is timely held.  In

view of paragraph 3 of § 58 of the Constitutional Charter and § 2 of Act

No. 161/1920, the session of the National Assembly for election of the

President should be convened no sooner than four weeks prior to and no

later than fourteen days prior to the end of the President's term of

office.  As, under the prevailing conditions, such a session cannot be

convened, the Prime Minister proposed that the government adopt the

following resolution:  pursuant to paragraph 5 of § 58 of the

Constitutional Charter, which provides that '[t]he former President

shall remain in office until a new President is elected,' the current

President of the Republic, Dr. Edvard Beneš, duly elected by the

National Assembly on 18 December 1935, shall continue to hold the

Presidency until such time as it is possible to hold an election for the

next President.  The government adopted that resolution unanimously and

at the same time charged the Prime Minister with informing the

President of the Republic, the Czechoslovak people, and the State

Council, as well as the international public, of its resolution." (Off.

Gaz. CS, Vol. III, 1942, p. 17).

To the above-mentioned

resolution can be added the fact that the resignation of the President,

Dr. Edvard Beneš, occurred during the "period of non-freedom", by which

is understood the period from 30 September 1938 until 4 May 1945

(Constitutional Decree of the President from 3 August 1944, No. 11/1944

Official Gazette of Czechoslovakia, an annex to the Interior Minister's

Notice No. 30/1945 Coll., Government Order No. 31/1945 Coll.), during

the period following the Munich Agreement of 29 September 1938, which

Article 1 of the Treaty concerning Mutual Relations between the

Czechoslovak Socialist Republic and the Federal Republic of Germany,

promulgated by Notice No. 94/1974 Coll., declared to be null and void

(the nullity of the Munich Agreement of 29 September 1938 also being

confirmed by the Treaty between the Czech and Slovak Federal Republic

and the Federal Republic of Germany, on Good Neighborliness and Friendly

Cooperation, promulgated under No. 521/1992 Coll., which at the same

time recognized the fact that the Czechoslovak state had never since

1918 ceased to exist).  The Provisional Constitutional Order of the

Czechoslovak Republic, represented by the President, the government, and

after 21 July 1940 also by the State Council, besides international

recognition, also received support from the resistance, at home and

abroad, and universally from the Czechoslovak people.  So far as

concerns international recognition, first must be mentioned British

Foreign Secretary Halifax' 21 July 1940 letter to President Beneš, in

which he informed the President that "in response to the request of the

Czechoslovak National Committee, the government of his Majesty in the

United Kingdom hereby gladly recognizes the provisional Czechoslovak

government, established in this country by the Czechoslovak National

Committee, and enters into relations with it." (Off. Gaz. CS, Vol. I,

No. 10, p. 4).  A. Eden's letter of 18 July 1941, sent to Minister Jan

Masaryk, stated that the King had decided to accredit a special envoy to

Dr. Beneš, as President of the Czechoslovak Republic, and that the

British government considered the President and the government of the

Czechoslovak Republic to have the same legal status as that of the

allied heads of state and governments.  In Franklin D. Roosevelt's 30

June 1941 letter to Dr. Beneš, "Dr. Edvard Beneš, President of the

provisional government of Czechoslovakia" is given as the addressee.  On

26 October 1942, the United States of America officially notified

Minister Jan Masaryk that the recognition of the United States must be

considered under international law as complete and definitive.  The

Soviet Union also fully recognized the Czechoslovak provisional

government in July, 1941.  Apart from recognition by Great Britain, 27

countries recognized the Czechoslovak Republic, represented de jure by

the provisional government in London,, either in the form of an explicit

recognition or by the establishment of diplomatic relations.  Even

though its authorities could not exercise governmental power within the

occupied territory, the Czechoslovak Republic had its own foreign

troops, declared war on the Axis powers, and became one of the founders

of the United Nations.

In his speech delivered on 24 July 1940,

that is three days after the British government's recognition of the

Czechoslovak provisional government, Dr. Beneš expressed the intention

to maintain the legal continuity of the Czechoslovak legal order by

explicitly stating:  "Refusing to recognize Munich and all that it

brought in its wake, we have upheld and we continue to uphold the

principle that the Czechoslovak Republic, Masaryk's republic, continues

to live and exist even after Munich.  Therefore, our entire legal

system, internationally, legally, and politically, went on; for us my

departure from office and from our homeland was not legal; for us the

Republic was not dismembered; for us nothing exists politically and

legally if it was carried out in our country by violent nazism after 15

March 1939.  I solemnly declare these to be our political and legal

principles, and I stress that they apply to us all, to subjects of our

state and of our nation, to Czechs, Slovaks, Germans, and Sub-Carpathian

Ruthenians, and others in our homeland.  I further declare to be

non-existent and unlawful everything which has been forced upon us

illegally and unconstitutionally since Munich."

This declaration

by Beneš is entirely in accord with Constitutional Decree of the

President from 21 July 1940, concerning the Establishment of the State

Council, as the Advisory Body of the Provisional Constitutional Order of

the Czechoslovak Republic No. 1, Official Gazette of Czechoslovakia

from 4 December 1940, as it is with Constitutional Decree of 15 October

1940, No. 2, Official Gazette of Czechoslovakia, concerning the

Provisional Exercise of Legislative Power (promulgated under No. 20/1945

Coll.), § 1 of which declares the technical impossibility of observing

the norm-creating procedure under the Second Chapter of the

Constitutional Charter ("Until it is possible to proceed in accordance

with the provisions of the Second Chapter of the Constitutional Charter

of 29 February 1920, concerning Legislative Power, those powers assigned

to the President of the Republic under Article 64, No. 1 and No. 3 of

the Constitutional Charter which require for their validity the consent

of the National Assembly, shall be exercised by him with the consent of

the government instead"), and § 2 of which at the same time declares

that enactments which amend, repeal, or newly issue acts shall, in

imperative cases and only for the period during which the Provisional

Constitutional Order remains in effect, be issued in the form of decrees

by the President on the proposal of the government, each such decree to

be countersigned by the Prime Minister and the member of the government

charged with implementing it.  This document testifies to the clear

intention, as concerns the legislative process, to resume as soon as

possible the procedure set down in the 1920 Constitutional Charter and,

thus, proceeds on the basis of the continued validity of the 1920

Constitutional Charter, considering that legislative power under that

Constitutional Charter shall, after the liberation of the Republic, be

formed in accordance with the provisions of this Second Chapter. 

Constitutional Decree of the President from 22 February 1945, No. 3/1945

Official Gazette of Czechoslovakia, concerning the Exercise of

Legislative Power during the Transitional Period, extended the validity

of § 2 of Constitutional Decree of the President from 15 October 1940,

No. 2 Official Gazette of Czechoslovakia, concerning the Provisional

Exercise of Legislative Power, until such time as the Provisional

Legislative Committee of the Czechoslovak Republic would be established.

As concerns the actual legislative process relating to presidential

decrees, it must be said that decrees were drafted by the government

and, as a rule, were also discussed by the State Council.  Pursuant to

Article 3 of Constitutional Decree from 27 October 1942, No. 12/1942

Off. Gaz. CS, in exercising legislative power, the President was

obliged, within the context of preparing an appropriate proposal, "to

request an advisory report from the State Council, if the government had

not already done so".  After the State Council was dissolved on 4 April

1945 (Prime Minister's Notice from 4 April 1945, No. 2/1945 Coll.), the

decrees were also discussed in the Slovak National Council, depending

on the nature of the matters in the decree and the their territorial

reach.  In accordance with these rules, decrees always included a

reference to the fact that they were issued "on the government's

proposal", "after consulting the State Council", or "following the

agreement of the Slovak National Council".  Just as with statutes, each

was likewise countersigned by the Prime Minister and the member of the

government charged with implementing it and, in the case of

constitutional decrees, by all members of the government (§ 2 of

Constitutional Decree No. 2/1940 Off. Gaz. CS, on the Provisional

Exercise of Legislative Power).  The particular character of the decrees

was merely due to the extraordinary situation which resulted from the

Nazi occupation and which prevented the exercise of any governmental

power at all, including legislative power.  So in the given historical

situation and context, the decrees represented the single possibility of

adopting decisions having legal force and the force of a statute. 

During the period of Nazi occupation, other occupied countries also

dealt with the issue of legislative procedure in a similar fashion.  It

is not pointless to make reference at this juncture to Act No. 11 from

28 October 1918, on the Establishment of an Independent Czechoslovak

State, which was issued by the National Committee but which,

nonetheless, became the foundation of the legal order of the

Czechoslovak Republic.

This intention to resume use of the

legislative procedure under the Second Chapter of the Constitutional

Charter is also clearly expressed in § 1 of Presidential Decree from 26

October 1940, No. 4 Official Gazette of Czechoslovakia, on Regulating

the Public Pronouncement of Legal Provisions Newly Issued by the

Czechoslovak Government, which, in addition to the Collection of Laws,

designated the Official Gazette of Czechoslovakia for the purpose of the

public pronouncement of legal provisions newly issued by the

Czechoslovak Government, until the normal functioning of the

constitutional life of the Czechoslovak Republic would be restored.  The

principle of formal legal continuity with the pre-Munich legal order

was even demonstrated by the President's Declaration, under § 64 para.

1, No. 3 of the Constitutional Charter, of a State of War between the

Czechoslovak Republic and the states which were at war with Great

Britain, the Union of Soviet Socialist Republics, and the United States

of America (Off. Gaz. CS, Vol. III, No. 1, p. 7), just as by the grants

of amnesty and pardons which the President made on 24 December 1941 by

virtue of the power vested in him in the field of the military judiciary

and military punitive and disciplinary proceedings or in the field of

military penal law by § 64 para. 1, No. 11 of the Constitutional Charter

(see, likewise, Off. Gaz. CS, Vol. III, No. 1, pp. 7 8).  A clear

element of continuity can also be noted in the already-mentioned

government resolution from 3 December 1942 concerning the problems

brought on by the expiration, on 18 December 1942, of the seven-year

presidential term of office.  In this resolution, which confirmed Dr.

Edvard Beneš as the head of state until such time as it would be

possible, pursuant to the Constitution and to Act No. 161/1920 Coll., to

hold an election for the next President, there is a reference to § 58

para. 5 of the Constitutional Charter, which governs this exact

situation.  From the perspective of formal legal continuity, that is a

connection to the pre-Munich legal order, the Constitutional Decree from

3 August 1944, No. 11 Official Gazette of Czechoslovakia (promulgated

under No. 30/1945 Coll.), on the Restoration of the Legal Order, is also

of fundamental significance.  This decree related in part to "domestic

enactments" and in part to "enactments of the foreign constitutional

order".  This decree distinguished three types of legal enactments, that

is, constitutional and other Czechoslovak legal enactments issued prior

to 29 September 1938 (pre-Munich law), further enactments issued within

the domain of the Czechoslovak legal order (that is, within the

territory of the Czechoslovak Republic) during the period of non-freedom

(that is, from 30 September 1938 until 4 May 1945) by authorities of

the Second Republic, the German Reich, the Protectorate and the Slovak

Republic (law from the era of non-freedom), and finally enactments

issued in the form of presidential decrees pursuant to the London

Constitution (the law of the foreign constitutional order).  While

Article 1 para. 1 of the above-cited decree declares that enactments

issued before 29 September 1938 were expressions of the Czechoslovak

people's free will, so that they comprise the Czechoslovak legal order,

Article 2 of the Decree states that enactments issued during the era of

non-freedom do not form a part of the Czechoslovak legal order; however,

that even they must be applied in the future "on an entirely

transitional basis", with the exceptions set down in Article 2 para. 1. 

A court or an administrative agency applying the act (Article 3)

decided whether the case involved such an exception.  For the purposes

of the case under consideration, however, what is significant is what

Article 2 of that decree provides concerning enactments of the "foreign

constitutional order":  to the extent that these enactments have the

force of statutes, they form a part of the Czechoslovak legal order,

subject however to subsequent ratification, that is, approval by the

competent constitutional authorities.  Even the constitutional decrees

forming the London Constitution were themselves subject to subsequent

ratification (Nos. 1 and 2 of the Official Gazette of Czechoslovakia). 

For other decrees issued in accordance with this constitution (that is,

pursuant to § 2 of Constitutional Decree No. 2/1940 Official Gazette of

Czechoslovakia), it was said that they would lose validity six months

following the day the National Assembly would meet, unless they were

newly adopted and proclaimed as law (Article 5 para. 2 of the decree),

and even presidential decrees designated as constitutional could be

repealed or amended by means of a mere law.  However, Article I of the

Act, Introducing the Constitutional Charter, No. 121/1920, was not to be

in any way affected by this enactment, so far as concerns

constitutional acts issued prior to 29 September 1938 (Article 5 para. 3

of the decree).  Constitutional Decree of the President from 23 June

1945, promulgated under No. 22/1945 Coll., concerning the Promulgation

of Legal Enactments Issued outside the Territory of the Czechoslovak

Republic, attests to the fact that the President and the government were

constantly endeavoring to follow the principle of legal continuity with

pre-Munich law.  § 1 of this decree empowered the government to

determine which of the constitutional decrees of the President

(excepting Constitutional Decree from 15 October 1940, No. 2, Off. Gaz.

CS, on the Provisional Exercise of Legislative Power, and Constitutional

Decree from 22 February 1945, No. 3, Off. Gaz. CS, on the Exercise of

Legislative Power during the Transitional Period) and which of the

ordinary decrees of the President, government orders and other legal

enactments which were promulgated in the Official Gazette of

Czechoslovakia would remain in effect, empowered it to modify the date

they would go into effect and their territorial reach, and empowered it

to have them promulgated in the Collection of Laws and Orders.  What is

essential, however, is that Constitutional Decree of the President from 3

August 1944, No. 11, Official Gazette of Czechoslovakia, made even the

constitutional decrees which established the "London Constitution"

subject to ratification, which meant in consequence that, even following

the issuance of this decree, Act No. 11 from 28 October 1918, as well

as the Constitution from 1920, remained the foundation of the

Czechoslovak legal order.  This conclusion follows as well from the

government's explanatory report to the draft of the above-mentioned

decree, which stated that subsequent ratification by the domestic

legislature of the legislation adopted abroad would make a reality of

the legal principle upon which the struggle for liberation of the

Czechoslovak state rested, that is, the principle of legal continuity.

In addition, the Constitutional Decree of the President from 4 December

1944, No. 18 Official Gazette of Czechoslovakia, on National Committees

and the Provisional National Assembly, promulgated under No. 43/1945

Coll., in its introductory declaration cites the then in force

Constitutional Charter of the Czechoslovak Republic and contained the

following statement in its Article 2:  "The Provisional National

Assembly was formed as the result of elections by the national

committees to be the interim legislative body to which the government

will be responsible.  It's composition, the manner in which it is to be

created, and its competencies shall be provided for by a special

constitutional decree."  The same occurred as well as a result of

Constitutional Decree of the President from 25 August 1945, on the

Provisional National Assembly, promulgated under No. 47/1945 Coll.,

which in relation to the 1920 Constitutional Charter created a

legislative body not provided for under the Charter and endowed with the

powers which the Charter and other acts assigned to the National

Assembly, including the authority to amend the Constitution, however,

with the proviso that this Assembly could take such measures only

"insofar as such is strictly necessary" (Article 2, No. 2 of the

decree).  The crucial thing is that even this decree, in its content and

substantive purpose, respects the basis of continuity.  For

Constitutional Decree No. 47/1945 Coll. reflects the fact that, on the

one hand, due to the post-war situation and the changing economic and

social conditions, ratification of the legislation adopted by the

foreign constitutional order could not be fully accomplished on the

basis of the 1920 Constitutional Charter, but that, on the other hand,

from the perspective of this Charter which placed, as has been said,

extraordinary emphasis on the principle of democratic legitimacy, it in

no way introduced a foreign element into the Charter.  This fact is also

evidenced by Article 2, No. 1 of this decree, empowering the

Provisional National Assembly to confirm the President in office until

the next presidential election would be held, which was done by means of

the Provisional National Assembly's unanimous resolution from 28

October 1945.  It was President Beneš himself who, in the graduation

address he delivered on 15 December 1945, made reference to the great

emphasis our foreign political leadership always placed on the

continuity of Czechoslovak law.  However, such was also confirmed by Act

No. 12/1946 Coll., which Adopted, Supplemented, and Amended the

Enactments concerning the Restoration of the Legal Order and in which

the Provisional National Assembly adopted and re-introduced as a statute

Presidential Decree from 3 August 1944, No. 11 Off. Gaz. CS, on the

Restoration of the Legal Order, with the amendments and additions

introduced in this act.  Constitutional Act No. 57/1946 Coll., which

Ratified the Presidential Decrees and Declared them to Have Force as

Law, represents the final word so far as presidential decrees are

concerned.  Under Article I para. 1 of this constitutional act, the

Provisional National Assembly ratified and declared to have force as

law, if such had not already occurred, those constitutional decrees and

decrees of the President that were issued on the basis of § 2 of

Constitutional Decree of the President from 15 October 1940, No. 2, Off.

Gaz. CS, (No. 20/1945 Coll.), on the Provisional Exercise of

Legislative Power, which general ratification also encompassed this

just-mentioned constitutional decree.  As is further stated in Article I

para. 2 of the above-cited constitutional act, all presidential decrees

had to be considered from their inception as legal acts, constitutional

decrees as constitutional acts.  Even though at that point it was not

possible to ratify them under Article 5 para. 1 of Constitutional Decree

of the President from 3 August 1944, No. 11 Off. Gaz. CS, because the

"constitutional official" as called for in that decree was the National

Assembly under the 1920 Constitutional Charter, so far as concerns

presidential decrees, the requirement of legal continuity was met by the

fact that it was made possible to effect the ratification of them and

the declaration that they possess force as law, with the restrictions

set out in Article 5 para. 2 of Constitutional Decree of the President

from 3 August 1944, No. 11, Off. Gaz. CS, which limited in time the

legal effect of the presidential decrees.  In addition, Article I para. 1

of Constitutional Act No. 57/1946 Coll., even made reference to the

very Constitutional Decree of the President from 15 October 1940, No. 2,

Off. Gaz. CS, and para. 2 of this Article emphasized that, from their

very inception, all presidential decrees were valid.  To this must be

added that, as a result of Article 112 para. 1 and para. 3 of the

Constitution of the Czech Republic, the cited constitutional acts in

force in the Czech Republic on the day the Constitution came into

effect, now have merely the legal force of a statute.

The

continuity of the legal enactments contained in the presidential decrees

with the pre-Munich legal order is, however, evidenced especially by a

factor which represented one of the fundamental conditions for this

continuity, that is the consensus of the Czech nation with its links,

legally and in terms of values, to Masaryk's republic.  While Nazi

Germany endeavored to violate and destroy the basic principles of the

Czechoslovak legal and political order, our resistance, both at home and

abroad, feeling a sense of continuity with the legacy of the Czech

legion in the First World War, just as the resistance to the occupiers

put up by our whole nation, with the exception of groups of traitors and

collaborators, confirmed that our people wished to live in a

democratic, law-based state, for which the pre-Munich republic

represented a significant developmental stage.  This attitude included

the consciousness that democratic values maintain their character and

quality only on the basis of continuity, on the basis of some sort of

common language, and general agreement with these values and

principles.  It is true that the principles of the rule of law were

accepted by the Czech nation on the basis of general consensus, and it

was also true that they could be abandoned and replaced by others only

on the basis of a prevailing societal consensus, not by means of force

and terror.

All these facts and considerations have led the

Constitutional Court to the conclusion that, since the enemy occupation

of the Czechoslovak territory by the armed forces of the Reich had made

it impossible to assert the sovereign state power which sprang from the

Constitutional Charter of the Czechoslovak Republic, introduced by

Constitutional Act No. 121/1920 Coll., as well as from the whole

Czechoslovak legal order, the Provisional Constitutional Order of the

Czechoslovak Republic, set up in Great Britain, must be looked upon as

the internationally recognized legitimate constitutional authority of

the Czechoslovak state.  In consequence thereof and as a result of the

ratification of them in the Provisional National Assembly by

Constitutional Act No. 57/1946 Coll., from 28 March 1946, all normative

acts of the Provisional Constitutional Order of the Czechoslovak

Republic, therefore even Decree of the President No. 108/1945 Coll., on

the Confiscation of Enemy Property and the Funds of National Renewal,

are expressions of legal Czechoslovak (Czech) legislative power, so that

as a result thereof the striving of the nations of Czechoslovakia to

restore the constitutional and legal order of the Republic was

achieved.  Thus, it is quite absurd, so far as concerns the legislative

process, to insist unconditionally upon observance of the 1920

Constitutional Charter for a period when a part of the Czechoslovak

state was first forcibly lopped off and then the rest of the state was

entirely occupied, all the while gradually losing its political

representation.  The consequence of such a conclusion would be to deny a

subjugated nation its natural right to resist occupying aggressors,

including by force of arms.  With regard to that which the occupying

aggressor managed to carry out or that which it was contemplating, it

more than suffices to mention the occupation by the German Reich’s armed

forces of the rest of the Czechoslovak state in the form of the

Protectorate of Bohemia and Moravia, the closing down of Czech

Universities, and the planned future "Endlösung" of the Czech nation. 

Also, the action by which Lidice was wiped off the face of the earth and

other acts of violence more than sufficed to make perfectly clear that,

in spite of "all legal canons prevalent among civilized European

societies in this century", what was placed before the Czech and Slovak

nations was the grave issue of the very physical existence, not just of

the Czechoslovak state, but also of its individual nations.

The

petitioner has made the further assertion that Decree No. 108/1945

Coll.,3) just as other decrees issued by Dr. Edvard Beneš, violated the

legal canons of civilized European societies and that, therefore, they

must be considered not as acts of law but of force, that is to say, that

they lack any legal character whatsoever.  In response to this

assertion, it is necessary to emphasize, even in a general sense, a

basic consideration that is relevant to any sort of evaluation of the

past:  while it is true in principle that that which emerges from the

past must, face to face with the present, pass muster in respect to

values; nevertheless, this assessment of the past may not be merely the

present passing judgment upon the past.  In other words, the present

order, which has been enlightened by subsequent events, draws upon those

experiences, and looks upon and assesses a great many phenomena with

the advantage of hindsight, may not sit in judgment upon the order which

prevailed in the past.  This must be kept in mind when assessing the

Decree from 25 October 1945, No. 108/1945 Coll., on the Confiscation of

Enemy Property and the Funds of National Renewal, and the matter must be

viewed in the context of all the circumstances and occurrences of the

era of Nazi occupation and the period immediately following thereupon. 

This decree was issued in that historical situation and on the basis of

the legal order then in force and was nothing other than a measure in

reaction to the provocation represented by the elimination of state

sovereignty, independence, territorial integrity, and the Czechoslovak

Republic's democratic-republican form of government and to the

elimination of the principles of the democratic, law-based state

embodied in the 1920 Constitutional Charter of the Czechoslovak

Republic.  All of this was perpetrated by the Nazi regime, one of the

most destructive totalitarian systems in the history of mankind, whose

ideology of world domination by the master race and the terror

inextricably bound up therewith laid millions of human lives to waste. 

Therefore, it must be considered quite logically consistent and

legitimate that, as T.G. Masaryk had already emphasized, each democratic

political system not only has the need, but also has the duty, to

protect the foundations upon which it is erected, as actually came to

pass in the pre-Munich Czechoslovakia, for example, with the adoption of

Act No. 50/1923 Coll., on the Protection of the Republic, and a whole

series of other measures, among which should be counted the mobilization

of the armed forces in 1938.  Considering the wording of § 1 para. 1 of

Decree No. 108/1945 Coll.,4) there is no doubt that this decree was

intended to strengthen the fundamental democratic and legal principles

referred to above, for it was meant to affect precisely those hostile to

them.  Such a determination to safeguard and develop the Czech Republic

is otherwise explicitly expressed in the Preamble to the Constitution

of the Czech Republic, thus maintaining and furthering an important

element of continuity even in this field.

Another basic issue

which arises at this point is whether there exists the necessary

functional, mutually conditional relation between this end, that is the

building of a democratic law-based state, and the means employed, in

this case the confiscation of enemy property, in other words, whether

the means employed correspond to the end pursued or, on the contrary,

whether there is such a disparity between them that the means employed

turn out to be incommensurate to the end.  The issue of the

proportionality of the chosen means is a question of the boundary which

no means in a means-end relationship can exceed, if the end itself is

not to be called into doubt.  In order to maintain the functional

relationship of end to means, it is, therefore, indispensable for the

means employed to be of the same kind or genus as the end, in other

words, that they enable progress toward the end, in this case toward

democracy.  Viewed from this perspective, therefore, the Decree of the

President No. 108/1945 Coll.,3) as a normative legal act, can only pass

muster if, at its core, it does not go against the aims of the

democratic, law-based state.

As concerns the issue raised above,

it is necessary to emphasize what the title of Decree No. 108/1945

Coll.,3) (. . . on the Confiscation of Enemy Property) itself suggests,

that the underlying criteria employed in defining those persons subject

to property confiscation was their enmity to the Czechoslovak Republic

or to the Czech or Slovak nation.  Such enmity was irrebuttably presumed

in the case of legal subjects listed in § 1 para. 1, no. 1 of the

Decree,4) that is the German Reich, the Kingdom of Hungary, public law

persons under German or Hungarian law, the German Nazi Party, Hungarian

political parties, as well as other units, organizations, enterprises,

institutions, associations of persons, funds and foundations belonging

to these regimes or connected therewith, as well as other German or

Hungarian legal persons, whereas it was rebuttably presumed in the case

of the legal subjects listed in § 1 para. 1, no. 2 of the Decree, that

is natural persons of German or Hungarian nationality, rebuttably in the

sense that the property of these persons was not confiscated if they

demonstrated that they remained loyal to the Czechoslovak Republic, that

they never wronged the Czech or Slovak nation, and that they either

actively took part in the fight for the Republic's liberation or

suffered under Nazi or fascist terror.  At the same time, pursuant to § 1

para. 1, no. 3 of the decree and without regard to nationality,

property was confiscated from those natural and legal persons who

engaged in actions directed against state sovereignty, independence,

territorial integrity, the democratic-republican form of government, or

the security and defense of the Czechoslovak Republic, who incited or

sought to draw other persons into such activities, who intentionally

supported in any manner whatsoever the German or Hungarian occupiers or

who during the period of the heightened threat to the Republic (§ 18 of

Decree of the President from 19 June 1945, No. 16 Coll., on the

Punishment of Nazi Criminals, Traitors and their Accomplices and

concerning Extraordinary People's Courts), favored germanization or

magyarization within the territory of the Czechoslovak Republic, or who

acted hostilely, whether toward the Czechoslovak Republic or the Czech

or Slovak nation, as well as those natural or legal persons who

tolerated such actions from persons managing their property (§ 1 para.

1, no. 3 of Decree No. 108/1945 Coll., as amended by Act No. 84/1949

Coll.).  Thus, the relation of enmity in Decree No. 108/1945 Coll., was

not conceived on the basis of nationality, because it was first and

foremost the Nazi or fascist system which was deemed the enemy

(irrebuttably, as has already been stated), and the object that the

decree was intended to protect was above all the democratic-republican

form of government.  Thus, even though the decree speaks in terms

primarily of the German Reich and persons of German nationality, in

actuality this decree has a more general scope and can be considered as

one of the documents reflecting the age-old conflict between democracy

and totalitarianism.  The dividing line was drawn according to which

side of the conflict a person chose to support:  therefore, a person was

not considered an enemy, be he, for example, of German nationality, if

he actively stood up in the defense of democracy or if he suffered under

the totalitarian regime, whereas on the other side, one qualified as an

enemy if, without regard to his nationality, he actively stood up

against democracy.

In this connection, it is further necessary

to judge whether the decree's alleged conflict with "the legal canons of

civilized European societies," consists in the fact that Decree No.

108/1945 Coll., on the Confiscation of Enemy Property and the Funds of

National Renewal, is clearly based on the presumption of responsibility

on the part of persons of German (and also Hungarian) nationality while,

in the case of persons of other nationalities, the burden of proof is

placed on the body deciding whether the conditions for the confiscation

of their property are met or not.  From the start, emphasis must be

placed upon the fact that no presumption of "guilt" is concerned, not

even for persons of German nationality; rather it is a presumption of

"responsibility".  For it is quite evident that the category of

"responsibility" is a much broader concept than that of "guilt", so that

in this respect it has a far more extensive value, social, historical,

as well as legal, dimension.  The determinative factor for defining the

category of responsibility is the consciousness of the individual that

he himself is answerable for his orientation in life, for his social and

value decisions, and that nobody can ever take on this responsibility

in his place, neither the society itself nor history.  It is mankind's

fate that human beings are placed into power relations, and this

situation gives rise to their responsibility to champion the forces

which will make human rights a reality.  The grounds for social,

political, moral, and in some cases even legal, responsibility is thus

precisely the person's neglect to make a contribution in the structuring

of power relations, his failure, during the struggle for power, to act

in the service of right.  For this reason, also in a democracy the

political system is founded on the notion, institutionally concretized,

that all people bear common responsibility for the fate of the whole

human society, so that this feature of responsibility pervades to a

greater or lesser extent all areas of life, the personal life of the

individual, as well as the legal and political spheres.  An inherent

feature of the order of duty and responsibility in democracy is not only

its general character, but also its inner securing, which result from

the internal attitude the person takes in relation to social behavior

and the consequences thereof.  An individual can only feel responsible

for norms in the true sense of the word if he has contributed the

spontaneity of his thoughts and actions to forming them.  In contrast to

that, in a totalitarian system, such as Nazi Germany, responsibility

was institutionally transferred to the governing elite, even though in

reality that elite felt itself stripped of any sort of responsibility.

At this particular juncture, it is necessary to raise the following

question:  to what extent and in what sense were the representatives of

the Nazi movement alone responsible for the gas chambers, concentration

camps, mass extermination, degradation, butchery and dehumanization of

millions, or along with them does everyone who profited in silence from

this movement, who carried out its orders, and who put up no resistance

to them also bear joint responsibility for these phenomena.  It can

hardly be seen as a black-and-white issue in which the representatives

of Nazism are assigned exclusive responsibility and all others lack any

responsibility at all.  So just as other European states and their

governments, which from the start of the Nazi expansion were unable and

unwilling to offer resistance, bore their share of responsibility for

the origin and evolution of Nazism, the German nation itself bears

primary responsibility for those events, even if among their ranks could

be found no small number of those who actively and bravely stood up to

the Nazis.  Nevertheless, there does seem to exist after all a

fundamental difference between the responsibility of the "rest of the

world" and that of the German nation, between the silence and passivity

of some and the silence and the active role played by others, a

difference which has some significance for the burden of proof.  For it

was a considerable portion of the German nation which in myriad respects

directly and consciously participated in the creation of the power

structure in Nazi Germany, in the expansion of Nazi Germany into

Czechoslovakia, and generally in Nazi aims and actions, leading to the

point where the fate of the entire world was at stake.  For not even

life in political darkness justifies total social resignation and

apathy:  if a certain society is dominated by tyranny, it is most often

due to the fact that it does not possess the courage or the capability

to put the situation right itself.  A humane world can be preserved only

if everyone in it bears his share of the responsibility, a burden which

nobody else can take on in place of him.  In the 1930's, a fateful

decade for the Czechoslovak Republic, each of its citizens could have

realized, or rather should have realized,that right here, under the veil

of propaganda and lies on the part of Nazi Germany, one of the crucial

historical clashes between democracy and totalitarianism was taking

place, a clash in which everyone bore responsibility together for the

position they adopted and the social and political role they undertook,

that is, the role of a defender of democracy or an agent of its

destruction.  As Emerson so aptly observed:  "[I]t is true that a man

would be quite dazzled, or even blinded, by the sunny glow of truth,

nevertheless he can avoid its light to such an extent that he no longer

sees at all."  This applies as well to the German citizens in pre-war

Czechoslovakia, and to them in particular, for the conflagration which

Nazism unleashed was in large part the work of their nation and its

leaders.  All the more so should they have manifested their fidelity to

the Czechoslovak Republic whose citizens they were, fidelity to perhaps

the last democratic system in Central Europe and given to this fidelity

the status of a fundamental political principle.

What was in

fact the case? It must be emphasized at this point that it is not the

Constitutional Court's duty to review and evaluate Czech-German

relations, how they began, took shape, and changed over the centuries. 

The issues of which the Constitutional Court have cognizance are the

following:  what position did the Czechoslovak citizens of German

nationality take in the crisis years of the 1930's, and did Presidential

Decree No. 108/1945 Coll., on the Confiscation of Enemy Property and

the Funds of National Renewal, represent an appropriate and justifiable

reaction, as regards constitutional law and values, to this position,

appropriate in so far as it passes muster even in relation to the legal

canons recognized by civilized nations in that period.  It should be

emphasized here that the Czech-German conflict, which at that time

involved a conflict between democracy and totalitarianism, ended

catastrophically for the Czechoslovak Republic with the Munich

Agreement, the result of which was, among other things, the forced

departure of roughly half a million Czechs from the border regions to

what remained of the Republic.  If the Czechoslovak Republic was the

mere object of this agreement, the same cannot be said about

Czechoslovak citizens of German nationality who played an important

role, when the border regions were being torn from Czechoslovakia and

incorporated into the German Reich, significant because their political

stance provided Hitler with arguments acceptable to the West as to why

it was necessary to lop off a piece of Czechoslovakia.  Even at that

critical point in time, there could be no question concerning the

democratic tradition of the Czechoslovak Republic.  However much our

many citizens of German nationality might still have been viewed as a

foreign element during that time period, the structure of our political

system accorded them ample and effective constitutional leeway to permit

them to reject their leaders and distinctly express a view dissenting

from their leaders' program, namely that, precisely due to its already

overt totalitarian character, marked by violence and brutality, they did

not want to join the German Reich and did not wish to be annexed to

it.  However, developments after 1938 went in a different direction. 

While in the one-time border regions the local German inhabitants

exhibited absolute loyalty to Nazi Germany, persecution and terror

reigned in the Protectorate of Bohemia and Moravia.  K.H. Frank, who

held the office of State Minister for the whole occupied territory,

contributed in no small measure to this state of affairs, and his name

is also linked to the tragedies of Lidice and Ležáky and the reprisals

which followed upon the assassination of Heydrich.

The

establishment of a totalitarian system always represents a massive

assault on mankind and on history itself.  In the matter under review,

this attacker was Germany and the prevailing majority of its people

(without the wide support of the overwhelming majority of the German

people, which he received, Hitler and his Nazi Party would never have

been more than a mere fringe phenomena).  Its extraordinarily dangerous

nature, the fact that it became a social phenomena threatening "the fate

of all life on earth" (Preamble to the Charter of Fundamental Rights

and Basic Freedoms), also presents reasons as to why the attempt to

eradicate all sources of totalitarianism demanded extraordinary

legislative measures.  In other words, in such situations it is always a

matter of eliminating the causes leading to the birth of

totalitarianism, of doing away with the sources which could bring on a

recurrence of it with all of its horrible features.  Naturally, these

extraordinary legislative measures had to make the distinction between

"guilt" and "responsibility":  in the Czechoslovak legislation, this was

made by distinguishing retributive decrees, requiring evidence of

individual guilt, from confiscatory decrees, consisting, where natural

persons were concerned, in the rebuttable presumption of individual

responsibility.  Thus, in view of the facts just set down, the fact that

Decree No. 108/1945 Coll., on the Confiscation of Enemy Property and

the Funds of National Renewal, is based on the presumption of

responsibility of persons having German nationality does not mean that

it has a discriminatory nature; it does not represent a form of

nationalistic revenge, rather it is merely a proportionate response to

the aggression of Nazi Germany, a response which set as its political

and economic aim at least to alleviate the consequences of the

occupation, to forestall any possible return of totalitarianism, and to

strengthen societal and moral consciousness by confirmation of the

principle that a sanction should always be tied to the violation of any

sort of obligation.  The use of the term "German nationality" in Decree

No. 108/1945 Coll., on the Confiscation of Enemy Property and the Funds

of National Renewal, must be seen in relation to the post-war situation,

when the defeated Germany was under the administration of the

victorious powers and was later divided into zones, at a time when the

use of the term "German citizenship" was problematic because no German

state existed.  Thus, the choice of the term "German nationality" in the

decree was not a type of "genetic" condemnation, rather an adjustment

to the post-war situation, particularly to the problematic nature of

German citizenship.  Precisely for this reason, the decree cannot be

looked upon as some sort of genocidal norm, for it was meant to affect

those whose behavior, whatever form it took, supported the Nazi state. 

As far as the presumption of responsibility on the part of persons of

German nationality is concerned, the apparent inequality between

"Czechs" and "Germans" disappears by switching the perspective of the

decree from that of nationality to that of citizenship.  It remains

crucial that the Germans' duty to assist the aims of the totalitarian

state resulted alone from their citizenship, which demanded such

unconditionally loyal behavior towards the German Reich, while if Czechs

and members of other nationalities, who were constitutionally bound in

loyalty to democracy, chose to act against Czechoslovak statehood and

democracy, they had to do so entirely of their own free will.  For that

matter, this rebuttable presumption of responsibility is not an element

foreign to law, because it is found as well in other fields that are

certainly scarcely comparable with the political field, retaining,

however, certain common characteristics in that the source of a certain

type of especially serious danger arises therefrom (the rebuttable

presumption of responsibility is found in both international and

municipal law, for example, in the area governing liability for specific

types of damage).  If the presumption of responsibility exists even in

such areas, it is all the more appropriate when the fate of mankind,

socially and historically, is at stake.  Thus, however much we are

dealing with scarcely comparable subjects, it cannot be doubted that the

inner logic of the law allows for a presumption of responsibility in

such extraordinary cases.

The institution of responsibility is

always connected with a sanction, as such constitutes a basic condition

for it to be able to serve its social function.  To have responsibility

without a sanction would have such a negative impact upon the existence

of the society's consciousness that it would probably represent its

destruction, at least in certain areas.  Decree No. 108/1945 Coll., on

the Confiscation of Enemy Property and the Funds of National Renewal, is

without a doubt just such a sanction:  even though on first view it

would seem to concern only "property", it also doubtless contains an

important social and ethical subtext.  In view of the nature of the

responsibility analyzed in this case, however, the decree cannot be

examined as a criminal norm or a criminal sanction, even though

confiscations without compensation occurred pursuant to it.  Decree of

the President No. 16/1945 Coll., on the Punishment of Nazi Criminals,

Traitors, and their Accomplices, and on Extraordinary People's Courts,

as amended by later acts (see Minister of Justice Notice No. 9/1947

Coll., on the Full Version of the Decree of the President on the

Punishment of Nazi Criminals, Traitors, and their Accomplices and on

Extraordinary People's Courts, and Decree of the President on National

Courts, Appendix I and II to this Notice), is indisputably just such a

criminal norm as it places upon courts the duty to declare, in

conjunction with a conviction for one of the crimes listed in that

decree, the forfeiture of all the convicted person's property, or a part

thereof, in favor of the state (§ 14, letter c).  The purpose of this

decree was to punish the persons described therein and to attach further

unfavorable consequences for convicted persons to a conviction for one

of the crimes listed in the decree (for example, the loss of civic

honor), while the Decree of the President No. 108/1945 Coll., on the

Confiscation of Enemy Property and the Funds of National Renewal, calls

only for the confiscation of this property, a confiscation which was

manifestly related to the damage caused the Czechoslovak Republic by the

Nazi aggression and occupation (see, the Potsdam Agreement of 2 August

1945, the Agreement on Reparations from Germany, on the Establishment of

the Inter-Allied Reparations Authority, and on the Return of Gold

Currency, promulgated under No. 150/1947 Coll.).

A further

fundamental issue is the following:  is it at all possible in principle

for such sanctions to infringe the rights and freedoms of persons who

themselves have obviously violated those same rights and freedoms and

who, thus, bear responsibility themselves for that violation.  In other

words, can one demand the right to liberty, let us say, if he has

himself destroyed it by his conduct? It was the brutality of the Nazi

regime and the events of the Second World War, as well as all other

experience garnered from this period, which necessitated the response to

this question given in Article 30 of the Universal Declaration of Human

Rights and in two articles which are linked with and identical to it,

namely Article 5 para. 1 of both the International Covenant on Civil and

Political Rights and the International Covenant on Economic, Social and

Political Rights, as well as Article 17 of the Convention on the

Protection of Human Rights and Fundamental Freedoms, as amended by

Protocols Nos. 3, 5, and 8, which states:  "nothing in this Convention

may be construed so as to accord the state, a group, or an individual

any right whatsoever to engage in activities or to commit acts aimed at

the destruction of or the limitation upon any of the rights and freedoms

herein granted to a greater extent than is provided for by this

Convention."  It is precisely on this plane that it is possible to find

the starting point for conclusions of a more general nature, even for

the matter under consideration:  if onetime Czechoslovak citizens of

German nationality contributed to the destruction of the rights and

freedoms of the other citizens of the Czechoslovak Republic, then it

follows as a natural consequence thereof that in this regard their

rights and freedoms could not be fully preserved in the conflict then

underway, provided, of course, that the relationship between means and

end is maintained, for such social, even destructive, "naivété" would

necessarily have catastrophic consequences.  The right to impose the

necessary sanctions in reaction to an assault on democracy and human

rights and freedoms, thus, belongs among the "legal canons prevalent

among civilized European societies in this century", to which the

petitioner appeals.

To this should be added that property

sanctions, such as the confiscation of enemy property located within the

Czechoslovak Republic, have a historical foundation primarily in

respect of the fact that it was decided in the Potsdam Agreement of 2

August 1945 that the German inhabitants of Poland, Czechoslovakia, and

Hungary, or some portion thereof, would be transferred to Germany

(Chapter XIII) and, at the same time and as a result of this agreement,

decisions were also made concerning German reparations as conceived in

the resolution of the Yalta Conference, which provided that Germany

would be obliged to pay compensation to the greatest extent possible for

the damage and hardship which it caused the Allied Nations and for

which the German people could not evade responsibility (Chapter IV). 

This point of the Potsdam Agreement is echoed in the Agreement on

Reparations from Germany, on the Establishment of the Inter-Allied

Reparations Authority, and on the Return of Gold Currency (promulgated

under No. 150/1947 Coll.), agreed upon in Paris on 21 December 1945

between 18 countries, with Czechoslovakia numbering among them.  Part I,

Article 6 A of the Paris Agreement provides that "each signatory

government shall retain, in the manner which they themselves select, the

German enemy property under their jurisdiction or shall deal with it in

such a manner that it shall not be returned to German hands or to

German control and shall deduct this property from their share of the

reparations . . ..
" Part I, Article 6 D of this Agreement declared

that "in implementing [Article 6] A above, property which was owned by a

country which was one of the Allied Nations, or one of the subjects

thereof (provided he was not a subject of Germany at the time that

country was annexed or occupied or entered into the war), shall not be

deducted from their reparations . . ."  Thus, in the matter under

consideration, the confiscation of enemy property had a basis not only

in domestic law, in Decree No. 108/1945 Coll., on the Confiscation of

Enemy Property and the Funds of National Renewal (allowing for a

rebuttable presumption of responsibility and moreover, while operating

ex lege, doing so only towards those persons with regard to whom it was

found in a final, enforceable decision that the conditions for

confiscation under this decree were met, § 1 para. 4 of the decree4)),

but was based as well on international consensus, as expressed in the

above-cited documents of the Potsdam Conference and the Paris

Settlement.  So, we are not dealing with the arbitrary deprivation of

property, which Article 17 of the Universal Declaration on Human Rights

declares to be impermissible.  Also, discussions on the mentioned aspect

of arbitrariness featured prominently in the deliberations on

authorizing the confiscation of enemy property:  for it was pointed out

in them that the deprivation of property is legitimate in the case that,

in addition to meeting further conditions, such an act cannot be viewed

as arbitrary.  It can scarcely be doubted that, as regards

Czechoslovakia in the context of the events of the war and as one of the

victorious powers, it was not a matter of such arbitrariness, of the

mere clothing in the garb of the common good what was rather in

actuality the violation of the basic rights of the individual.

For democracy itself is also unable to manage without the use of force,

for force provides it with one of its most significant opportunities,

that is, the opportunity to combat "evil", infiltration, and the

approach of totalitarian elements and makes it possible finally to

eliminate them.  After all democracy also represents one form of

political government - otherwise it would not be able to function like a

political system at all - however, this form is so dissimilar to

totalitarianism that the two can hardly be reduced to a common

denominator.  For democracy is meant to be a government of all, even

though this aim will never be attained; its purpose is to make it

possible for all sectors of society to have access to positions of

power.  Making such positions accessible to all groups cannot, however,

represent a state of anarchy.  If they are to preserve the positive

aspects connected with the element of power, those holding governmental

power are compelled, even in a democracy, to react to the ambiguity

inherent in social processes and to take action legally against behavior

and acts by destructive forces which exceed the bounds defined by law. 

If totalitarianism represents an assault on humanity and history, then

it is precisely democracy which is obliged to respond to such an assault

in an appropriate manner.  The positive character of such a response is

dependent above all on the establishment of values about which a

certain consensus prevails in society.

Therefore, in the clash

of the democratic and totalitarian political systems, of which

Czechoslovakia's conflict with Nazi Germany is an example, the

government leaders in democratic Czechoslovakia could not have gotten by

without a legal measure, such as the decree referred to.  During the 20

years of its [pre-war] existence, this democracy had a political

process allowing for conflict and social equalization, an

institutionally ensured political foundation even for manifestations of

the most heterogeneous sort.  In principle, this openness manifested

itself in relation to citizens of German nationality as well.  After the

period of the violent occupation by Nazi Germany, and as a consequence

of the losses and blows that Czechoslovakia suffered thereby, no other

route was left open to the Czechoslovak government leaders than to deal

with the consequences of the Nazi occupation and the events of the war,

to a certain degree at least.  The means by which this was done was

entirely in conformity with the value orientation expressed in the

Preamble to the 1920 Constitutional Charter ("to secure for future

generations the blessings of liberty"), and was also supported by

international approval, in particular on the part of the western

democracies, unambiguously expressed in the decisions of the Potsdam

Conference.

Expressed from another perspective, this system of

values, which in its historical development was more and more manifested

in the understanding and guarantee, first and foremost, of human rights

and freedoms, fulfilled such an important social, directive,

classificatory, programmatic and oversight function in society, that it

qualifies as one of the basic conditions for social life:  that is to

say, it ensured the continuity of historical and social development and,

in this respect, it was society's lone supporting structure.  The

significance of the social function played by values also offers an

explanation as to why one of the knotty points of the conflict between

democracy and totalitarianism is found precisely in the field of values

and why totalitarian regimes have an unyielding tendency to place such

importance on this particular field.  If a totalitarian regime aims to

gain mastery over the entire society, it cannot achieve this goal

without at the same time declaring an inverted value system, striving

for pre-eminence not only over history but over human society itself. 

In this respect, this conflict over values turned out to be a conflict

not only over democracy, but over the essence and continuity of

humanity.  In this battle, German Nazism reached deep into its arsenal,

and the destructive urge so brilliantly captured in Plato's phrase, "the

thirst for blood", could be seen both in theory and in practice and was

gratified not only in the inhumanity of the concentration camps, but

also in the savagery of the war of extermination.  Concepts such as

Führertum, Volkstum, and Volksgemeinschaft represent only some of the

hallmarks of the ideology which declares in an overt fashion the Nordic

race's right to world dominance.  Behind the rituals that were part and

parcel of the Nazi "value system" was hidden the propensity to destroy

and tear out by the roots all actual values, everything that enables the

individual to have self-consciousness and a social orientation,

everything which prevents him from becoming a mere object.  The

destruction of human autonomy can also be pointed to as the goal of and

the reason for Nazi propaganda, which created a world of mere illusion,

presenting to the international public, for example, the concentration

camps into which the victims of Nazism were placed as re-education and

labor facilities.

In the system of social values, a crucial

position is occupied precisely by liberty, which proves to be at one and

the same time a disruptive element and a necessary condition for social

development; the lack, or even total absence, of it always results in a

retardation or even the complete halt of social advancement.  At its

inner core, liberty co-creates the awareness of duties and

responsibilities:  it inspires human beings in attaining their highest

aims while letting it be known to them, however, that, primarily within

the inner logic of its own principles, it provides for its own

self-limitation.  It is from this perspective that the Constitutional

Court also views the issue of limitations upon human rights and

liberties and the preservation of their substance and purpose, as the

issue also emerged historically at the time the contested decree was

issued.  Whatever limitations each democratic society places upon basic

rights and freedoms in the matters of "open" social action, in which

even a minority is accorded the right to adopt its own political

position, this right of the minority cannot be linked to any and every

capricious attitude lacking a positive social substratum.  Democracy

would bring about its own ruin if, in regard to the opinions and actions

of a minority, it felt itself unable to respond to measures which

contradict its basic value orientation.  Thus, not even in this respect

is Presidential Decree No. 108/1945 Coll., on the Confiscation of Enemy

Property and the Funds of National Renewal, an arbitrary act, rather it

is a sanction aimed at ensuring the function and purpose of human rights

and freedoms, their constructive contribution to society, and the

deepening of the sense of responsibility.  After the Nazi occupation had

ended, it was necessary to restrict the rights of the then Czechoslovak

citizens, not due to the fact that they championed a differing

position, rather due to the fact that, in its overall context, their

position was hostile to the essence of democracy and its system of

values, which in consequence represented support for the war of

aggression.  In this instance, this restriction applied equally to all

cases which met the conditions laid down, namely a relation of enmity to

the Czechoslovak Republic and the democratic form of government,

without regard to membership in a national group.  If in exercising

their human rights and freedoms, certain social groups place no limits

upon themselves and thereby destroy the rights and freedoms of others,

no option remains but to sanction such behavior legally and socially. 

Thus, Decree No. 108/1945 Coll., on the Confiscation of Enemy Property

and the Funds of National Renewal, also pursued the goal of the

political and economic stabilization of a democratic land ruined by the

war and occupation, the same as the interest in doing away with further

possible recurrences of analogous historical situations, as well as the

interest in protecting the rights and freedoms of those citizens who did

not bring on this burden and whose social and moral consciousness -

indispensable for the exercise of these rights- would, in the absence of

such sanctions, suffer unforeseeable ruptures; all this despite the

fact that the pursuit of this goal in the postwar circumstances had

hidden within it the aims and practices of political forces who were

endeavoring to install the so-called "people's democracy" as the route

to another totalitarian regime.

To what has already been stated

can be added the fact, which is determinative in the present case, that 

the legislation adopted in exile, just as the immediate post-war

legislation of the liberated Czechoslovak state, at the present concern

what is in essence an already closed circle of problems and issues

intimately connected with the wartime events and the economic renewal of

the land.  In addition, the normative acts from this period

accomplished their purposes in the immediate post-war period, so that

from a contemporary perspective they no longer have any current

significance and already lack any further constitutive character

(Article 5 para. 2 of Constitutional Decree of the President from 13

August 1944, Official Gazette of Czechoslovakia, as amended by Act No.

12/1945 Coll., which Approved, Supplemented, and Amended Enactments

concerning the Renewal of the Legal Order).  Legal relations created on

the basis of this act are not only a consequence of the events of the

war but, in addition, they resulted from a legal exercise of

Czechoslovak (Czech) legislative power, the aim of which was to repair

the damage which was caused by the extraordinary conditions of the

period of non-freedom, so that these legal relations enjoy the

protection that results from being enactments of the Czechoslovak

(Czech) legal order.

Thus, on the basis of all the

above-ascertained facts and considerations, the Constitutional Court has

come to the conclusion that, at the time of its issuance, the Decree of

the President No. 108/1945 Coll., on the Confiscation of Enemy Property

and the Funds of National Renewal, was not only a legal but also a

legitimate act.  In view of the fact that this normative act has already

accomplished its purposes and for a period of more than four decades

has not created any further legal relations, so that it no longer has

any constitutive character, in the given situation its inconsistency

with constitutional acts or international treaties under Article 10 of

the Constitution1) (Article 87 para. 1, letter a2)) of the Constitution

of the Czech Republic) cannot be reviewed today, for such a means of

proceeding would lack any juridical function whatsoever.  To proceed

otherwise would be to cast doubt upon the principle of legal certainty,

which is one of the basic requirements of contemporary democratic legal

systems.

So, on all of the grounds adduced above and pursuant to

§ 70 para. 2 of Act No. 182/1993 Coll., on the Constitutional Court,

the Constitutional Court has rejected on the merits R. D.'s petition

seeking the annulment of Decree of the President No. 108/1945 Coll., on

the Confiscation of Enemy Property and the Funds of National Renewal
 




Pl. US 14/94
Overview of the most important legal regulations


1.  

 Art. 10 of Act no. 1/1993 Coll., the Constitution of the Czech

Republic, provides that international treaties concerning human rights

and fundamental freedoms which have been duly ratified and promulgated

and by which the Czech Republic is bound are directly applicable and

take precedence over statutes.

2.    Art. 87 par. 1 letter a) of

Act no. 1/1993 Coll., the Constitution of the Czech Republic, provides

that the Constitutional Court has jurisdiction to annul statutes or

individual provisions thereof if they are inconsistent with a

constitutional act or an international treaty under Article 10.

3.  

 Decree of the President of the Republic no. 108/1945 Coll., on

Confiscation of Enemy Property and the National Renewal Funds

4.  

 § 1 par. 1 of the Decree of the President of the Republic no. 108/1945

Coll., on Confiscation of Enemy Property and the National Renewal

Funds, designates confiscated property. Par. 1 provides that immovable

and movable property is confiscated without compensation for the

Czechoslovak Republic which property, as of the day of the actual ending

of the German and Hungarian occupation was or still is owned by: 1. the

German Reich, the Hungarian Kingdom, public law entities under German

or Hungarian law, and other German or Hungarian legal entities, or 2.

natural persons of German of Hungarian nationality, with the exception

of person who prove that they remained loyal to the Czechoslovak

Republic, never acted against the Czech and Slovak nations and either

actively took part in the fight for its liberation, or suffered under

the Nazi or fascist terror, or 3. natural persons who conducted activity

against the state sovereignty, independence, unity,

democratic-republican state form, security and defense of the

Czechoslovak Republic, … Par. 2 provides that all property is also

subject to confiscation which, in the period after 29 September 1938,

belonged to the subjects specified in paragraph 1 and was, in the

decisive period under paragraph 1, or still is, owned by persons in

whose hands it would not be subject to confiscation, unless subjecting

such property to confiscation would not comply with the principles of

decency. Par. 3 provides that the relevant district national committee

decides whether conditions for confiscation under this decree are met.