1995/06/08 - IV. ÚS 215/94: Slovak Restitution Claim

08 June 1995

HEADNOTES:

The

principle of legal certainty and the protection of the citizens’ faith

in the law are without doubt among the hallmarks of a law-based state. 

The prohibition on retroactivity of legal norms, or the retroactive

interpretation of them, then, also makes up a component of legal

certainty. Thus, if someone acts in reliance on some statute, he should

not be disappointed in his reliance. From this point of view, the

application of law, which de facto divided restituants into two

categories (i.e. those whose claims were decided before the state was

divided, and those, whose claims were asserted before 31. 12. 1992, and

were decided after 1. 1. 1993) cannot be considered to be in accordance

with the Constitution.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


In

the matter of J. Š, a citizen of the Slovak Republic, in the matter of a

constitutional complaint against the 6 April 1994 decision of the

District Office - District Land Office in Šumperk, action no.

1407/1716/94, and against the 27 September 1994 judgment of the Regional

Court in Ostrava, file no. 22 Ca 264/94, with the Regional Court in

Ostrava joined as a party and the District Office - District Land Office

in Šumperk joined as a secondary party, the Constitutional Court of the

Czech Republic, decided thusly:

The 27 September 1994 judgment of the Regional Court in Ostrava, file no. 22 Ca 264/94, is hereby annulled;

The 6 April 1994 decision of the District Office - District Land Office

in Šumperk, action no. 1407/1716/94, is hereby annulled.



REASONING


In her timely filed constitutional complaint, the complainant sought

the annulment of the final judgment of 27 September 1994 of the Regional

Court in Ostrava and of the 6 April 1994 decision of the District

Office - District Land Office in Šumperk.  This judgment upheld the

decision by the Land Office in Šumperk in which it refused to approve an

agreement on the surrender of real estate, an agricultural homestead, ,

the agreement having been concluded between J. Š. and the obligated

person, the City of Jeseník.

On the basis of its legal analysis,

the court reached the same conclusion as the District Office - District

Land Office in Šumperk, that the complainant did not have the status of

an authorized person under § 4 paras. 1 and 2 of Act No. 229/1991

Coll., on the Regulation of Ownership Relations to the Soil and to other

Agricultural Property,1) as amended by later enactments, for she does

not meet the criterion of Czech citizenship.

The main point made

in the 15 December 1994 constitutional complaint is the complainant’s

objection that, as a consequence of the division of the former common

state, the Czech and Slovak Federal Republic, she has been discriminated

against with regard to her restitution claim.  Her request for the

surrender of the real estate was timely submitted and met all of the

requirements.  She further reasoned that, in accordance with

Constitutional Act No. 4/1993 Coll., on Measures Relating to the

Dissolution of the Czech and Slovak Federal Republic, the principle

should apply that relations and claims arising prior to the division of

the state should be governed by the enactments then in force.  According

to the complainant’s assertion, the contested decision infringes the

basic legal certainty of citizens laid down in Article 1 of the

Constitution of the Czech Republic.  It is likewise in conflict with

Article 1, Article 2 para. 3, Article 3 para. 1, and Article 4 paras. 2

and 3 of the Charter of Fundamental Rights and Basic Freedoms

(hereinafter „Charter“), with Article 10 of the Constitution of the

Czech Republic, and with Article 1 para. 1 of the Additional Protocol to

the Convention on the Protection of Human Rights and Fundamental

Freedoms.  In addition, she asserts that it is not in conformity with

Article 11 para. 1 of the Charter for a state administrative body,

rather than a court, to be empowered to decide such a significant issue

as one concerning property.  The argument that such decisions are

reviewed by a court under the procedure for the judicial review of

administrative decisions does not pass muster because a court reviews it

only from the perspective of legality and the party has no appellate

remedy against its decision.  Such a decision-making system conflicts

with the fundamental right to a fair procedure (Article 36 paras. 1 and 2

of the Charter), as well as with Article 6 para. 1 of the European

Convention on the Protection of Human Rights.  In addition, the court is

empowered to decide without a hearing, as occurred in this very case.

The Justice Rapporteur requested that the other parties to the

proceeding, that is, the Regional Court in Ostrava and the District Land

Office in Šumperk, give their views on the constitutional complaint. 

In its 13 February 1995 submission, the District Land Office stated that

in deciding the complainant’s restitution claim under Act No. 229/1991

Coll., as amended by later enactments, it relied above-all on the

provisions of Article 1 para. 2 of Constitutional Act No. 4/1993 Coll.,

on Measures Relating to the Dissolution of the Czech and Slovak Federal

Republic,2) which provides that, after 1 January 1993, statutes that tie

rights and duties to the territory of the Czech and Slovak Federal

Republic and to citizenship of the Czech and Slovak Federal Republic

must be interpreted such that these terms shall be understood to mean

the territory of the Czech Republic and citizenship of the Czech

Republic, unless otherwise provided by statute.  In view of the fact

that the Office was not aware of any statute that would provide

otherwise in the case of the assertion of a claim under the Act on Land,

it reached the conclusion that, as the applicant did not meet the

requirement of citizenship of the Czech Republic, she had no claim,

regardless of the fact that she asserted her claim at a time when she

met all the requirements, citizenship of the Czech and Slovak Federal

Republic in particular

In its submission, the Regional Court in

Ostrava stated that it did not consider the complainant’s assertion to

be well-founded so far as concerns the asserted violation of the

fundamental rights and basic freedoms cited in the constitutional

complaint.  To the extent that the complainant makes reference to the 23

November 1992 Agreement between the Governments of the Czech Republic

and the Slovak Republic, on the Support and Mutual Protection of

Investments, the Regional Court stated in its submission that this

Agreement is not a generally binding legal enactment, for it was not

promulgated in the Collection of Laws (in contrast with the situation in

the Slovak Republic, where it was promulgated under No. 231/1993 Z.z.).

The Director of the Central Land Office expressed the views of the

Ministry of Agriculture on the matter.  His submission stated that, when

a state ceases to exist, the private law claims of citizens who become

citizens of one of the successor states should not be affected.  Stated

otherwise, whether certain persons should be classified under the

heading of an „authorized person under the Act on Land“, must be

determined from whether that person was a citizen of the former Czech

and Slovak Federal Republic at the time he asserted his restitution

claim and whether he had permanent residence within the country.  The

Central Land Office communicated this position to the district land

offices in an Information of 22 March 1993 and 15 December 1993.  In

reality, however, certain regional courts, especially in Moravia,

maintain a different opinion and do not recognize citizens of the Slovak

Republic as having the status of authorized persons, even if they made a

timely assertion of their claims and if, at that time of asserting the

claim, they met all the conditions therefor.  In the view of the Central

Land Office, the fact that the responsible district land office did not

manage to issue a decision by the time the common state was divided,

whether from the excessive quantity of submitted requests or from other

objective reasons, can not work to the detriment of claimants.  The

Ministry of Agriculture’s efforts to resolve this problem by means of

legislation were not successful.  It further stated in its submission

that, after the dissolution of the federation, the Slovak Republic

acknowledged restitution claims made by Czech citizens to the same

degree as it did those of Slovak citizens.  At the beginning of 1994,

the Czech side proposed to the Slovak side that they conclude a new

agreement on the support and mutual protection of investments, however,

these negotiations have not as yet been concluded.

When

considering the actual contents of the constitutional complaint itself,

the Constitutional Court proceeded from the following legal

considerations:

The principle of legal certainty and the

protection of the citizens’ faith in the law without doubt are among the

hallmarks of a law-based state.  The prohibition on retroactivity of

legal norms, or the retroactive interpretation of them, then, also makes

up a component of legal certainty.  This prohibition, which for the

field of substantive criminal law is explicitly stated in Article 40

para. 6 of the Charter of Fundamental Rights and Basic Freedoms,3) may

be deduced from Article 1 of the Constitutional of the Czech Republic4)

with regard to other legal fields.  The Constitutional Court  of the

Czech and Slovak Federal Republic has previously adopted this position

in the matter Pl. ÚS 78/92, and it has been reiterated in the judgment

of the Constitutional Court of the Czech Republic, file no. Pl. ÚS

16/93, as well as in several other judgments.  Thus, if someone acts in

reliance on some statute, he should not be disappointed in his

reliance.  Among the principles of the law-based state should be counted

also the principle that the period during which a proceeding did not go

forward can not be counted to the detriment of a party, with the

exception of cases when the party to the proceeding did not take proper

steps to  advance it.

What is particular to the case at hand is

that it does not concern the issuance of a new legal enactment; rather

it concerns the fact that the division of the state has resulted in the

situation where a legal enactment, the text of which has not be amended,

begins to be interpreted differently.  The legal relations existing

prior to 1 January 1993, as well as legal transactions carried out prior

to that date, thus, did not remain a forbidden sphere.  The key issue

is whether such a practice on the part of administrative bodies can be

considered to be in conformity with the Constitution where restituents

are de facto divided into two categories:  those who asserted their

claims within the prescribed period, who met the prescribed requirements

when they asserted their claim, and whose claims were decided upon

before the moment when the state was divided, and those who, after 1

January 1993, were informed that they actually ceased to be authorized

persons ex post, even though these persons did everything that was

required of them for the assertion of their claim.  At the same time, it

is necessary to emphasize the fact that the general deadline for the

assertion of claims under the Act on Land was set as 31 January 1993 (§

13 para. 1) and the vast majority of applicants asserted their claims

while the common state still existed, when the conditions were

citizenship of the federation and permanent residence within the

federation.

The legal position adopted by the Land Office, and

later also by the Regional Court, in the case under consideration, with

reference to Article 1 para. 2 of Constitutional Act No. 4/1993 Coll.,

on Measures Connected with the Dissolution of the Czech and Slovak

Federal Republic,2) thus actually leads to the consequence that conduct

which was legally relevant in accordance with the preceding legal rules

became, on the basis of the effect of the new legal rules (more

precisely said, on the basis of the new legal situation), legally

irrelevant, so that an unjustifiable inequality was established between

authorized persons.  In this way, the constitutional principles of the

protection of the citizen’s faith in law, of the law-based state, and of

equality, as they are laid down in Article 1 of the Constitution of the

Czech Republic4) and in Article 1 of the Charter,5) were infringed.

The Court also agrees with the complainant’s view that if, in such a

significant case and in one that is certainly not simple, a court makes a

decision without the participation of the party, the principle of fair

procedure, set down in Article 36 paras. 1 and 2 of the Charter4) and in

Article 6 para. 1 of the Convention on the Protection of Human Rights

and Basic Freedoms, has been violated.

Last but not least, the

Constitutional Court then proceeds from the fact that the purpose of all

restitution acts was to alleviate the consequences of certain property

injustices which occurred during the decisive period.  Even if the

legislature was aware that it was unrealistic to try to remedy all

injustices, so that it is necessary to be satisfied with righting only

some of them, still these legal enactments cannot be interpreted so

dogmatically and non-conformably to the Constitution as to de facto give

rise, in relation to certain persons, to new injustices.

Thus, for the above-stated reasons, the Constitutional court has set aside the contested decisions.

 

 


IV. US 215/94
Overview of the most important legal regulations

1.  

 § 4 par. 1 of Federal Assembly Act no. 229/1991 Coll., on the

Regulation of Ownership of Land and other Agricultural Property,

provides that an entitled person is a citizen of the Czech and Slovak

Federal Republic, whose land, buildings and structures, belonging to the

original agricultural establishment, were transferred to the state or

another legal entity in the period from 25 February 1948 to 1 January

1990 in a manner specified in this Act. Par. 2 provides the order of

entitled persons in case of the death of the person whose real estate

was transferred in the decisive period to the state or another legal

entity in cases specified in this Act.

2.    Art. 1 par. 2 of

Czech National Council Constitutional Act no. 4/1993 Coll., on Measures

Related to the Termination of the Czech and Slovak Federal Republic,

provides that where statutes, constitutional acts and other legal

regulations adopted before the dissolution of the CSFR tie rights and

obligations to the territory of the Czech and Slovak Federal Republic

and citizenship of the Czech and Slovak Federal Republic, this is

understood as the territory of the Czech Republic and citizenship of the

Czech Republic, unless the law provides otherwise.

3.    Art. 40

par. 6 of Act no. 2/1993 S., the Charter of Fundamental Rights and

Freedoms, provides that the question whether an act is punishable or not

shall be considered, and penalties shall be imposed, in accordance with

the law in effect at the time the act was committed. A subsequent law

shall be applied if it is more favorable to the offender.

4.  

 Art. 1 of Act no. 1/1993 Coll., the Constitution of the CR, provides

that the Czech Republic is a sovereign, unitary, and democratic state

governed by the rule of law, founded on respect for the rights and

freedoms of man and of citizens.

5.    Art. 1 first sentence of

Act no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,

provides that all people are free, have equal dignity, and enjoy

equality of rights.

6.    Art. 36 par. 1 of Act no. 2/1993

Coll., the Charter of Fundamental Rights and Freedoms, provides that

everyone may assert, through the legally prescribed procedure, his

rights before an independent and impartial court or, in specified cases,

before another body. Par. 2 provides that unless a law provides

otherwise, a person who claims that his rights were curtailed by a

decision of a public administrative authority may turn to a court for

review of the legality of that decision.