1995/06/22 - IV. ÚS 56/94: Dreithaler Complaint

22 June 1995

HEADNOTE:

In the

practice of ordinary courts, in cases of confiscation of property

pursuant to decree No. 108/1945 Coll.,1) where the administrative body

made its decision only after 25 February 1948 with regard to whether the

conditions for confiscation under this decree were met, the growing

tendency is to authorize courts to judge whether the statutory

prerequisites for the passage of the item to the state are met in

respect to the provisions of § 6 para. 2 of Act No. 87/1991 Coll.)
 



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 


 The

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

constitutional complaint against the 26 October 1993 judgment of the

Regional Court in Ústí and Labem, the Liberec Division, file no. 29 Co

647/93-30, with the Regional Court in Ústí nad Labem. the Liberec

branch, decided,thusly:

 

 

The

judgment of the Regional Court in Ústí nad Labem, the Liberec Division

from 26 October 1993, file no. 29 Co 647/93-30, is hereby quashed.
 



REASONING


The complainant submitted the constitutional complaint in a timely

manner against the judgment referred to above by the Regional Court in

Ústí nad Labem, the Liberec Division.  That judgment upheld the judgment

of the District Court in Liberec from 25 February 1993, which rejected

the complainant’s petition to have it declared that the first

above-mentioned secondary party is obliged to surrender to the

complainant, and to conclude with him an agreement concerning the

surrender of, the home, parcel number 285 with building site number

1768/1, as well as an outbuilding, recorded as LV No. 2433 Liberec Land

Registry, and the other secondary party be obliged to surrender the plot

of land No. 1768/2, registered at LV No. 16 Liberec Land Registry.  The

complainant contends that in the contested decision, the Regional Court

in Ústí nad Labem, the Liberec Division, violated several fundamental

rights and basic freedoms guaranteed by the Charter of Fundamental

Rights and Basic Freedoms, namely the right embodied in Article 11 of

the Charter, which provides that everyone has the right to own property

and  that the ownership of each owner has the same statutory content and

protection, and which guarantees inheritance.

The Regional

Court in Ústí nad Labem, the Liberec Division, prayed that the

constitutional complaint be rejected on the merits and, to the reasons

given for its decision, it added that, in each case, the confiscation of

the requested property took place outside of the „decisive period“,

stated in § 1 of Act No. 87/1991 Coll., on Extra-Judicial

Rehabilitation,3) that is, the period from 25 February 1948 until 1

January 1990.  The confiscation in question was actually effected by the

promulgation, in the Collection of Laws and Orders, of Decree No.

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

National Renewal, thus, on 30 October 1945.

As it has declared

in a great number of its earlier judgments, the Constitutional Court is

not a court placed in a position superior to ordinary courts, it is not

the summit of the court system, so that it cannot arrogate to itself the

right of review over their activities, provided, however, that in their

decisions these courts conform to the provisions found in the Fifth

Chapter of the Charter of Fundamental Rights and Basic Freedoms.

Just such a constitutionally protected fundamental right is laid down

in Article 36 para. 1 of the Charter,4) giving to everyone the right to

seek vindication of their rights by the prescribed procedure before an

independent and impartial court.  In the case at hand, however, the

ordinary court did not proceed in accordance with the cited Article, for

it did not draw any conclusions from the fact that there exists obvious

and substantial discrepancies between the 27 November 1992 extract and

the 11 February 1993 extract from the Land Register for the Liberec Land

Registry, in relation to book folder No. 775.  As a result of these

discrepancies, it is not at all clear who was the owner of the land in

question prior to its confiscation.  The ordinary court should rather

have cleared up these discrepancies because, while confiscation of the

property pursuant to Decree No. 108/1945 Coll.1) occurred ex lege,

nonetheless it occurred only upon the fulfillment of all the conditions

prescribed by the Decree, which include a final and valid decision by an

administrative body to the effect that the conditions for the

confiscation under the Decree (§ 1 para. 4) have been fulfilled.  In

view of the above-stated facts, all the more should the ordinary court

have acquainted itself with the content of the confiscation decision, so

that in this way it would obtain a basis for the conclusion regarding

when and from whom the property which the present case concerns was

confiscated, for only then could they react suitably when judging the

claim asserted by the complainant and its factual accuracy.  In this

connection, it is necessary to refer to the fact that even in the

practice of ordinary courts, in cases of confiscation of property

pursuant to decree No. 108/1945 Coll.,1) where the administrative body

made its decision only after 25 February 1948 with regard to whether the

conditions for confiscation under this decree were met, the growing

tendency is to authorize courts to judge whether the statutory

prerequisites for the passage of the item to the state are met in

respect to the provisions of § 6 para. 2 of Act No. 87/1991 Coll.2)

(See, Decision No. 16/1994, the Collection of Court Decisions and

Positions, decision of the High Court in Prague from 30 December 1994,

file no. 4 Cdo 174/84).

The violation of a person’s right to

judicial protection under Article 36 para. 1 of the Charter4) is so

clearly evident in this case that it was not necessary to deal with the

complainant’s further criticisms directed rather against Decree No.

108/1945 Coll.,1) as such, since they are irrelevant to the proceeding

on the constitutional complaint.

Therefore, since the decisions

of the ordinary courts violated the complainant’s constitutionally

protected right to judicial protection under the cited Article 36 para. 1

of the Charter,4) the Constitutional Court hereby grants the

constitutional complaint submitted under Article 87 para. 1, letter d)

of the Constitution and vacates the 26 October 1993 judgment of the

Regional Court in Ústí nad Labem, Liberec Division, (§ 82 para. 3,

letter a) of Act No. 1982/1993 Coll., on the Constitutional Court).


 


IV. US 56/94
Overview of the most important legal regulations

1.  

 Decree of the President of the Republic no. 108/1945 Coll., on

Confiscation of Enemy Property and the National Renewal Funds.

2.  

 § 6 par. 2 of Act no. 87/1991 Coll., as amended by later regulations,

provides that the obligation to issue a thing also applies to other

cases not stated in par. 1, which fall under § 2 par. 1 letter c), where

the state took the thing without legal grounds.

3.    § 1 of Act

no. 87/1991 Coll., as amended by later regulations, provides that the

Act applies to the mitigation of the consequences of certain property

and other injustices created by civil law and labor law acts and

administrative acts, performed in the period from 25 February 1948 to 1

January 1990 (the “decisive period”) in conflict with the principles of a

democratic society, respecting the rights of citizens stated by the

United Nations Charter, the Declaration of Human Rights and related

international covenants on civil, political, economic, social and

cultural rights.

4.    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.