1995/11/08 - Pl. ÚS 5/95: Citizenship Loss

08 November 1995

HEADNOTES:

 

1. The Article 12 para. 2 of the Constitution,1) however, is a

response to the institution of forfeiture of citizenship which existed

before November, 1989, and attempts, by means of constitutional

regulation, to prevent such intrusion upon the rights of citizens. The

purpose of the constitutional directive enshrined in Art. 12 para. 2 of

the Constitution,1) thus, was and is to prevent the possibility of the

legislature adopting legal rules which would call for the deprivation of

citizenship as a sanction for any illegal conduct by a citizen. In the

present case, however, the criticized § 17 of the Citizenship Act2) has

a different aim, if it assumes that the citizen acted to acquire

foreign citizenship on his own initiative. From this viewpoint, it is

not a matter of depriving an individual of her citizenship, but of the

loss of citizenship through the acquisition of citizenship of another

state. It is evident from this that the meaning of Art. 12 para. 2 of

the Constitution1) is quite different from what the appellant infers.

If the appellant‘s interpretation of Art. 12 para. 2 of the

Constitution1) - in comparison with § 17 of the cited Act2) - were

correct, that would mean, as a consequence, that the Constitution

prohibits the legislature (even pro futuro) from barring the existence

of dual or multiple citizenship. Such a ban would, of course, be

completely absurd, as it would restrict the right of a sovereign state

to prevent dual citizenship, and would be in conflict - as stated

elsewhere in this decision - with draft international agreements

currently in force in contemporary democratic Europe, as well as draft

agreements.

 

The Constitutional Court considers it significant that the acquisition

of citizenship of a foreign state under § 17 of the cited act2) occurs

through the individual‘s (applicant‘s) own manifestation of intent, and

that the legal consequence of that manifestation of intent is the loss

of citizenship of the Czech Republic. If, then, a citizen manifested

(manifests) the intent to acquire, at his own request, citizenship of a

foreign state, he must have been (must be) aware - in view of the clear

and categorical wording of the contested legal provision - i.e., a

generally binding enactment - of the fact that de lege lata, as soon as

he acquires the citizenship of the foreign state, he will lose

citizenship of the Czech Republic.

 

2. Art. 12 para. 2 of the Constitution, 1) on the one hand, and Art.

12 para. 1 of the Constitution1) and § 17 of the Citizenship Act,2) on

the other hand, used different terms („deprivation“ of citizenship,

„loss“ of citizenship). This difference in terminology indicates the

legislature‘s intent to differentiate two qualitatively different

situations. This intent can be concluded, particularly by comparing

both paragraphs of Art. 12 of the Constitution. (Art. 12 para. 1 states

that the acquisition and loss of citizenship of the Czech Republic shall

be governed by law. Art. 12 para. 2 states that no one can have his

state citizenship removed against his will.) It is difficult to imagine

that the legislature would have used two different terms in one

provision, if it did not intend to bring about different legal results

and thus address situations which are not the same, but rather

different. This is also the issue in the matter at hand.

 

3. To adjudge the issue at hand we also cannot omit consideration of

the legal situation in the field of international law. In this area dual

citizenship is generally considered an undesirable condition.

 

The general practice of states can be characterized thus:

a)

a person with more than one citizenship cannot rely on his citizenship

of one state in relation to another state of which he is also a

citizen;

b) a third state is supposed to consider a person with more than one citizenship a citizen of only one state, as it elects.

 

The attempt to eliminate dual citizenship is also apparent from

bilateral treaties which the Czechoslovak Republic (or the former

Czechoslovak Socialist Republic) concluded with some neighboring states,

specifically with the USSR, Hungary, and Poland.

 

4. The legal framework for the termination of the state citizenship

of the Czech Republic is fully in accordance with the trend in

contemporary modern democratic Europe. In this regard, the 6 May 1963

Agreement on limiting instances of multiple citizenship and on services

in the armed forces in case of multiple citizenship, of 6 May 1963, is

significant. Art. 1 para. 1 of that Agreement states that adult

citizens of a signatory state who, by means either of a manifestation of

their own free will, naturalization, election or re-acquisition,

acquire the citizenship of another signatory state, shall lose their

previous citizenship. They are not entitled to retain their previous

state citizenship. An analogous framework also applies to minors.

 

The Czech Republic is not yet a signatory of this agreement, but its

very existence clearly indicates the trend among the Council of Europe

member states.

 

Nor does the forthcoming European Treaty on Citizenship and Military

Duty in the Case of Multiple Citizenship represent a break with the

principles of the Agreement of 6 May 1963, which is still in effect,

albeit not for the Czech Republic.

 

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 

The petition is rejected on the merits.

 

 

 

REASONING

 

The

complainant submitted a constitutional complaint against the judgment

of the Municipal Court in Prague . . . in which it was determined that,

in accordance with § 13 lit. c)4) and § 172) of Czech National Council

Act No. 40/1993 Coll., on the Acquisition and Loss of Citizenship of the

Czech Republic [hereinafter Citizenship Act], a certificate evidencing

citizenship of the Czech Republic may not be issued to the complainant.

 

The

complainant also submitted a petition proposing the annulment of § 17

of the Citizenship Act2) (the application of which brought about the

Municipal Court's judgment), in accordance with which citizens of the

Czech Republic shall lose Czech citizenship in the moment that they, at

their own request, acquire the citizenship of a foreign state, with the

exception of those who gained citizenship of a foreign state in

connection with entering into marriage or birth.

 

[Until

31 December 1992, the complainant was a citizen of the Czech and Slovak

Federal Republic and of the Czech Republic. Following the dissolution

of the federation, he remained a citizen of the Czech Republic. On 30

June 1993, he elected to take citizenship of the Slovak Republic, for

which he was eligible by the terms of the Slovak Citizenship Act. He

then requested a certificate of Czech citizenship from a local municipal

office in Prague. In view of § 17 of the Czech Citizenship Act,2) his

request was rejected, as was his appeal to the Municipal Court in

Prague, both institutions concluding that as a consequence of his

electing to take Slovak citizenship, his Czech citizenship was

automatically lost. He then filed a constitutional complaint with the

Constitutional Court of the Czech Republic, requesting that § 172) be

declared unconstitutional and that, as a consequence thereof, the

Municipal Court decision be quashed.]

. . . . .

 

The

complainant contested, among other things, the conclusion of the Prague

City Court, that the provisions of § 17 of the Citizenship Act2) do not

conflict with Art. 12 para. 2 of the Constitution.1) … According to the

contested decision it is not decisive whether the intent to lose

citizenship of the Czech Republic was explicitly expressed, “for if

losing Czech citizenship is a legal consequence of the manifestation of

intent to acquire citizenship of a foreign state, that manifestation of

intent aimed at acquiring foreign citizenship always also contains a

manifestation of intent aimed at losing Czech citizenship.”

. . . . .

 

II.

. . . . .

The

cited Assembly publications emphasize that a basic principle applied in

the draft law is the principle under which each citizen should have, if

possible, the citizenship of only one state. This is based on an

attempt to prevent problems connected with dual citizenship, both for

the individual and for the state. This is based on the principle that

individuals should have an opportunity, while observing requirements set

by law, to acquire or lose the citizenship of the Czech Republic.

Maximum emphasis is placed on maintaining only one citizenship.

. . . . .

 

III.

The

appellant first relies on Art. 12 para. 2 of the Constitution,1) which

states that no one may be deprived of his citizenship against his will.

This Article, however, is a response to the institution of forfeiture

of citizenship which existed before November, 1989, and attempts, by

means of constitutional regulation, to prevent such intrusion upon the

rights of citizens. The purpose of the constitutional directive

enshrined in Art. 12 para. 2 of the Constitution, 1) thus, was and is to

prevent the possibility of the legislature adopting legal rules which

would call for the deprivation of citizenship as a sanction for any

illegal conduct by a citizen. In the present case, however, the

criticized § 17 of the Citizenship Act2) has a different aim, if it

assumes that the citizen acted to acquire foreign citizenship on his own

initiative. From this viewpoint, it is not a matter of depriving an

individual of her citizenship, but of the loss of citizenship through

the acquisition of citizenship of another state. It is evident from

this that the meaning of Art. 12 para. 2 of the Constitution1) is quite

different from what the appellant infers. If the appellant‘s

interpretation of Art. 12 para. 2 of the Constitution1) - in comparison

with § 17 of the cited Act2) - were correct, that would mean, as a

consequence, that the Constitution prohibits the legislature (even pro

futuro) from barring the existence of dual or multiple citizenship.

Such a ban would, of course, be completely absurd, as it would restrict

the right of a sovereign state to prevent dual citizenship, and would be

in conflict - as stated elsewhere in this decision - with draft

international agreements currently in force in contemporary democratic

Europe, as well as draft agreements. The Constitutional Court therefore

does not share the appellant‘s view that Art. 12 para. 21) is relevant

in examining the constitutionality of § 17 of the Citizenship Act.2)

 

The

Constitutional Court considers it significant that the acquisition of

citizenship of a foreign state under § 17 of the cited act2) occurs

through the individual‘s (applicant‘s) own manifestation of intent, and

that the legal consequence of that manifestation of intent is the loss

of citizenship of the Czech Republic. The provisions of the Citizenship

Act were duly published in the Collection of Laws and were generally

known. Every citizen has a duty to know the laws of the republic, and

it can justifiably be expected of them that they do, particularly those

who intended or intend to perform one or another legal act connected

with citizenship. If, then, a citizen manifested (manifests) the intent

to acquire, at his own request, citizenship of a foreign state, he must

have been (must be) aware - in view of the clear and categorical

wording of the contested legal provision - i.e., a generally binding

enactment - of the fact that de lege lata, as soon as he acquires the

citizenship of the foreign state, he will lose citizenship of the Czech

Republic. If, despite that, he performed (performs) that act, he is

required to bear the legal consequences which valid law connects to that

act.

 

The

opinion that Art. 12 para. 2 of the Constitution1) is irrelevant to the

determination of the constitutionality of § 17 of the Citizenship

Act.,2) can also be supported by arguments based on the grammatical

analysis of both enactments.

 

Art.

12 para. 2 of the Constitution, 1) on the one hand, and Art. 12 para. 1

of the Constitution1) and § 17 of the Citizenship Act,2) on the other

hand, used different terms („deprivation“ of citizenship, „loss“ of

citizenship). This difference in terminology indicates the

legislature‘s intent to differentiate two qualitatively different

situations. This intent can be concluded, particularly by comparing

both paragraphs of Art. 12 of the Constitution. 1) (Art. 12 para. 1

states that the acquisition and loss of citizenship of the Czech

Republic shall be governed by law. Art. 12 para. 2 states that no one

can have his state citizenship removed against his will.) It is

difficult to imagine that the legislature would have used two different

terms in one provision, if it did not intend to bring about different

legal results and thus address situations which are not the same, but

rather different. This is also the issue in the matter at hand.

 

Concerning

the fact that the general term „deprivation“ has a different meaning in

contemporary Czech than does the term „loss“, we can point, in

particular, to expert literature in linguistics (cf. The Dictionary of

Standard Czech, 1989 Czech Academy of Sciences - Institute for Czech

Language, volume IV., p. 367, volume VII., p. 238). According to the

dictionary, the term „to deprive“, means: by some intervention to

eliminate the effect or influence of someone or something, to take

something away from someone, deprive someone of something (deprive

someone of a managerial position). Legal terminology contains the

terms, „depriving of capacity to engage in legal transactions“,

„depriving of parental rights.“ The grammatical significance of this

word and its comparison with familiar legal institutions clearly

indicate that the concept „deprivation“ presupposes an outside

intervention extranea (generally from a position of authority). In

contrast, the expression „loss,“ according to the dictionary, has the

meaning of „to lose“ (something, someone), „lose possession“ (of

something), in other words, the opposite of the concept „to acquire“:

e.g. to lose possession of money or property. „To lose something,“ in

contrast to the concept „be deprived of something,“ thus apparently does

not assume an outside intervention by a third party. It is, thus,

evident that even from the grammatical interpretation of compared texts,

the protection enshrined in Art. 12 para. 2 of the Constitution1) has

in mind cases when the deprivation (forfeiture) of citizenship comes

about as the result of an authoritative intervention by a third party

(the state). Thus, the loss of citizenship, which is regulated in the

provisions of §§ 13 to 17 of the Citizenship Act, is not such a case.

 

The

Constitutional Court has, thus, reached the conclusion that § 17 of the

Citizenship Act.,2) is not in conflict with Art. 12 para. 2 of the

Constitution. 1)

 

The

Constitutional Court also took into consideration provisions of the

Charter of Fundamental Rights and Basic Freedoms and of international

treaties, to which the complainant's constitutional complaint makes

reference. [The Court did not find § 172) to be in conflict with any of

them]

. . . . . .

 

IV.

Our

current legal framework is based on the principle that citizenship

should be single and exclusive. This is emphasized by the explanatory

report to the government‘s draft law on acquisition and loss of

citizenship of the Czech Republic. In this connection we must point to

judgment of the Constitutional Court of 13 September 1994, file no. Pl.

ÚS 9/94, which concerns several issues of citizenship of the Czech

Republic. This judgment states, among other things, that the Czech

Republic addressed the issue of acquisition of citizenship of the Czech

Republic by a domestic enactment, the Citizenship Act., which contains

the principle of preventing dual citizenship and limiting the creation

of statelessness. (In this way, the legal regime in effect in the Czech

Republic was linked to that which had been in effect on the territory

of the Czech and Slovak Federative Republic, and was based on the fact

that analogous principles are also applied in the legal systems of other

European countries.) Therefore, we can hardly accept the complainant's

categorical and generally formulated claim that neither any legal

regulation of the Czech Republic nor its constitutional order contain

the principle of forbidding dual citizenship, which, on the contrary, he

claims they expressly allow.

 

To adjudge the issue at hand we also cannot omit consideration of the legal situation in the field of international law.

 

1.

In this area dual citizenship is generally considered an undesirable

condition. On the one hand it can lead to international disputes,

particularly in issues of diplomatic protection, because a dual citizen

can be considered a citizen by more than one country. On the other hand

dual citizenship causes serious problems for the dual citizens

themselves, in particular concerning obligations of national loyalty and

the performance of military service, which two or more countries can

require of dual citizens. Third states may consider a dual citizen, as

they elect, as the citizen of either of the competing states, regardless

of the intent and interest of the dual citizen himself.

 

2. The general practice of states can be characterized thus:

 

a)

a person with more than one citizenship cannot rely on his citizenship

of one state in relation to another state of which he is also a citizen;

 

b)

a third state is supposed to consider a person with more than one

citizenship a citizen of only one state, as it elects, not according to

the election of the dual citizen himself or any of the states of which

he is a citizen. In this election, states are generally guided by the

principle of effectiveness, that is, they consider a foreigner a citizen

of the state to which he has the closest factual ties. In

Czechoslovakia the state citizenship which was acquired last was the

deciding one (§33 par. 2 of Act No. 97/1963 Coll., on International

Private and Procedural Law). The same legal situation applies in the

contemporary Czech Republic (Art. 1 of Czech National Council

Constitutional Act No. 4/1993 Coll., on Provisions Related to the

Dissolution of the Czech and Slovak Federal Republic).

 

3.

The attempt to eliminate dual citizenship is also apparent from

bilateral treaties which the Czechoslovak Republic (or the former

Czechoslovak Socialist Republic) concluded with some neighboring states,

specifically with the USSR, Hungary, and Poland. These treaties are

based on the principle that

 

a)

persons who simultaneously have the citizenship of both signatory

states can elect the citizenship which they wish to keep ...,

 

b)

persons to whom the treaty applies will be considered exclusively the

citizens of the signatory state whose citizenship they elected (Art. 7

of the CSR-USSR Treaty, Art. 6 para. 1 of the CSSR-HPR [Hungarian

People‘s Republic] Treaty),

 

c)

persons who do not make a declaration electing state citizenship by a

deadline (set forth by the treaty), will be considered exclusively the

citizens of the signatory country on whose territory they live (Art. 7

of the CSR-USSR Treaty, Art. 6 para. 3 of the CSSR-HPR Treaty, Art. 6 of

the CSSR-PPR [Polish People‘s Republic] Treaty).

 

4.

It can be said that the legal framework for the termination of the

state citizenship of the Czech Republic is fully in accordance with the

trend in contemporary modern democratic Europe. In this regard, the 6

May 1963 Agreement on limiting instances of multiple citizenship and on

services in the armed forces in case of multiple citizenship, of 6 May

1963, is significant. Art. 1 para. 1 of that Agreement states that

adult citizens of a signatory state who, by means either of a

manifestation of their own free will, naturalization, election or

re-acquisition, acquire the citizenship of another signatory state,

shall lose their previous citizenship. They are not entitled to retain

their previous state citizenship. An analogous framework also applies

to minors. The idea of strengthening the institution of exclusive

(sole) citizenship is then pursued by Art. 3 of the agreement, which

states that no provision of the Agreement bars the application of any

provisions which could restrict even further the creation of multiple

citizenship, whether it was included or subsequently implemented in the

legal framework of any signatory state or in any agreement, convention,

or treaty concluded between two or more signatory states.

 

The

Czech Republic is not yet a signatory of this agreement, but its very

existence clearly indicates the trend among the Council of Europe member

states. As of 2 January 1995, the Agreement had been ratified by 13

states (Austria, Belgium, Denmark, France, Germany, Ireland, Italy,

Luxembourg, the Netherlands, Spain, Sweden, the United Kingdom of Great

Britain and Northern Ireland) and one country had signed it (Portugal).

As a group, all the states which ratified the Agreement are significant

and traditionally democratic countries.

 

5.

Nor does the forthcoming European Treaty on Citizenship and Military

Duty in the Case of Multiple Citizenship represent a break with the

principles of the Agreement of 6 May 1963, which is still in effect,

albeit not for the Czech Republic. The preamble to the draft European

treaty recognizes the right of each state to decide whether it permits

its citizens to have only one or more than one citizenship. Art. 4 does

state that the internal laws ... of each signatory state shall be based

on the following general principles: 3. - no one shall be arbitrarily

deprived of his citizenship; however, Art. 6 par. 1 states this general

rule in more detail, saying that a signatory state may not lay down in

its domestic law ... the loss of citizenship either ex lege or at the

initiative of the signatory state, with the exception of the following

instances: a) voluntary acquisition of the citizenship of another state.

Art. 9 par. 2 further states that, depending on any ... international

agreement governing the issues of citizenship - a) each signatory state

shall grant its citizenship to person who:

 

i)

were citizens of and had permanent residence de jure and de facto on

the territory of a state which has ceased to exist ... and

 

ii)

still have permanent residence de jure and de facto on that territory,

which has become part of the territory of the signatory state.

 

It

is clear that the cited Article does not literally apply to the case at

hand, as no international treaty on citizenship was concluded in

connection with the termination of the existence of the Czech and Slovak

Federative Republic. However, even if such a situation were to occur,

we can point to the conclusion of Art. 9 par. 2 a), under which, when

citizenship is being issued, the persons in question can be required to

renounce the citizenship of any other state.

. . . . .

 

 

 

 

Pl. US 5/95

Overview of the most important legal regulations

 

1.

Art. 12 par. 1 of Act no. 1/1993 Coll., the Constitution of the CR,

reads: The conditions under which citizenship of the Czech Republic is

acquired and lost shall be provided for by statute. Par. 2 reads: No

person may be deprived of his citizenship against his will.

 

2.

§ 17 of Act no. 40/1993 Coll., on Acquiring and Losing Citizenship

of the CR, introduces the method of losing citizenship by acquiring a

foreign state citizenship and provides that a citizen of the CR loses

citizenship of the CR at the moment when, at his own request, he

acquired a foreign citizenship, except if he acquired the foreign

citizenship in connection with marriage or birth.

 

3.

Art. 10 of Act no. 1/1993 Coll., the Constitution of the CR,

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.

 

4.

§ 13 letter c) of Act no. 40/1993 Coll., on Acquiring and Losing

Citizenship of the CR, provides that citizenship is lost by acquiring

foreign citizenship (§ 17) except in cases where acquisition of foreign

citizenship happens in connection with entering into marriage or the

birth of a child.

 

5.

Art. 3 par. 1 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that everyone is guaranteed the enjoyment

of his fundamental rights and basic freedoms without regard to gender,

race, color of skin, language, faith and religion, political or other

conviction, national or social origin, membership in a national or

ethnic minority, property, birth, or other status.

 

6.

Art. 14 par. 1 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that the liberty of movement and the

freedom of the choice of residence is guaranteed.