2003/10/23 - I. ÚS 754/01: Interpretation of Restitution Laws

23 October 2003

HEADNOTES


The

Constitutional Court would emphasize that with the restitution laws the

democratic law-based state is endeavoring at least partially to

alleviate the consequences of past property injustices, and state bodies

are obliged to conduct themselves in accordance with the applicable

restitution law in harmony with the statutory interests of persons who

should be at least partially compensated for injuries inflicted upon

them by the totalitarian communist regime.  This partial compensation

cannot be seen, for example, in an outcome where, although the

restitution claim is determined to be well-founded, the entitled persons

merely receives free of charge another parcel of land owned by the

state or is awarded financial compensation.  The guiding principle must

always be the above-stated intent of the restitution law, in the

interpretation of which preference must in principle be given to turning

over the original plot, or plots, of land, should the restituent pursue

that outcome and should the law not rule it out.


Restitution

Act No. 229/1991 Coll., also pursues above all the aim that entitled

persons actually are given their original property.  It is only

exceptionally, that is if, without any doubt, all the requirements laid

down in § 11 of this Act are met, that a plot of land cannot be handed

over.  If the plot of land, after the transfer or passage to the state,

was build upon, § 11 para. 1 lit. c) of the Act introduces in total six

separate exceptions, which when satisfied permit even a built-upon plot

of land to be turned over.  The built-upon part of the plot of land is

considered to be that part upon which a structure stands and that part

of the plot directly connected with this structure and indispensable to

its operation.  There are questions especially as to what “directly

connected” and “indispensable” mean, and in each particular case they

must be carefully and responsibly, in conformity with the primary

purpose of the Land Act, examined and construed.  In the Constitutional

Court’s view these provisions cannot anyway be interpreted too broadly,

thus it cannot be inferred that, if a recreational area is

“self-contained”, it cannot be turned over, however extensive it is, and

include within it all surface areas forming part of it, including

(among others) open grounds with decorative greenery, pine ground cover,

and children’s playgrounds.  As far as concerns the asphalt parking

lot, it is fitting to make reference to the Constitutional Court’s

arguments (with reference to the conclusions expressed by the Supreme

Court in its case no. 2 Cdon 1414/97), expressed for example, in its

judgment No IV. ÚS 42/01 (Collection of Judgments and Rulings of the

Constitutional Court of the Czech Republic, Vol. 26, Judgment No. 48),

according to which in restitution cases reinforced asphalt surfaces,

e.g., a parking lot, cannot be considered as a structure impeding the

turning over of a plot of land pursuant to Act No. 229/1991 Coll.

It

must be pointed out from a general perspective that pursuant to Act No.

229/1991 Coll. a plot of land can be transferred to an entitled person

even though a structure is built upon it that prevents the use of the

plot for agricultural or forestry purposes, to the extent that, from the

structural technology perspective, that structure can be classified as

one of the types of structures enumerated in § 11 para. 1 lit. c) of the

cited act (a structure that is movable, provisional, simple, minor, or

one that is placed below the surface of the earth).  It should further

be noted that, while it was certainly intended that Act No. 229/1991

Coll. would safeguard the agricultural use of plots of land, it

nonetheless follows from the preamble to the Act that this aim should be

subordinated to the requirement of the alleviation of property

injustices by the fact that it ties improved care of the land with the

renewal of the original ownership relations in it (compare, for example,

judgment no II. ÚS 747/2000, The Collection of Judgments and Rulings of

the Constitutional Court of the Czech Republic, Vol. 26, judgment no.

63).



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court decided today, in a panel, in the matter of the

constitutional complaint of joint complainants Ing. C. Z., Ing. J. Z.,

Z. K., RNDr. M. V., Ing. L. Z.-P., MUDr. O. P., L. B., Š. R., MUDr. M.

G., Ing. J. V., H. P., D. F. a Ing. A. B., all represented by JUDr. V.

K., an attorney, against the 17 October 2001 judgment of the Municipal

Court in Prague, file no. 28 Ca 268/2000, as follows:
 

The

17 October 2001 judgment of the Municipal Court in Prague, file no. 28

Ca 268/2000-50, and the 1 March 2000 decision of the District Office

Příbram, Land Office, file no. 2940/92, R VIII 2/2000, are hereby

quashed.

 


REASONING


I.
 

In

their constitutional complaint the complainants (with reference to the

asserted infringement of Arts. 1, 4 para. 1, 11 para. 1, and 36 para. 1

of the Charter of Fundamental Rights and Basic Freedoms in conjunction

with Arts. 90 and 95 of the Constitution) request that this Court quash

the 17 October 2001 judgment of the Municipal Court in Prague, file no.

28 Ca 268/2000, which affirmed the 1 March 2000 decision of the District

Office Příbram, Land Office, file no. 2940/92, R VIII 2/2000.  The Land

Office decided in accordance with § 9 para. 4 of Act No. 229/1991

Coll., on the Regulation of Ownership Rights in the Land and other

Agricultural Property, as subsequently amended (hereinafter “Act No.

229/1991 Coll.”), that the complainants are not the owners of the

immovable property in the cadastral district of Čelina, Municipality of

Borotice (land parcel no. 902/16) with a surface area of 7038 meters. 

It is the Land Office’s position that, in view of § 11 para. 1 lit. c)

of Act No. 229/1991 Coll., the immovable property cannot be turned over,

as they are surface areas built upon with a road, a sewage water

treatment plant, and areas directly connected with structures that are

necessary to the operation of structures of a residential facility.  In

accordance with § 11 para. 2 and § 17 of Act No. 229/1991 Coll., the

Land Fund shall, in exchange for such plots, convey to the entitled

persons title to some other plots of land owned by the State, or to

provide then with compensation.
 

It

appears from the contested decision of the Municipal Court in Prague

that an asphalt parking lot, a sewage water treatment plant, and open

grounds with decorative greenery, benches, children’s playgrounds, pine

ground cover, and an access to a mooring which belongs to the

recreational center, are also situated on the plot of land.  The

Municipal Court stated that, in the case of structures of a residential

facility, a storage area and a parking lot must be constructed and that a

sewage water treatment plant is also necessary to the operation of the

structure.  The Municipal Court considers it a self-contained,

recreational facility, and in its view the purpose of recreation is not

satisfied merely by a road ensuring the arrival of guests, and by the

provision of accommodation and food, but even the remaining parts of the

plot of land at issue, which are made up of open grounds with

decorative greenery, benches, children’s playgrounds including pine

ground cover, perform a function.  It is an enclosed recreational

facility within which its individual parts are functionally

interconnected.
 

The

complainants are of the view that, in adjudicating the matter, the

Municipal Court in Prague used an incorrect legal analysis.  They take

the position, in particular, that, according to the intent of in the

Land Act, the term “area directly connected with the structure or area

indispensable to its operation” cannot be interpreted in the manner as

was done by the Land Office and the Municipal Court.  In the

complainants’ opinion, with § 11 para. 1 lit. c) of Act No. 229/1991

Coll., the legislature prohibited the turning over only of that portion

of a plot of land which can be brought within the definition, and this

definition was not intended to include the entire parcel upon which a

structure stands, including the surrounding areas which are not

functionally interconnected with it.  If some other interpretation is to

be adopted, the owners of a land parcel with an extensive surface area

would be disadvantaged as against the original owners of small parcels,

for the turning over of extensive parcels would be impeded even by a

structure which would take up only an insignificant part of the parcel. 

They further stated that for the operation of a structure as a

recreational facility, it is certainly appropriate to have a certain

functional base which enables the recreational guest meaningfully to

spend their free time in the vicinity of the structures, but such a base

is not indispensable to the operation of the structure for the

above-stated purpose; the absence thereof merely results in a

diminishment of it attractiveness.  The legislature did not intend to

include within the term, “operation of the structure”, also its economic

utilization, rather merely the assurance of its functionality from a

building technology perspective.  The complainants concluded that the

relevant provisions of Act No. 229/1991 Coll. must be interpreted in the

spirit consistent with the views they have expressed.  The complainants

consent to dispensing with an oral hearing.
 

In

its statement of views on the constitutional complaint stated that the

complaint is not well-founded and in essence merely repeated in brief

the arguments contained in the reasoning of the contested decision.  In

the court’s opinion, it is necessary to take into consideration the

character and purpose of the use of the structures, according to which

the related and indispensable areas should be delimited; it agreed with

the complainants’ view that only that part of the plot of land which

enables access to the structures and which allows for their maintenance

should be assessed in this fashion.  It consented to dispensing with an

oral hearing.
 

In its

statement of views, the Land Office Příbram summarized the course of the

proceeding in the given matter, during which recalled that it had first

of all taken a decision on 10 November 1997, file no. 2940/92 R VIII

92/97, in which, in accordance with the geometric plan determining

encumbrances, it turned over to the entitled persons portions of the

plot of land at issue.  That decision was, however, quashed by the 24

February 1998 judgment of the Regional Court in Ústí nad Labem, file no.

15 Ca 647/97, 15 Ca 648/97, and the matter was remanded to the Land

Office with instructions in further proceedings to deal with the issue

of whether the plot of land is built upon and to ascertain sufficiently

the facts of the case.  The Land Office then ordered a local

investigation in which the entitled and obliged persons took part, as

did representatives of the municipality and of the building office. 

Afterwards it issued the above-mentioned decision, in which it

determined that the complainants are not the owners of the immovable

property at issue, affirmed in the Municipal Court’s contested

judgment.  The Land Office further stated that this case cannot be

compared with cases involving structures of agricultural facilities

which, in contrast to recreational or residential structures, do not

hamper the agricultural utilization of a plot of land.  In its view, the

legislative intent was, first and foremost, that property restituted

pursuant to Act No. 229/1991 Coll. continue to serve agricultural

purposes, which is ruled out for the plot of land under consideration

owing to its location.  It agrees to dispense with an oral hearing.
 

The

secondary parties to the proceeding, D. and ú. K., st. p., in their

statement of views on the constitutional complaint, stated in essence

that there has been no encroachment upon any of the complainants’

fundamental rights or basic freedoms, made reference to the content of

the file and to the admitted evidence, and proposed that the

constitutional complaint be rejected on the merits.  They also agree to

dispense with an oral hearing.
 

In

conformity with § 28 para. 2 of, the Land Fund of the Czech Republic

relinquished its status as a secondary party to the proceeding.
 


II.
 

The constitutional complaint is well-founded.
 

The

heart of the matter is the issue whether and to what extent the plot of

land at issue, upon which the complainants are asserting a restitution

claim, is a tract of land that is directly connected, and indispensable,

to the operation of structures of a residential facility which are

situated upon it (§ 11 para. 1 lit. c) of Act No. 229/1991 Coll.).
 

From

the assembled documents in the instant case, which the Constitutional

Court requested be sent to it (in particular from the file material of

the Municipal Court in Prague, file no. 28 Ca 268/2000, and from the

relevant file of the Land Office in Příbram), as well as from the

contested decisions, it is evident that the structures of the

residential facility are situated on building parcels no. 84, 85, and

86; it had already been finally decided not to hand over these building

parcels.  However, the adjudicated case concerns parcel no. 902/16,

forming an area surrounding the mentioned building parcels, which is

made up of an asphalt parking lot, a road connecting the buildings on

the building plot, a sewage water treatment plant and also open grounds

with decorative greenery, benches, children’s playgrounds, pine ground

cover, and an access to a mooring which belongs to the recreational

center.  As was already stated above, the ordinary court came to the

conclusion that this space was directly connected with structures

designated for recreation and indispensable to their operation.
 

However

conscious the Constitutional Court is of the possibility that, due to

their distinctive circumstances, it will be complicated to resolve

concrete cases, in the first place it would call to mind and emphasize

that with the restitution laws the democratic law-based state is

endeavoring at least partially to alleviate the consequences of past

property injustices, and state bodies are obliged to conduct themselves

in accordance with the applicable restitution law in harmony with the

statutory interests of persons who should be at least partially

compensated for injuries inflicted upon them by the totalitarian

communist regime.  This partial compensation cannot be seen, for

example, in an outcome where, although the restitution claim is

determined to be well-founded, the entitled persons merely receives free

of charge another parcel of land owned by the state or is awarded

financial compensation.  The guiding principle must always be the

above-stated intent of the restitution law, in the interpretation of

which preference must in principle be given to turning over the original

plot, or plots, of land, should the restituent pursue that outcome and

should the law not rule it out.
 

Restitution

Act No. 229/1991 Coll., also pursues above all the aim that entitled

persons actually are given their original property.  It is only

exceptionally, that is if, without any doubt, all the requirements laid

down in § 11 of this Act are met, that a plot of land cannot be handed

over.  If the plot of land, after the transfer or passage to the state,

was build upon, § 11 para. 1 lit. c) of the Act introduces in total six

separate exceptions, which when satisfied permit even a built-upon plot

of land to be turned over.  The built-upon part of the plot of land is

considered to be that part upon which a structure stands and that part

of the plot directly connected with this structure and indispensable to

its operation.  There are questions especially as to what “directly

connected” and “indispensable” mean, and in each particular case they

must be carefully and responsibly, in conformity with the primary

purpose of the Land Act, examined and construed.  It is precisely in

this respect that the public authorities deciding in this matter

interpreted the cited provisions in a manner which is unacceptable from

the constitutional law perspective; otherwise, in view of the complexity

of the matter, from the perspective of their procedural approach they

cannot in any significant manner be faulted.  In the Constitutional

Court’s view these provisions cannot anyway be interpreted too broadly,

thus it cannot be inferred that, if a recreational area is

“self-contained”, it cannot be turned over, however extensive it is, and

include within it all surface areas forming part of it, including

(among others) open grounds with decorative greenery, pine ground cover,

and children’s playgrounds.  It can be asserted that in this case the

ordinary court in essence proceeded more on the basis of the “purpose of

the recreational area” or the “purpose of recreation” than from the

above-interpreted, paramount purpose of the restitution law itself.  As

far as concerns the asphalt parking lot, it is fitting to make reference

to the Constitutional Court’s arguments (with reference to the

conclusions expressed by the Supreme Court in its case no. 2 Cdon

1414/97), expressed for example, in its judgment No IV. ÚS 42/01

(Collection of Judgments and Rulings of the Constitutional Court of the

Czech Republic, Vol. 26, Judgment No. 48), according to which in

restitution cases reinforced asphalt surfaces, e.g., a parking lot,

cannot be considered as a structure impeding the turning over of a plot

of land pursuant to Act No. 229/1991 Coll.
 

As

far as concerns the objection of a secondary party to the proceeding,

to the effect that the plot of land cannot be employed for agricultural

purposes, it must be pointed out from a general perspective that

pursuant to Act No. 229/1991 Coll. a plot of land can be transferred to

an entitled person even though a structure is built upon it that

prevents the use of the plot for agricultural or forestry purposes, to

the extent that, from the structural technology perspective, that

structure can be classified as one of the types of structures enumerated

in § 11 para. 1 lit. c) of the cited act (a structure that is movable,

provisional, simple, minor, or one that is placed below the surface of

the earth; from the scholarly literature on this issue compare, for

example Pekárek, M.: Commentary on the Amendment to the Land Act,

Masaryk University Brno, 1993, p. 23 and following).  It should further

be noted that, while it was certainly intended that Act No. 229/1991

Coll. would safeguard the agricultural use of plots of land, it

nonetheless follows from the preamble to the Act that this aim should be

subordinated to the requirement of the alleviation of property

injustices by the fact that it ties improved care of the land with the

renewal of the original ownership relations in it (compare, for example,

judgment no II. ÚS 747/2000, The Collection of Judgments and Rulings of

the Constitutional Court of the Czech Republic, Vol. 26, judgment no.

63).
 

Since neither of the

public authorities concerned itselves with the complainants´ restitution

case in the light of the above-mentioned analysis, the Constitutional

Court came to the conclusion that, in the instant case, this inaction

constituted a violation of Art. 36 para. 1 of the Charter of Fundamental

Rights and Basic Freedoms, in which is enshrined the right to fair

process.  Accordingly, the Constitutional Court granted the

constitutional complaint in full and decided to quash the contested 17

October 2001 judgment of the Municipal Court in Prague, file no. 28 Ca

268/2000.  Due to considerations of procedural economy, at the same time

it also quashed the 1 March 2000 decision of the District Office

Příbram, Land Office, file no. 2940/92, R VIII 2/2000.
 

The

Constitutional Court did not, however, find the infringement of any

other of the complainants´ fundamental rights.  In response to the

objection that Art. 11 para. 1 of the Charter has been violated, it

suffices to briefly call to mind that this article protects

already-existing and constituted property rights, and not mere asserted

claims to them.  For completeness, the Constitutional Court would add

that Arts. 90 and 95 of the Constitution, which the complainants have

asserted were also infringed, do not directly and immediately guarantee

fundamental rights and basic freedoms, for in essence they merely govern

the principles of court activities.  They are then merely a reflection

and do not enshrine individual public-law rights.

Notice: A judgment of the Constitutional Court may not be appealed.

Brno, 23 October 2003