2006/03/28 - Pl. ÚS 42/03: Protection of Apartment Lease

28 March 2006

HEADNOTES

Protection

of apartment tenants or apartment leases is a legitimate aim for

limitations on property rights, because it contributes to implementing

the right to an adequate standard of living under Art. 11 of the

International Covenant on Economic, Social and Cultural Rights, the

right of the family to social, legal and economic protection under Art.

16 of the European Social Charter, or under Art. 4 par. 2 let. a) of the

Additional Protocol to the European Social Charter. If the legitimate

aim of protecting a lease is motivated by social reasons (the

requirement to provide an adequate standard of living for the tenant,

which includes adequate housing to meet the fundamental need to have a

safe place to lay one’s head) then it is evident that further limitation

of an apartment owner beyond satisfying the basic housing needs of the

tenant would not stand up to the test of proportionality. If the law

limited the owner in his right of disposition of his property so much

that it would not permit him to terminate a lease relationship even in a

situation where the tenant’s basic need for housing is quite evidently

saturated, for example, because he has several housing opportunities at

an adequate level, such limitation of the owner would have to be

assessed as disproportionate to the aim pursued. If the protection of a

lease is motivated, besides that, by the state’s attempt to regulate the

market in rental housing and, in the face of excessive demand, to

support the just distribution of apartments, then it would not be a

proportional measure if the legal framework limiting apartment owners

permitted the accumulation of apartments in the hands of one tenant, or

purposeless management of the housing stock so that apartments remained

unused and unoccupied.

The Civil Code, in the version valid at the time in question, in § 711

par. 1 let. g) and h) gives the landlord the opportunity to terminate

the lease relationship under certain conditions, and only with the

consent of the court and if he provides accommodation once the apartment

is vacated. The argument that this violates the principle of the

parties’ free will can not be applied to these provisions in isolation.

The tenant’s free will, or his freedom of contract, can not be torn out

of the context in which it is applied. On the contrary, it is the

landlord whose free will is markedly limited when terminating a lease,

compared to the tenant. De lege lata, with every additional limitation

of the landlord’s right to unilaterally terminate a lease agreement, the

tenant’s right to the apartment could de facto become that

quasi-ownership right, to the detriment of the landlord’s true property

right, which would then survive only as bare ownership, despite the

constitutionally proclaimed principle of protecting it. Every further

reduction of the exclusively listed catalog of grounds on which the

landlord can terminate a lease goes against the spirit of private law,

because it deepens the inequality between the parties to a private law

relationship. Compared to the present situation, annulling the contested

provisions would, to the detriment of the landlord, further deepen the

unfair imbalance between the means used (the scope of limitation of

property rights by the Civil Code provisions on apartment leases) and

the legitimate aim pursued (protection of a lease, or a tenant).

Freedom of movement and residence do not give rise to a tenant’s

subjective right to have an apartment owner lease an apartment to him;

it also does not give rise to a right for it to be impossible to

terminate a lease on statutory grounds.

Equality is a relative category by definition: one can think in the

category of equality on in the relationship between two persons in the

same or comparable position. The provisions of § 711 par. 1 let. g) and

h) of the Civil Code, as regards lease of a co-operative apartment, on

one hand, and lease of a non-co-operative apartment, on the other hand,

are not interference in the constitutionally protected principle of

equality, because this is not a case of differentiating between the

rights and obligations of tenants either in view of traditionally

forbidden criteria (see Art. 3 par. 1 of the Charter), or in view of a

different status, but a case of comparing the legal institutions of

lease of a co-operative and non-co-operative apartment, to which the

constitutionally protected principle of equality does not apply.

Inequality can not be claimed to exist where the law provides the same

conditions for a claim to all subjects that can be included in the

personal scope of a legal regulation. The authority of a democratic

legislature in the area of statutory regulation of private law includes

the regulation of types of contracts. No provision of the constitutional

order gives rise to a binding order that the legislature regulate lease

relationships to apartments in a particular manner.

The differences of the institution of a co-operative apartment lease,

in view of general principles of justice, would deserve a restrictive

interpretation of the contested grounds for giving notice of termination

in relation to co-operative apartments. The present legal framework

gives sufficient space for such an interpretation. A general court may

take into account the special features of a lease of a co-operative

apartment when determining fulfillment of these grounds for giving

notice of termination under the contested provisions, i.e., in

evaluating whether the tenant can not justly be required to use only one

apartment [§ 711 par. 1 let. g) of the Civil Code], or in evaluating

serious or weighty reasons for which a tenant does not use an apartment

or uses it only occasionally [§ 711 par. 1 let. h) of the Civil Code].

It must also take into account § 3 par. 1 of the Civil Code, under which

the exercise of rights and obligations arising from civil law

relationships may not, without legal grounds, interfere in the rights

and justified interests of others, and may not be inconsistent with good

morals.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, composed of Stanislav Balík,

František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel  Holländer,

Vladimír Kůrka, Dagmar Lastovecká, Jan Musil, Jiří Mucha, Jiří Nykodým,

Miloslav Výborný, Pavel Rychetský, Eliška Wagnerová a Michaela Židlická

decided on a petition from the District Court for Prague 7, represented

by Mgr. T. M., Chairman of the Panel from the District Court for Prague

7, seeking the annulment of § 711 par. 1 let. g) and § 711 par. 1 let.

h) of Act no. 40/1964 Coll., the Civil Code, as amended by later

regulations, with the participation of the Chamber of Deputies and the

Senate of the Parliament of the Czech Republic, as follows: The petition

is denied.
 



REASONING


I.
Recapitulation of the Petition
 

1.

The District Court for Prague 7 (the “petitioner”), in a petition filed

under Art. 95 par. 2 of the Constitution of the Czech Republic (the

“Constitution”) and § 64 par. 3 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, sought the

issuance of a judgment annulling § 711 par. 1 let. g) and § 711 par. 1

let. h) of Act no. 40/1964 Coll., the Civil Code, as amended by later

regulations, as of the day the judgment is promulgated in the Collection

of Laws.
 

2. The petitioner

stated that the District Court for Prague 7 is conducting proceedings,

file no. 26 C 386/2002, in the matter of the plaintiff B. d. Dělnická

1222 against the defendants T. S. and I. S. In those proceedings, the

plaintiff, as a housing co-operative, seeks the court’s consent to give

notice terminating the lease of an apartment in Prague 7 Holešovice.

Both defendants obtained the lease rights to this co-operative apartment

on the basis of an agreement on transfer of rights and obligations

connected with membership in the co-operative in 1997. However, they

never moved into the apartment, and are not using it; the plaintiff

claims that since 1988 to the present they have been living in a

different apartment in Prague 6. The plaintiff wishes to give notice of

termination on grounds under § 711 par. 1 let. d), g) and h) of the

Civil Code, i.e. on the grounds that the defendants have not paid the

rent and charges for services related to use of the flat for a period of

more than three months (from July 2001 to December 2001), and also on

the grounds that both defendants have more than one apartment, and that

they do not use the apartment in question, without serious reasons, or

use it only occasionally.
 

3.

According to the petitioner, the contested Civil Code provisions are

inconsistent with Art. 1 of the Constitution and with Art. 1, Art. 4

par. 2 and 4, Art. 10 par. 2 and Art. 14 par. 1 of the Charter of

Fundamental Rights and Freedoms (the “Charter”).
 

4.

The petitioner acknowledged, that the contested provisions are legal

norms with a relatively uncertain hypothesis (“cannot justly be

required” or “does not use the apartment without serious reasons, or,

without serious reasons, uses it only occasionally”), which permits the

court to define the reach of the norm in each individual case.

Nevertheless, it concluded that the contested provisions as a whole are

inconsistent with the constitutional order, because in the case it is

handling it is forced to apply the contested provisions to the lease of a

co-operative apartment .
 

5.

The petitioner believes that both contested provisions are inconsistent

with Art. 1 of the Charter, first sentence, because they violate the

principle of equal rights, as it has been interpreted in a number of

cases by the Constitutional Court (e.g., judgment file no. Pl. US 18/01

of 30 April 2002, published as no. 234/2002 Coll.). The legislature did

not distinguish between co-operative and non-co-operative apartments,

and set the same conditions for the termination of lease rights for both

co-operative and non-co-operative apartments. Thus, it is impermissibly

disadvantaging tenants of co-operative apartments compared to tenants

of non-co-operative apartments, and does so by unjustifiably setting the

same rules for different kinds of cases. The result is to negate the

purpose of association in housing co-operatives. The petitioner pointed

out that in the adjudicated case the plaintiff gave the defendants

notice of terminating a lease of a co-operative apartment, without the

defendants’ membership in the co-operative having terminated in any way.
 

6.

The petitioner sees inconsistency with Art. 4 par. 2 and 4 of the

Charter in the fact that the legislature impermissibly interfered in the

rights of co-operative apartment tenants with the contested norms, by

not ruling out their application to the lease of co-operative

apartments.
 

7. The

petitioner also pointed to the history of the contested provisions. Both

became part of the Civil Code only in the so-called “large” amendment

implemented by Act no. 509/1991 Coll., but this was not a new legal

regulation. Moreover, for the amended Civil Code the legislature more or

less adopted the legal framework contained in the Civil Code’s original

wording – § 184 let. c) and d). The legal framework of these grounds

for giving notice of termination became part of the legal order under

completely different social-economic conditions, at the time of a

centrally regulated state that appropriated the right to determine the

amount of housing construction and interfere in its management and

allocation to (and taking away from) individual users. The legal

framework of these grounds for giving notice of termination was

connected to the shift from the traditional framework of the lease of an

apartment to so-called “personal use” of an apartment. The background

report to the Civil Code justified this shift on the grounds, among

other things, that “a lease is not appropriate, in particular for

apartments of housing construction co-operatives, where the right to use

of an apartment is similar to the right to use an apartment on the

basis of ownership rights.” Specifically, it was justified by the need

to limit “negative speculation and obtaining revenues which are

difficult to determine and obtained without working.”
 

8.

In contrast, according to the petitioner, today, when the Czech

Republic is a fully democratic state that protects human rights and

individual freedoms, a law-based state founded on respect for the rights

and freedoms of man and of citizens (Art. 1 of the Constitution), there

can be no justification for a legal norm which punishes, through

grounds for notice of termination, a situation where the tenant, in his

own free will and freedom of contract, decides to obtain, by leasing,

the ability to use several apartments, or housing possibilities,

whatever reasons the tenant has for doing so. It is only up to the will

of the parties to a lease agreement whether they conclude it, under what

conditions, and whether the tenant will in fact use the apartment.

There is no reason to force a tenant to have only one apartment, if it

is within his abilities to meet his obligations from leasing several

apartments.
 

9. The

petitioner also explained the inconsistency which may be found between

its arguments based on the change in social-economic conditions and

arguments based on the principle of equality, or unjustified differences

between tenants of co-operative and non-co-operative apartments. The

petitioner believes that it is precisely because of the non-existence of

a positive legal provision excluding co-operative apartments from § 711

par. 1 let. g) and h) of the Civil Code, that these norms are

unconstitutional in another way (inconsistent with Art. 1 and 4 par. 2

and 4 of the Charter), and that the mere fact that both of the contested

provisions are part of the legal order is inconsistent with Art. 1 of

the Constitution.
 

10.

Finally, the petitioner sees the contested provisions as inconsistent

with Art. 10 par. 2 and Art. 14 par. 1 of the Charter because, since the

landlord of a co-operative apartment has a statutorily permitted

ability to give a co-operative apartment tenant notice of termination on

the grounds that the tenant has several apartments (housing

possibilities) or on the grounds that the tenant does not use the

co-operative apartment, the landlord can interfere in the tenant’s

private and family life and his freedom of residence. Moreover, this can

happen on grounds whose inclusion in the legal order lost its

justification with the fall of the totalitarian regime.
 


II.
The Proceedings and Recapitulation of the Statements from the Parties to the Proceedings
 

11.

The Chamber of Deputies of the Parliament of the Czech Republic,

through its Chairman, PhDr. L. Z., provided a response to the

Constitutional Court’s request, pursuant to § 69 of the Act on the

Constitutional Court. It stated that, insofar as the legislature

provided the same grounds for a landlord to give notice of terminating a

lease with the consent of the court for tenants of co-operative and

non-cooperative apartments, it did not thereby impermissibly favor one

group. It pointed to Art. 1, Art. 3 par. 2 and Art. 4 par. 2 and 3 of

the Charter and § 2 par. 2 of the Civil Code, which give rise to, on one

hand, a ban on exceptions, privileges for certain categories of people

or individuals, or discriminatory measures, and on the other hand, the

principle of equal status of subjects of civil law relationships.
 

12.

The Chamber of Deputies also disagreed with the petitioner’s claim that

the contested provisions of the Civil Code fail to respect freedom of

movement and residence. No provision of the law forbids the use of two

or more apartments. The contested legal framework merely also respects

the needs of the landlord, and thus eases the situation for him, because

he can not give notice of termination on grounds other than those

specified in the law. It is up to the court to carefully weight the

situations of the landlord and tenant. The Chamber of Deputies also

pointed out that freedom of movement under Art. 14 par. 1 of the Charter

means the right of any natural person to move about the territory of

the Czech Republic defined by its state borders, i.e. the ability of the

person to visit any place within the state borders. Freedom of

residence is the right to freely reside and settle in any place in the

Czech Republic, the right to freely choose one’s place of residence

inside the Czech state.
 

13.

In conclusion the Chamber of Deputies stated that Act no. 509/1991

Coll., which added the contested provisions to the Civil Code, was

approved by the necessary majority of deputies in the Federal Assembly

on 5 November 1991, and Act no. 267/1994 Coll., which added the words

“or uses it without serious reasons only occasionally” to the Civil

Code, in § 711 par. 1 at the end of let. h), was approved by the

necessary majority of deputies of the Chamber of Deputies on 15 December

1994. Both these laws were signed by the appropriate constitutional

authorities and were duly promulgated. The legislative assembly acted in

the belief that the enacted statute was consistent with the

Constitution and our legal order. According to the Chamber of Deputies,

evaluation of its constitutionality in connection with the petition from

the District Court for Prague 7 is up to the Constitutional Court.
 

14.

The Senate of the Parliament of the Czech Republic, through its

then-chairman, doc. JUDr. P. P., in its statement of 15 March 2004

stated that the provisions of the Civil Code concerned in the petition

were approved at a time when the Senate had not yet been elected.
 

15.

As regards the merits of the matter, the Senate stated the following.

The provision on notice of terminating an apartment lease in § 711 par. 1

of the Civil Code must be interpreted in connection with § 685 par. 1,

second sentence: “The lease of an apartment is protected; the landlord

may give notice of termination to the tenant only on grounds provided by

law.” The grounds for giving notice of termination in § 711 par. 1 of

the Civil Code are part of a wider set of measures identified in theory

and practice as tenant protection, or protection of the weaker party

(regulation of rent is considered to be the second component of tenant

protection). Such protective measures had their place at a time when, as

part of the consolidation of social relationships, or prevention of

undesirable economic-social consequences, there was a public interest in

creating stability in a particular area of social relationships. Such a

situation arose here in the sphere of rental housing after the creation

of Czechoslovakia, after both world wars, and again after 1989.
 

16.

As the Senate further stated, grounds for giving notice of termination

due to “lack of need” or “redundancy” have permeated our legal order in

various formulations since 1920 (e.g., Act no. 225/1922 Coll., on

Extraordinary Measures for Apartment Care, a series of laws on tenant

protection from the 1920s, laws on managing apartments in the era of the

planned economy, and the current versions of the Civil Code). In this

regard, it appears inappropriate for the petitioner to connect the

similarity between the relevant grounds for giving notice of termination

from 1964 and those from1991 to their pre- and post- November 1989

content or regulatory aim. The legal norm expressed by a legal text must

withstand being measured against the values of a law-based state, as is

declared in Art. 1 par. 1 of the Constitution, and interpretation of a

legal norm passed in 1991 can not be based on a background report from

1964. Such arguments in and of themselves can not be relevant to

reaching an opinion that Art. 1 par. 1 of the Constitution has been

violated.
 

17. According to

the Senate, protection of the weaker party finds support in the

imperative to protect the adequate standard of living of every

individual, including housing (see Constitutional Court judgment no.

231/2000 Coll.). Implementation of constitutional law in the

sub-statutory level can be done using the conclusions of European case

law, under which states are given the right to pass such laws as they

consider necessary to regulate the use of property in accordance with

the general interest. Such laws are especially necessary and usual in

the area of housing, which is becoming a central issue of social and

economic policy in modern societies. In order to realize such policies,

the legislature must have a wide margin of appreciation, both in

determining whether a general interest exists that authorizes applying

regulatory (control) measures, as well as in the choice of similar rules

for implementing such measures.
 

18.

According to the Senate, § 711 par. 1 can also be understood as an

exception from the total ban on giving notice terminating an apartment

lease. Seen thus, it is actually a positively stated “protection” of the

person and property of the landlord. Annulling each of the grounds for

termination in § 711 par. 1 of the Civil Code would increase the

protection of the tenant to the detriment of the landlord-owner. In this

regard the Senate pointed to the principle of a fair balance between

the means used and the aim pursued.
 

19.

The Senate rejected the petitioner’s deliberation on the

impermissibility of a legal norm which limits the tenant’s contractual

freedom or free will in acquiring the possibility of using several

apartments, or limiting him in the decision not to use an apartment.

According to the Senate, the legal status quo does not in any way forbid

a tenant from having two or more apartments, not using an apartment, or

using it only occasionally. Nor does the law order a landlord to rid

himself of such tenants, it merely gives the landlord the opportunity to

terminate the lease relationship under certain conditions, and only

with the consent of the court and if he provides accommodation once the

apartment is vacated. Thus, this case does not a priori concern the

limitation of contractual freedom or free will.
 

20.

In response to the petitioner’s argument that the legislature is

unjustifiably disadvantaging tenants of co-operative apartments compared

to tenants of non-co-operative apartments, the Senate stated that such

an exception to application [of these provisions] would require an act

by a positive legislature, which the Constitutional Court is not.

However, it pointed out that the provisions of Part Eight, Chapter

Seven, Division Four of the Civil Code are general provisions for

apartment leases; they apply to the creation, rights and obligations,

and termination of all types of apartment leases, so the petitioner’s

claim of a completely different group of conditions for the creation of a

lease for co-operative apartments is not appropriate. The creation of a

co-operative apartment lease is legally subject to the same uniform

principle. Its difference lies in the fact that an applicant for an

apartment must also meet the conditions for membership in the housing

co-operative. Ruling out application of the contested provisions to

co-operative apartments could appear discriminatory against tenants of

other types of apartments (including company apartments, special

designation apartments, and apartments in special designation

buildings). This would strengthen protection of a tenant who is a member

of a co-operative, which would have the effect of lowering the

protection of a landlord-owner, which, paradoxically, would distance

co-operative housing from ownership rights.
 

21.

As regards inconsistency with the right to protection of private and

family life, the Senate stated that the contested legal framework does

not impose an obligation on the tenant to give the landlord information

about whether he has an apartment that he does not need, not does it

permit the landlord to enter the tenant’s apartment and violate his

constitutional rights, including family life. As regards the guarantee

of freedom of movement and residence, the Senate considers it

indubitable that these directly applicable constitutional rights do not

conflict with the ability to give notice of termination of a private law

relationship (an apartment lease). If it were so, the entire § 711 par.

1, not just the contested grounds for giving notice of termination,

would lose its constitutional foundation.
 


III.
Recapitulation of the Statements of Other Entities under § 49 of the Act on the Constitutional Court
 

22.

Pursuant to § 49 par. 1 of the Act on the Constitutional Court, the

Constitutional Court also contacted associations of persons representing

the rights of owners of buildings and apartments, i.e. the interests of

landlords, and associations representing the interests of tenants, and

gave them an opportunity to respond to the petition.
 

23.

The Association of Tenants of the Czech Republic (the “Association of

Tenants”), in its response, through its chairman, JUDr. S. K., supported

the petition to annul the contested provisions of the Civil Code,

saying that it found the arguments relevant. It stated that both the

contested provisions had been included in the Civil Code primarily in

view of the rent control situation in 1992, when the legislature

undoubtedly intended to make it impossible for tenants to misuse

regulated rent in order to use multiple apartments, or to use an

apartment which they did not need at the time. According to the

Association of Tenants, the situation now is quite different. There is

no longer any rent control on newly concluded lease agreements, and if a

new lease agreement is concluded for another apartment then the

original legislative intent is evidently not being fulfilled, and this

measure has lost its original purpose. The Association of Tenants

pointed out that both grounds for notice of termination are determined

by case law, because in some cases the use of two apartments is

necessary, and, as the law in fact anticipates, the tenant can not

justly be required to use only one apartment. Non-use of an apartment is

difficult to prove, and it is equally difficult to prove use of an

apartment in a situation where people’s lifestyles are different, and it

is not possible to explicitly specify what extent of use of an

apartment is or is not consistent with the law, or how high a degree

(e.g. daily) of use of an apartment the law will or will not tolerate.
 

24.

The Civic Association of Owners of Buildings, Apartments, and other

Real Estate in the Czech Republic (the “Association of Owners”), through

its chairman, RNDr. T. Š., stated the opinion that the Constitutional

Court should deny the petition. In its opinion, applying the contested

provisions of the Civil Code to co-operative apartments, or to

apartments leased freely and for contractually agreed rent, could be

inconsistent with good morals under § 3 of the Civil Code; a court can

evaluate this and then not consent to notice of termination on those

grounds; in addition, a court also has the opportunity to evaluate these

facts within the contested provisions (arguments: “the tenant cannot

justly be required …,” “… the tenant has serious reasons to use the

apartment only occasionally”). According to the Association of Owners,

the case before the petitioner can be resolved by applying the contested

provisions of the Civil Code, merely by interpretation. After all, it

can be said that tenants who are also co-operative members and who have

expended a not insignificant sum to acquire their co-operative share,

which has value for them only in connection with lease of a co-operative

apartment, can not justly be required to use only one apartment. The

same arguments can be made concerning “serious reasons.” In both cases

the court can say that exercise of the property rights of the

co-operative, as owner, against a member of the co-operative, would be

inconsistent with good morals, and therefore it can refuse consent to

the termination notice, with reference to § 3 par. 1 of the Civil Code.
 

25.

Thus, according to the Association of Owners, the problem is only in

more detailed interpretation of the contested provisions. The contested

provisions are, and after a transitional period will be, an inseparable

part of inadequately transformed lease law, as established by Act no.

40/1964 Coll., the Civil Code, and by Act no. 41/1964 Coll., on Managing

Apartments. According to the Association of Owners, any changes to or

annulment of these grounds for giving notice of termination would have

to be accompanied by a systematic transformation of all lease

relationships into classic lease relationships characterized by the free

will of both parties to enter into the temporary relationship under

conditions to which both parties freely agree.
 

26.

The Association of Owners pointed out that the right to use an

apartment, which was renamed “lease of an apartment” in § 871 of the

Civil Code, lacks the character of a freely-concluded contract. This

preserved the situation which existed before 1989, when the right to use

an apartment had the character of a social support payment. In order

for the recipients of this social support payment not to be able to

misuse it for negative speculations and obtaining revenues which were

difficult to determine and obtained without working, and in order for it

not to be excessive, the socialist legislature included in the Civil

Code of that time the authorization for a court to decide on the

termination of the right to personal use of an apartment on the grounds

that the user used or owned two apartments, or that he did not use an

apartment at all, or only occasionally, without serious grounds [§ 184

let. c) and d)]. For the same reason, after 1989 a limitation was

introduced into the Civil Code on those who could, as part of their

social support in the form of the right to use an apartment for

regulated rent, misuse this advantage, when they did not need it. Thus,

even today a lease relationship is more similar to the earlier right to

permanent use of an apartment, and the owners of such apartments are

left with only “bare ownership.” The grounds for giving notice of

termination must also be seen in the context of other institutions that

were taken over from the framework of the right to personal use

[transfer of a lease without the landlord’s consent under § 706 et seq.

(previously § 179 et seq.), exchange of an apartment without the

landlord’s consent under § 715 et seq. (previously § 188), and creation

of a joint apartment lease for spouses by law without the landlord’s

consent under§ 703 et seq. of the Civil Code (previously § 175)].
 

27.

In this regard the Association of Owners also pointed to the

Constitutional Court’s deliberations expressed in judgments no. 231/2000

Coll. and, especially no. 528/2002 Coll. and no. 84/2003 Coll. It

stated that if the Constitutional Court now granted the petition, this

would deepen the quasi-ownership nature of a lease, and other

curtailment of ius utendi a ius disponendi as fundamental elements of

ownership rights. The Association of Owners acknowledges that it is

absurd to apply the contested provisions to co-operative, i.e. de facto

owned housing, but in its opinion the Constitutional Court should not

overlook what effects granting the petition would have on another group

of lease relationships, created on the basis of § 871 par. 1 of the

Civil Code; the consequence would be violation of property rights under

Art. 11 of the Charter. The Association of Owners pointed out that the

contested provisions also have a transformational significance: they

permit the shift of lease relationships concerning apartments from the

sphere of the unconstitutional rent control, and the endlessness of that

situation, into the sphere of ordinary lease relationships without

quasi-ownership elements in the tenant’s relationship to the rented

thing, the apartment.
 

28.

According to the Association of Owners the possible violation of

tenant’s rights also does not lie in the fact that the contested grounds

for notice of termination of an apartment lease exist, but in the fact

that there is no positive provision of ordinary law which rules out

applying these grounds for giving notice of termination to co-operative

apartments (or, as the case may be, to contractual lease relationships

created by a free lease agreement after 1 January 1992, where, in view

of free will, these grounds for giving notice of termination do not even

come into consideration).
 


IV.
The Text of the Contested Provisions of the Law and their Legislative History
 

29.

The Constitutional Court states that the provisions contested by the

petition, § 711 par. 1 let. g) and h) of the Civil Code, at the time the

petition was filed, and now, read as follows:
Ҥ 711
(1) The

landlord may give a notice terminating the lease of an apartment only

with the consent of the competent court, on the following grounds:
....
g) if the tenant has two or more apartment, unless he cannot justly be required to use only one apartment;
h)

if the tenant does not use the apartment without serious reasons or if

he uses the apartment without serious reasons only occasionally.
 

30.

The provisions of § 711 par. 1 let. g) and h) of the Civil Code were

introduced by Act no. 509/1991 Coll., which Amends, Supplements, and

Alters the Civil Code, with effect as of 1 January 1992. The original

text of the contested provisions according to this Act was the

following: “g) if a tenant has two or more apartments, except in cases

where he can not be justly required to use only one apartment; h) if the

tenant does not use the apartment without serious reasons.”
 

31.

The background report to the government draft of this Act (publication

685, 18th session of the Federal Assembly) states: “The former

institutions of personal use, particularly personal use of apartments,

are also returning to the law of obligations. Of course, there are

certain problems connected to the legal regulation of use of apartments

(in future, the lease of apartments). The primary problem is that there

is not yet a market in apartments, and in view of the situation,

creation of that market will be – as shown by experience in the

law-based states of our western neighbors – a long-term process. … The

previous framework took the special provisions on personal use of an

apartment (§ 685 et seq.) together with changes which reflect the new

social situation. ... The new regulation can not by itself create a

market in apartments, but it can stimulate and support its creation. It

removes the previous administrative interference in lease relationships.

... Protection of an apartment lease, which is specific to the

legislation of law-based states, is based on the fact that if there is

no agreement, a landlord can not terminate a lease without stating

grounds, but can only file a petition with a court for the court’s

consent to terminate an apartment lease on the basis of the grounds

exclusively listed in § 711. The amendment expands these grounds while

also respecting the needs of the landlord. ... The amendment assumes

that an apartment lease is also created with co-operative apartments.

However, the manner of concluding a lease agreement, the content of the

lease, and its termination are modified under conditions provided in the

by-laws of housing co-operatives.” In discussions of the government

draft of the act, no deputy from the Federal Assembly stated any

opinions on the provisions in question.
 

32.

Act no. 267/1994 Coll., which amends and supplements the Civil Code,

added the words “or uses it without serious reasons only occasionally”

to the end of § 711 par. 1 let. h), with effect as of 1 January 1995.

The proposal to amend the wording of this provision was not part of the

government draft. It became part of the draft Act on the basis of the

joint report of the Constitutional Law, Budget, and Economics Committees

of the Chamber of Deputies, and the proponent (the Minister of the

Economy, on behalf of the government) supported this amending proposal.

The joint committee report did not provide a justification, and during

discussion no deputy stated any opinion on the amending proposal.
 


V.
Conditions for the Petitioner’s Active Standing
 

33.

The Constitutional Court first considered the question whether the

petitioner – the District Court for Prague 7 – is authorized to submit a

petition to annul the contested provisions. It concluded that it is.

The petitioner correctly stated that it must apply the contested

provisions in civil law proceedings on consent to giving notice of

termination of an apartment lease, because the plaintiff in those

proceedings bases the grounds for the termination notice on the

contested provisions. Thus, the petition from the District Court for

Prague 7 is related to its decision making activity, and therefore that

court is an authorized petitioner under Art. 95 par. 2 of the

Constitution and § 64 par. 3 of the Act on the Constitutional Court.
 


VI.
Constitutional Conformity of the Legislative Process
 

34.

Under § 68 par. 2 of the Act on the Constitutional Court, the

Constitutional Court, apart from evaluating whether a contested law is

consistent with constitutional laws, is to determine whether it was

passed and issued within the bounds of constitutionally provided

jurisdiction and in a constitutionally prescribed manner. In doing so,

it relies on § 66 par. 2 of the Act on the Constitutional Court, under

which a petition is impermissible if the constitutional law with which

the regulation is inconsistent, according to the petition, ceased to be

in effect before the petition was delivered to the Constitutional Court.

The foregoing indicates that with legal regulations issued before the

Constitution went into effect (1 January 1993) the Constitutional Court

is authorized to review only their consistency with the existing

constitutional order, but not the constitutionality of the process by

which they were passed and observance of norm-creating jurisdiction (see

also judgment file no. Pl. US 10/99, published as judgment no. 150,

vol. 16 Collection of Decisions, pp. 115, 119).
 

35.

Thus, in this matter the Constitutional Court did not examine whether

Act no. 509/1991 Coll., which inserted the contested provisions into the

Civil Code, with effect as of 1 January 1992, was passed and issued

within the bounds of the jurisdiction provided by the federal

constitution at that time and in a manner prescribed by it.
 

36.

Act no. 267/1994 Coll., which the contested provisions amended, was,

however, passed and issued during a time when the Constitution was in

effect, and therefore it is first necessary to determine whether it was

passed and issued within the bounds of constitutionally provided

jurisdiction and in a constitutionally prescribed manner.
 

37.

The Constitutional Court determined from resolution no. 536 of the

Chamber of Deputies of the Parliament of the Czech Republic, from the

25th session, on 15 December 1994, that the government draft of the Act

which amends and supplements the Civil Code, according to Chamber of

Deputies publication 112, in the version from the joint committee report

from Chamber of Deputies publication 1264 and the approved amending

proposal, was approved by the Chamber of Deputies. The Constitutional

Court determined from the transcript of that session that, out of 163

deputies present, 96 deputies voted for the draft, 32 deputies were

against, 33 deputies abstained, and 2 did not vote (vote 399). At that

time the Senate had not yet been elected. The Act was delivered to the

president for signature on 16 December 1994, and the president signed it

on 22 December 1994. The Act was promulgated on 30 December 1994 in the

Collection of Laws, in part 79 as number 267/1994 Coll. The

Constitutional Court states that Act no. 267/1994 Coll. was passed and

issued within the bounds of constitutionally provided jurisdiction and

in a constitutionally prescribed manner.
 

38.

At this point the Constitutional Court notes that it is aware that the

Chamber of Deputies of the Parliament of the Czech Republic, on 14 March

2006, approved a draft Act on Unilateral Increases of Apartment Rent

and amending Act no. 40/1964 Coll., the Civil Code, as amended by later

regulations, in a version approved by the Senate, which also

substantially amends § 711 of the Civil Code, with the expected

effective date of 31 March 2006. However, in view of the fact that the

contested provisions, in their existing wording, will have to be applied

to legal relationships arising before the Civil Code amendment takes

effect, and many proceedings before the general courts may concern them,

the Constitutional Court did not find a reason to wait until the of the

Civil Code amendment is promulgated in the Collection of Laws and then

stop the proceedings under § 67 par. 1 of the Act on the Constitutional

Court (the Constitutional Court proceeded similarly in judgment Pl. US

33/2000 of 10 January 2001, published as judgment no. 5, vol. 21

Collection of Decisions of the Constitutional Court, p. 29, in the

Collection of Laws as no. 78/2001 Coll.). In any case, at the time of

the Constitutional Court’s decision making the contested provisions are

still in effect, and therefore conditions for stopping proceedings under

§ 67 par. 1 of the Act on the Constitutional Court have not been met.
 


VII.
The Constitutional Court’s Evaluation
 

39.

The petitioner’s constitutional law objects to the contested provisions

are presented from two positions: from the point of view of equality,

and from the point of view of protecting free will. Secondarily, the

petitioner makes arguments concerning interference in the tenant’s

private and family life and his freedom of residence. The Constitutional

Court first turned to evaluating the objects based on protection of

free will, private and family life and freedom of residence, because

these concern all tenants, without distinguishing among tenants of

co-operative and non-co-operative apartments. It subsequently considered

objections based on the specific features of a co-operative apartment

lease.
 


VII./A
 

40.

The petitioner’s first objection is that the contested provisions are

inconsistent with the principles of protecting free will and contractual

freedom, which it draws from Art. 1 par. 1 of the Constitution.

According to the petitioner it is the tenant’s business if he has the

opportunity to use several apartments, regardless of the reasons which

lead him to it. It is only up to the will of the parties of an apartment

lease agreement whether to conclude it, under what conditions, and

whether the tenant will really use the apartment. There is no reason to

force a tenant to have only one apartment, if it is within his abilities

to meet his obligations from the lease of several apartments.
 

41.

In a number of its decisions the Constitutional Court has recognized a

constitutional law dimension to the principle of free will and

contractual freedom. In the Constitutional Court’s opinion [see judgment

file no. Pl. US 24/99 of 23 May 2000 (judgment no. 73, vol. 18

Collection of Decisions of the Constitutional Court –“Coll. Dec.,” p.

135), Pl. US 5/01 of 16 October 2001 (judgment no. 149, vol. 24 Coll.

Dec., p. 79) and Pl. US 39/01 of 30 October 2002 (judgment no. 135, vol.

28 Coll. Dec., p. 151)] an essential element of a democratic law-based

state is protection of freedom of contract, which is derivative of the

constitutional protection of property rights under Art. 11 par. 1 of the

Charter (a fundamental component of which is ius disponendi). However,

it did not limit freedom of contract only to property rights, although

it is precisely in this context that it is most firmly enshrined in

constitutional law. In its judgment file no. I. US 113/04 of 4 May 2004

(judgment no. 63, vol. 33 Coll. Dec., p. 129) the Constitutional Court

stated that respect for the sphere of the individual is a general

condition for the functioning of a law-based state under Art. 1 par. 1

of the Constitution, or Art. 2 par. 3 of the Charter. The individual’s

right to free will, i.e. individual freedom, corresponds to the

requirement laid on the state power to recognize autonomous expressions

of the will of individuals and corresponding conduct. Provided such

conduct does not interfere in the rights of third persons, the state

power must only respect the expressions of individuals, or, as the case

may be, approve them. The state power can interfere in an individual’s

freedom only in cases which are justified by a certain public interest,

if such interference is proportional to the aims which are to be

achieved.
 

42. The principle

of protecting the free will of subjects of law is widely reflected in

private law, which is characterized by the principles of equality of the

parties (this is a concept of equality reflected in the reciprocity of

the internal structures in private law relationships, compared to public

law, which is characterized by the dominance of the representative of

public sovereign power, not the concept of equality before the law as

discussed below in part VII./C). Expressions of the free will of

subjects of law include contractual freedom, i.e. the freedom to

conclude contracts. However, even in the area of private law, objective

law places certain limits on free will, or freedom of contract (see § 2

par. 2 and 3 of the Civil Code). It can not be overlooked that as

regards regulation of apartment leases the Civil Code contains a number

of mandatory norms whose common denominator is protection of a lease, or

the tenant of an apartment. Thus, these mandatory norms limit free will

primarily on the other side of the lease relationship, i.e. on the side

of the landlord. Given that the landlord is typically the apartment

owner, it is evident that the increased level of protection of the

tenant is reflected in limitation of the property right of the landlord,

specifically in limiting the right of disposition with the owned

object. Thus, protection of a lease can come into conflict with the

constitutional guarantee of property rights under Art. 11 of the

Charter.1) Yet, as was stated in the as yet unpublished judgment file

no. Pl. US 20/05 of 28 February 2006, it is precisely the nature of a

legal relationship, including an apartment lease, as an obligations

relationship, that conceptually assumes that maximum space will be

created for exercising the free will and contractual freedom of the

parties (with the exception arising from point 46 of this judgment).
 

43.

Based on these starting points, the Constitutional Court must agree

with the arguments of the Senate of the Parliament of the Czech Republic

that the contested provisions, or all the grounds for giving notice of

terminating an apartment lease, are part of a wider set of measures

described by theory and practice as tenant protection, or as protection

of the weaker party (see also § 685 par. 1 of the Civil Code). It is not

reaching this conclusion for the first time. In judgment file no. IV.

US 524/03 of 23 September 2004 (judgment no. 138, vol. 34 Coll. Dec., p.

387) the Constitutional Court stated that Czech law on apartment leases

is based on marked protection of tenants. This manifests itself, in

particular, in termination of a lease relationship, on the one hand, in

the precisely defined grounds on which a court can consent to

termination notice being given, and on the other, tenant protection is

ensured by the fact that a tenant is not required to move out of an

apartment until comparable substitute housing has been secured.
 

44.

The Constitutional Court has also repeatedly considered another

component of lease protection – rent control: see Constitutional Court

judgment file no. Pl. US 3/2000 of 21 June 2000 (judgment no. 93, vol.

18 Coll. Dec., p. 287, 231/2000 Coll., 130/2001 Coll.), judgment file

no. Pl. US 8/02 of 20 November 2002 (judgment no. 142, vol. 28 Coll.

Dec., p. 237, 528/2002 Coll.) and judgment Pl. US 2/03 of 19 March 2003

(judgment no. 41, vol. 29 Coll. Dec., p. 371, 84/2003 Coll.). In these

judgments the Constitutional Court took the position that protection of

apartment tenants has been a permanent component of our legal order

since the 1920s, and in today’s context it can be understood as a

control on use of property, i.e. as a legitimate limitation on ownership

under Art. 1 of the Protocol to the Convention for the Protection of

Human Rights and Fundamental Freedoms (promulgated together with the

Convention as no. 209/1992 Coll., the “Protocol”). Under this provision,

states may enforce such laws as they deem necessary to control the use

of property in accordance with the general interest or to secure the

payment of taxes or other contributions or penalties. Similarly, Art. 11

par. 3 of the Charter indicates that ownership entail obligations, and

may not be misused to the detriment of the rights of others or in

conflict with legally protected public interests.
 

45.

Under these provisions, the Constitutional Court, like the European

Court of Human Rights, briefly speaking, evaluates whether the

limitation on the use of property (ownership rights) pursues a

legitimate aim, whether it is consistent with domestic law, and whether

it is proportional in relation to the legitimate aim pursued [see, e.g.,

Constitutional Court judgment file no. II. US 482/02 of 8 April 2004

(judgment no. 52, vol. 33 Coll. Dec., p. 39)]. There is no doubt that

protection of a lease is based on a legal norm with the force of a

statute. In all the abovementioned judgments the Constitutional Court

also did not doubt that protection of apartment tenants or apartment

leases is a legitimate aim for limitations on property rights, because

it contributes to implementing the right to an adequate standard of

living under Art. 11 of the International Covenant on Economic, Social

and Cultural Rights (promulgated as no. 120/1976 Coll.), the right of

the family to social, legal and economic protection under Art. 16 of the

European Social Charter (promulgated as no. 14/2000 Coll. of

International Treaties), or under Art. 4 par. 2 let. a) of the

Additional Protocol to the European Social Charter (promulgated as no.

15/2000 Coll. of International Treaties). Therefore, we must turn to the

third part of the test, and evaluate the contested legal framework in

terms of the proportionality of the limitations on an owner in relation

to the aim pursued.
 

46. If

the legitimate aim of protecting a lease is motivated by social reasons

(see the abovementioned judgment file no. IV. US 524/03) – the

requirement to provide an adequate standard of living for the tenant,

which includes adequate housing to meet the fundamental need to have a

safe place to lay one’s head – then it is evident that further

limitation of an apartment owner beyond satisfying the basic housing

needs of the tenant would not stand up to the test of proportionality.

If the law limited the owner in his right of disposition of his property

so much that it would not permit him to terminate a lease relationship

even in a situation where the tenant’s basic need for housing is quite

evidently saturated, for example, because he has several housing

opportunities at an adequate level, such limitation of the owner would

have to be assessed as disproportionate to the aim pursued. Tenant

protection in this sense may not be misused to protect the tenant’s

doing business with leased apartments, or accumulating apartments to the

detriment of their true owners. It is also necessary to take into

account the landlord’s justified interest in properly making use of the

apartment [see judgment of the Constitutional Court file no. I. US

360/02 of 10 June 2003 (judgment no. 86, vol. 30 Coll. Dec., p. 303,

306)]. If the protection of a lease is motivated, besides that, by the

state’s attempt to regulate the market in rental housing and, in the

face of excessive demand, to support the just distribution of

apartments, then it would not be a proportional measure if the legal

framework limiting apartment owners permitted the accumulation of

apartments in the hands of one tenant, or purposeless management of the

housing stock so that apartments remained unused and unoccupied. It is

precisely the contested provisions that are supposed to resist such

situations. Annulling them would further deepen the limitation of

ownership rights of apartment owners, and in the given situation would

cease (if it hasn’t already) to meet the criterion of proportionality in

relation to the legitimate aim of protecting tenants.
 

47.

At this point it is appropriate to review the deliberations which the

Constitutional Court made in its judgment file no. Pl. US 8/02, cited

above. The Constitutional Court then noted that by European standards a

lease relationship is usually temporary, whereas in this country it is

generally concluded for an indefinite period of time, and, in view of

the fact that transfers of the right to personal use of an apartment

were very similar to rights in inheriting property, the right to

personal [use of] an apartment de facto established a permanent

relationship and developed into a kind of quasi-ownership. The majority

of lease relationships in the past were not created by a free contract,

but by an administrative order, often against the will of the owners, in

accordance with the plan to gradually transfer the entire housing stock

into so-called “higher socialist forms of ownership.” Thus the

so-called “housing right” became part of public law, and it is not

easily compared with the European concept of the classic private law

institution of a lease. In addition, this hybrid legal relationship,

described under socialism as “personal use,” and now merely renamed

“lease,” also, in terms of civil law theory, shifted from the area of

the law of obligations into some kind of new substantive rights. This

transformation took place and continues to exist in fact in real life:

people sell and buy rented apartments, often in the disguised form of

exchanges, but recently also openly for so-called “severance payments.”

The scope of the transfer of rights of use to apartments, or the rights

of tenants, is, in this country, comparable to inheriting these

apartments, whereas in European law it is more limited. The

Constitutional Court then also stated that the correlation between rent

control and the slow transformation of civil law relationships

regulating housing manifests itself in the fundamental conflict of every

modern housing policy, the search for a balance between the principle

of protection tenants, and the principle of protecting property rights.
 

48.

The Constitutional Court points out that the cited judgment was issued

more than three years ago, and it is evident that not much could have

changed in the housing market situation. The legislature, instead of

working with the government to flexibly respond to the judgments in

which the Constitutional Court emphatically criticized the then-existing

legal framework of stiff rent control, which denied the ownership

rights of apartment owners and the incomplete transformation of lease

relationships, did nothing for a long time. The result of this

inactivity was a de facto freeze of controlled rent, which further

deepens the violation of ownership rights of owners of apartments

subject to rent control. The Constitutional Court also emphatically

criticized the legislature’s inactivity in its last judgment concerning

the issue of rent, file no. Pl. US 20/05 of 28 February 2006.
 

49.

Thus, as regards the claimed violation of the free will of the tenant,

or his freedom of contract, it is evident from the foregoing analysis

that it is not affected by the contested provisions. The present legal

framework does not forbid a tenant from having two or more apartments,

or not using an apartment or using it only occasionally. The law only

gives the landlord a limited opportunity to termination a lease

relationship, on certain conditions, and, moreover, only with the

consent of a court, and if he provides accommodation when the apartment

is vacated. The tenant’s free will, or his freedom of contract, can not

be torn out of the context in which it is applied. On the contrary, it

is the landlord whose free will is markedly limited when terminating a

lease, compared to the tenant. If the lease of an apartment were not

protected, the standard framework for a lease relationship agreed for an

indefinite period would apply, in which both parties can, under equal

conditions, terminate the lease unilaterally by giving notice when they

no longer have any interest in continuing it further (see § 677 par. 1

of the Civil Code).
 

50.

Thus, annulling the contested provisions would lead to even greater

limitation of the rights of landlords to the benefit of tenants, whereby

the Constitutional Court would go against the purpose of its previous

judgments. De lege lata, with every additional limitation of the

landlord’s right to unilaterally terminate a lease agreement, the

tenant’s right to the apartment could de facto become that

quasi-ownership right, to the detriment of the landlord’s true property

right, which would then survive only as bare ownership, despite the

constitutionally proclaimed principle of protecting it. Every further

reduction of the exclusively listed catalog of grounds on which the

landlord can terminate a lease goes against the spirit of private law,

because it deepens the inequality between the parties to a private law

relationship. Compared to the present situation, annulling the contested

provisions would, to the detriment of the landlord, further deepen the

unfair imbalance between the means used (the scope of limitation of

property rights by the Civil Code provisions on apartment leases) and

the legitimate aim pursued (protection of a lease, or a tenant), which

is becoming notorious in our legal environment, even though the

Constitutional Court has not yet had an opportunity to consider the

special provisions on lease of an apartment (§§ 685 – 716 and § 719 of

the Civil Code) comprehensively, in terms of their consistency with the

constitutional order. The Constitutional Court here again declares (see

the cited judgment file no. IV. US 524/03) that it is not permissible to

transfer the social burden of one group of people (tenants) to another

group (landlords), which applies not only to the legal framework of rent

and increases of rent, but also comprehensively, to the legal framework

for rights and obligations between landlord and tenant.
 

51.

Difficulties in proving that a tenant does not use an apartment or uses

it only occasionally can not be an argument in favor of annulling the

contested provisions, as the Association of Tenants of the Czech

Republic argued. In addition, the Constitutional Court points out that

the burden of proof in that case falls on the landlord, not the tenant,

which is also indicated by the settled case law of the general courts.

2)
 


VII./B
 

52.

The Constitutional Court also disagrees with the petitioner’s further

claim that the contested provisions in abstracto are unconstitutional

interference in the fundamental right to private and family life. At the

abstract level, the contested grounds for giving notice of termination

are justifiable in terms of protection of the rights and freedoms of

others (see Art. 8 par. 2 of the Convention, or Art. 12 par. 3 of the

Charter), specifically property rights. The Constitutional Court agrees

with the Senate that the contested legal framework does not give the

tenant an obligation to provide the landlord information about whether

he has an apartment he does not need, nor does it permit the landlord to

enter the apartment and violate the tenant’s constitutional rights,

including his family life. The Constitutional Court does not rule out

the possibility that interference in private and family life could occur

in a particular case upon application of the contested grounds for

giving notice of termination, e.g. through arbitrary interpretation of

them or as a result of erroneous or insufficient determination of facts.

However, in such cases the injured party has at his disposal procedural

means of protection, including a constitutional complaint. The

Constitutional Court points out that the mere possibility that a

statutory provision will be applied in a manner inconsistent with the

constitutional order, is not by itself sufficient to disqualify it.
 

53.

As regards the guarantee of freedom of movement and residence, the

Constitutional Court, like the Chamber of Deputies and the Senate, finds

it quite indisputable that these directly applicable constitutional

rights in no way conflict with the ability to give notice of terminating

a private law relationship (an apartment lease). Just as freedom of

movement and residence do not give rise to a tenant’s subjective right

to have an apartment owner lease an apartment to him, it also does not

give rise to a right for it to be impossible to terminate a lease on

statutory grounds.
 


VII./C
 

54.

Finally, the petitioner claims that the contested provisions establish

inequality between tenants of co-operative apartments, on one side, and

tenants of non-co-operative apartments, on the other, by impermissibly

disadvantaging the first category of tenants compared to the second

category of tenants. According to the petitioner, tenants of

co-operative apartments are disadvantaged because the legislature has

applied the same rules for terminating a lease to them, without taking

into account the unique nature of the lease of a co-operative apartment,

which, according to the petitioner, is of a quasi-property nature.

Thus, the petitioner in fact objects that the legislature created an

unconstitutional gap in the legal framework for termination of an

apartment lease, because it did not provide a special framework to cover

the termination of a co-operative apartment lease.
 

55.

The Constitutional Court must first answer the question whether the

contested provisions of the Civil Code can constitute interference in

the constitutionally protected principle of equality, or the right to

equal treatment under Art. 1 of the Constitution, under which 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, Art. 1 of the Charter, under which people are free, have

equal dignity, and enjoy equality of rights, Art. 3 par. 1 of the

Charter, which enshrines equality in guarantees of fundamental rights

and freedoms, and Art. 4 par. 3 of the Charter, under which statutory

limitation upon the fundamental rights and basic freedoms must apply in

the same way to all cases which meet the specified conditions. The

principle of equal rights must also be seen in connection with Art. 26

of the International Covenant on Civil and Political Rights (promulgated

as no. 120/1976 Coll.), under which all persons are equal before the

law and are entitled without any discrimination to the equal protection

of the law, and the law is to prohibit any discrimination and guarantee

to all persons equal and effective protection against discrimination on

any ground such as race, color, sex, language, religion, political or

other opinion, national or social origin, property, or birth.
 

56.

In its case law, the Constitutional Court maintains the concept of

accessory equality, i.e. equality in relation to another fundamental

right or freedom, and the concept of non-accessory equality, i.e.

general equality before the law. It understands equality not as

absolute, but as relative: the principle of equal rights must be

understood such that legal differentiation between subjects in access to

certain rights may not be an expression of arbitrariness; see

Constitutional Court judgments file no. Pl. US 16/93 [judgment no. 25,

vol. 1 Coll. Dec., p. 189], file no. Pl. US 36/93 (Coll. Dec., vol. 1,

judgment no. 24, p. 175), file no. Pl. US 4/95 (Coll. Dec., vol. 3,

judgment no. 29, p. 209), file no. Pl. US 5/95 (Coll. Dec., vol. 4,

judgment no. 74, p. 205), file no. Pl. US 9/95 95 (Coll. Dec., vol. 5,

judgment no. 16, p. 107), file no. Pl. US 33/96 (Coll. Dec., vol. 8,

judgment no. 67, p. 163), file no. Pl. US 15/02 (Coll. Dec., vol. 29,

judgment no. 11, p. 79). The Constitutional Court of the CSFR understood

the principle of equality the same way. In its judgment file no. Pl. US

22/92 (Collection of Decisions of the Constitutional Court of the CSFR,

judgment no. 11, p. 37) it cited the monograph of J. Pražák, Rakouské

právo ústavní [Austrian Constitutional Law], Prague 1902, pp. 42-43, who

concluded that the expression “all citizens are equal before the law”

does not say that all citizens have the same rights, but merely provides

a directive that the manner in which already acquired rights are

exercised, as well as the conditions for acquiring individual rights,

must be the same for all citizens. The Constitutional Court of the CSFR

then subscribed to that concept of equality, and since its establishment

the Constitutional Court of the Czech Republic has also subscribed to

it.
 

57. Equality is also a

relative category by definition in another sense: one can think in the

category of equality on in the relationship between two persons in the

same or comparable position (see also the cited judgment of the

Constitutional Court of the CSFR file no. Pl. US 22/92). Determining a

group of persons who can be compared in terms of preserving the

principle of equality is one of the most difficult tasks when applying

this argument [see Constitutional Court judgment file no. Pl. US 47/95

(judgment no. 25, vol. 5 Coll. Dec., p. 209, 122/1996 Coll.)]. The basic

guideline is a list of objectivized attributes based on which any

differentiating or different treatment is impermissible (see Art. 3 par.

1 of the Charter and similar anti-discrimination provisions in many

international human rights instruments).
 

58.

From another point of view, the fundamental constitutional principle of

equality can be understood on two levels – as formal equality, and also

as de facto equality. There is no doubt that it is the task of the

legislature, when creating the legal order, to ensure formal equality to

all persons at whom legal norms are aimed, but in view of the fact that

in the real world of nature and society there is de facto inequality

for a number of reasons, the legislature must, in justified cases, also

consider cases where the norms establish inequality, which, for example,

will remove de facto inequality or some other handicap. It is evident

that, for example, a normative advantage for a physically handicapped

person over a healthy person in a specific life situation (for example,

in the area of employing persons with disabilities that reduce

employability, preferential access to so-called barrier free apartments,

etc.) would not conflict with the constitutional requirement of

equality. Even where the legislature did not choose the route of

consciously giving an advantage to a “weaker” person, in order to give

priority to de facto equality over formal equality in a specific life

situation, it leaves the body that applies positive law room to resolve

the tension between the incompleteness of written law and the nature of a

specific case by applying constitutional principles in the substantive

conception of a law-based state (judicial discretion).
 

59.

The Constitutional Court points out that the petitioner is confusing

the category of equality in the abovementioned conception, which applies

comprehensively to subjects of law, with “equality” among legal

institutions. It assumes that there are difference between the lease of a

co-operative apartment and the lease of a non-co-operative apartment

which would deserve a different regulation even as regards termination

of the lease by notice from the landlord. However, comparing the lease

of a non-co-operative apartment on one side with a co-operative

apartment on the other side and deriving from the differences in these

legal institutions a requirement that they be regulated differently at

the level of civil law is inappropriate in the context of the principle

of equality.
 

60. The

Constitutional Court was guided by the following deliberations. From the

point of view of sub-constitutional law, the lease of a co-operative

apartment, as regards the conceptual elements of a lease agreement, is

identical with the lease of a non-co-operative apartment. Unless the law

provides otherwise, the tenant who is a co-operative member is a party

to a lease relationship with all rights and obligations, like every

other tenant. The practical difference between these leases arises from

the fact that the lease of a co-operative apartment is primarily derived

from a co-operative member’s property share in the acquisition of the

apartment, and his membership in the housing co-operative. Thus, the

unique feature of co-operative housing does not come from the subject of

the lease, but from the legally distinct relationship between the

member of the co-operative (tenant) to the co-operative (landlord). In

this relationship the tenant who is a co-operative member finds a

greater degree of lease stability, which approaches the stability that

is provided by using an apartment that one owns. It is for this reason

also that the Civil Code in § 714 ties the termination of an apartment

lease to termination of membership in a housing co-operative. The tenant

of a housing co-operative, who is also a co-operative member, is in a

more favorable position because he is organized in the housing

co-operative and because, in accordance with the bylaws, he participates

in the activities of the housing co-operative, his landlord, including

in creating its will. In addition, membership in a housing co-operative

also carries effective instruments for legal protection against

co-operative decisions which are inconsistent with the law or with the

co-operative’s bylaws. Thus, the fact that the tenant of a co-operative

apartment is a member of the co-operative which is his landlord in

certain respects really does put him in a different position compared to

the tenant of a non-co-operative apartment, especially in the area of

conditions for the creation of a lease relationship, different structure

of rent (without the element of profit, and with the co-operative

member’s direct property participation in the maintenance, operation and

repairs of the building), and especially in the quite exclusive right

of disposition to the lease relationship and membership in the

co-operative through the entitlement to an unlimited transfer of

membership under § 230 of the Commercial Code. However, these

differences result from the different legal relationship into which he

has entered.
 

61. It is clear

from the foregoing arguments that the contested provisions are not

interference in the constitutionally protected principle of equality,

because this is not a case of differentiating between the rights and

obligations of tenants either in view of traditionally forbidden

criteria (see Art. 3 par. 1 of the Charter), or in view of a different

status, but a case of comparing the legal institutions of lease of a

co-operative and non-co-operative apartment, to which the

constitutionally protected principle of equality does not apply.

“Inequality can not be claimed to exist where the law provides the same

conditions for a claim to all subjects that can be included in the

personal scope of a legal regulation.” (see judgment Pl. US 47/95, cited

above). The creation, content, and guarantee of the right of a lease

are the same for all persons. In terms of the principle of equality, the

essential thing is that all persons have the same conditions under the

law for entering into the legal position of a tenant of a co-operative

apartment, or that they have the same conditions for becoming tenants of

non-co-operative apartments, and at the same time all tenants of

co-operative apartments have, under the Civil Code, the same rights and

obligations regardless of their sex, race, skin color, language, faith

and religion, political or other beliefs, national or social origin,

membership in a national or ethnic minority, property, birth or other

status.
 

62. In its judgment

file no. III. US 258/03 of 6 May 2004 (judgment no. 66, vol. 33 Coll.

Dec., p. 156, 167), the Constitutional Court stated, among other things,

that the authority of a democratic legislature in the area of statutory

regulation of private law includes the regulation of types of

contracts. No provision of the constitutional order gives rise to a

binding order that the legislature regulate lease relationships to

apartments in a particular manner. There is no provision of the Charter

that would (for example, similarly to ownership) provide that a lease is

guaranteed and the lease of all tenants, or that under specified

conditions a different legal framework is permitted depending on the

subject of the lease agreement. Thus, it is in the legislature’s

discretion whether to regulate leases generally for all imaginable

subjects of lease agreements, or whether to respond through special

provisions to the specifics of leases of agricultural land,

non-residential premises, or apartments, or whether civil law will

continue to differentiate and distinguish leases of co-operative and

non-co-operative apartments, company apartments, special designation

apartments, or other kinds of apartments, based on the aims pursued at

the time by the legal framework. Insofar as it passes such a legal

framework within the bounds of the constitutional order, and leaves the

court which applies it discretion for a constitutional interpretation of

the norm in question, it is not desirable for the Constitutional Court,

as a body for the protection of constitutionally and also as a negative

legislature, to further widen the alleged constitutional gap through

its derogative intervention.
 

63.

Although co-operative housing provides the tenant who is a co-operative

member a higher degree of lease stability than classical rental

housing, it also does not authorize the conclusion that the tenant’s

relationship to the co-operative apartments falls in the category of

ownership or quasi-ownership. The owner of a co-operative apartment is

not the co-operative member, but the co-operative, and it enjoys the

protection of ownership rights based on Art. 11 of the Charter [see

Constitutional Court judgment file no. IV. US 8/93 of 13 February 1995

(judgment no. 8, vol. 3 Coll. Dec., p. 35): according to that judgment

the decision to evict the complainant from a housing co-operative did

not “interfere in the right enshrined in Art. 11 of the Charter, not to

mention the fact that Art. 11 of the Charter protects already-existing

ownership, and the co-operative apartment was not and is not owned by

the plaintiff, nor does she own a co-operative share, when its value,

representing the property share of a member in the co-operative was

also, during the time that the complainant was in the co-operative,

owned by the co-operative.”]. 3)
 


VII./D
 

64.

Although the Constitutional Court did not agree with the cited grounds

for declaring the contested provisions unconstitutional, it must agree

with the petitioner that application of the contested grounds for giving

notice of termination of a lease of an apartment owned by a housing

co-operative to a tenant who is a member of that housing co-operative

raises doubts. It would undoubtedly be desirable and suitable if, in

addition to special provisions on concluding a lease agreement for a

co-operative apartment or on minor repairs and payment of expenses

connected with routine maintenance (§ 685 par. 2, § 687 par. 3 of the

Civil Code), on joint lease of a co-operative apartment by spouses (§

700 par. 3, § 703 par. 2, § 704 par. 2, § 705 par. 2 of the Civil Code)

or transfer of the lease of a co-operative apartment (§ 706 par. 2, §

707 par. 2 of the Civil Code), provisions were also passed which would,

in view of the special features of co-operative housing, also more

appropriately regulate the termination of a co-operative apartment lease

by notice. The Constitutional Court even acknowledges that the regime

of a lease agreement is not the most suitable solution for use of a

co-operative apartment and that transformation of the institution of

personal use into lease of a co-operative apartment was not thought

through in a number of aspects. However, doubts about the suitability of

a legal framework are not sufficient for the Constitutional Court to

conclude that it is unconstitutional. In its case law it has repeatedly

given priority to a constitutional interpretation of contested

provisions over their annulment.
 

65.

Thus, if the petitioner believes, and the Constitutional Court shares

this belief, that the differences of the institution of a co-operative

apartment lease, in view of general principles of justice, would deserve

a restrictive interpretation of the contested grounds for giving notice

of termination in relation to co-operative apartments, the present

legal framework gives sufficient space for such an interpretation. A

general court may take into account the special features of a lease of a

co-operative apartment when determining fulfillment of these grounds

for giving notice of termination under the contested provisions, i.e.,

in evaluating whether the tenant can not justly be required to use only

one apartment [§ 711 par. 1 let. g) of the Civil Code], or in evaluating

serious or weighty reasons for which a tenant does not use an apartment

or uses it only occasionally [§ 711 par. 1 let. h) of the Civil Code].

It must also take into account § 3 par. 1 of the Civil Code, under which

the exercise of rights and obligations arising from civil law

relationships may not, without legal grounds, interfere in the rights

and justified interests of others, and may not be inconsistent with good

morals.
 

66. In this regard

the Constitutional Court points out “that the unsustainable factor for

the use of a law is its application based purely on linguistic analysis;

linguistic analysis is only the first approach to the applied legal

norm, it is a starting point for clarifying and enlightening its

significance and purpose (for which a number of other procedures are

also used, such as logical and systematic analysis, analysis e ratione

legis, etc.); cf. judgment file no. III. US 258/03 cited above. And, in a

different context, in judgment file no. Pl. US 21/96 of 4 February 1997

(judgment no. 13, vol. 7 Coll. Dec., p. 87, 96) the Constitutional

Court stated : “The court … is not absolutely bound by the express

wording of a statutory provision, but may and must diverge from it if

this is required for serious reasons by the purpose of the law, the

history of its creation, the systematic context, or one of the

principles which are based in the constitutionally consistent legal

order as a unit of meaning. In doing so, it must avoid arbitrariness;

the decision of a court must be based on rational arguments.” These

conclusions can undoubtedly also be applied to interpretation of the

contested grounds for giving notice of termination in respect of a

co-operative apartment.
 

67.

After the conducted proceedings, the Constitutional Court states that

there are no grounds to annul § 711 par. 1 let. g) and § 711 par. 1 let.

h) of the Civil Code, because these provisions, in abstracto and

especially in context of the special provisions on an apartment lease (§

685 et seq. of the Civil Code), which were not contested and whose

constitutionality the Constitutional Court did not have an opportunity

to evaluate comprehensively, are not inconsistent with Art. 1 par. 1 of

the Constitution and with Art. 1, Art. 3 par. 1, Art. 4 par. 2 and 4,

Art. 10 par. 2 and Art. 14 par. 1 of the Charter, and therefore it

denies the petition from the District Court for Prague 7 under § 70 par.

2 of the Act on the Constitutional Court. However, the Constitutional

Court considers it important at this point to emphasize that this

conclusion does not prevent the constitutionality of the contested

provisions from being evaluated differently in a different context, in

particular as part of comprehensive evaluation of the constitutionality

of all the provisions of Part VIII, Chapter VII, Division IV of the

Civil Code.

Notice: Decisions of the Constitutional Court can not be appealed.


Brno, 28 March 2006
 

 



Dissenting Opinion
of judge František Duchoň
 

I

am of the opinion that proceedings in this matter should have been

suspended under § 67 par. 1 of Act no. 182/1993 Coll. on the

Constitutional Court, pending publication of Act no. 107/2006 in the

Collection of Laws.
The Plenum decided in the matter on 28 March

2006, in a situation when we all knew that the legislative process

concerning Act no. 107/2006 Coll. on Unilateral Increasing of Apartment

Rent and Amending Act no. 40/1964 Coll., the Civil Code, as amended by

later regulations, had been completed. That Act newly amended the

wording of § 711 of the Civil Code, to the effect that giving notice of

termination of an apartment on grounds under § 711 par. l let. g), h) of

the Civil Code before the amendment [now § 711 par.2 let. c), d)], no

longer requires the consent of a court.
 

Deciding

on the merits on a petition to annul a statute in a situation when the

legislative process for a statute annulling the provisions proposed to

be annulled has been completed, and whose publication in the Collection

of Laws is only a question of a short period of time does not appear to

me suitable, as a principle.
In this regard I point to the necessity of taking a definitive position as regards judgment Pl. US 33/2000.

Brno, 4 April 2006
 



Dissenting Opinion
of

Constitutional Court judges JUDr. Pavel Holländer, JUDr. Stanislav

Balík and JUDr. Vlasta Formánková, taken pursuant to § 14 of Act no.

182/1993 Coll. to the judgment of the Constitutional Court in the matter

of a petition from the District Court for Prague 7 to annul § 711 par. 1

let. g), h) of Act no. 40/1964 Coll., the Civil Code, as amended by

later regulations.
 

This

dissenting opinion filed to the verdict of the judgment denying the

petition from the District Court for Prague 7 to annul § 711 par. 1 let.

g), h) of Act no. 40/1964 Coll., the Civil Code, as amended by later

regulations, is based on the following arguments:
 

The

Constitutional Court decide to deny the petition in question on 28

March 2006. In the reasoning of the judgment it stated that “it is aware

that the Chamber of Deputies of the Parliament of the Czech Republic,

on 14 March 2006, approved a draft Act on Unilateral Increases of

Apartment Rent and Amending Act no. 40/1964 Coll., the Civil Code, as

amended by later regulations, in a version approved by the Senate, which

also substantially amends § 711 of the Civil Code, with the expected

effective date of 31 March 2006. However, in view of the fact that the

contested provisions, in their existing wording, will have to be applied

to legal relationships arising before the Civil Code amendment takes

effect, and many proceedings before the general courts may concern them,

the Constitutional Court did not find a reason to wait until the of the

Civil Code amendment is promulgated in the Collection of Laws and then

stop the proceedings under § 67 par. 1 of the Act on the Constitutional

Court ( the Constitutional Court proceeded similarly in judgment Pl. US

33/2000 of 10 January 2001, published as judgment no. 5, vol. 21

Collection of Decisions of the Constitutional Court, p. 29, in the

Collection of Laws as no. 78/2001 Coll.). In any case, at the time of

the Constitutional Court’s decision making the contested provisions are

still in effect, and therefore conditions for stopping proceedings under

§ 67 par. 1 of the Act on the Constitutional Court have not been met.”
 

Under

the cited statutory provision, the Constitutional Court shall stop

proceedings on review of a norm if the statute, other legal regulation,

or the individual provisions thereof that are proposed to be annulled

shall cease to be in effect before the proceedings in question are

finished.
 

In the present

matter the Constitutional Court was making its decision by judgment at a

time after the passage of the Act on Unilateral Increasing of Apartment

Rent and Amending the Civil Code, under § 97 par. 5 of Act no. 90/1995

Coll., on the Rules of Procedure of the Chamber of Deputies, and after

it had been forwarded to the president (§ 98 par. 1, § 107 par. 2 of

that Act), i.e. at a time regarding which the Constitutional Court, in a

comparable context, authoritatively stated that “therefore, a

resolution by the Chamber of Deputies, expressing consent with the draft

Act must be viewed as a decision containing (in the given procedural

phase) a statement with final effect, whereby the legislative process in

the Chamber of Deputies has been completed” (file no. Pl. US 5/02). If

the president does not exercise his veto (Art. 50 par. 1 of the

Constitution), it is the constitutional obligation of the appropriate

state bodies to promulgate the Act in the prescribed manner (Act no.

399/1999 Coll., on the Collection of Laws and the Collection of

International Treaties), which is a condition for it going into effect

(Art. 52 of the Constitution).
 

If

the Constitutional Court annulled the provisions of a statute in the

period between its annulment by parliament until publication of a

derogative statute in the Collection of Laws (which is one of the

alternatives which the Constitutional Court has recognized by its

decision on the merits), this would create a situation of legal

uncertainty: there could be competing grounds for derogation,

uncertainty in the matter of the grounds for validity of statutory

provisions, for example, by publication of a derogative statute and

derogative judgment in the same part of the Collection of Laws, or by

publication of a derogative act which would precede the publication of

the derogative judgment. Such a procedure would be inconsistent with the

principle of a law-based state under Art. 1 par. 1 of the Constitution.

A constitutional interpretation of § 67 par. 1 of Act no. 182/1993

Coll. per analogiam, affecting the circumstances of the adjudicated

case, reflecting the maxims arising from Art. 1 par. 1 of the

Constitution, can be considered to be that the Constitutional Court

either waits for the publication of the statute in question and suspends

proceedings under § 67 par. 1 of Act no. 182/1993 Coll. or, if the

statute is vetoed by the president, which re-opens the legislative

process, decides on the merits (§ 70 of Act no. 182/1993 Coll.).
 

Under

the legal opinion in judgment file no. Pl. US 33/2000, which is

referred to in the reasoning of judgment file no. Pl. US 43/03, if a

general court judge concludes that a statute which is to be applied in

adjudicating a matter (that is, not only one in valid at that time, but

also one no longer valid but still applicable) is inconsistent with a

constitutional law, it is required to submit the matter to the

Constitutional Court (Art. 95 par. 2 of the Constitution). The

Constitutional Court considered that refusal to provide assistance to

the general court by its decision on the constitutionality or

unconstitutionality of the applicable statute would create an

irresolvable legal vacuum; it classified the general court’s decision on

the unconstitutionality of the applied provisions as a procedure

inconsistent with the Constitution, specifically inconsistent with the

principle of a concentrated constitutional judiciary (Art. 83 and Art.

95 par. 1 and par. 2 of the Constitution).
 

The

consensus of the dissenting opinion of six judges, filed to the verdict

of judgment file no. Pl. US 33/2000, is that this has exceeded the

constitutionally granted powers under Art. 87 of the Constitution.
 

In

the constitutional judiciary of the Czech Republic, proceedings on

review of a norm are conceived according to the Austrian model, as it

was formed under the influence of the ideas of Hans Kelsen. In them, the

Constitutional Court is a body for protection of constitutionality, a

so-called “negative legislature,” which has at its disposal derogative

authority, i.e. the authority to annul statutes and their individual

provisions due to inconsistency with the legal order, with effect ex

nunc (i.e., with effect for the future). As regards evaluation of the

constitutionality of statutes which contain so-called “Massnahmenormen,”

that is, statutes which were in effect at a point in time, the

Constitutional Court, in its legal opinion contained in resolution file

no. Pl. US 5/98, confirmed by judgment file no. III. US 288/04, stated:

“The legal framework for the constitutional judiciary in the Czech

Republic specifies the legal effects of derogative judgments of the

Constitutional Court when reviewing norms to be ex nunc and not ex tunc

(§ 70 a § 71 of Act no. 182/1993 Coll.). The purpose of this concept of

the constitutional judiciary is to prevent the creation of possible

unconstitutional legal consequences in cases where the evaluated legal

regulation at least hypothetically assumes the future existence of a

legal fact which could create such unconstitutionality. In legal

practice, however, there is a group of legal norms which are fulfilled

in one moment (e.g., § 871 par. 1 of the Civil Code, as amended, which

transformed the right of personal use of an apartment into a lease), and

there in future, no legal fact can arise, even hypothetically, which

would create consequences not foreseen by the legal norm. Evaluation of

such cases, which is, by its nature, retroactive evaluation, exceeds the

powers of the Constitutional Court, and fully belongs, with the

awareness of constitutional limitations, to the powers of the democratic

legislature. For that reason, all restitution related legislation, with

its necessary retroactive components, was implemented by the democratic

legislature, and not by the Constitutional Court.”
 

If

this statement applies to a “Massnahmenorm,” it should, in terms of the

constitutional maxim of a ban on retroactivity (Art. 1 par. 1 of the

Constitution) apply all the more to evaluation of the constitutionality

of legal regulations which are no longer valid.
 

This

thesis is illustrated by § 154 par. 1 of the Civil Procedure Code,

under which, in cases where a decision only declares the rights and

obligations of the parties, the decisive legal status quo is that at the

time when the rights and obligations concerned in the proceedings

arose, were changed, or ceased to exist. Thus, if a general court, in

proceedings on a so-called “complaint for determination” evaluates the

creation of a certain private law relationship in 1947, it will apply

the relevant provisions of General Civil Code. If it found these

provisions unconstitutional under the existing constitutional order,

then, under judgment file no. Pl. US 33/2000, it would suspend the

proceedings, and proceed according to Art. 95 par. 2 of the

Constitution. If the Constitutional Court then, let us say by an

academic verdict, granted the general court’s petition for review of a

norm, such a process would necessarily bear the signs of true

retroactivity (on the concept of true retroactivity see E. Tilsch,

Občanské právo. Obecná část [Civil Law. The General Part], Prague 1925,

pp. 75-78, A. Procházka, Základy práva intertemporálního [Foundations of

Intertemporal Law], Brno 1928, p. 111, A. Procházka, Retroaktivita

zákonů [Retroactivity of Laws]. In: Slovník veřejného práva [Dictionary

of Public Law]. Vol. III, Brno 1934, p. 800, L. Tichý, K časové

působnosti novely občanského zákoníku, Právník, č. 12, 1984, [On the

Applicability in Time of the Amendment to the Civil Code] p. 1104, and,

from the Constitutional Court’s case law, especially judgment file no.

Pl. US 21/96).
 

The

Constitution of Austria, in Art. 140 par. 4, par. 7, recognizes the

possibility of an academic verdict of the Constitutional Court on the

unconstitutionality of a statute which has already been annulled, but

assumes the possibility of “new” evaluation of previous factual events

only in cases which created an incentive for proceedings on review of a

norm which led to a derogative (but not academic) verdict. In any case,

the Constitutional Court of the Czech Republic has proceeded analogously

in its case law (see judgments file no. I. US 102/2000, I. US 738/2000,

IV. US 582/02, III. US 569/03).
 

The

unrestricted application of the procedure established by interpretation

of Art. 95 par. 2 of the Constitution, contained in judgment Pl. US

33/2000, and confirmed by judgment Pl. US 42/03, thus shows signs of

true retroactivity, and is therefore inconsistent with the principle of a

law-based state (Art. 1 par. 1 of the Constitution). The only possible

case of breaking the ban on retroactive effect of a legal norm by the

Constitutional Court that could have been accepted would have been

protection of values which fall into the substantive core of the

Constitution under Art. 9 par. 2 .
Brno, 28 March 2006
 

 


Dissenting Opinion

of judge Eliška Wagnerová
 

I

have a dissenting opinion to the reasoning of the majority decision,

because I maintain the opinion which I stated in my dissenting opinion

to the judgment in the matter file no. Pl. US 20/05. Also, I believe

that in the case of legal regulation of apartment leases it is not

possible to evaluate individual provisions in isolation, but only in the

context of the complete legal regulation of this subject matter.
 

Insofar

as I did not vote to annul the contested provision of the Civil Code,

it is only because annulling it would only worsen the already imbalanced

position of landlords.

Brno, 28 March 2006
 



Dissenting Opinion
of judges Dagmar Lastovecká and Jiří Nykodým to part of the reasoning under points 46 and 67
 

The

Constitutional Court found § 711 par. 1 let. g), h) of the Civil Code

to be constitutional, primarily in view of the existence of a special

legal regulation of apartment leases, which could not be evaluated as a

whole in the adjudicated matter. However, point 67 allows the

possibility that in comprehensive evaluation of that special legal

regulation of the leases of apartments even the contested provisions

would not necessarily be found to be constitutional.
 

As

a result of an excessively restrictive analysis of § 64 par. 3 of the

Act on the Constitutional Court, the Constitutional Court did not make

use of the ability to comprehensively evaluate this special legal

framework in the matter file no. Pl. US 20/05; therefore, we refer to

our dissenting opinions taken in that matter.

Brno, 28 March 2006
 

 


Notes:
1)

See, e.g. judgment file no. III. US 114/94 (judgment no. 9, vol. 3

Coll. Dec., p. 45): “The provision of § 712 par. 2 of the Civil Code

must also be considered a statutory provision that restricts ownership

rights ... In its interpretation of that provision of the Civil Code the

Regional court in Brno rejected an “expansive interpretation” of the

concept of “fundamental” equality of the appropriate substitute

apartment and the vacated apartment. It thereby concluded that if, in

local conditions, it is “difficult” or impossible to secure an

appropriate substitute apartment, then exercise of the owner’s right to

give notice of termination is ruled out (in the given matter, under §

711 par. 1 let. a) of the Civil Code). This interpretation of § 712 par.

2 of the Civil Code led to elimination of the owner’s right of

disposition (which includes the possibility of giving notice of

termination), and thus did not preserve the significance and purpose of

one of the constitutionally guaranteed fundamental rights. It thus led

to violation of Art. 4 par. 4 of the Charter of Fundamental Rights and

Freedoms.”
 

2) Supreme Court

decision 26 Cdo 1900/99 of 7 March 2001: “The court can agree with

notice of termination only on the assumption that … the landlord (and no

one else), in proceedings on consent to notice of termination, also

proves his claims about the facts on which the notice (contained in this

case in the complaint), i.e. the burden of proof in this case is on the

landlord – the Supreme Court of the Czech Republic reached the same

conclusion in its decisions of 8 June 1999, file no. 26 Cdo 2259/98, and

24 February 2000, file no. 20 Cdo 1456/99.”
 

3)

Similarly, judgment file no. III.US 445/04 of 16 December 2004. In the

constitutional complaint, the complainants – briefly summarized –

complained about the fact that although they, properly and in a timely

manner, called on the co-operative to transfer the apartment, it had not

been transferred to their personal ownership, and they are thus

required, in conflict with the law, to remain in a lease relationship to

the co-operative. They also disagreed with the fact that ownership

relationships to the land on which their apartment building is

constructed have not been sorted out. The co-operative wanted rent

payments from the complainants, although it was supposed to transfer the

apartment to their personal ownership. The Constitutional Court stated

that the objection of violation of Art. 11 of the Charter was not

justified. “The settled case law of the Constitutional Court within the

intentions of Art. 11 par. 1 of the Charter protects only already

acquired, existing ownership, and not only a claimed entitlement to it

(see, e.g. the judgment in the matter I. US 115/94 in The Constitutional

Court of the Czech Republic: Collection of Decisions – volume 3., no.

41, Prague 1995).”