2010/07/01 - Pl. ÚS 9/07: Church Restitution

01 July 2010

HEADNOTES

 

To Verdict I.

1.

In the Judgment file No. II. ÚS 528/02, the Constitutional Court

declared that “[the ordinary courts], in the course of the proceedings,

neglected to consider that devolution of property of churches is covered

by the imperative provisions of § 29 of Act No. 229/1991 Coll.,

according to which such property as was originally owned by churches,

religious orders and congregations cannot be transferred to the

ownership of third parties prior to adoption of an act regarding such

property. The Act on Land thus anticipates that agricultural property

which was earlier owned by ecclesiastical legal entities would be

regulated through a separate act and until such an act is passed, such

property is protected. Therefore, it is necessary to apply the rule of

restitution acts to such property, and thus there is no room for

bringing indictments for ascertaining ownership due to the absence of

pressing legal interest. Such interest cannot be derived even from the

fact that the state was not able to pass a special restitution act in

spite of the fact that Act No. 229/1991 Coll., which became effective as

early as 24 June 1991, anticipates the adoption of such an act.

However, the state must fulfil its obligation to pass a restitution act,

established by the above-cited provisions of the Act on Land, regarding

ecclesiastical property, as the state must oblige legitimate

expectation on the part of ecclesiastical legal entities which are

supported by statutory provisions.” This conclusion (in opposition to

Judgment file No. IV. ÚS 298/05 – see above) was subsequently confirmed

by a standpoint taken in file No. Pl. ÚS-st. 22/05 (see above) which

first of all addressed the nature of Act No. 298/1990 Coll. as a

restitution act, since the restitution purpose of this act was fulfilled

through the enumeration of the entitled parties and property concerned

(property being transferred). In addition, this standpoint adopted a

part of the reasoning of Judgment file No. II. ÚS 528/02, in such a part

which explicitly declares the obligation of the legislature to pass a

restitution act, as they must oblige legitimate expectation on the part

of ecclesiastical legal entities, which is supported by statutory

provisions. The above specified declaration of the obligation of the

legislature to adopt a restitution act and thus oblige legitimate

expectation on the part of the ecclesiastical entities is steadily

reproduced in later case law of the Constitutional Court [cf. the

previously mentioned resolution file No. II. ÚS 687/04; additionally,

resolution file No. II. ÚS 230/05 dated 16 March 2006; resolution file

No. IV. ÚS 509/05 dated 19 June 2006; resolution file No. I. ÚS 679/03

dated 10 May 2007; resolution file No. I. ÚS 1652/07 dated 18 July 2007

(not published in the Collection of Judgments and Rulings /SbNU/);

clause 29 of Judgment file No. IV. ÚS 34/06, dated 21 November 2007 (N

201/47 SbNU 597); resolution file No. IV. ÚS 158/08 dated 6 May 2008;

resolution file No. II. ÚS 2904/08 dated 7 January 2009 (not published

in the Collection of Judgments and Rulings /SbNU/) and a number of

others; lastly Judgment dated 24 June 2009, file No. I. ÚS 663/06].

 

2.

It follows from the meaning of the contested provision and the hitherto

interpretation of the same by the Constitutional Court (continuation to

the above-recapitulated case law) that their purpose is not only the

actual “blockage” of a certain part of state property (partly also

property registered as owned by third parties, particularly

municipalities); that is, for example, attempts to preserve a certain

status quo in terms of property. The nature of the contested provisions

must be seen in particular in the commitment (pledge) of the

legislature, at a deferred time, to adopt a legal arrangement settling

the historic property of churches and religious communities, which would

take into account objective particulars of the matter under discussion

and actually consummates the provisions of § 29 of the Act on Land.

 

3.

The above-specified purpose of § 29 of the Act on Land must be observed

in the context of the value foundation for restitution and

rehabilitation law and the case law of the Constitutional Court. The

legislature embodied the primary value points in the preambles and

introductory provisions of restitution acts and rehabilitation acts and

Act No. 198/1993 Coll. on Lawlessness of the Communist Regime and on

Resistance to the Same. The Constitutional Court explicitly declared the

non-legitimacy of the regime and its acts from 1948 to 1989 in its key

Judgment file No. Pl. ÚS 19/93, dated 21 December 1993 (N 1/1 SbNU 1;

14/1994 Coll.). In addition, it is necessary to emphasise that the issue

of the restitution under consideration is not seen by the

Constitutional Court, even through the distance of two decades, as one

of historic injustice that would stretch beyond the instruments of a

rule of law state.

 

4.

In the matter under consideration it is first of all clear that

annulment of § 29 of the Act on Land would make possible the transfer of

historic property of churches to third parties, which would

considerably endanger, or maybe even make impossible, property

composition via restitution in kind (as one of the key methods for

mitigating cases of property injustice). Transfer of the ownership right

to the original ecclesiastical property to third parties (acquiring

this property in good faith) would in practice mean a considerable

abridgement of discretion of the legislature concerning the methods of

any future property adjustment, moreover, with possible increased

demands on the state budget.

 

5.

If, therefore, the legislature determined that the transfer

(devolution) of property, the owners of which were, as to the decisive

date, churches and religious communities or their legal entities, is, as

an act contra legem, associated with absolute invalidity (in cases

being in opposition to the sense of property composition), the

legislature pursued, completely reasonably, the purpose of the contested

provision; this in relation to provision of a material basis for a

future act on settlement of historic property of churches; and possibly a

broader legislative solution to property composition between the state

and churches. In the absence of a blocking effect, this purpose could

be, partially or totally, thwarted; since merely legal disposal by the

state of the property in question may form the basis for adoption of

“acts on such property”, while respecting the position of potential new

owners.

 

6.

In relation to the greatest part of the property which is affected by

the blocking effect and remains in the ownership of the state, no

encroachment of constitutional-law relevance is involved, in particular

as regards the disposal alone of the property so blocked. The state

cannot assert the ownership right as a fundamental right against itself,

in particular when the state acquired the property in question only at

the cost of violating internationally accepted standards for protection

of fundamental rights and freedoms and its own law. In this relation it

is not possible, even theoretically, to presume good faith or a similar

subjective element on the part of the state, since the state knows

objectively its law. Therefore, such encroachment cannot be considered

unconstitutional, even when the state (factually or legally) does not

transfer the reserved section of the property which is formally in its

ownership.

 

7.

In relation to municipalities which, in some cases, are registered as

the owners of what was originally ecclesiastical property, the

Constitutional Court first of all finds that blockage of such property

does not comprise arbitrariness of the legislature which would, on the

basis of its own political discretion or on the basis of other

indefensible intentions, intend to encroach upon specific municipalities

or upon the general level of realisation of the right to

self-government. Involvement of such municipalities is based on the

historic existence of ownership plurality prior to 1948. In particular

it is not possible to state without any further consideration that

restriction of transfer of individual specific items of immovable

property under the ownership of a municipality would mean, without any

other action, restriction of the right to self-government in relation to

any given municipality.

 

8.

According to the provisions of § 4 paragraph 2 of Act No. 172/1991

Coll., “Also objects owned by the Czech Republic, the release of which

is claimed by an entitled party pursuant to a special regulation, shall

not pass to the ownership of municipalities”. In relation to

municipalities this is thus a safeguard which, according to its meaning,

is to prevent clashes between the rights and claims of municipalities

(as potential new acquirers) and entitled parties (future claimants). In

case law related to restitution disputes, the Constitutional Court has,

therefore, repeatedly stated that a municipality cannot derive its

ownership right according to Act No. 172/1991 Coll., where the immovable

property in question does not represent “historic ownership of

municipalities”.

 

9.

It is indubitably clear from the context of the adoption of the

individual restitution regulations and constant case law of the

Constitutional Court, that contrary to returning the historic property

of municipalities, devolution of other property determined for future

restitution to municipalities was of a totally specific, formal nature,

and the position of the municipality as the obliged party within the

restitution process has never been questioned by the Constitutional

Court.
 
10. With respect to the above-defined purpose of the

contested provisions and the hitherto role of municipalities in the

restitution process, where they conceptually act also as obliged

parties, the very blockage alone of certain specific property (even

though such property is registered as the property of municipalities),

at a general level, does not seem to possess an inadequate effect. At

this level, the interests of self-governing municipalities on one hand,

and those of autonomous churches and religious communities on the other

cannot be placed directly in opposition to one another.

 

11.

The reflection of specific role of churches in society also results

from international comparison. The historic role of churches in society

and the nature of their activities oriented to the public to some degree

distinguish the churches from other natural persons or legal entities

(taking into account the nature of their assets) and also make

comparison possible – in terms of the requirement of independence of the

state – with local self-governments (municipalities), which are, as an

agglomeration, also indivisible from the individual right of a citizen

to self-determination.
 
12. During an abstract review of

constitutionality, the Constitutional Court is not able to objectively

prove or theoretically model every conceivable situation which may be

caused by the contested provisions in every individual case. Therefore,

the subject of evaluation cannot now be formed by specific cases of

individual owners either, with respect to whom, taking into

consideration specific circumstances, including, for example, the

relevance of the ownership title, the existence of good faith, or the

hitherto role of the type of the subject in question in the restitution

process, the Constitutional Court may further elaborate its evaluation

in the future.

 

13.

When the contested provisions speak about “churches, religious

communities, orders and congregations”, there is no other reasonable

interpretation than that these are entities existing with their own

legal personality according to valid law, whether they were understood

as ecclesiastical legal entities inside churches and religious

communities or besides them, which were the subject of the right in rem

from which the churches and religious communities draw resources to

attain their objectives, and removal of which they therefore experienced

as property injustice. In relation to such ecclesiastical legal

entities, this is then such property which de iure or de facto devolved

to the state in the decisive period from 25 February 1948 to 1 January

1990.

 

14.

The definition of the range of the property in question in the

provisions of § 29 of the Act on Land is sufficiently definite, since

the existence of the right in rem (or forfeiture of the right to

property, through the seizure of which injustice was done) within the

decisive period of time is an objectively legally provable fact, and it

is non-decisive that state bodies do not maintain a complete and

separate list of the property in question, for which there is also no

legal reason.

 

15.

On the basis of what has been said above, the Constitutional Court has

found no reasons for granting the petition for annulment of § 29 of the

Act on Land, since said provisions are not unconstitutional. Within the

scope of the attained constitutionally conforming interpretation the

Constitutional Court has found that the purpose as well as the means

contained in the contested provisions stand up when tested against the

constitutional principles.


To Verdict II.

16.

Today, the pressure of public interest in removing legal uncertainty

resulting from the provisional legal condition (Act No. 298/1990 Coll.

in connection with § 29 of the Act on Land) has exceeded the tolerable

and justifiable limit. Non-adoption of a special act, to which the

legislature has explicitly bound itself, for a period of nineteen years,

in spite of the legislature being admonished by the Constitutional

Court for the problematic nature of its inactivity, is a sign of

impermissible legislative arbitrariness, and violates Article 1

paragraph 1 of the Constitution.

 

17.

The Constitutional Court states that in addition to the explicit

statutory basis contained in the provisions of § 29 of the Act on Land,

the legitimate expectation of churches and religious communities is also

based on the general concept of the restitution process in place after

1989, which, neither in the individual restitution provisions nor as a

whole, may be interpreted to the detriment of entire groups of entities

(persons). 
 
18. The point designated by the Constitutional

Court in its case law as “legitimate expectation” is indubitably a

continuing and specific property interest falling under Article 11 of

the Charter and Article 1 of the Protocol to the Convention. The

impossibility to realise such a property interest (to obtain

compensation) during a period of nineteen years thus, in the opinion of

the Constitutional Court, fulfils the aspect of unconstitutionality,

consisting of an omission to legislatively deal with a systemic and

comprehensive problem of which the legislature has repeatedly been

reminded by the Constitutional Court. The legitimacy of the purpose of

such encroachment (inactivity) may have lasted for a certain

transitionary period at the time of adopting the most essential steps of

the transformation of the society, however, it is not sustainable ad

infinitum.

 

19.

The provisions of Article 2 paragraph 1 of the Charter guarantees the

plurality of religions and religious tolerance, as well as separation of

the state from specific religious denominations (the principle of a

state which is neutral from the viewpoint of confession). The principle

of plurality of religions and tolerance is expressed in Article 15

paragraph 1 and in Article 16 of the Charter of Fundamental Rights and

Basic Freedoms. The central principle of the state being neutral from

the viewpoint of confession is implemented through the co-operation

pattern of the relation between the state and churches and their mutual

independence. What is crucial for the following considerations is

whether and to what degree economic self-sufficiency constitutes a

material precondition of independent exercise of rights guaranteed

particularly by Article 16 paragraphs 1 and 2 of the Charter. The point

is that the constitutional order of the Czech Republic does not contain

merely an imperative for independence of the state of churches and

religious communities (as part of the ideological and religious

neutrality of the state), but also the requirement for the independence

of churches and religious communities of the state when carrying out

their objectives.
 
20. In the absence of a sensible settlement of

historic ecclesiastical property, when the state, as a result of its

own inactivity, continues to be a dominant source of income for the

churches and religious communities concerned, this in addition without

any clear link to revenues from the historic property of churches being

withheld, the above condition thus, in its consequences, violates

Article 16 paragraph 1 of the Charter in terms of freedom of expression

of faith in society through public activities and traditional forms of

religiously motivated, generally beneficial activities using relevant

historically formed economic resources, and especially Article 16

paragraph 2 of the Charter, this in the economic sector of

ecclesiastical autonomy. 

 

 

 

CZECH REPBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC


 

JUDGMENT
On

1 July 2010, the Constitutional Court Plenum, composed of Stanislav

Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Ivana Janů,

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

Pavel Rychetský, Miloslav Výborný and Michaela Židlická, adjudicated on a

petition from a group of Senators of the Senate of the Parliament of

the Czech Republic for annulment of § 29 of Act No. 229/1991 Coll. on

Arrangement of Ownership to Land and Other Agricultural Property, and

for enunciation of unconstitutional inactivity by the Parliament of the

Czech Republic; with participation by the Chamber of Deputies of the

Parliament of the Czech Republic and the Senate of the Parliament of the

Czech Republic as parties to the proceedings; as follows:
 
I.

The petition for annulment of § 29 of Act No. 229/1991 Coll. on

Arrangement of Ownership to Land and Other Agricultural Property shall

be dismissed.
 
II. Long-term inactivity on the part of the

Parliament of the Czech Republic consisting in non-adoption of a special

legal regulation that would settle historic property of churches and

religious communities is unconstitutional and violates Article 1 of the

Constitution of the Czech Republic, Article 11 paragraphs 1 and 4,

Article 15 paragraph 1, and Article 16 paragraphs 1 and 2 of the Charter

of Fundamental Rights and Basic Freedoms, and Article 1 of the Protocol

to the Convention on the Protection of Human Rights and Fundamental

Freedoms.


 

REASONING

 

I.
Re-capitulation of the Petition and Argumentation of the Petitioner

1.

A group of Senators of the Senate of the Parliament of the Czech

Republic (hereinafter referred to only as the “petitioner”) filed a

petition for initiating proceedings pursuant to § 64 paragraph 1, clause

b) of Act No. 182/1993 Coll. on the Constitutional Court, as amended by

later regulations (hereinafter referred to only as the “Act on the

Constitutional Court”), in which they requested that the Constitutional

Court declare that:
 “Long-term inactivity on the part of the

Parliament of the Czech Republic consisting in non-adoption of a special

legal regulation governing disposal of property, the original owners of

which were churches, religious orders and congregations, violates

Article 1 paragraph 1 of the Constitution of the Czech Republic, Article

4 paragraph 1, Article 11 paragraph 1, paragraph 4 of the Charter of

Fundamental Rights and Basic Freedoms, and Article 1 paragraph 1 of

Protocol No. 1 to the Convention for the Protection of Human Rights and

Fundamental Freedoms”.

 

2.

Additionally, they proposed that the Constitutional Court annul § 29 of

Act No. 229/1991 Coll. on Arrangement of Ownership to Land and Other

Agricultural Property (hereinafter referred to only as the “Act on

Land”). This provision, including the heading, correctly reads (the

petitioner included incorrect text according to ASPI (Automated System

of Legal Information) instead of the Collection of Laws):
 “Property of churches

Property,

the original owners of which were churches, religious communities,

orders and congregations, cannot be transferred to the ownership of

other parties before adoption of acts on such property.”

 

3.

According to the petitioner, the provisions of § 29 of the Act on Land

quoted above suggests that it was not the will of the legislature to

address within the Act on Land the issue of “church restitutions”. With

respect to the fact that a considerable part of the property was

originally owned by churches, religious orders and congregations, the

legislature expressed explicitly in the Act on Land that such property

would not be addressed by the Act on Land but by other acts yet to be

adopted. According to the petitioner, the legislature intended to adopt

certain acts, within a short period of time, the subject of which would

be definition of the position of churches, the relationship between

churches and the state, the funding of churches and, in connection with

this, additionally restitutions of original ecclesiastical property.

With respect to the fact that the legislature assumed the original

ecclesiastical property (or part of the same) would be released to the

churches, the provisions of § 29 of the Act on Land are of “a blocking

nature”, since this property cannot be disposed of (it cannot be

transferred). The length of this transitionary period of restriction of

ownership right is not limited by the act.

 

4.

The petitioner particularly emphasises that they do not consider as

unconstitutional the wording alone of the provisions of § 29 of the Act

on Land in the form in which the provisions were adopted and at the time

they were adopted. However, they do consider as unconstitutional the

condition when legitimate expectation included in these mere “bridging”

provisions have not been met as a result of long-term inactivity on the

part of the legislature, and thus the status which should have been

merely transitional had thus been conserved for a period of (at the time

of filing the petition) over fifteen years. In this, the petitioner

sees a conflict with the requirement for legal certainty (Article 1

paragraph 1 of the Constitution), as § 29 of the Act on Land

consequently does not generate certainty in legal relationships, but, on

the contrary, by postponing the intended statutory arrangement

indefinitely, a distinct element of uncertainty is introduced into legal

relationships, which may be tolerated only for a transitionary period

limited in time.

 

5.

In the petitioner’s opinion, the legislature, through the provisions of

§ 29 of the Act on Land, imposed on themself the obligation to adopt

acts that would address the legal arrangement of relationships to

property original owned by churches, religious orders and congregations.

The fact that no such act has yet been adopted is the result of

long-term inactivity on the part of the legislative assembly. In this,

they referred to the Judgment of the Constitutional Court file No. Pl.

ÚS 20/05 as well as to the conclusions of Judgment file No. Pl. ÚS

71/04.
 
6. According to the petitioner, the provisions of § 29 of

the Act on Land create inequality in ownership. A part of owners –

particularly municipalities – cannot freely dispose of their property in

the long-term. The blocking provisions render impossible, for example,

an arrangement of ownership relations in which property so blocked would

be transferred to the ownership of the given church or in which the

entitled church would lawfully relinquish such property and make it

possible for the owner registered with the Cadastre of Real Estate to

“unblock” such property. This situation, according to the petitioner,

thus infringes also the right to self-government, since municipalities

cannot utilise the property so blocked for projects financed from public

funds and those of the European Union. Article 4 paragraph 1, Article

11 paragraph 4 of the Charter of Fundamental Rights and Basic Freedoms

(hereinafter referred to also as the “Charter”), and Article 1 paragraph

1 of Protocol No. 1 to the Convention for the Protection of Human

Rights and Fundamental Freedoms (hereinafter referred to only as the

“Convention”) are thus violated. Furthermore, the petitioner referred to

the conclusions of Judgment file No. II. ÚS 528/02 (enunciation of an

obligation on the part of the legislature to pass a special act) and

Judgment file No. Pl. ÚS 5/03 (concerning the adequacy of restricting a

fundamental right in terms of time).
 
7. With respect to the

necessity of adopting the act anticipated by the contested provisions as

part of a proper legislative process, the petitioner proposed that

enforceability of a derogative judgment be postponed to 31 December

2008. At the same time they proposed a preferential hearing of the case

be held pursuant to § 39 of the Act on the Constitutional Court.


II.
Statements by the Parties to the Proceedings

8.

Upon request by the Constitutional Court, both parties to the

proceedings provided their statements on the petition. The Chamber of

Deputies of the Parliament of the Czech Republic, in their statement

dated 12 July 2007, signed by the Chairperson of the Chamber of

Deputies, Ing. Miloslav Vlček, only stated that the bill had been

approved in the constitutionally prescribed manner on 21 May 1991 by the

required majority of members of the Federal Assembly, had been signed

by the competent constitutional representatives and properly

promulgated. The Act under examination was thus adopted within the

confines of the powers determined by the Constitution and in the

constitutionally prescribed manner. The statement further contains only

reference to Judgment file No. II. ÚS 528/02 and a remark that the

petition does not contest the constitutionality of § 29 of the Act on

Land, but the fact that the same has not been realised.

 

9.

A statement by the Senate was provided by the President of the Senate,

MUDr. Přemysl Sobotka, who firstly stated that the concept of

restitution was based on the principle of restitution of property upon

compliance with certain conditions, not on automatic restoration of

ownership rights without additional proceedings. At that time, no

constitutional or other act was in existence that would bind the

legislature to take such a step. In relation to this, he pointed out the

importance of the Preamble to the Act on Land and the content of § 29

of this Act alone, which declares the will of the legislature to

mitigate the consequences of property injustice with respect to land and

other agricultural property originally owned by churches, religious

orders and congregations, and at the same time the will to block

transfers of the given property until such a time as statutory

arrangements are adopted. He also referred to Judgment II. ÚS 528/02 and

its importance as regards emphasis on the obligation of the state to

satisfy legitimate expectation on the part of ecclesiastical legal

entities. He also highlighted the activities of the Senate in this

respect (a public hearing on this issue in April 2007).


III.
Oral Hearing before the Constitutional Court and Procedural Varia

10.

On 1 July 2010, a public oral hearing at the Constitutional Court took

place, from which the representatives of the parties to the proceedings –

the Chamber of Deputies of the Parliament of the Czech Republic and the

Senate of the Parliament of the Czech Republic – excused themselves.

 

11.

During said hearing, the representative of the petitioner did not

submit any proposals for presenting additional evidence. In the

recapitulation of the petition, they emphasised the temporary nature of

the contested norm and the difference between the apparent silence on

the part of the legislature and the omission of the legislature, when,

in the issue under examination, the latter is supposed to be the case.

This condition has existed for over nineteen years. They pointed out the

wider context of the relationship between the state and churches, the

issue of independence of churches of the state and, in this respect,

also conclusions by Prof. Tretera. Furthermore, the representative of

the petitioner emphasised that there is a certain parallel between the

condition under examination and the earlier problem of deregulation of

rent. To conclude they insisted on the proposals presented in the

original petition and proposed that the Constitutional Court determine

the date as to which the contested provisions are to be annulled, as the

Court deems apt.

 

12.

During the conference of the Plenum of the Constitutional Court, the

originally appointed Justice Rapporteur, Jiří Mucha, submitted a report,

together with the petition for annulment of the contested provision.

However, this petition was then not supported by the qualified majority

of Justices anticipated by the provisions of § 13 of the Act on the

Constitutional Court, which requires a majority of nine votes for a

decision under Article 87 paragraph 1, clause a) of the Constitution to

be adopted. By a decision of the presiding Justice, and pursuant to the

provisions of § 55 of the Act on the Constitutional Court, the Justice

Rapporteur was replaced and a new Justice, Ivana Janů, was appointed to

draw up the Judgment.


IV.
Preconditions for Hearing the Petition and Constitutionality of the Legislative Procedure

13.

The Constitutional Court concluded that formally the petition is in

accordance with the requirements of the Act on the Constitutional Court.

In proceedings on annulment of a legal regulation it is the obligation

of the Constitutional Court to firstly examine whether the legal

regulation which forms the subject of the petition was approved within

the confines of the powers determined by the Constitution and in the

constitutionally prescribed manner (§ 68 paragraph 2 of the Act on the

Constitutional Court). However, this is only possible in the case when

the constitutional arrangement, on the basis of which the legal

regulation under examination was adopted, is still valid. The provisions

of § 29 of the Act on Land are valid in the original wording. They were

adopted by the Federal Assembly of the Czech and Slovak Federative

Republic on 21 May 1991 and promulgated in the Collection of Laws on 24

June 1991 on the basis of Constitutional Act No. 143/1968 Coll. This

Constitutional Act was annulled by Article 112 paragraph 2 of the

Constitution of the Czech Republic (hereinafter referred to only as the

“Constitution”) on 1 January 1993. Therefore, the Constitutional Court

has not dealt with the issue of compliance with these two conditions.


V.
Formal Assessment of the Petition

14.

The Constitutional Court evaluated the petition both from the viewpoint

of argumentation submitted by the petitioner, and from other aspects of

constitutional law. The Constitutional Court reached the conclusion

that the petition for annulment of the contested provisions is not

justified (verdict sub I), but the argumentation of the petitioner (or

their intention) is of importance from the viewpoint of constitutional

law, which has led the Constitutional Court to satisfy the petitioner as

for the verdict itself (verdict sub II). In this, the Constitutional

Court has been guided by the following considerations.

 

15.

In the given case, the petitioner submitted a structure of

argumentation in which the proposed verdict represents only a means

through which the actual objective is to be attained. Such an objective

does not consist of removal of § 29 of the Act on Land as

unconstitutional provisions, but of rectification of a condition when,

as a result of long-term inactivity on the part of the legislature,

legitimate expectation based on these bridging provisions were not

fulfilled. This condition thus does not generate certainty in legal

relationships, as would correspond to Article 1 paragraph 1 of the

Constitution, and at the same time it affects other constitutionally

guaranteed positions of other legal entities, in particular

municipalities. In the reasoning for their petition, the petitioner does

not claim that the content of such provisions is in contravention of

any part of the constitutional order. Through their petition, the

petitioner attempts to achieve a condition that would satisfy legitimate

expectation based on a commitment on the part of the legislature to

mitigate the consequences of cases of property injustice with respect to

land and other agricultural property, the original owners of which were

churches, religious orders and congregations. Such an objective,

according to the petitioner, is attainable through annulment of § 29 of

the Act on Land in connection with declaring that long-term inactivity

on the part of the legislature consisting in non-adoption of a special

act, is unconstitutional.

 

16.

The settled case law of the Constitutional Court is based on the fact

that the Constitutional Court is bound by the proposed verdict of the

petition, not the reasoning for the same. In this connection, the

Constitutional Court thus had to address whether it is possible to annul

said provisions which even the petitioner themself does not consider

unconstitutional. In such a case, intervention by the Constitutional

Court is not possible, as such an action would mean that the

Constitutional Court leaves its position of “negative legislature” and

assumes one reserved solely for positive legislature, that is the

Parliament of the Czech Republic. The possibility of a granting judgment

of the Constitutional Court – that means annulment of the contested

provisions – is associated by Article 87 paragraph 1, clause a) of the

Constitution and § 70 paragraph 1 of the Act on the Constitutional Court

with the conclusion that the act or individual provisions are in

contravention of the constitutional order. Pursuant to Article 88

paragraph 2 of the Constitution, the justices of the Constitutional

Court are, in their decision making, bound merely by the constitutional

order and the act which establishes the rules of proceedings before the

Constitutional Court. If the very provisions of § 29 of the Act on Land

have not been found unconstitutional, there would not be reasons for a

granting judgment, but rather for dismissal of the petition or rejection

of the same as manifestly unfounded. It is therefore possible to

summarise that the argumentation submitted by the petitioner calls upon

the Constitutional Court to review the constitutionality of the

contested provisions in light of a broader context (non-adoption of

another legal regulation). The abstract review of constitutionality of

legal regulations – or powers of the Constitutional Court – is not

designed to fully replace any potential unconstitutional gaps in law for

the future (save for provision of protection in individual cases). It

is not possible to expect that such a gap in law shall be made

constitutional through an interpretation expressed by the Constitutional

Court, and that such a problem would be actually so solved. The

Constitutional Court would inadmissibly enter the field of positive

legislature.

 

17.

At the same time, the Constitutional Court is aware of the fact that

non-adoption of the anticipated special act affects a wide circle of

various parties; during abstract review of the norm – even if the

Constitutional Court found no reasons for its annulment – it cannot be

ruled out that there would be such an individual case of application

(impacts) of the contested provisions that would raise additional

consequences in terms of constitutional law.


VI.
Recapitulation of Case Law of the Constitutional Court in Relation to § 29 of the Act on Land

18.

The Constitutional Court has explicated its conclusions both on

interpretation of the provisions of § 29 of the Act on Land, and on the

consequences of its existence in the context of claims from churches and

religious communities, in its earlier case law. The development of this

case law was basically marked by two competing approaches which

differed in terms of the degree of possibility on the part of the

judicial power (at the given time) to interfere with comprehensive and

complex social and political issues, when the locus of responsibility

for adoption of a legal arrangement is vested primarily in the

legislature.

 

19.

The opinion according to which the interim condition consisting merely

of adopting Act No. 298/1990 Coll. on Arrangement of Some Property

Relationships of Monastic Orders and Congregations and the Archbishopric

of Olomouc, as amended by Act No. 338/1991 Coll. (hereinafter referred

to only as “Act No. 298/1990 Coll.”), and the contested provisions of §

29 of the Act on Land, and at the same time under the condition of the

continued absence of an act on the historic property of churches (i.e.

inactivity on the part of the legislature) is not an obstacle to

concurrent protection of property claims from ecclesiastical entities,

covered by the “enumerative” Act No. 298/1990 Coll., before the ordinary

courts [cf. for example, a resolution dated 24 November 2004, file No.

I. ÚS 428/04 (not published in the Collection of Judgments and Rulings

/SbNU/); Judgment file No. IV. ÚS 298/05, dated 8 August 2005 (N 156/38

SbNU 241); dissenting opinions on the standpoint of Plenum file No. Pl.

ÚS-st. 22/05, dated 1 November 2005 (ST 22/39 SbNU 515; 13/2006 Coll.);

these decisions as well as all other quoted decisions of the

Constitutional Court are available from the electronic database NALUS at

http://nalus.usoud.cz ], was

superseded. A competitive opinion dominated, that is one which

emphasised the primary obligation of the legislature to regulate the

issue known as “church restitutions” and considered the interference by

the judicial power (protection of individual claims) prior to adopting a

special act to be improper judicial activism [Judgment file No. II. ÚS

528/02, dated 2 February 2005 (N 23/36 SbNU 287); an opinion of the

Plenum dated 1 November 2005, file No. Pl. ÚS-st. 22/05; resolution

dated 19 January 2006, file No. II. ÚS 687/04 (not published in the

Collection of Judgments and Rulings /SbNU/) and a number of subsequent

decisions].

 

20.

Therefore, as early as in the above-specified Judgment file No. II. ÚS

528/02, the Constitutional Court declared that “[the ordinary courts],

in the course of the proceedings, neglected to consider that devolution

of property of churches is covered by the imperative provisions of § 29

of Act No. 229/1991 Coll., according to which such property as was

originally owned by churches, religious orders and congregations cannot

be transferred to the ownership of third parties prior to adoption of an

act regarding such property. The Act on Land thus anticipates that

agricultural property which was earlier owned by ecclesiastical legal

entities would be regulated through a separate act and until such an act

is passed, such property is protected. Therefore, it is necessary to

apply the rule of restitution acts to such property, and thus there is

no room for bringing indictments for ascertaining ownership due to the

absence of pressing legal interest. Such interest cannot be derived even

from the fact that the state was not able to pass a special restitution

act in spite of the fact that Act No. 229/1991 Coll., which became

effective as early as 24 June 1991, anticipates the adoption of such an

act. However, the state must fulfil its obligation to pass a restitution

act, established by the above-cited provisions of the Act on Land,

regarding ecclesiastical property, as the state must oblige legitimate

expectation on the part of ecclesiastical legal entities which are

supported by statutory provisions.” This conclusion (in opposition to

Judgment file No. IV. ÚS 298/05 – see above) was subsequently confirmed

by a standpoint taken in file No. Pl. ÚS-st. 22/05 (see above) which

first of all addressed the nature of Act No. 298/1990 Coll. as a

restitution act, since the restitution purpose of this act was fulfilled

through the enumeration of the entitled parties and property concerned

(property being transferred). In addition, this standpoint adopted a

part of the reasoning of Judgment file No. II. ÚS 528/02, in such a part

which explicitly declares the obligation of the legislature to pass a

restitution act, as they must oblige legitimate expectation on the part

of ecclesiastical legal entities, which is supported by statutory

provisions. This, and particularly the brevity of the argumentation

itself for said standpoint, makes it clear that the meaning of the

standpoint was not to shape additional new legal conclusions, but to

internalise one of previously expressed legal opinions; that is the

dissenting opinion to Judgment file No. IV. ÚS 298/05 and legal

conclusion of Judgment file No. II. ÚS 528/02, which constituted

opposition to the legal opinion of Judgment file No. IV. ÚS 298/05. The

above specified declaration of the obligation of the legislature to

adopt a restitution act and thus oblige legitimate expectation on the

part of the ecclesiastical entities is steadily reproduced in later case

law of the Constitutional Court [cf. the previously mentioned

resolution file No. II. ÚS 687/04; additionally, resolution file No. II.

ÚS 230/05 dated 16 March 2006; resolution file No. IV. ÚS 509/05 dated

19 June 2006; resolution file No. I. ÚS 679/03 dated 10 May 2007;

resolution file No. I. ÚS 1652/07 dated 18 July 2007 (not published in

the Collection of Judgments and Rulings /SbNU/); clause 29 of Judgment

file No. IV. ÚS 34/06, dated 21 November 2007 (N 201/47 SbNU 597);

resolution file No. IV. ÚS 158/08 dated 6 May 2008; resolution file No.

II. ÚS 2904/08 dated 7 January 2009 (not published in the Collection of

Judgments and Rulings /SbNU/) and a number of others; lastly Judgment

dated 24 June 2009, file No. I. ÚS 663/06].

 

21.

In none of its decisions did the Constitutional Court express doubts on

the constitutionality of the provisions of § 29 of the Act on Land, in

spite of the fact that the Court repeatedly had the opportunity to do

so. On the contrary, on the basis of interpretation of these provisions,

the Constitutional Court consistently makes its conclusions in relation

to guarantees of a constitutionally conforming solution to property

settlement of property of churches. That is why a possible statement of

the unconstitutionality of the contested provisions would, in its

consequences, represent an essential and also surprising change in case

law, since case law established by Opinion of the Plenum file No. Pl.

ÚS-st. 22/05 (see above) would essentially lose its basis.

 

VII./a
Identification of the Purpose of the Provisions of § 29 of the Act on Land

22.

Earlier deliberations contained in the case law of the Constitutional

Court foreshadowed interpretation of the purpose of the contested

provisions, at which the Constitutional Court also arrived on this

occasion in special proceedings on a petition for annulment of a part of

a legal regulation.

 

23.

From the generally known course of the legislative process in relation

to the historic property of churches in 1990 and 1991, it is evident

that the provisions of § 29 of the Act on Land are a result of an

objective need to adopt a comprehensive legal arrangement, the

preparation for which, with respect to broader contexts of the relation

of the state and churches, required a conceptual approach, and it was

not proper to associate the same with acts aimed at mitigation of cases

of property injustice, upon acknowledging the responsibility of the

state for the past also on the basis of specific political

deliberations, this also in the period of time when de-etatisation of

property in the state had to form an essential element of the economic

transformation of the originally centrally-planned economy. Specific

legislative proposals for the settlement of historic property of

churches, given the complexity of the whole problem, were not

successful. The course of the Parliament debate is evidence that

non-inclusion of churches amongst the parties so entitled within the

scope of general restitution regulations, with the objective of

subsequent adoption of a special act to the benefit of the churches, was

a pre-declared intention [a speech by the Minister of Economy of the

Government of the Czech and Slovak Federative Republic, Vladimír Dlouhý,

at the 14th Common Meeting of the Federal Assembly of the Czech and

Slovak Federative Republic on 5 April 1991 (to Print No. 547) includes:

“The third area is the area of the entitled parties. Here I would like

to mention churches and municipalities, even when these will be

mentioned also by the rapporteurs. The Government believes that it is

necessary to support the issue of addressing churches through a separate

act at the federative level (...)” (read in connection with the debate

on Prints Nos. 393 and 643); this and other records in shorthand and

Prints quoted in the Judgment are published in the Common Czech-Slovak

Digital Parliament Library at http://www.psp.cz ].

In the opinion of the Government at this time, this approach should

have even been (in light of the legislative design of the previously

adopted Act No. 298/1990 Coll.) the result of particular consideration

for churches and religious communities, which were not to be burdened

with a relatively complicated process of making restitution claims, such

claims being prescribed for release of immovable property by general

restitution acts [a speech by the Deputy Prime Minister of the

Government of the Czech and Slovak Federative Republic, Pavel Rychetský,

at the 13th Common Meeting of the Federal Assembly of the Czech and

Slovak Federative Republic on 20 February 1991 (concerning Print No.

477, bill of the Act on Extra-judicial Rehabilitation) includes: “I

believe a very important issue is that whether we can, through the draft

bill submitted, restitute the property of churches and religious

communities or not. The Federal Government presented to this Assembly,

as the first restitution act after the 17th November, an act on property

conditions of some orders and congregations. The Federal Government

thus unambiguously expressed its clear intention that it wishes to

restore the ownership conditions of churches and religious communities.

The Government did so through a new act, which requires nothing from the

entitled party. By law, the property of church is simply handed over,

they do not have to prove anything, within any deadline, and under no

substantive law conditions. Here I have an act which is unambiguously

formulated as one in which there are entitled parties on one hand,

obliged parties on the other, and in the case of a conflict, there is an

independent court entitled to review and interpret this Act. The

Government does not wish that churches be put in this position, the

Government does not want the churches be additionally restricted by a

possible deadline, which would work so that if they did not make a claim

within such a deadline, such a claim would completely and forever cease

to exist, and the Government further admits and has never denied that

it cannot approve of such a vital change in the draft bill, when a

change like this concerns exclusively other governments, not the Federal

Government.”; see the Common Czech-Slovak Digital Parliament Library,

reference above].

 

24.

For this reason, the legal order also contains other provisions

regulating (restricting) disposal of property, of which the original

owner was not the state, which also anticipate adoption of a special

legal arrangement for a detailed arrangement of claims of other entitled

entities. The provisions of § 3 paragraph 1 of Act No. 92/1991 Coll. on

Conditions for Transfer of Property of the State to Third Parties, as

amended by later regulations, which read: “The subject of this Act does

not consist of property which is to be returned to legal entities on the

basis of special regulations.1). The subject of this Act also does not

consist of property which devolved to the state after 25 February 1948

from the ownership of churches, orders and congregations and religious

communities”, explicitly relate to the “property of churches”. In the

associated footnote, the provisions refer “for example, [to] Act No.

298/1990 Coll. on Arrangement of Some Property Relationships of Monastic

Orders and Congregations and the Archbishopric of Olomouc.”.

 

25.

It follows from the meaning of the contested provision and the hitherto

interpretation of the same by the Constitutional Court (continuation to

the above-recapitulated case law) that their purpose is not only the

actual “blockage” of a certain part of state property (partly also

property registered as owned by third parties, particularly

municipalities); that is, for example, attempts to preserve a certain

status quo in terms of property. The nature of the contested provisions

must be seen in particular in the commitment (pledge) of the

legislature, at a deferred time, to adopt a legal arrangement settling

the historic property of churches and religious communities, which would

take into account objective particulars of the matter under discussion

and actually consummates the provisions of § 29 of the Act on Land.

Restriction in terms of disposal of historic ecclesiastical property

serves merely to protect this property until the time of adoption of a

special act. So conceived purpose of the contested provisions is based

on specific historic circumstances of forming “restitution legislation”,

since this unique process accompanying the prime societal changes may

be evaluated exclusively within the context of the given time [cf.

typically, Judgment file No. Pl. ÚS 14/94 dated 8 March 1995 (N 14/3

SbNU 73; 55/1995 Coll.) or other decisions regarding the legality and

legitimacy of Decrees of the President of the Republic], as well as

later interpretations made by the Constitutional Court in cases file No.

II. ÚS 528/02, file No. Pl. ÚS-st. 22/05 and file No. I. ÚS 663/06.

 

VII./b
Identification of the Constitutionally Protected Interests Concerned

26.

With respect to entities (other than the state) registered as owners of

a certain part of immovable property which are subject to restriction

of disposal resulting from § 29 of the Act on Land, what comes into

particular consideration is Article 11 of the Charter of Fundamental

Rights and Basic Freedoms, according to which everyone has the right to

own property, while the ownership right of all owners has the same

statutory content and protection. Expropriation or compulsory

restriction of the right of ownership is permitted in the public

interest on the basis of law and for compensation (cf. also Article 1 of

the Protocol to the Convention for the Protection of Human Rights and

Fundamental Freedoms). In the case of municipalities, which the

petitioner particularly emphasises, an additional conflict with Article

101 paragraph 3 of the Constitution may be claimed, since restriction of

ownership rights of municipalities as local self-government entities

may prevent undisturbed exercise of rights of local self-government

(Article 8 of the Constitution).

 

27.

In the case of the churches and religious communities concerned, the

point is not only the general practical and symbolic meaning of adopting

acts “on mitigation of some cases of property injustice”, that is the

moral obligation of a democratic rule of law state towards persons

affected by systematic violation of fundamental rights at the time of

the communist regime, when such persons often belong to a group of

people to whom the Czech Republic is indebted for its present democratic

and law-based nature, but also – as for the former economic basis for

church-related and religious work – particularly the woeful history of

fulfilment of explicit obligations on the part of the state towards

(historic) churches and religious communities, which the state assumed

through Act No. 218/1949 Coll. on Economic Support for Churches and

Religious Communities by the State, as amended by later regulations (cf.

§ 1, 4, 6, 8, § 11 paragraph 1 and § 12), on one hand, and the

requirement for material fulfilment of guarantees resulting from Article

15 paragraph 1 and Article 16 paragraphs 1 and 2 of the Charter of

Fundamental Rights and Basic Freedoms on the other. In relation to

legitimate expectation (property interests) of ecclesiastical legal

entities, these concern Article 11 of the Charter and Article 1 of the

Protocol to the Convention.

 

28.

Furthermore, the inactivity of the legislature may be deemed to result

in violation of the principle of legal certainty and protection of trust

in law, which results from the foundation of a material rule of law

state pursuant to Article 1 paragraph 1 of the Constitution. In the

connection specified above, also Article 4 paragraph 4 of the Charter

may be considered, according to which when the provisions on the

boundaries of fundamental rights and freedoms are applied, their nature

and meaning must be preserved. Such restrictions must not be misused for

purposes other than those for which they were established.


VIII.
Actual Review of Constitutionality

29.

The above-specified purpose of § 29 of the Act on Land must be observed

in the context of the value foundation for restitution and

rehabilitation law and the case law of the Constitutional Court. The

legislature embodied the primary value points in the preambles and

introductory provisions of restitution acts and rehabilitation acts and

Act No. 198/1993 Coll. on Lawlessness of the Communist Regime and on

Resistance to the Same. The Constitutional Court explicitly declared the

non-legitimacy of the regime and its acts from 1948 to 1989 in its key

Judgment file No. Pl. ÚS 19/93, dated 21 December 1993 (N 1/1 SbNU 1;

14/1994 Coll.). In addition, it is necessary to emphasise that the issue

of the restitution under consideration is not seen by the

Constitutional Court, even through the distance of two decades, as one

of historic injustice that would stretch beyond the instruments of a

rule of law state. For any evaluation of acts adopted within the

decisive period after 25 February 1948, the primary reference criterion

seems to consist particularly of the then contemporary level of

recognition of fundamental rights and freedoms, as was established and

explicitly formulated in the international community after World War II.

Contrary to cases of injustice which seem to be such merely upon

application of later standards, remedying the acts of the communist

regime for the decisive period is not merely a moral issue; the direct

and lasting consequences of these acts have a specific legal relevance

[for sufficiency of mere moral reasoning for remedying “historical

injustices”, in polemics e.g. Wyman, K. M. Is there a Moral

Justification for Redressing Historical Injustices? In: Vanderbilt Law

Review, January 2008, pp. 128-194]. At the same time, it is true that

the locus of responsibility for a specific solution to property

restitution rests in first place with the legislature, not primarily the

Constitutional Court, which, given its cassational powers, may merely

(potentially) rectify the solution adopted by the legislature, not

redress the absence of the legal regulation, not even upon the

suggestion from the petitioner to do so, who themself is a

representative of the legislative power. In other words, the

Constitutional Court must reject the attempt being made to involve it in

a political struggle in which a particular legal issue serves as a

means of attaining various political objectives.
 
30. In its

settled case law, the Constitutional Court has repeatedly inferred that

state power – in relation to normative legal acts, especially

legislative power – is, in its acting, guided by the imperative of

proportionality and a prohibition on legislative arbitrariness.

Therefore, if in dubiety on the constitutionality of a legal regulation,

the Constitutional Court assesses the purpose (objective) of such an

intervention in relation to the means applied, while the measure for

such assessment consists of the principle of proportionality, which is

manifested by prohibition on excessive nature of infringements of rights

and freedoms [cf. also Judgment of the Constitutional Court file No.

Pl. ÚS 15/96, dated 9 October 1996 (N 99/6 SbNU 213; 280/1996 Coll.)].

 

31.

These deliberations are reflected in the review of constitutionality of

a sub-constitutional regulation in three methodological steps [cf. for

example, Judgment file No. Pl. ÚS 41/02, dated 28 January 2004 (N 10/32

SbNU 61; 98/2004 Coll.) and a number of others]. The first of them

consists of evaluation of ordinary law through the aspect of

suitability, the content of which is the evaluation of the chosen

normative means from the viewpoint of possible fulfilment of the purpose

pursued. If the given normative means is not capable of attaining the

purpose pursued, it is then an expression of arbitrariness on the part

of the legislature, which is considered to be in conflict with the

principles of a law-based state. The second step of application of the

principle of proportionality consists of evaluating ordinary law through

the aspect of necessity, which seeks analysis of plurality of possible

normative means in relation to the purported purpose and their

subsidiarity from the viewpoint of restricting a value protected by the

Constitution – a fundamental right or public goods. If the purpose

pursued by the legislature may be attained by alternative normative

means, then such of them is constitutionally conforming which restricts

the given constitutionally protected value to the least degree possible.

If ordinary law under consideration pursues, on one hand, protection of

any of the constitutionally protected values whilst restricting

another, then the third aspect of the principle of proportionality, i.e.

measuring, represents methodology for assessing such constitutional

values that are in conflict.

 

32.

However, the Constitutional Court is also aware of the fact that not

each provision of the legal order may be tested according to a formula

given in advance. With respect to the broader context of the contested

provisions, as the same are part of “single-purpose” restitution and

rehabilitation law which has been implemented, for the most part, at the

time of such qualitative societal changes when at least partial remedy

of cases of injustice from the past predetermines the nature of further

democratic development, these are conclusions including a

below-specified reservation of further review of individual and specific

cases.

 

VIII./a
33.

In the first stage of review, the Constitutional Court tests the

contested provisions in relation to the capability of fulfilling their

purpose (suitability of the means chosen). Its essence consists of

assessing an intervention from the viewpoint of possible fulfilment of

the purpose pursued. The provisions under examination must be capable of

achieving the intended objective, which consists of protecting another

fundamental right or public goods. If the legal arrangement is

objectively not capable of achieving the purpose pursued, it is a

manifestation of arbitrariness of the legislature, which is considered

to be in conflict with the principle of a law-based state.

 

34.

When drafting regulations mitigating (in particular) cases of property

injustice, democratic legislature is generally limited firstly by the

factual status of the objects in question (their actual existence);

secondly, they are limited by the imperative to minimise detriment to

both other interests protected by law (e.g. public interest) and

fundamental rights in relation to origination of new cases of property

injustice [be they suffered by any party; cf. for example, Judgment file

No. Pl. ÚS 71/04, dated 17 May 2005 (N 109/37 SbNU 421; 272/2005

Coll.), section III. B], this in relation to persons other than the

state, who possibly acquired the immovable property in question in the

interim following the unlawful encroachment by the state, and this in

good faith.

 

35.

The legislature was obliged to assess to what degree the system of

restitution legislation (in the broad sense of the term) is internally

coherent and non-dissonant both from an objective viewpoint and from

that of consecution of adopting individual partial regulations. These

post-revolution legal regulations are, therefore, characterised also by

provisions of which the objective is to enable factual or legal effects

of another future act.

 

36.

In addition to the contested § 29 of the Act on Land, these provisions

include also the above-mentioned provisions of § 3 paragraph 1 of Act

No. 92/1991 Coll., as well as, for example, § 4 paragraph 2 of Act No.

172/1991 Coll. on Devolution of Some Property from the Czech Republic to

the Ownership of Municipalities, which are to prevent the occurrence of

a conflict of property rights of plaintiffs (original owners) and

municipalities (possible new acquirers). Also the – already annulled –

provisions of § 8 paragraph 6 of the Act on Extra-judicial

Rehabilitation [cf. Judgment file No. Pl. ÚS 25/98, dated 10 March 1999

(N 38/13 SbNU 269; 57/1999 Coll.)] determined that “An object which was

declared to be of national cultural heritage status shall not be

released until the Czech National Council and the Slovak National

Council adopt a new act on administration and protection of cultural

heritage”. Furthermore, the also annulled provisions of § 11 paragraph 5

of the Act on Land (cf. Judgment file No. Pl. ÚS 71/04 – see above),

determining that “Immovable property which was declared to be of

national cultural heritage status cannot be released until the time that

acts are adopted that regulate the administration and protection of

cultural heritage”. The instances mentioned last concerned the

elimination of a conflict between the property right of the plaintiff

and public interest in protecting cultural heritage.
 
37. In the

matter under consideration it is first of all clear that annulment of §

29 of the Act on Land would make possible the transfer of historic

property of churches to third parties, which would considerably

endanger, or maybe even make impossible, property composition via

restitution in kind (as one of the key methods for mitigating cases of

property injustice). Transfer of the ownership right to the original

ecclesiastical property to third parties (acquiring this property in

good faith) would in practice mean a considerable abridgement of

discretion of the legislature concerning the methods of any future

property adjustment, moreover, with possible increased demands on the

state budget.

 

38.

If, therefore, the legislature determined that the transfer

(devolution) of property, the owners of which were, as to the decisive

date, churches and religious communities or their legal entities, is, as

an act contra legem, associated with absolute invalidity (in cases

being in opposition to the sense of property composition), the

legislature pursued, completely reasonably, the purpose of the contested

provision; this in relation to provision of a material basis for a

future act on settlement of historic property of churches; and possibly a

broader legislative solution to property composition between the state

and churches. In the absence of a blocking effect, this purpose could

be, partially or totally, thwarted; since merely legal disposal by the

state of the property in question may form the basis for adoption of

“acts on such property”, while respecting the position of potential new

owners.

 

VIII./b
 39.

In a situation when the purpose pursued may be achieved through various

means, such are considered constitutionally conforming, which restrict

the given constitutionally protected value to the least possible degree.

According to this principle, the use of only the most considerate – in

relation to the fundamental rights and freedoms concerned – of several

possible means is permitted.

 

40.

Even though at a general level it is up to the legislature to elect the

manner of proceeding with rectification of cases of injustice and the

means to achieve this (theoretically this would concern restitution in

kind or pecuniary restitution, or possibly a combination of these two

means), it is the actual restitution in kind, also taking into account

the hitherto “restitution legislation”, possibly in protection of other

fundamental rights and freedoms, which represents the primary method

[this is not to rule out other, more suitable, methods: cf., for

example, “Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights

Law and Serious Violations of International Humanitarian Law”, adopted

and promulgated by the General Assembly of the United Nations by a

Resolution No. 60/147, dated 16 December 2005].

 

41.

From publicly available data [for example, data concerning the

resolution of the Chamber of Deputies No. 774, dated 29 April 2008

(amendment to the explanatory report “Definition of the scope of

property to be released and assessment of the property not to be

released, i.e. determination of the scope of financial compensation”,

Print of the Chamber of Deputies No. 482, http://www.psp.cz ],

it is known that the owner of the absolute majority of the immovable

property affected by the contested provisions is the state, in

particular immovable property administered by the Land Fund of the Czech

Republic (Pozemkový fond České republiky), with the right of management

pertaining to Forests of the Czech Republic (Lesy České republiky, s.

p.), Army Forests and Farms of the Czech Republic (Vojenské lesy a

statky ČR, s. p.), and the Office of the Government Representation in

Property Affairs (Úřad pro zastupování státu ve věcech majetkových). In

relation to immovable property owned by the state, it is irrelevant to

test the restriction of disposal of such property in such a way, as such

restriction by the state towards itself alone indubitably does not

infringe its constitutional standing (cf. even the potential statutory

“obligation” of the state to own certain property in the public interest

within the intentions of Article 11 paragraph 2 of the Charter). A

relatively small number of such immovable items are registered as the

property of third parties, in particular municipalities. More detailed

information concerning the structure of such third parties has not been

submitted to the Constitutional Court.

 

42.

At a general level, a conceivable alternative to restitution in kind is

formed by a prevailing emphasis on other methods of mitigating cases of

injustice, for example, financial compensation for property (pecuniary

restitution) which would remain not blocked (unblocked) under the final

ownership of the state (or other entities). The Constitutional Court

does not feel called upon to elaborate this reasoning – which might

theoretically mean a more moderate infringement of existing property

relationships, but perhaps also only seemingly – with respect to the

fact that the Constitutional Court would thus enter into an area

reserved for the legislature – in particular political and economic

issues. The fact is that the pecuniary restitution places a different

type of burden on state budgets (the standing of the state as regards

property), but in this respect it is not the task of the Constitutional

Court to evaluate the suitability of the relation of restitution

methods. In this sense, if restitution in kind (in a certain scope

determined in the future, in combination with other methods) is a

legitimate objective of the legislature, then blockage of the property

under consideration via the provisions of § 29 of the Act on Land does

not represent an encroachment exceeding the scope of necessity. The

Constitutional Court, by its own consideration, cannot order the

legislature to respect certain relations between the methods of

restitution in kind and pecuniary restitution.

 

43.

The Constitutional Court has not found that the legislature would have

available a “more moderate” means other than blocking the property in

question, if it is to be to some degree still up to the legislature’s

future economic and political discretion which methods for mitigating

cases of injustice they would choose, or which differentiation in their

deliberation they would choose in relation to certain groups of

property, the types of entities concerned or other circumstances. This

is not to say that the legislature would have completely free discretion

in relation to disposing of the blocked property. To the contrary, the

future legislative solution must be based on actually weighing up the

justified interests of all the entities concerned. Actually with respect

to their (constitutionally protected) interests, as such exist at the

time of adopting said legislative solution, the legislature must choose a

specific combination of methods for mitigating cases of injustice, so

that – inter alia – new cases of injustice on the part of the entitled

parties or obliged entities would not occur. At a practical level it is

possible to refer also to the bill on property composition with churches

and religious communities [specifically: bill on mitigation of some

cases of property injustice caused to churches and religious communities

at the time of lack of freedom, on settlement of property relationships

between the state and churches and religious communities and on

modification to some acts (Act on Property Composition with Churches and

Religious Communities), Print of the Chamber of Deputies No. 482],

which, within the scope of political discretion, proposed that merely

the state, state organisations and the Land Fund of the Czech Republic

be the obliged entities (cf. § 4), that is not for example

municipalities or other entities.

 

VIII./c
44.

Any detriment to a fundamental right must not be inadequate in relation

to intended objective, i.e. the measures restricting fundamental human

rights and freedoms must not, when a collision of a fundamental right or

freedom with a public interest, with their negative consequences,

exceed the positive aspects represented by the public interest in such

measures.

 

45.

Until today, the Constitutional Court has not even raised the issue of

the constitutionality or proportionality of encroachment by § 29 of the

Act on Land in its case law, on the contrary, the Constitutional Court

principally conducted its constitutionally conforming interpretation.

 

46.

The Constitutional Court has not even in this case found that such a

review would result in a conclusion on a disproportion between the

objectives and means pursued by the contested provisions and the

constitutionally protected interests which are concerned. The facts

stated above implicite result in the statement that the purpose of the

contested provisions is in itself constitutionally conforming, in fact

even desirable, if it is to rectify cases of property injustice

committed on churches and religious communities, possibly if it pursues

fulfilment of guarantees resulting from Article 15 paragraph 1 and

Article 16 paragraphs 1 and 2 of the Charter of Fundamental Rights and

Basic Freedoms (see below).

 

47.

In relation to the greatest part of the property which is affected by

the blocking effect and remains in the ownership of the state, no

encroachment of constitutional-law relevance is involved, in particular

as regards the disposal alone of the property so blocked. The state

cannot assert the ownership right as a fundamental right against itself,

in particular when the state acquired the property in question only at

the cost of violating internationally accepted standards for protection

of fundamental rights and freedoms and its own law. In this relation it

is not possible, even theoretically, to presume good faith or a similar

subjective element on the part of the state, since the state knows

objectively its law. Therefore, such encroachment cannot be considered

unconstitutional, even when the state (factually or legally) does not

transfer the reserved section of the property which is formally in its

ownership.

 

48.

In relation to municipalities which, in some cases, are registered as

the owners of what was originally ecclesiastical property, the

Constitutional Court first of all finds that blockage of such property

does not comprise arbitrariness of the legislature which would, on the

basis of its own political discretion or on the basis of other

indefensible intentions, intend to encroach upon specific municipalities

or upon the general level of realisation of the right to

self-government. Involvement of such municipalities is based on the

historic existence of ownership plurality prior to 1948. In particular

it is not possible to state without any further consideration that

restriction of transfer of individual specific items of immovable

property under the ownership of a municipality would mean, without any

other action, restriction of the right to self-government in relation to

any given municipality.
 
49. The Constitutional Court now places

special emphasis on the different nature and legal destiny of property

which was, prior to the decisive period, owned by persons other than

municipalities, since such property was legitimately the subject of

considerations (whether they materialised or not) of democratic

legislature on restitution in kind to third parties, on one hand, and

“historic property of municipalities” on the other.

 

50.

The fact is that the issue of reestablishment of self-government of

municipalities (the overall concept of municipal constitution) with the

necessary provision of material basis under democratic conditions

corresponds to changes made by Government Order No. 4/1945 of Collection

of Laws and Orders, on Election and Powers of National Committees, and

particularly by Act No. 279/1949 Coll. on Financial Management of

National Committees. The provisions of § 30 paragraph 2 of this act

determined that “The hitherto municipal capital ceases to be such”,

whereby legal and actual liquidation of elements of local

self-government was completed. It was restored in 1990 in connection

with the adoption of Constitutional Act No. 294/1990 Coll. which

modifies and amends Constitutional Act No. 100/1960 Coll., the

Constitution of the Czechoslovak Socialist Republic, and Constitutional

Act No. 143/1968 Coll. on the Czechoslovak Federation, and which

curtails the election term of national committees. Constitutional Act

No. 100/1960 Coll. was amended by this act in Article 86 in particular,

in that “the basis for local self-government is a municipality”

[paragraph 1] and that “a municipality is a self-governing community of

citizens. It is a legal entity; it has its own property which it manages

independently. […]” [paragraph 2]. Consequently, Constitutional Act No.

556/1990 Coll. which changes Constitutional Act No. 143/1968 Coll. on

the Czechoslovak Federation, incorporated in Article 4 paragraph 7 of

the amended act, the empowerment for national councils to adopt acts

that determine which items forming the property of the Czech Republic

and the Slovak Republic are under the ownership of municipalities. For

the Czech Republic, such an act was then represented by Act No. 172/1991

Coll. on Devolution of Some Objects from the Ownership of the Czech

Republic to the Ownership of Municipalities, through which, pursuant to §

1 and § 2, property which was owned by municipalities as to 31 December

1949, i.e. the “historic property of municipalities”, devolved ex lege

to municipalities (in addition to other items of property, also with

some exceptions).
 
51. According to the provisions of § 4

paragraph 2 of Act No. 172/1991 Coll., “Also objects owned by the Czech

Republic, the release of which is claimed by an entitled party pursuant

to a special regulation, shall not pass to the ownership of

municipalities”. In relation to municipalities this is thus a safeguard

which, according to its meaning, is to prevent clashes between the

rights and claims of municipalities (as potential new acquirers) and

entitled parties (future claimants). In case law related to restitution

disputes, the Constitutional Court has, therefore, repeatedly stated

that a municipality cannot derive its ownership right according to Act

No. 172/1991 Coll., where the immovable property in question does not

represent “historic ownership of municipalities” [cf. Judgment file No.

II. ÚS 411/99, dated 9 February 2000 (N 23/17 SbNU 167); Judgment file

No. I. ÚS 84/05, dated 1 February 2006 (N 29/40 SbNU 233)]. The fact is

that interpretation of the provisions of § 4 paragraph 2 of Act No.

172/1991 Coll. has also encountered some variation. For example, in

resolution file No. III. ÚS 630/06, dated 22 March 2007 (U 4/44 SbNU

769), the Constitutional Court, referring to the case law quoted

therein, stated amongst other points that the meaning of the provisions

of § 4 paragraph 2 of Act No. 172/1991 Coll., which refer to special

(restitution) regulations, implies that the same relate “not only to

special regulations which have already been passed, but without

limitation also to subsequent regulations”. Similarly, an earlier

resolution dated 13 November 1997, file No. IV. ÚS 373/97 (not published

in the Collection of Judgments and Rulings /SbNU/), firstly specified,

with reference to judicial practice, that “in the case of restituted

property, municipalities have not become its owners and have to release

the immovable property to the entitled parties on behalf of the state

due to the fact that they, prior to 24 June 1991, were holders of such

property”. This interpretation has attempted to prevent real clash

between the above-specified rights of the claimants and the

municipalities by eliminating the effects of transfer – be it merely

formal – of the property in question to the municipality.
 
52. In

comparison to this, a number of other decisions of the Constitutional

Court exist, according to which, pursuant to Act No. 172/1991 Coll.,

ownership of the immovable property subject to consequent restitutions

(which were brought about, for example, by the subsequent Act on Land)

does pass de iure to the municipalities, but together with an obligation

to “release property to entitled parties according to restitution

regulations” [cf. for example, Resolution dated 19 November 2009, file

No. III. ÚS 1357/09 (not published in the Collection of Judgments and

Rulings /SbNU/); Judgment file No. IV. ÚS 346/98, dated 12 October 1998

(N 122/12 SbNU 187); Judgment file No. II. ÚS 2277/07, dated 21 May 2008

(N 95/49 SbNU 419); Resolution of the Constitutional Court dated 31

October 2007, file No. III. ÚS 801/06; Resolution dated 16 August 2007,

file No. III. ÚS 1602/07; Resolution dated 27 July 2000, file No. IV. ÚS

124/99; Resolution dated 17 January 2002, file No. IV. ÚS 477/01; dated

1 March 2000, file No. I. ÚS 448/98 (not published in the Collection of

Judgments and Rulings /SbNU/)]. However, potential inconsistency in

terms of interpretation of this issue does not seem to be essential for

the purpose of the restitution process. It is apt to refer to the

wording of the provisions of § 6 paragraph 5 of the Act on Land,

according to which “If immovable property passed into the ownership of a

municipality, then the entitled party shall have the right, according

to this act, towards the municipality.” [In this respect see, for

example, Resolution dated 28 September1998 file No. IV. ÚS 157/98;

Resolution dated 19 May 1999, file No. II. ÚS 104/99 (not published in

the Collection of Judgments and Rulings /SbNU/), including rejection of a

petition for annulment of § 6 paragraph 5 of the Act on Land].

Therefore, it is indubitably clear from the context of the adoption of

the individual restitution regulations and constant case law of the

Constitutional Court, that contrary to returning the historic property

of municipalities, devolution of other property determined for future

restitution to municipalities was of a totally specific, formal nature,

and the position of the municipality as the obliged party within the

restitution process has never been questioned by the Constitutional

Court. Moreover, it is not possible to find in the constitutional order

such a right of municipalities which would guarantee that their

relationship to the historic property of churches would be strengthened

as time passes. Article 101 of the Constitution in no way contains any

claim of municipalities to the historic property of churches and

religious communities. On the contrary, the Constitutional Court in the

past explicitly stated that release of property in the restitution

process by the municipalities to an entitled party is not an

encroachment on local self-government pursuant to Article 101 paragraph 4

of the Constitution [Resolution dated 23 March 1999, file No. IV. ÚS

392/98 (not published in the Collection of Judgments and Rulings

/SbNU/)]. As is already evident, the Constitutional Court has not found

any violation of the right resulting from Article 11 of the Charter in

any of the above-specified decisions.
 
53. With respect to the

above-defined purpose of the contested provisions and the hitherto role

of municipalities in the restitution process, where they conceptually

act also as obliged parties, the very blockage alone of certain specific

property (even though such property is registered as the property of

municipalities), at a general level, does not seem to possess an

inadequate effect. At this level, the interests of self-governing

municipalities on one hand, and those of autonomous churches and

religious communities on the other cannot be placed directly in

opposition to one another, since the general development of

municipalities is not preconditioned by ownership of such original

church-owned immovable property directly by the municipalities, but may

be equally well achieved through economic utilisation by any third

party.

 

54.

During an abstract review of constitutionality, the Constitutional

Court is not able to objectively prove or theoretically model every

conceivable situation which may be caused by the contested provisions in

every individual case. Therefore, the subject of evaluation cannot now

be formed by specific cases of individual owners either, with respect to

whom, taking into consideration specific circumstances, including, for

example, the relevance of the ownership title, the existence of good

faith, or the hitherto role of the type of the subject in question in

the restitution process, the Constitutional Court may further elaborate

its evaluation in the future [for a similar reference to an individual

review cf. for example Judgment file No. Pl. ÚS 1/08, dated 20 May 2008

(N 91/49 SbNU 273; 251/2008 Coll.), clause 112; further elaboration and

specification of earlier more general legal opinion specified in the

Opinion of the Plenum of the Constitutional Court took place when

seeking justice in an individual case also, for example, in relation to

the Opinion of the Plenum file No. Pl. ÚS-st. 21/05 dated 1 November

2005 (ST 21/39 SbNU 493; 477/2005 Coll.), by later Judgments file Nos.

II. ÚS 519/08, dated 25 September 2008 (N 157/50 SbNU 399); dated 4

December 2008, file No. I. ÚS 428/06 (N 215/51 SbNU 673); a Judgment

dated 25 June 2009, file No. I. ÚS 89/07; another dated 5 August 2009,

file No. I. ÚS 566/07].

 

55.

In relation to the general principle of legal certainty and protection

of trust in law (the requirement for definiteness and comprehensibility

of legal norms), it is necessary to also consider the overall

legislative quality of the contested provisions. Possible objection of

uncertainty of determination of the future circle of entitled parties

and the circle of blocked (released) property, and possibly other

conditions for restitution in kind may be rejected. The Constitutional

Court, by adopting certain interpretation of the contested provisions in

prior case law, ruled out their objective uncertainty or

incomprehensibility. When the contested provisions speak about

“churches, religious communities, orders and congregations”, there is no

other reasonable interpretation than that these are entities existing

with their own legal personality according to valid law, whether they

were understood as ecclesiastical legal entities inside churches and

religious communities or besides them, which were the subject of the

right in rem from which the churches and religious communities draw

resources to attain their objectives, and removal of which they

therefore experienced as property injustice. In relation to such

ecclesiastical legal entities, this is then such property which de iure

or de facto devolved to the state in the decisive period from 25

February 1948 to 1 January 1990 [cf., for example, § 4 paragraph 1 of

the Act on Land; § 1 paragraph 1 of Act No. 87/1991 Coll. on

Extra-judicial Rehabilitation; as well as § 2 paragraph 1 of Act No.

119/1990 Coll. on Judicial Rehabilitation], this as a result of property

injustice [cf., for example, the introductory sentence of Act No.

298/1990 Coll.; preamble and the provisions of § 6 paragraph 1 of the

Act on Land; preamble and the provisions of § 1 and § 6 of Act No.

87/1991 Coll.; § 1 of Act No. 403/1990 Coll. on Mitigation of

Consequences of Some Cases of Property Injustice]. The definition of the

range of the property in question in the provisions of § 29 of the Act

on Land is sufficiently definite, since the existence of the right in

rem (or forfeiture of the right to property, through the seizure of

which injustice was done) within the decisive period of time is an

objectively legally provable fact, and it is non-decisive that state

bodies do not maintain a complete and separate list of the property in

question, for which there is also no legal reason.

 

56.

Finally, it is clear that the contested provisions of § 29 of the Act

on Land do not contain a specifically determined term for adopting the

act concerning the property originally owned by the church. The period

of time for which – from the effectiveness of the contested provisions –

the property in question is blocked has been determined only

relatively, this in relation to adopting the special act thus mentioned.

The Constitutional Court states that, at a general level, such

procedure is not a priori impossible. This is rather an issue of

legislative technique and its suitability, while a statutory reference

to a special act which has yet to originate always contains an element

of relative legal uncertainty concerning the contents of such an act; it

is, however, justifiable by the limitations of human capability as

regards executive power and legislative power to prepare and adopt only a

limited number of acts in the given period of time. The structure of

the contested provisions, which is non-standard legislatively from a

current point of view, is not surprising within the context of the level

of restitution legislation at the beginning of the 1990s. In this

connection it is necessary to refer to constitutionally significant

doubts on fulfilment of requirements posed on the generality of legal

regulation regarding also, for example, the “enumerative” Act No.

298/1990 Coll., which, in the test of proportionality, cannot be bridged

in any way other than through referring to exceptional reasons for its

adoption [as specified by the Constitutional Court in Judgment file No.

Pl. ÚS 27/09, dated 10 September 2009 (318/2009 Coll.), part VI./a]. The

Constitutional Court relates similar exceptional reasons – resulting

from typical circumstances which were wrestled with by the legislature

following 1989 – also relating to the case being dealt with now.
 
57.

On the basis of what has been said above, the Constitutional Court has

found no reasons for granting the petition for annulment of § 29 of the

Act on Land, since said provisions are not unconstitutional. Within the

scope of the attained constitutionally conforming interpretation the

Constitutional Court has found that the purpose as well as the means

contained in the contested provisions stand up when tested against the

constitutional principles; this is not negated even by the petitioner

when they state that they “do not consider as unconstitutional the very

wording of provisions of § 29 of the Act on Land in the form in which

the same were adopted and at the time when they were adopted. However,

such a condition is considered as unconstitutional when the legitimate

expectation of such provisions, which form only a bridging arrangement

in terms of their nature, have not been met as a result of long-term

inactivity on the part of the legislature, and thus a condition which

should have been merely transitionary was thus conserved for a period

exceeding fifteen years”.

 

58.

In this case, the legal fact of passing time, as was emphasised by the

petitioner, has consequences in terms of constitutional law not in

respect of the constitutionality of the contested provisions alone, but,

in the case of non-fulfilment of such provisions, gradually increasing

the consequences of the absence of a legal arrangement in the sphere of

the group of potential beneficiaries of the norm, and this possibly

elevated to the intensity of unconstitutionality. In such a situation,

annulment of the contested provisions changes nothing in the legal

position of the potential beneficiaries of the legal norm, to the

contrary, it may further aggravate their position (legal certainty), as a

certain circle of legal relationships remains unregulated.

 

59.

The passing of time in the case under consideration and the thereto

related inactivity on the part of the legislature did not constitute a

reason for annulling the contested norm, but they did constitute a basis

for the second verdict of this Judgment, whereby the petitioner

required a declaration of unconstitutional inactivity on the part of

Parliament.


IX.
Consequences of Passing Time in Relevant Case Law of the Constitutional Court

60.

In its case law, the Constitutional Court reflects cases where a

qualified legal fact consisting of the passing of time results in

intervention by the Constitutional Court, either as a cassational

intervention (annulment of the contested arrangement) or an

interpretative intervention (enunciation of unconstitutional inactivity

on the part of Parliament). With respect to the first group of cases,

the petitioner themself refers to Judgment Pl. ÚS 5/03 (see below) and

file No. Pl. ÚS 71/04 (see above); the Constitutional Court further

considered conclusions resulting from Judgment file No. Pl. ÚS 25/98

(see above), Judgment file No. Pl. ÚS 8/02, dated 20 November 2002 (N

142/28 SbNU 237; 528/2002 Coll.) and Judgment file No. Pl. ÚS 6/05,

dated 13 December 2005 (N 226/39 SbNU 389; 531/2005 Coll.). The latter

type of attitude may be seen in a Judgment in case file No. Pl. ÚS

20/05, dated 28 February 2006 (N 47/40 SbNU 389; 252/2006 Coll.).

 

61.

In case file No. Pl. ÚS 5/03, dated 9 July 2003 (N 109/30 SbNU 499;

211/2003 Coll.), the Constitutional Court annulled the provisions of § 3

and § 6 of Act No. 290/2002 Coll. on Devolution of Some Other Objects,

Rights and Obligations of the Czech Republic to Regions and

Municipalities, Civic Associations Working in the Field of Physical

Education and Sports and on Related Changes, and on Change in Act No.

157/2000 Coll. on Devolution of Some Objects, Rights and Obligations

from the Ownership of the Czech Republic, as amended by Act No. 10/2001

Coll., and Act No. 20/1966 Coll. on Public Health Care, as amended by

later regulations. The reason was constituted by the inadequate nature

of the restriction of the ownership rights of regions and municipalities

to property, which was, within the scope of reform of public

administration, transferred to the municipalities and regions, which was

seen in the fact that the act simultaneously bound the municipalities

and regions to use such property only for such purposes for which the

same was used as at the date of devolution of ownership, this for a

period of 10 years. The Constitutional Court found that restriction of

the ownership right with respect to the immovable property being

transferred must be minimised merely to a “transitionary period”.

However, in the case under consideration, the situation is significantly

different. In the case of the provisions of § 3 and § 6 of Act No.

290/2002 Coll., this was, in terms of purpose, a restriction of property

transferred by the state to the municipalities, without indicating any

other extraordinary disposal of such property in the future, so it

should have been a transfer of a relative permanent nature. To the

contrary, in the case now under consideration, where an essential role

is played by adopting a constitutionally conforming solution for

mitigating cases of property injustice caused to churches and religious

communities, the municipalities are, on the basis of the existence of

the contested provisions of § 29 of the Act on Land, sufficiently

informed on the possibility of restitution in kind of such property or a

part of the same, this on the basis of both the text alone of the

provisions of § 29 of the Act on Land, and with respect to the case law

of the Constitutional Court and its evolution. In case file No. Pl. ÚS

5/03, the Constitutional Court found that the use of the property being

transferred merely for a certain purpose for a period of 10 years (the

intensity of the obligation imposed) is not balanced by any other value.

However, in the case now under examination, rather than the need to

remove one effect of the contested provisions, the Constitutional Court

found a necessity to balance a number of constitutionally protected

interests, which cannot be done without active participation of the

legislature.

 

62.

Furthermore, the Constitutional Court evaluated conclusions which the

Court arrived at in the case of the petition for annulment of the

provisions of § 8 paragraph 6 of the Act on Extra-judicial

Rehabilitation under file No. Pl. ÚS 25/98, dated 10 March 1999 (see

above). These provisions established that “An object which was declared

to be of national cultural heritage status shall not be released until

the Czech National Council and the Slovak National Council adopt a new

act on administration and protection of cultural heritage”. The petition

was granted, as well as a petition in case file No. Pl. ÚS 71/04 (see

above), in which the provisions of § 11 paragraph 5 of the Act on Land

were annulled, which established that “Immovable property which was

declared to be of national cultural heritage status cannot be released

until the time that acts are adopted that regulate the administration

and protection of cultural heritage”. In the latter Judgment, the

Constitutional Court arrived at a legal opinion specifying that it is

not arbitrariness on the part of the legislature that the same, in the

field of administration and protection of cultural heritage, has failed

to adopt a new act, but it is arbitrariness and also discriminatory

procedure when the same preconditions the possibility of applying a

restitution claim with this very condition, moreover one which is

expressed vaguely and in contravention of the principles of creation of

law in a rule of law state. Also, with regard to these conclusions, the

Constitutional Court has found an essentially different nature of the

case now under consideration. Firstly, it is clear that in relation to

the original owners of the “blocked” property, in the above-specified

cases, this blockage established an obstacle to release, in spite of the

fact that the act regulating the given issue – that is Act No. 20/1987

Coll. on State Conservation – was in existence and provided the state

with a sufficient quantity of instruments for protecting cultural values

while respecting the rights of the claimants. Therefore, the

above-quoted provisions were determined as an unjustified restriction of

and discrimination against such claimants. In the case under

examination, however, the contested provisions do not serve primarily as

an obstacle, but as a guaranty of a future legal (restitution)

arrangement, while referring to a regulation which does not yet exist.

In the cases specified above, by annulling the above-quoted provisions

of the Act on Land and the Act on Extra-judicial Rehabilitation, the

Constitutional Court then removed an unjustified obstacle to the release

of an object to the entitled party, however, in the case under

examination now, in the absence of a special act, the Constitutional

Court would not attain any rectification at all of the improper

condition; that being fulfilment of legitimate expectation.
 
63.

With respect to the arguments of the petitioner that they state in their

constitutional complaint, at this time the issue is not one pertaining

to a possibility of rectification of the alleged unconstitutional

condition by annulling the statutory provisions, such as, for example,

in the case of annulment of the Fifth Part of Act No. 99/1963 Coll., the

Civil Procedure Code, as amended by later regulations [cf. Judgment

file No. Pl. ÚS 16/99, dated 27 June 2001 (N 96/22 SbNU 329; 276/2001

Coll.)], when the Constitutional Court also several times fruitlessly

appealed to the legislature for the same to rectify said

unconstitutional condition and bring the legal arrangement of the

administrative judiciary in line with the international obligations of

the Czech Republic. In the case now under consideration, the

Constitutional Court is actually inclined to believe that by annulling

the contested provisions, the Constitutional Court would not contribute

to        a constitutionally conforming solution (balance) as regards

the relationships.
 
64. The Constitutional Court now finds itself

in a different position also in comparison with the proceedings in case

file No. Pl. ÚS 6/05 (Judgment dated 13 December 2005 – see above),

when the Constitutional Court found that the terms established by the

provisions of § 13 paragraphs 6 and 7 of Act No. 229/1991 Coll., as

amended by Act No. 253/2003 Coll., and the provisions of Article VI of

Act No. 253/2003 Coll., restricted, in terms of time, the exercise of

the right of entitled parties pursuant to § 11 paragraph 2 of the Act on

Land for release of an alternate parcel of land, in spite of the fact

that such rights are not supported by effective procedural means of

protection. The Constitutional Court qualified this procedure employed

by the legislature as arbitrariness on the part of the legislature, this

being in contravention of the constitutional principle of protection of

justified trust in law by a citizen, which is a component of a

law-based state (Article 1, paragraph 1 of the Constitution ), in the

context of the case under examination, also in contravention of the

principle of legitimate expectation when exercising the property right

resulting from Article 1 of the Protocol to the Convention. In the case

now under consideration, potential beneficiaries of the provisions of §

29 of the Act on Land also do not have available an effective means of

protection of the right, but its exercise is not restricted by a term

which would be possible to annul as unconstitutional.
 
65.

Finally, in the case now under evaluation, an analogy of the initially

tolerated unconstitutionality of transformation of relationships based

on the right to utilisation to relationships based on the right of lease

is not the issue, where, gradually with the passage of time, the legal

arrangement became ever more in conflict with protection of the

ownership right [cf. Judgment file No. Pl. ÚS 8/02 (see above)], is not

concerned here. However, the Constitutional Court discerns the

unconstitutionality of the present condition in the fact that a

desirable legal arrangement has not been adopted, not in adopting a

constitutionally non-conforming legal arrangement, that is insufficient

legal arrangement.
 
66. When viewed through the perspective of

actual practical consequences, annulment of the contested provisions

would provide protection merely to the interests of one group of

addressees of the norm. Protection of the interests of churches and

religious communities – as well as the legislative purpose of the

contested provisions – would thus be completely omitted since any

further transfers of historic ecclesiastical property would considerably

aggravate, if not make utterly impossible, any restitution in kind so

considered. Responsibility for settlement of historic ecclesiastical

property would be, completely abruptly, transferred to the churches and

religious communities alone (possibly to former individual subjects of

the ownership right) through a large number of individual judicial

disputes. This is a way which has already been rejected once by the

Constitutional Court, however, not by denying claims from ecclesiastical

entities, but by way of interpretation, in which the Constitutional

Court preferred a legislative solution to this complex and interlaced

area of problems. The Constitutional Court cannot replace the

legislature by applying its own political will and in essence positively

regulate certain spheres of legal relationships in accordance with

interests which are not sufficiently regulated. The instrument which is

available to the Constitutional Court on the basis of the provisions of §

70 paragraphs 1 and 2 of Act No. 182/1993 Coll. is objectively not

appropriate for balancing the interests of a wide spectrum of persons in

various situations for the future. The fact is that annulment of

provisions that presume adoption of a special act in the future does not

rectify the absence of a positive legal arrangement.
 
67.

Therefore, the Constitutional Court has chosen such a solution which

explicitly enunciates constitutional relevance and the urgency of

interests of municipalities and third parties, for whom disposal of

former ecclesiastical property is restricted, as well as churches and

religious communities, whose historic property, lawlessly seized by the

former communist regime, is directly concerned. At the same time, the

Constitutional Court stated that annulment of the contested provisions

of § 29 of the Act on Land would contravene the principle of

proportionality in a material law-based state, since any benefit from

such a procedure would be, as a result of (further) complicating the

future settlement of the historic property of churches and religious

communities, additionally with respect to the economic standing of the

country, considerably uncertain.

 
X.
Unconstitutional Inactivity on the Part of the Legislature

68.

Therefore, the Constitutional Court has been charged with evaluating

how to respond to possible ascertainment (according to the petitioner)

concerning said unconstitutional inactivity on the part of the

legislature as a result of the passage of time. The petitioner proposed a

verdict analogical to the decision in case file No. Pl. ÚS 20/05 (see

above), whereby, inter alia, unconstitutional inactivity on the part of

the Parliament of the Czech Republic was enunciated, pertaining to

non-adoption of a special legal regulation in the field of regulated

rent, where the Constitutional Court did not annul the contested legal

arrangement. Despite the fact that the provisions of § 696 paragraph 1

of the Civil Code presumed the adoption of a special legal regulation,

such a regulation was not passed. Therefore, the condition of

unconstitutionality has been preserved. However, the Constitutional

Court reached the conclusion that reasons for annulment of § 696

paragraph 1 of the Civil Code were not given since “The text itself of §

696 par. 1 of the Civil Code, which merely expects the passage of new

regulations, is not unconstitutional; what is unconstitutional is the

long-term inactivity of the legislature, which has led to the

constitutionally unacceptable inequality, and whose final result is the

violation of constitutional principles”.
 
69. In Judgment file

No. Pl. ÚS 20/05 quoted above, the Constitutional Court further stated:

“The second level of the petitioner's objections, based on the claimed

unconstitutional gap in legislation consisting of the fact that the

envisaged legal regulations have not yet been passed, also deserves

attention. As a consequence of the inactivity of the legislative

assembly it can evoke an unconstitutional situation, if the legislature

is required to pass certain regulations, does not do so, and thereby

interferes in a right protected by the law and by the constitution. The

legislature's obligation can arise both directly from the constitutional

law level (e.g. in ensuring the exercise of fundamental rights and

freedoms or in protecting them) and from the level of "ordinary" laws,

in which it assigns this obligation to itself expressis verbis. […]

Thus, we can conclude that under certain conditions the consequences of a

gap (a missing legal regulation) are unconstitutional, in particular

when the legislature decides that it will regulate a particular area,

states that intention in law, but does not pass the envisaged

regulations. The same conclusion applies to the case where Parliament

passed the declared regulations, but they were annulled because they did

not meet constitutional criteria, and the legislature did not pass a

constitutional replacement, although the Constitutional Court gave it a

sufficient period of time to do so (18 months). Moreover, it remained

inactive even after that time period expired, and to this day has not

passed the necessary legal framework (after more than 4 years).”
 
70.

In the case now under consideration, the Constitutional Court starts

from the above-specified conclusions which differ in unconstitutional

inactivity from “ordinary” inactivity on the part of the legislature in

such a sense that, on the part of the legislature, there must be an

obligation to legally regulate a certain area of legal relationships,

and this obligation may result either from ordinary law, where the

legislature has explicitly imposed such an obligation on itself, or

directly from the constitutional order, when non-regulation of a certain

area of relationships leads to consequences in terms of constitutional

law.
 
71. Guided by the considerations specified above, the

Constitutional Court states that the case under consideration involves

both non-fulfilment of said explicit obligation based on law, and

inactivity in the field of material safeguards of fundamental rights and

freedoms. This is manifest at three separate levels.

 

XI./a
The

obligation on the part of the legislature resulting from the pledge in

the provisions of § 29 of the Act on Land and the case law of the

Constitutional Court
 
72. The first level which determines the

evaluation, from the viewpoint of constitutional law, is the will

expressed by the legislature alone (cf. the above-quoted part of

Judgment file No. Pl. ÚS 20/05) to resolve the issue of settlement of

historic property of churches and religious communities, manifest both

in the text of the contested norm, and in the then intention of the

legislature reflected, for example, in shorthand records from meetings

of the given chambers of Parliament from 1991, when the contested

provisions became effective; in practice this occurred from as early as

1990, when Act No. 298/1990 Coll. was approved, which, even at that

time, was presented as a temporary measure [in addition to the

above-quoted items, see discussion concerning prints relating marginally

to historic ecclesiastical property, http://www.psp.cz :

for example, Response by the Vice-premier of the Government of the

Czechoslovak Federative Republic, RNDr. J. Mikloško, DrSc., to

interpellation by a member of the People’s Chamber, E. Nováková, dated

28 November 1990: “(…) Act No. 298/1990 Coll. (…) does not reflect by

far the entire property of orders and congregations and resolves merely

the return of ownership of such units which the orders and congregations

necessarily needed for commencement of their operations. During

meetings with the orders and congregations it was agreed that this was

the first stage of return of the seized property, in other words, that

this is not a complete solution to the property rehabilitation of

churches and religious associations…”, Print No. 272; on the contrary,

more recently, cf. furthermore, for example, an explanatory report for a

bill on mitigation of some cases of property injustice caused to

churches and religious communities at the time of lack of freedom, on

settlement of property relationships between the state and churches and

religious communities and on modification to some acts (Act on Property

Composition with Churches and Religious Communities), Print of the

Chamber of Deputies No. 482, which also views the necessity of the act

in considerations of both an economic and (constitutional) legal nature,

including fulfilment of legitimate expectation of churches and

religious communities and the “pledge on the part of the legislature”].
 
73.

Significance of this circumstance, in terms of constitutional law, is

undoubtedly known to the legislature from the case law of the

Constitutional Court, this at the latest since 2005, when the

Constitutional Court completely specifically and explicitly stated that

“however, the state must fulfil its obligation to pass a restitution

act, established by the above-cited provisions of the Act on Land,

regarding ecclesiastical property, as the state must oblige legitimate

expectation on the part of ecclesiastical legal entities which are

supported by statutory provisions.” [Judgment dated 2 February 2005,

file No. II. ÚS 528/02; Opinion of the Plenum dated 1 November 2005,

file No. Pl. ÚS-st. 22/05 (see above); Resolution dated 19 January 2006,

file No. II. ÚS 687/04 (not published in the Collection of Judgments

and Rulings /SbNU/); Judgment dated 24 June 2009 file No. I. ÚS 663/06;

and a number of other decisions].
 
74. The Constitutional Court

has repeatedly stated that the principle of protection of legitimate

expectation (in the sense of protection of trust in law) is firmly bound

to the principles of a law-based state, and is thus based on Article 1

paragraph 1 of the Constitution. The Constitutional Court deems it fit

to remark that social philosophy has lead to the conclusion that if

boundaries of legitimate expectation based on law are uncertain, then

also freedom is uncertain (cf. for example, Rawls, J., A Theory of

Justice, Prague, Victoria Publishing, 1995, p. 145). Protection of

legitimate expectation is an integral part of the rule of law. A

law-based state, and legal certainty as one of its attributes, is

preconditioned by such an arrangement of the state in which everyone,

both natural persons and legal entities, may have trust in the law, on

the basis of which they may, in real time, plan and accomplish their

interests. It is evident that legal certainty and strengthening of trust

in the law are, to a comparable degree, negatively influenced by both

changes in rules [cf. Judgment file No. Pl. ÚS 2/02 dated 9 March 2004

(N 35/32 SbNU 331; 278/2004 Coll.)] and non-adoption of anticipated

rules.
 
75. From a comparative point of view, even though a

typical international comparison is not concerned in this case, but

rather a comparison with the common “Czechoslovakian element”, it is apt

to highlight the fate of the contested – and completely identical –

provisions of § 29 of the Act on Land in the Slovak Republic after the

split of the Czechoslovak federation. Today, this provision in Slovakia

is practically consummated by adoption of Act No. 282/1993 Coll. on

Mitigation on Some Cases of Property Injustice Caused to Churches and

Religious Associations, which became effective on 1 January 1994, and of

Act No. 503/2003 Coll. on Restitution of Ownership to Land, which

became effective on 1 May 2005. With respect to the specific activity of

the Slovak legislature, the existence of the provisions of § 29 of the

Act on Land, as is evident, has not raised any issues concerning trust

in the activity of the legislature and the constitutionality of possible

legislative inactivity, as the commitment contained in the provisions

of § 29 of the Act on Land has been met. Through this, additionally the

purpose of the contested provisions, as recapitulated by the

Constitutional Court above, was further confirmed.
 
76. Today,

the pressure of public interest in removing legal uncertainty resulting

from the provisional legal condition (Act No. 298/1990 Coll. in

connection with § 29 of the Act on Land) has exceeded the tolerable and

justifiable limit. Non-adoption of a special act, to which the

legislature has explicitly bound itself, for a period of nineteen years,

in spite of the legislature being admonished by the Constitutional

Court for the problematic nature of its inactivity, is a sign of

impermissible legislative arbitrariness, and violates Article 1

paragraph 1 of the Constitution.

XI./b
Obligation on the Part of the Legislature Resulting from Protection of Legitimate Expectation
 
77.

The second level of the same commitment of the legislature is the

mechanism used to handle legally significant claims of entitled parties

from amongst (not only) churches and religious communities with respect

to the specific chosen pattern of the overall concept of restitution

legislation in Czecho-Slovakia after 1989. The absolute majority of acts

whereby the communist state totally removed economic independency from

churches and religious communities would not be credible not only with

regard to the then completely undoubted international standard of

fundamental rights, but also not in light of the Czechoslovak law then

valid. Not even at that time could devolution of ownership right be

based for example on takover of an object without legal title to the

same, in addition by the state which could not have been in good faith

for the entire period of possession.
 
78. The Constitutional

Court states that in addition to the explicit statutory basis contained

in the provisions of § 29 of the Act on Land, the legitimate expectation

of churches and religious communities is also based on the general

concept of the restitution process in place after 1989, which, neither

in the individual restitution provisions [cf. interpretation in Judgment

file No. Pl. ÚS 15/98, dated 31 March 1999 (N 48/13 SbNU 341; 83/1999

Coll.) and a number of others] nor as a whole, may be interpreted to the

detriment of entire groups of entities (persons) that, in addition to

cases of property injustice, subsisted for long periods under systematic

and continuous pressure by totalitarian state power also as regards all

of their (remaining) activities.
 
79. It is especially

significant for the case under consideration that according to the case

law of the Constitutional Court and the European Court of Human Rights,

the settled case law of courts and the interpretation contained therein

must be considered as law in the material sense and as part of the

relevant legal norm [cf. Judgment of the Constitutional Court file No.

II. ÚS 566/05, dated 20 September 2006 (N 170/42 SbNU 455); Judgment

file No. IV. ÚS 611/05, dated 8 February 2006 (N 34/40 SbNU 281);

Decision of the European Court of Human Rights in the cases of Kruslin

v. France dated 24 April 1990, No. 11801/85, Series A No. 176-B; Müller

and others v. Switzerland dated 24 May 1988, 10737/84, Series A No. 133;

Markt Intern Verlag GmbH and Klaus Beermann v. Germany dated 20

November 1989, No. 10572/83, Series A No. 165; unless specified

otherwise, the quoted decisions of the European Court of Human Rights

(Commission) are published on the HUDOC database at http://www.echr.coe.int ].

Thus in the case now under examination, the existence of the legitimate

expectation (property interests) of the ecclesiastical entities

concerned results both from statutory provisions and from settled

interpretation and application practice (the case law of the

Constitutional Court, to which ordinary courts systematically refer).
 
80.

At this point it is necessary to mention that even though the term

“legitimate expectation”, in spite of such designation in the

considerations of various constitutional courts or the European Court of

Human Rights, may possess a specific quality, it is not therefore

completely freely interchangeable with similarly designated theoretical

structures in another jurisdiction (ésperance légitime; legitimate

expectation); its relevant essence is actually the property interests

protected by Article 1 of the Protocol to the Convention (and Article 11

of the Charter). According to this Article, “Every natural or legal

person is entitled to the peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the public interest and

subject to the conditions provided for by law and by the general

principles of international law. The preceding provisions shall not,

however, in any way impair the right of a State to enforce such laws as

it deems 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.” The term “possessions” contained in the

first part of Article 1 of the Protocol to the Convention has an

autonomous scope which is not limited to the ownership of material

assets and does not depend on formal qualifications of domestic law. It

may include both “existing property” and various property values,

including receivables, on the basis of which a complainant may claim to

have at least “legitimate expectation” to attain effective application

of the ownership right. The subject of the protection according to the

above article is thus not only the acquired, i.e. existing, property,

but also legitimate expectation of acquisition of such property. The

central rule for evaluating the applicability of Article 1 of the

Protocol to the Convention is the regard to the specific and individual

circumstances of the case, which in entirety were to establish property

interests protected by Article 1 of the Protocol to the Convention

[Iatridis v. Greece [GC], Judgment dated 25 March 1999, No. 31107/96,

paragraph 54, ECHR 1999-II; Beyeler v. Italy [GC], dated 5 January 2000,

No. 33202/96, paragraph 100, ECHR 2000-I; Broniowski v. Poland [GC],

dated 22 June 2004, No. 31443/96, paragraph 129, ECHR 2004-V;

Anheuser-Busch Inc. v. Portugal [GC], dated 11 January 2007, No.

73049/01, paragraph 63].
 
81. The provisions of Article 1 of the

Protocol to the Convention in the interpretation of the European Court

of Human Rights do not impose on the member countries any general

commitment to return property which was transferred to them prior to

ratification of the Convention or represent any limitation on the member

countries in determining the scope of property restitution and

establishing conditions under which property will be returned to the

original owners [Jantner v. Slovakia, Judgment dated 4 March 2003, No.

39050/97, paragraph 34]. However, if a member country, after ratifying

the Convention (Protocol) adopts a legal arrangement making possible

full or partial restitution of ownership of confiscated property, then

such an act may establish a new property right under protection of

Article 1 of the Protocol to the Convention. The same is true for

arrangements relating to restitution of, or compensation for, property

which result from an act adopted prior to ratification of the Convention

(Protocol) if such an act also remains effective also following

ratification of the Convention (Protocol) [Broniowski v. Poland [GC],

dated 22 June 2004, No. 31443/96, paragraph 125, ECHR 2004-V; Maltzan

and others v. Germany (dec.) [GC], dated 2 March 2005, No. 71916/01,

71917/01 and 10260/02, paragraph 74(d), ECHR 2005-V; Kopecký v. Slovakia

[GC], dated 28 September 2004, No. 44912/98, paragraph 35(d), ECHR

2004-IX].
 
82. Furthermore, as for the term “legitimate

expectation”, with respect to the differing concept of such an

instrument under various jurisdictions, it is possible to comparatively

mention, marginally and for example, a differing concept for legitimate

expectation in the case law of the European Court of Justice (the Court

of Justice of the European Union), which completely fundamentally

surpasses the concept settled upon in the case law of the Constitutional

Court and the European Court of Human Rights. It is true that respect

for legitimate expectation in the case law of the European Court of

Justice is one of the principles of law of the Community/EU most often

referred to, however, its application is typical only in specifically

defined fields, in particular that of agriculture or employment disputes

[see Tridimas, T. The General Principles of EC Law. Oxford University

Press, 2000, p. 169]. This principle has a special significance in

particular in the context of retroactive application of law. However, it

may be referred to also in other connections, but always only to such

scope to which the Community/EU has already created a circumstance that

gave rise to the given legitimate expectation. Such expectation may

arise on the basis of former legislation or on the basis of actions of

institutions of the Community, when this principle may be referred only

when the legislation or actions of the bodies so concerned form the

immediate cause for the legitimate expectation. Legitimate expectation

may be the source of substantive rights, whereby the same differs, for

example, from the principle of legal certainty, a principle which is

rather of a general and interpretative nature. When respecting the

above-specified general preconditions, the European Court of Justice

specified the concept of the legitimate expectation in its case law in

such a way that the same must possess a certain form in terms of who may

claim the same, at which time, to which scope and in relation to which

rights. For example, clause 38 of Judgment of the Court of First

Instance T-199/01, G contre Commission de Communautes européennes, from 7

November 2002, states that previous case law is being referred to and,

furthermore, that the right based on legitimate expectation is bound by

three pre-conditions – the party who claims the same must be given, by

the public administration of the Community, exact, unconditional and

identical guarantees resulting from justified and reliable sources;

additionally, these guarantees must be of such a type that legitimate

expectation is formed on such a basis by the party for whom the same are

determined, and eventually such guarantees must be provided in

accordance with the applicable norms. However, the conditions specified

above relating to the concept of legitimate expectation defined in the

above-specified judgment of the Court of First Instance T-199/01, G

contre Commission de Communautes européennes, must be understood in a

narrow context of the field under discussion, which forms the subject of

this case; that is in the context of an employment dispute, in which

reimbursement of medical costs of an officer of the European Commission

was rejected.
 
83. The Constitutional Court, in its Judgment

dated 8 March 2006, file No. Pl. ÚS 50/04 (N 50/40 SbNU 443; 154/2006

Coll.), stated that “the Constitutional Court has adjudicated on the

principle of legitimate expectation in conformity with the case-law of

the European Court of Human Rights, from which has clearly emerged the

conception of the protection of legitimate expectation as a property

claim, which has already been individualized by an individual legal act,

or is individualisable directly on the basis of legal rules” (cf.

Judgment in case file No. Pl. ÚS 2/02 – see above). Eventually, and

absolutely specifically on the issue under consideration, the

Constitutional Court expressed its opinion in the case law quoted above

[Judgment dated 2 February 2005, file No. II. ÚS 528/02; Opinion of the

Plenum dated 1 November 2005, file No. Pl. ÚS-st. 22/05, by way of

confirming the conclusions of the earlier-specified Judgment; Resolution

dated 19 January 2006, file No. II. ÚS 687/04 (not published in the

Collection of Judgments and Rulings /SbNU/); and a number of decisions

that followed] when the Court stated that “however, the state must

fulfil its obligation to pass a restitution act, established by the

above-cited provisions of the Act on Land, regarding ecclesiastical

property, as the state must oblige legitimate expectation on the part of

ecclesiastical legal entities which are supported by statutory

provisions.”. In the case now under examination, the Constitutional

Court thus infers such legitimate expectation (property interests) from a

specific statutory provisions supported by long-established

interpretation by the Constitutional Court.
 
84. In a crucial

judgment by the Grand Chamber dated 22 June 2004 in the case of

Broniowski v. Poland [GC], No. 31443/96, ECHR 2004-V – which is of a

pilot nature and whose essential conclusions cannot be neglected in the

case now under consideration – the European Court of Human Rights

assessed the position of the complainant who, briefly speaking,

unsuccessfully claimed a requirement for compensation for immovable

property their family lost after the Second World War. The property

interests of theirs were supported by the legal order (a pledge by the

legislature) and the case law of the highest judicial authorities. As a

result of procedures, and in particular inactivity on the part of the

state which had not adopted the relevant act – as anticipated by the

legal order – according to which it would be possible to decide on such

compensation, violation of Article 1 of the Protocol to the Convention

was found.

85. For the conclusions

of the Constitutional Court it seems to be essential that the European

Court of Human Rights has qualified inactivity of the legislature as an

encroachment upon the right pursuant to the general rule of the first

sentence of Article 1 [paragraphs 136, 145, 146 of the Judgment]. It

emphasised that the context of the above-quoted Article also contains a

positive obligation on the part of the state to ensure the exercise of

the property rights concerned while taking into account a fair balance

between the competing interests of an individual and society as a whole

[paragraphs 143-144]. Each encroachment upon the right guaranteed by the

Convention must aim at a legitimate objective while respecting the

principle of fair balance, which is inherent in Article 1 of the

Protocol to the Convention. At the same time, it specified that

intranational bodies, for their direct knowledge of society and its

needs, have broad possibilities available for their own consideration in

the issue of identifying public interest when balancing conflicting

rights and interests, with the exception of situations when their

judgment clearly lacks a reasonable basis [paragraph 149; with reference

to James and others v. the United Kingdom, dated 21 February 1986, No.

8793/79, Series A no. 98-A; the Former King of Greece v. Greece [GC],

Judgment dated 23 November 2000, No. 25701/94, ECHR 2000-XII]. The

above-specified criteria are also valid also for crucial changes to a

system, such as are represented by the transition of a country from a

totalitarian regime to democratic form of government and the reform of

political, legal and economic structures of the state as phenomena which

inevitably also include adopting economic and social legislation with a

wide-reaching societal impact. When applying Article 1 of the Protocol,

the various interests in question must be evaluated overall, while

taking into account that the Convention is intended to ensure rights

considered “purposeful and effective”. When evaluating the admissibility

of an encroachment, it is not needed to evaluate necessarily only

specific conditions for compensation, but also the actions of parties

and the means employed by the state and their implementation. In this

context, the European Court of Human Rights highlighted that

uncertainty, whether it results from the law, administrative procedures

or the practices of state administration bodies, is a factor which must

be taken into consideration when evaluating steps taken by the state. If

disputable issues of public interest are under consideration, the state

power must act at the right time, in a proper and consistent manner

[paragraph 151; with reference to a judgment in the case of Vasilescu v.

Romania, dated 22 May 1998, No. 27053/95, paragraph 51, ECHR1998-III;

Beyeler v. Italy [GC], dated 5 January 2000, No. 33202/96, paragraphs

110 in fine, 114 and 120 in fine, ECHR 2000-I; Sovtransavto Holding v.

Ukraine, dated 25 July 2002, No. 48553/99, paragraphs 97-98, ECHR

2002-VII].
 
86. In the given case, the European Court of Human

Rights repeatedly considered historic factors, specific features of the

given period of time when the state had to cope with problems associated

with political, economic and social upheaval, as well as a great range

of controversial claims, and admitted the extraordinary difficulty of

the situation, requiring comprehensive political decisions [cf.

paragraphs 155-163]. Moreover, the European Court of Human Rights

admitted that in situations which – so as to be solved – require

adoption of a contestable act with significant economic impacts on the

whole country, the intranational bodies must have considerable

discretion not only in selecting measures for protecting and regulating

ownership relations, but also in electing an adequate period of time for

their implementation. Selection of such measures may also include any

necessary decisions to limit the amount of compensation for the

confiscated property at a level lower than its market value. The

provisions of Article 1 of the Protocol thus do not ensure a right to

full compensation under all circumstances [paragraph 182; with reference

to Judgment in James and others v. the United Kingdom, dated 21

February 1986, No. 8793/79, paragraph 54, Series A no. 98-A].
 
87.

Furthermore, the European Court of Human Rights stated that in spite of

the fact that the essential reforms of the political and economic

system of the country and the condition of pubic finances may justify

considerable restriction of any disbursed compensation (for immovable

property of which the complainant and other persons were deprived after

1945), the Polish state was not able to offer an adequate explanation,

in relation to Article 1 of the Protocol to the Convention, when giving a

reason for continued failure over many years as regards satisfying the

claim on the part of the complainant as well as thousands of other

persons [paragraph 183]. The rules and principles resulting from Article

1 of the Protocol to the Convention require, enunciated the European

Court of Human Rights, that the states not only consistently and

foreseeably respect and apply the enactments which they have adopted

themselves, but as their result also ensure legal and actual conditions

for implementation of the same. The same principles bound the Polish

state to fulfil, within a reasonable period of time, through a suitable

means and consistently, a legislative pledge to settle the relevant

claims, this in the public interest [paragraph 184]. The fact that the

complainant has already received a negligible proportion (approximately

2%) of compensation, was not found by the European Court of Human Rights

to constitute a reason for which the complainant should be deprived of

the possibility to obtain at least an adequate portion of the claimed

value [paragraph 186 in fine].

 

88.

In addition to the verdict on violation of Article 1 of the Protocol to

the Convention, the European Court of Human Rights declared that such

violation originates from a system problem consisting in a failure in

domestic legislation and practice [verdict sub 3]. Another verdict of

the European Court of Human Rights imposed on the Polish state an

obligation to ensure, through suitable legal measures and administrative

practice, implementation of the property right concerned also in

relation to other holders of the same or to provide them with adequate

compensation instead [verdict sub 4].

 

89.

The above-specified legal conclusions of the European Court of Human

Rights apply mutatis mutandis likewise to the position of potential

beneficiaries of the contested provisions of § 29 of the Act on Land,

who had received repeated reassurances from the bodies of state power on

future settlement of the historic property of churches, this through

standpoints and explicit pledges from top bodies of the executive power

as well as individual constitutional representatives, and in particular

the very legislature through the pledge contained in the statutory norm.

In this ambience, the Constitutional Court finally rejected to deal, in

terms of casuistry, with the pledge given by the legislature through

individual judicial proceedings, with which the judicial power, burdened

by a large number of potential disputes, would in an activistic way

fulfil the purpose of an act which would only originate in the future.

In this matter, the essential point is the element of trust in law,

where the ecclesiastical entities were repeatedly reassured of the

specific interpretation of the same by the public power, including

explicit decisions of the Constitutional Court [decisions mentioned

above: Judgment dated 2 February 2005, file No. II. ÚS 528/02; Opinion

of the Plenum dated 1 November 2005, file No. Pl. ÚS-st. 22/05, with

attached reference to the previous Judgment; resolution dated 19 January

2006, file No. II. ÚS 687/04; Judgment dated 24 June 2009, file No. I.

ÚS 663/06; and a number of other decisions].
 
90. The point

designated by the Constitutional Court in its case law as “legitimate

expectation” [cf. the term right to credit stated in quotation marks in

verdict sub 3 in the Broniowski judgment], is indubitably a continuing

and specific property interest falling under Article 11 of the Charter

and Article 1 of the Protocol to the Convention. The impossibility to

realise such a property interest (to obtain compensation) during a

period of nineteen years thus, in the opinion of the Constitutional

Court, fulfils the aspect of unconstitutionality, consisting of an

omission to legislatively deal with a systemic and comprehensive problem

of which the legislature has repeatedly been reminded by the

Constitutional Court. The legitimacy of the purpose of such encroachment

(inactivity) may have lasted for a certain transitionary period at the

time of adopting the most essential steps of the transformation of the

society, however, it is not sustainable ad infinitum. Incidentally, the

counter argument that the entities concerned cannot now make their

property claims, since they did not defend properly their interests with

the available legal means immediately following encroachment upon their

rights from 1948 to 1989 appears to be extraordinarily cynical. Similar

argumentation exposes the nature of legal and political changes after

1989 to crucial doubts on their sense and remains blind to the role of

courts in (ecclesiastical) political trials as complaisant

administrators of commands from the Communist Party [cf. especially the

Judgment dated 2 February 1999, file No. II. ÚS 66/98 1999 (N 18/13 SbNU

123), which in relation to a similarly “inconsistent” complainant aptly

noted that “further exercise of the property right to the immovable

property of relatively great value would definitely result in

application of the simplest means used then by the state – i.e. removal

of the holder of such a right, this without any reasoning”; in general

connection to this, see the Judgment of the Constitutional Court dated

21 December 1993, file No. Pl. ÚS 19/93 (see above)].

 

91.

With respect to the points above, the Constitutional Court admits that a

certain specific feature of this subjective property right may – even

with respect to the discretion of the legislature – result from the very

organisational essence of an individual church or religious community,

where the specific form of settlement does not necessarily need to

address individual subjects, but, depending on circumstances, does so

also towards the church or religious community as a whole. In spite of

the points mentioned, the legislature must respect the principles based

on Article 11 of the Charter and Article 1 of the Protocol to the

Convention, according to which the amount of compensation determined, in

relation to the value of the property being compensated for, must not

be an expression of arbitrariness of the legislature, but must reflect a

principle of proportionality (or “fair balance”). If property injustice

caused formally to an individual ecclesiastical legal entity was, with

respect to the organisational structure and internal links of the

churches, intended and implemented as an act of unlawful repression

against the whole (relevant) church, then the positive liability of the

legislature also includes discretion on a suitable form of the

arrangement of these overall relationships, in addition to providing

judicial protection in a specific case. If the course of a large number

of individual judicial disputes, in the order of thousands – which would

be the practical consequence of the transfer of responsibility from the

legislature to the courts of justice upon annulment of § 29 of the Act

on Land – is considered a possible alternative to the above specified

points, then the Constitutional Court doubts that, after many more years

of such proceedings, even if most of the property was actually

transferred to the ownership of churches and religious communities, the

original moral and economic purpose of restitutions would be at all met

or the interests of municipalities or third parties would be taken into

consideration to a desirable degree.

 

XI./c
Obligation on the Part of the Legislature Resulting from the Commitment to Protect Fundamental Rights and Freedoms
 
92.

Despite the fact that the Constitutional Court, in several decisions of

the same, has pointed out that “restitution legislation” is based

generally on the concept that there is no constitutionally based claim

for restitution, and that such a claim neither follows from the

international commitments of the Czech Republic, the Constitutional

Court, in the quoted case file No. Pl. ÚS 20/05, also declared that

inactivity on the part of the legislature (failure to handle a certain

issue) is unconstitutional, if the same brings about other direct

unconstitutional consequences.
 
93. The provisions of Article 2

paragraph 1 of the Charter guarantees the plurality of religions and

religious tolerance, as well as separation of the state from specific

religious denominations (the principle of a state which is neutral from

the viewpoint of confession). The principle of plurality of religions

and tolerance is expressed in Article 15 paragraph 1 and in Article 16

of the Charter of Fundamental Rights and Basic Freedoms. The central

principle of the state being neutral from the viewpoint of confession is

implemented through the co-operation pattern of the relation between

the state and churches and their mutual independence. What is crucial

for the following considerations is whether and to what degree economic

self-sufficiency constitutes a material precondition of independent

exercise of rights guaranteed particularly by Article 16 paragraphs 1

and 2 of the Charter. The point is that the constitutional order of the

Czech Republic does not contain merely an imperative for independence of

the state of churches and religious communities (as part of the

ideological and religious neutrality of the state), but also the

requirement for the independence of churches and religious communities

of the state when carrying out their objectives.
 
94. With

respect to formal legal continuity, but also to clearly declared

discontinuity in terms of values of the Czech state with the previous

non-democratic regime [Judgment dated 21 December 1993, file No. Pl. ÚS

19/93 (see above)], the Constitutional Court views as a general

obligation of a democratic and rule of law state, expressed in Article 1

of the Constitution, and in particular in the individual provisions of

the Charter of Fundamental Rights and Basic Freedoms, that of ensuring

not only the formal but also the actual renewal of material guarantees

for the exercise of fundamental rights and freedoms, where previously –

in spite of the elementary human rights content in the international ius

cogens – the state has failed. Adoption of the Charter of Fundamental

Rights and Basic Freedoms, and acknowledging other international

instruments for protecting fundamental rights, however, does not

represent a “starting point, from which the obligation of the state

would commence, as a limit, and where it is necessary, to actively

create preconditions for the exercise of fundamental rights. To the

contrary, in relation to the individual bearers of the fundamental

right, it is impossible to fail to take into consideration the

historically created context of the situation in which they currently

and by fault of the state find themselves. In other words, it would be

in contravention of the concept of development and reinforcement of

fundamental rights if social changes repeatedly resulted in establishing

lower standards of fundamental rights on the basis of ignoring historic

causes for the condition as exists at present. The history of

democratic and rule of law states cannot consist of lines marking out

separation of the past; instead lessons taken from prior experience must

be reflected as guarantees for non-repetition of past mistakes in the

future.
 
95. In this respect, the Constitutional Court takes the

overall process of restitutions (in the broad sense of the term) after

1989 not as a purely political intention that would be merely a part of a

(necessary) liberal economic transformation, in which it would

primarily fulfil the function of de-etatisation of the wealth of the

society, but the Constitutional Court takes the same also as a process

of rehabilitation of material safeguards for the exercise of fundamental

rights manifested, for example, also in the functioning of civic

society [an accent on the first concept in most of the countries of

Central and Eastern Europe is visible, and a functioning market economy

is considered a criterion of success of transformation, for example, by

Posner, E. A. – Vermeule, A. Transnational Justice as Ordinary Justice.

In Harvard Law Review, Vol. 117, No. 3, January 2004, pp. 765-825;

especially in relation to the Czech Republic, it is possible, even with

respect to external observers, to perceive some criticism due to an

emphasis on the former concept at the expense of the human rights

aspect: Williams, R. C. The Contemporary Right to Property Restitution

in the Context of Transitional Justice. Occasional Paper Series,

International Center for Transitional Justice, May 2007, pp. 11-23, http://www.ictj.org ].
 
96.

As for the relationship between churches and religious communities as

such and the constitutionally guaranteed freedom of religious

conviction, the Constitutional Court remarks, for the sake of

completeness, that the constitutional relevance of such entities is

given by Article 15 paragraph 1 (“The freedom of […] religious

conviction is guaranteed.”) and Article 16 paragraph 1 of the Charter,

according to which practise is guaranteed of religion or faith, in

private or public, through worship, teaching, practice, and observance,

this either alone or in community with others (an acknowledgement of the

legal personality of such an association by law is then only a

consequence of such guarantees, since in a state it is impossible to

exercise one’s rights without entering into legal relationships) [cf.

for example, Judgment dated 18 June 2003, file No. I. ÚS 146/03 (see

below)]. In addition, the European Commission of Human Rights stated

that for the purpose of Article 9 of the Convention, the varied

perception of churches and their individual members seems to be merely

artificially construed, and, therefore, the churches themselves were

separately granted rights pursuant to Article 9 paragraph 1 of the

Convention, since through churches and religious communities, merely

their believers exercise their fundamental rights [X. & Church of

Scientology v. Sweden, App. 7805/77, 16 Eur. Comm’n H.R. Dec. & Rep.

68 (1979), quoted according to Evans, C. Freedom of Religion under the

European Convention on Human Rights. Oxford: Oxford University Press,

2001, pp. 13–14]. Constitutional declaration of freedom of religious

conviction without institutional guarantees, which is, for example,

without reflection of the element of the right of association or without

respect for the necessary functional assets of the individual

ecclesiastical entities, would ensure the freedom of religion merely in

an illusory capacity.
 
97. Churches and religious communities are

thus bearers of the fundamental rights and are, in the context now

under consideration, also qualified to act as subjects of ownership

rights. Only marginally in relation to the historic nature of the

property of churches is it possible to refer to available doctrinal

opinions which congruently do not infer the nature of the ecclesiastical

property as ownership of the state [K problematice vlastnictví

katolické církve a restitucí církevního majetku / On the issue of

ownership of the Catholic Church and restitutions of ecclesiastical

property (Masaryk University in Brno); Posouzení otázky církevního

vlastnictví / Review of the issue of ecclesiastical property (University

of West Bohemia, Faculty of Law); Expert opinion (Institute of State

and Law, Academy of Sciences of the Czech Republic ); Expert report by

the Charles University in Prague from the viewpoint of law and history

regarding the historic position of “Catholic ecclesiastical property” in

the second half of the 19th century and in the 20th century in the

territory of the present day Czech Republic; expert opinions were

published in the appendix to Print of the Chamber of Deputies No. 858

“Report by the chairman of the Temporary Commission of the Chamber of

Deputies for settlement of property issues between the state and

churches and religious communities on the work of the Commission from 13

June 2008 to 31 March 2009”]. Particularly in this respect, it is not

decisive for the ownership position of churches whether they were legal

entities of public law or private law [The Holy Monasteries v. Greece,

dated 9 December 1994, No. 13092/87, 13984/88, Series A No. 301-A,

paragraphs 48-49].
 
98. In its case law, the Constitutional Court

has confirmed that the activities of churches cannot be restricted

merely to practising their rites, but that constitutional protection

(Article 15 paragraph 1, Article 16 paragraphs 1 and 2 of the Charter)

is enjoyed also by their traditional activities consisting of community

work, provision of education and health care, social work, charitable

work and suchlike [Judgment file No. I. ÚS 146/03, dated 18 June 2003 (N

115/31 SbNU 33); Judgment file No. Pl. ÚS 6/02, dated 27 November 2002

(N 146/28 SbNU 295; 4/2003 Coll.); Judgment file No. Pl. ÚS 2/06, dated

30 October 2007 (N 173/47 SbNU 253; 10/2008 Coll.)]. To this, comparison

may be made, for example, with the opinion of the German Federal

Constitutional Court, according to which “Freedom of religious

denomination contains, in addition to the freedom of an individual to

express their denomination in privacy and in public, necessarily also

freedom of association in organisations for the purpose of shared public

profession, especially the freedom of vocation for churches in their

historically generated form and on the basis of their mission (BVerfGE

42, 312). Not only religious communities, their sub-organisations and

their legally independent establishments, but also legal entities with

the objective of fulfilment of charitable tasks in the implementation of

one of several basic preconditions of the religious vocation are

entitled to file a constitutional complaint for protection of the

fundamental right to uninterrupted exercise of the religious vocation

(see BVerfGE 19, 129; 30, 112; 42, 312; 46, 73)” [BVerfGE 53, 366]. In

this context, for example, “the concept of the Catholic Church includes

the practising of religion not only in the field of faith and worship,

but also freedom for development and operation in the world, which

corresponds to its religious tasks. This in particular includes

charitable work. Active love for fellowmen is an essential task of

Christians and is understood by Christian churches as a principal

function. It does not include only hospital care provided by churches,

but generally is, according to basic religious requirements, focused on

provision for people in need, including their upbringing and education”

(BVerfGE 70, 138; BVerfGE 57, 220). The historic task of churches in

society is reflected also in the case law of other constitutional courts

[cf. decision of the Constitutional Court of the Italian Republic dated

11 April 1989, ITA-1989-R-001; a decision of the Constitutional Court

of the Lithuanian Republic dated 13 June 2000, LTU-2000-2-006; a

decision of the Constitutional Court of the Hungarian Republic dated 27

February 1993, HUN-1993-1-003; a designation according to the database

CODICES. http://www.codices.coe.int ].
 
99.

Moreover, let it be stated that the European Court of Human Rights, in

the case of The Holy Monasteries v. Greece dated 9 December 1994, No.

13092/87, 13984/88, Series A No. 301-A, when considering the

expropriation of commercial land of the monasteries concerned,

established that primarily there was violation of the guaranteed

protection of property interests resulting from Article 1 of the

Protocol to the Convention, not the right resulting from Article 9 of

the Convention. To this, however, the Constitutional Court wishes to add

that this individual conclusion (separation of property rights from

religious freedom) is not practically transferable in the abstract

evaluation of inactivity on the part of the legislature to the –

completely different – case now under consideration. The point is that

in this section of the reasoning for the Judgment, the Constitutional

Court evaluates (a) broader constitutional consequences of the Czech

constitutional order, (b) this upon consideration of the total intensity

of the encroachment which (for an essential part) the non-release of

property may mean in terms of material guarantees of the level of

religious freedom (c) upon taking into account the existence of other

guarantees of rights resulting from Article 16 paragraphs 1 and 2 of the

Charter.

 

100.

As for clause (a), the Constitutional Court states that the Czech

Republic is, pursuant to Article 1 paragraph 1 of the Constitution, a

democratic rule of law state based on the respect for rights and

freedoms of men and citizens. This particular principle first of all

asserts that the Constitutional Court must proceed from such an

arrangement in terms of intranational or international law that would

provide the greatest degree of protection for fundamental rights and

freedoms. The reference criterion is currently in particular Article 16

paragraphs 1 and 2 these being special provisions relating to Article 15

paragraph 1 of the Charter. The degree of definiteness of these

provisions reflects previous bitter experience brought about through

ignoring formally granted fundamental rights during the time of the

Communist regime in Czechoslovakia, and also follows human right

standards effectuated in civilised countries. Interpretation of these

provisions has been repeatedly conducted in the case law of the

Constitutional Court.
 
101. As for the consideration stated under

clause (b), it is first of all necessary to say that presently no

individual encroachment against a single entity of a group of entities

is involved, but that the essence of the property injustice is the

confiscation of all commercial property and a considerable proportion of

other property determined for the undertakings of churches in society,

which has had a negative impact on this entire segment of society, and,

as a result of other measures, eliminated the exercise of essential

elements of the fundamental right. Therefore, the Constitutional Court

in its considerations takes into account that since there was a

centrally coordinated action, this being total and comprehensive, by the

Communist state against churches and religious communities, where the

primary subject of unlawful repression was not an individual subject of

the ownership right (an ecclesiastical legal entity), but instead an

agglomeration of such and their position in society, and not the essence

of their property but the essence of their existence, then this fact is

reflected also in the various positions after changes in social and

legal conditions and in the nature of the claims, as well as in the

obligation of the new democratic legislature to correct the situation

which it did not cause. Thus, the legislature was faced with solving the

consequences of such encroachment which did not form an individual

exception in relation to the sphere of religious life in Czechoslovakia,

but instead a rule, or even a direct ideological imperative, since

religion was “[…] the opium of the people. Abolishing religion as an

illusory happiness of the people, means to seek their true happiness”

[Marx, K. Úvod ke kritice Hegelovy filozofie práva / Contribution to

Critique of Hegel's Philosophy of Law. In Marx, K., Engels, B. The

Works. Vol. 1. Státní nakladatelství politické literatury / State

Publishing House of Political Literature, Prague, 1956, pp. 401–402].

The extinction of materially determined religion as a remnant of a lower

grade of social development was then associated with eliminating

private ownership of means of production in society as a whole [Engels,

B. Anti-Dühring. In Marx, K., Engels, B. The Works. Vol. 20, Svoboda

Publishing House, Prague, 1966, p. 310]. In addition to practical

“ecclesiastical” policy, the above “ideal” was even promoted as a

constitutional norm by way of constitutional Act No. 100/1960 Coll., the

Constitution of the Czechoslovak Socialist Republic, where Article 16

explicitly determined that “All cultural policies in Czechoslovakia, the

development of education, upbringing and tuition are administered in

the spirit of the scientific world view, Marxism-Leninism, […]”.

Historic reality – where the Constitutional Court refers to widely

accessible expert studies in fields of history and legal history – thus

relativises, in the case of churches and religious communities, the view

of cases of property injustice in an isolated manner in relation to the

individual affected entities, but the extensive range of the same

permeates the very nature of freedom of religion. The overall scope of

the ecclesiastical property thus blocked, when, as is evident, the

overwhelming majority of historic property of churches and religious

communities is concerned, thus, in comparison with the guarantees of

Article 16 paragraphs 1 and 2 of the Charter, results in an

unconstitutional condition, especially in relation to the right of

churches to freely select the form and scope of their activities, and

thus “administer their matters independently of state bodies.”.
 
102.

This even occurs when considering (c) mechanisms through which the

state practises the “economic support for churches”. This takes place on

the basis of Act No. 218/1949 Coll. on Economic Support for Churches

and Religious Communities by the State, as amended by later regulations,

according to which the state had and still has, pursuant to § 1, 4, 6

and 8, § 11 paragraph 1 and § 12, to fulfil a number of their

obligations, including, for example, rights and obligations from the

transfer of patronages to the state (in a constitutionally acceptable

scope), this also in relation to purely ritual activities. It is not

possible to disregard the fact that the “economic support for churches”

were, from the beginning, conceived as one of the instruments of

removing the economic independence of churches and religious

communities, with the direct intention of not satisfying the freedom of

religion, but instead of combating it through direct executive control

of religious life, and economic oppression. At a meeting of regional

secretaries of the Communist Party, Rudolf Slánský, the then General

Secretary of the Communist Party of Czechoslovakia, on 15 September 1949

aptly described the purpose and application of Act No. 218/1949 Coll.:

“[…] We have taken land from the bishops. We have taken all press from

churches. We have installed commissars in consistories in all places. We

have closed church schools, not one church school has opened this year.

Now gradually we’re taking away their monasteries. We imprison priests

[…] Now, for example, via another important means – a new salary act for

priests. We will still discuss under which conditions and to whom we

will actually give a salary. I believe that our work in the sector of

churches is positive […] It would be good for you to have “black lists”

prepared of the greatest fomenters in the regions and districts.

Remember, we will need such lists, if not today, then tomorrow for sure.

The Party has learned a lot, politically” [quoted according to Kaplan,

K. Stát a církev v Československu 1948–1953 / State and church in

Czechoslovakia 1948–1953. Institute of Contemporary History, Academy of

Sciences of the Czech Republic, Prague, Doplněk Publishing House, Brno,

1993, p. 98, Note 190]. The “economic support for churches” were

considered temporary means, in the spirit of the above-specified

ideological points, which is evidenced, for example, also by the fact

that Act No. 218/1949 Coll. did not anticipate at all any process of

state acknowledgement or registration of new churches and religious

communities [additionally, for example, Hájek, J. K problematice

právních poměrů církví v ČSSR / On the issue of legal relations of

churches in the Czechoslovak Socialist Republic. Administrative Law,

1986, No. 6, p. 369: “the legal arrangement (…) is based on

acknowledgement of the existence of religious convictions as one that is

temporary, preconditioned by the level of social progress attained

(…)”].
 
103. At this point, the Constitutional Court summarises,

even though it is not now a direct subject of the constitutional review,

that the model of the “economic support for churches and religious

communities”, if the same were conceived as an adequate alternative for

the settlement of historic property of churches and religious

communities, is not a sufficient guarantee for freedoms resulting from

Article 16 paragraph 1 of the Charter, in particular the independence of

the (concerned) churches and religious communities of the state

according to Article 16 paragraph 2 of the Charter. For correct

understanding of such considerations it is necessary to point out that

the Constitutional Court now does not carry out any economic analysis of

claims of the entitled churches resulting from Act No. 218/1949 Coll.

in relation to actual fulfilment by the state, but speaks generally

about a mechanism, when it is exclusively the state that grants, through

an enactment, to the churches and religious communities concerned, a

number of titles of “economic support”, but at the same time de facto

the state itself determines the total amount that would be spent on such

expenditures, whereby the state practically unilaterally decides on the

degree of economic dependency by the churches and religious communities

concerned on the state [cf., for example, Opinion of the Ministry of

Culture contained in the audit conclusion of the Supreme Audit Office

No. 08/20: “Over the course of years, the Ministry of Finance, in the

state budget, determined only a minimum amount of means for salaries and

insurance administration, material costs, and maintenance of

ecclesiastical property. Submitting a budget for the individual churches

and religious communities was, for this reason, cancelled since the

state is not able to finance all the financial needs of churches and

religious communities”, http://www.nku.cz ;

for the importance of “economic support” for the exercise of the right

resulting from the freedom of religion, cf., for example, Přibyl, S.

Pojetí tzv. “zvláštních práv” církví a náboženských společností podle

Zákona č. 3/2002 Sb. / Concept of the “special rights” of churches and

religious communities pursuant to Act No. 3/2002 Coll. In Právník No. 7,

year CXLII, 2003, p. 714].
 
104. In the absence of a sensible

settlement of historic ecclesiastical property, when the state, as a

result of its own inactivity, continues to be a dominant source of

income for the churches and religious communities concerned, this in

addition without any clear link to revenues from the historic property

of churches being withheld, the above condition thus, in its

consequences, violates Article 16 paragraph 1 of the Charter in terms of

freedom of expression of faith in society through public activities and

traditional forms of religiously motivated, generally beneficial

activities using relevant historically formed economic resources, and

especially Article 16 paragraph 2 of the Charter, this in the economic

sector of ecclesiastical autonomy. This is a legal opinion which is also

held by doctrine, cf. Syllová, J. K výkladu čl. 16 Listiny základních

práv a svobod / On interpretation of Article 16 of the Charter of

Fundamental Rights and Basic Freedoms. In: Kolář, P., Kříž, J. (eds.).

Narovnání vztahu mezi státem a církvemi / Reconciliation of the

relationship between the state and churches. CEVRO Institut, Prague,

2009, p. 9: The legislature intended “to renew and rehabilitate the

position of churches, which during the last 40 years was marginalised,

and to grant them the independence over decision-making that they lost

during the time of totality. The constitution-giver was aware of the

circumstance that the formulation containing the word “independence”

specified in these provisions is the only possibility of strengthening

autonomy in the position of churches, at least in terms of

constitutional law, under a situation when activities concerning

education and upbringing conducted over hundreds of years were

irreversibly interrupted, when the property used by churches was

nationalised, and the control of churches over such property was

annulled. Documentary establishment was a programme which should have

been completed through attaining the true independence of churches.

[…]The independence of churches may also be grammatically interpreted in

such a way that the churches must have property that would allow them

to independently exercise their basic ecclesiastical functions, so that

everyone has the right to freely express their religion or faith, in

private or public, through worship, teaching, practice, and observance,

this either alone or in community with others.”
 
105. At this

point it is apt to point out that a similar opinion was arrived at by

the Constitutional Court of the Hungarian Republic in a decision dated

12 February 1993, No. 4/1993. One of the essential conclusions was the

finding that the then contested restitution act – defining the groups of

the property being returned through their purpose corresponding to the

traditional functions of churches – aims primarily at “losses caused by

the state in relation to the constitutional right to free practice of

religion, and not losses caused to the ownership right.”. At the same

time they emphasised that both the historic role of churches in society

and the nature of their activities oriented to the public to some degree

distinguish the churches from other natural persons or legal entities

(taking into account the nature of their assets) and also make

comparison possible – in terms of the requirement of independence of the

state – with local self-governments (municipalities), which are, as an

agglomeration, also indivisible from the individual right of a citizen

to self-determination (read: self-government) [cf. especially Section

III of the decision; according to the English translation on the website

of the Constitutional Court of the Hungarian Republic, http://www.mkab.hu ].
 
106.

In other words, impacts of inactivity on the part of the legislature

thus are manifested not only in the narrow sphere of property of

(historic) churches and religious communities (Article 11 of the

Charter, Article 1 of the Protocol to the Convention), but also in the

factual restriction of autonomy and independence from the state (church

autonomy) guaranteed by Article 16 paragraph 2 of the Charter for the

exercise of freedoms guaranteed by Article 16 paragraph 1 and Article 15

paragraph 1 of the Charter. The Constitutional Court considers

unacceptable such opinion according to which the widely conceived (from

the historical point of view) freedom of thought, conscience and

religious denomination, as is based on the Czech constitutional order

and on international standards and as is protected by ordinary courts

and the Constitutional Court, should justify a certain lower level of

economic autonomy of churches and religious communities. For example,

potentially the existence of the present higher level of fundamental

rights and freedoms in comparison with an earlier status (as to 25

February 1948) could be seen as serving as an argument for not granting

property composition.
 
107. With respect to the above-stated

points, the Constitutional Court found sufficient reasons for declaring

that the inactivity on the part of the Parliament was unconstitutional,

and, therefore, did not consider it effective to develop to the same

level of detail other aspects of the issue, which include the necessity

to refer, in particular, to the issue of the rationality of reasons for

factually different dealing with entities that, by the will of the

legislature, became entitled parties pursuant to Act No. 298/1990 Coll.

and other ecclesiastical legal entities which form part of both Catholic

Church and other concerned churches and religious communities, this

taking into account the fact that this inequality is amplified by the

length of the term during which such other legal entities have been

referred to an act which does not exist. Considering the mitigation of

some cases of injustice cannot be controlled by irrational arbitrariness

by the legislature, thereby establishing inequality.
 
XI./d
108.

In relation to municipalities and third parties which are currently

registered owners of the blocked historic ecclesiastical property, the

long-term inactivity on the part of the Parliament may cause individual

unconstitutional effects on the basis of specific circumstances which

the Constitutional Court, with respect to the multiplicity of

conceivable situations, cannot convey in a general verdict. Even when

dwelling on the primary liability of the legislature to provide a legal

arrangement for the matter concerned with regard to the

comprehensiveness of relationships, and with respect to the

self-restraint shown by the Constitutional Court in terms of their

positive adumbration, through their possible cassational encroachment,

i.e. a future decision of the legislature, the Constitutional Court does

not renounce the provision of proper protection to specific individual

claims of persons so concerned in the future (together with the ordinary

courts), if the legislature fails to adopt a constitutionally

conforming solution.


XII.
Conclusion

109.

For reasons specified above, the Constitutional Court has found that

the contested provisions of § 29 of the Act on Land are not

unconstitutional in themselves, since they seek a constitutionally

conforming purpose and do not contain excessive means for attaining the

same. Concurrently, however, the Constitutional Court has found that the

inactivity on the part of Parliament, consisting of non-adoption, for a

period of nineteen years, of an act anticipated by the provisions of §

29 of the Act on Land, whereby the historic property of churches would

be settled, violates Article 1 of the Constitution, Article 11, Article

15 paragraph 1, Article 16 paragraphs 1 and 2 of the Charter of

Fundamental Rights and Basic Freedoms, and Article 1 of the Protocol to

the Convention for the Protection of Human Rights and Fundamental

Freedoms.

110. The Constitutional

Court has found no reasons for a preferential hearing of the petition

pursuant to § 39 the Act on the Constitutional Court.
________________________________________


 

Justices

Vladimír Kůrka, Jiří Mucha, Jan Musil and Pavel Rychetský held

dissenting opinions to the decision of the Plenum, pursuant to § 14 of

Act No. 182/1993 Coll. on the Constitutional Court, as amended by later

regulations.
 
1. Dissenting opinion of Justice Vladimír Kůrka

My dissent is directed against both verdicts of the Judgment issued, for reasons which are aimed at the following:

1.

the critical provisions of § 29 of the Act on Land directly establish

neither a “commitment” nor “pledge” of the legislature to adopt, at a

time deferred, a legal arrangement “settling the historic property of

churches and religious communities” (as is claimed in clause 25 of the

Judgment); to the contrary, it is proper to understand the same as an

expression of political uncertainty as to whether and in which forms or

scope to proceed towards further restitution of the same (above the

scope of Act No. 298/1990 Coll.), which is proven by the process itself

of adoption of the Act on Land, as well as by the consequent period of

inability to find agreement on an acceptable solution;

 

2.

even less of a possibility is, from the provisions of § 29 of the Act

on Land, to infer a decisive conclusion towards which the majority of

the Plenum were inclined; that they established a legitimate expectation

on the part of the ecclesiastical entities regarding settlement of

their historic property, which logically includes also settlement in the

form of establishment of specific restitution claims, in particular

claims relating to restitution in kind, where only this type of

restitutions is – based on the nature of the matter – relevant to

consider here;

 

3.

the reasoning by the majority of the Plenum, contrary to this, is in

evident collision with what the Constitutional Court expressed in

Opinion file No. Pl. ÚS-st. 22/05, according to which it is possible “to

identify itself with the opinion that Act No. 298/1990 Coll. was of the

nature of a temporary arrangement, and when adopting it, it was

generally believed that adoption of a general restitution regulation

regarding ecclesiastical property would take place. Nevertheless, by not

adopting such a regulation, the legislature subsequently expressed

their will, still continuing, not to proceed with restitution of

ecclesiastical property.” (The appended obiter dictum, emphasised in

clause 20 of the Judgment referring to Judgment of the Constitutional

Court file No. II. ÚS 528/02, served merely to support the judgment that

the “casuistic solution… in the form of individual judicial decisions

in specific cases would be such an activistic solution that, as a

consequence, it would result in the judicial power taking over an

activity which otherwise, within the separation of powers, belongs

solely to the legislative power”);

 

4.

the above-quoted opinion of the Constitutional Court deserves attention

also due to the fact that it conforms to the principle which is

acknowledged both in the case law of the Constitutional Court and the

European Court of Human Rights; that there is no constitutionally

established claim to a restitution remedy to former cases of property

injustice, that such a claim does not follow from international

commitments and it is, therefore, up to the legislature to elect the

procedure to be adopted in this field and the means for possible remedy;

 

5.

when the majority of the Plenum now in the second verdict reproaches

the legislature for “long-term inactivity”, they are in evident conflict

with their own (previous) opinions;

 

6.

in addition, this verdict opens up also evident risks of individual

“judicial restitutions” in the way of exercising such claims that may be

inferred (as is easily imaginable) from a similar verdict in Judgment

file No. Pl. ÚS 20/05, or in Opinion of the Plenum file No. Pl. ÚS-st.

27/09, dated 28 April 2009 (136/2009 Coll.), be it in the form of a

restitution-based release of property or compensation claims or claims

consisting of compensation for loss, whereby the conclusions and

objectives of the Opinion of the Constitutional Court file No. Pl.

ÚS-st. 22/05 would be abandoned once and for ever; besides, this is

adumbrated by clause 54 of the Judgment and was also previously

expressed in case law (see for example Judgment file No. I. ÚS 663/06);

 

7. and if only for these reasons, the given petition should have been dismissed;

 

8.

the only point relevant from the viewpoint of constitutional law – in

relation to the provisions of § 29 of the Act on Land – was the thereby

established and long-term encroachment of the ownership right of third

parties, that is owners of the thereby “blocked” property, and,

therefore – for these reasons and these reasons only – to the contrary,

the petition by the petitioner should have been granted, that is such

provisions derogated. The effects of Opinion Pl. ÚS-st. 22/05 on the

inadmissibility of individual restitution indictments, inferred not from

§ 29 of the Act on Land, but also from the restitution nature of Act

No. 298/1990 Coll., would have been preserved;

 

9.

as for a detailed substantiation for this conclusion, I refer to the

dissenting opinion of Justice Jiří Mucha, with which I identify myself

also otherwise;

 

10.

property settlement of the state with the ecclesiastical entities would

thereby naturally not be affected; to the contrary, the Constitutional

Court – see, for instance, clause 37 or clauses 40 and 42 – by the

Judgment being opposed to, inadequately enters the sphere of activity

reserved for the legislature, and forces upon them a specific form of

future restitution, that is restitution in kind (cf. a contrario the

government bill discussed in the Chamber of Deputies, Print of the

Chamber of Deputies No. 482, and their resolution dated 29 April 2008

No. 774).
________________________________________

 

2. Dissenting opinion of Justice Jiří Mucha
Pursuant

to § 14 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations, I hereby submit a dissenting opinion to

both points of the verdict and reasoning of Judgment file No. Pl. ÚS

9/07. As the initial Justice Rapporteur in the given case (see clause 12

of the Judgment), I am inclined towards this due to the following

reasons:

1. In the given case the

petitioner required that the Constitutional Court declare the

unconstitutionality of the long-term inactivity on the part of the

Parliament of the Czech Republic in relation to § 29 of Act No. 229/1991

Coll. on Arrangement of Ownership to Land and Other Agricultural

Property (hereinafter referred to only as the “Act on Land”), which,

according to the petitioner, violates Article 1 paragraph 1 of the

Constitution of the Czech Republic, Article 4 paragraph 1, Article 11

paragraphs 1 and 4 of the Charter of Fundamental Rights and Basic

Freedoms and Article 1 paragraph 1 of the Protocol to the Convention for

the Protection of Human Rights and Fundamental Freedoms. At the same

time, they requested that such provisions be annulled. The

Constitutional Court did identify itself with the opinion of the

petitioner concerning the unconstitutionality of the long-term

inactivity of Parliament, however, did not annul § 29 of the Act on Land

as unconstitutional. In this, the Constitutional Court proceeded

towards evaluating the petition not from the viewpoint of objections of

the petitioner, but from the viewpoint of other concerned entities,

these being churches and religious communities, in spite of the fact

that the essence of the petition was alleged encroachment into the

position of municipalities as local self-governing units and public law

corporations. I do not align myself with the process employed by the

majority of the Constitutional Court. Their argumentation, to the

contrary, is based on the petition being as if aimed against the

position of churches and religious communities. From their position, and

beyond the scope of the petition, said majority then lengthily

describes its notions of the future legal arrangement, even though this

was not the subject of the petition. In clause 29, the Constitutional

Court rejects the alleged attempt to become involved in a political

struggle, but the vocabulary the majority uses at the end of the

reasoning is not proper for the judicial body for protection of

constitutionality pursuant to Article 83 of the Constitution of the

Czech Republic. I appreciate extensive argumentation and fervour for a

certain solution, although I believe that this style does not suit

judicial decision making.

 

2.

The reasoning states, in a simplified form, the circumstances under

which § 29 of the Act on Land was adopted. It quotes the standpoints of

some speakers in the Federal Assembly, but it does not show the specific

contents of individual bills from the time between 1990 and 1992 and in

particular the fact that they were not adopted by the Federal Assembly.

This has utterly crucial significance also from the viewpoint of

conclusions of the Constitutional Court, as are explained in Opinion

file No. Pl. ÚS-st. 22/05. Pledges for adoption of a certain

arrangement, which has, however, never happened as the bills containing

the same have never obtained any relevant support, do not in themselves

establish unconstitutionality in the form of non-fulfilment of

legitimate expectation. For the argumentation of the Constitutional

Court, a decision of the legislature whereby the will of the state is

expressed should always be decisive, not the standpoints of speakers

concerning the bills dismissed by the legislative assembly. Thereby, its

argumentation is needlessly weakened.

 

3.

However the Constitutional Court, in other connections and in other

cases (the issue of the nature of Act No. 298/1990 Coll. on Arrangement

of Some Property Relationships of Monastic Orders and Congregations and

the Archbishopric of Olomouc), dealt with the issue of restitution of

ecclesiastical property, the Court was not permitted or did not need to

ever express its opinion meritoriously on the very issue of the

constitutionality of § 29 of the Act on Land. The Constitutional Court

merely emphasised, in a number of Judgments and resolutions, the

existence of this anticipated solution, stating that in such a case this

is a special arrangement which eliminates other possibilities of

decision making concerning the property to which these provisions apply.

Therefore, the possibility of a surprising twist in this case, as the

majority Opinion fears in clause 21 of the Reasoning, is not a plausible

scenario.

 

4.

As follows from the history of discussing the individual bills, the

Government of the Czech and Slovak Federative Republic, as long ago as

autumn 1991, that is practically immediately after adoption of the Act

on Land, prepared several versions of the act which would fulfil the

provisions of § 29. Proposals for solving these issues in the form of an

act were also submitted, in autumn 1992, in the Czech National Council

(principles of an act on property restitution for churches, religious

communities and religious charitable organisations, principles of act on

return of property to the Seventh-day Adventist Church). The Federal

Government also dealt with a Slovak bill, a bill of another enumerative

act and finally with a Members’ bill which was, after disapproval from

the Governments of both Republics with the bills developed by the

Federal Government, submitted in the form of a Members’ bill for the

issue of an act on property restitution and the rehabilitation of

churches and religious communities (Federal Assembly. 6th election term.

Prints No. 955 and No. 1062). Submission of the same was, amongst other

reasons, justified by the need to annul the “blocking provisions” both

in the Act on Land (§ 29) and Act No. 92/1991 Coll. on Conditions for

Transfer of Property of the State to Third Parties (§ 3 paragraph 1),

when Act No. 403/1990 Coll. on Mitigation of Consequences of Some Cases

of Property Injustice (“Small-scale Privatisation Act”) did not contain

such provisions. Even with repeated attempts, the bill failed to prove

successful. Equally unsuccessful was an attempt of the Government in the

mid 1990s to solve this issue, at least partially, through “executive

release”, as well as an attempt to amend § 29 of the Act on Land in 1997

in this sense, and authorise the Land Fund of the Czech Republic to

release the property (the Chamber of Deputies. 2nd election term. Print

of the Chamber of Deputies No. 308). In addition, other attempts in the

form of various promises in statements of policies from some governments

failed. The Chamber of Deputies also dismissed a bill of a Treaty

between the Czech Republic and the Holy See on the arrangement of mutual

relationships (the Chamber of Deputies. 4th election term. Print No.

17), where the Czech Republic, pursuant to Article 17 paragraph 1,

should have committed itself to resolving issues regarding property of

the Catholic Church as rapidly as possible. Failure was also seen in the

case of a government bill on mitigation of some cases of property

injustice caused to churches and religious communities during the time

of lack of freedom, on settlement of property relationships between the

state and churches and religious communities and on modification to some

acts (Act on Property Composition with Churches and Religious

Communities) – Chamber of Deputies. 5th election term. Print No. 482).

This condition has continued ever since, and thus said encroachment upon

the above-specified constitutional provisions continues further and

gains in strength, without any solution being offered to finally remove

the residuum in the form of Act No. 218/1949 Coll. on Economic Support

for Churches and Religious Communities by the State, as amended by later

regulations. Furthermore, it is this very regulation which

paradoxically is the basis which will, as a result of the decision of

the majority, consequently function as support for the mutual

relationship between the state and churches and religious communities.

 

5.

The argumentation of the majority opinion has been built on the fact

that § 29 of the Act on Land implies legitimate expectation that there

will be some form of restitution. However, these provisions are only of a

blocking nature (I point out that I have no doubt on the necessity

itself of solving the issue of former property of churches and religious

communities) and are the result of a compromise created through the Act

on Land being dealt with again by the Federal Assembly in the spring of

1991. Therefore it is difficult to speak about the same as provisions

that could constitute “legitimate expectation”, when the issue of

“church restitution” was finally removed from the bill of the Act on

Land. I base this on the fact that the bill of the Act on Land was, when

dealing with the same in the Federal Assembly, as part of comprehensive

amendments, proposed with respect to enumeration of the entitled

parties, amended with provisions according to which “under the

conditions specified above, entitled parties shall include also

churches, religious communities, monastic orders and congregations which

have their registered administrative centre in the territory of the

Czech and Slovak Federative Republic”. This bill however failed to be

passed and the Federal Assembly consented to the concept of blockage and

to solving the matter through a special arrangement.

 

6.

The majority opinion found the legislative quality of § 29 of the Act

on Land faultless. The necessity to reach a compromise in 1991, however,

resulted in the fact that the provisions are formulated in such a way

that the existence of legitimate expectation cannot be inferred from the

same. When evaluating the nature of these provisions, this circumstance

is of importance for two reasons. Generally, in my opinion, legitimate

expectation are not absolute and irrefutable, and as an instrument of a

law-based state must be legally supported. The legal regulation which

establishes the same cannot be in itself unconstitutional (as in this

case); such expectation cannot be generated to the detriment or at the

cost of constitutionally guaranteed rights of a third party.

Furthermore, legitimate expectation must possess a certain form from the

viewpoint of whosoever may claim the same, at what time (for example,

the Preamble of Act No. 298/1990 Coll. speaks of cases of injustice “in

1950s”), to which scope and in relation to which property being the

subject matter. Here I may generalise the conclusions of the third panel

of the court of the first instance which, with reference to previous

case law, associated the right to demand protection of “legitimate

expectation” with three preconditions – the person who claims the same

must be given, by the public administration of the Community, specific,

unconditional and consistent guarantees resulting from justified and

reliable resources; furthermore, these guarantees must be of such a

nature that legitimate expectation arise in the person to whom the same

are determined, and eventually such guarantees must be provided in

accordance with applicable norms (“Premierement, des assurances

précises, inconditionnelles et concordantes, émanant de sources

autorisées et fiables, doivent avoir été fournies a l'intéressé par

l'administration communautaire. Deuxiemement, ces assurances doivent

etre de nature a faire naître une attente légitime dans l'esprit de

celui auquel elles s'adressent. Troisiemement, les assurances données

doivent etre conformes aux normes applicables” – Judgment G v.

Commission, l'affaire T-199/01, dated 7 November 2002, clause 38,

available at http://curia.europa.eu ).

Section § 29 of the Act on Land implies merely a blockage of property,

not other necessary circumstances, which is proven by the number,

contents and specific form of attempts since 1992 as to how to solve

this issue. In connection with churches and religious communities it is,

therefore, apt to note that also here, “the devil is in the detail”,

which is ultimately confirmed by the various unsuccessful attempts to

solve this issue. Detachment of the issue of a solution for the

concerned entities, the scope and manner of remedying the cases of

injustice from the declaration of legitimate expectation is, therefore,

not appropriate; the same is true for the majority opinion alone trying

to formulate such details, in spite of the fact that the same falls

under the exclusive powers of the legislature authorised for such duties

(for example clauses 37, 40, 42, 49, 55, 61, 66).

 

7.

Even argumentation through the otherwise complex issue of § 4 paragraph

2 of Act of the Czech National Council No. 172/1991 Coll. on Devolution

of Some Objects from Property of the Czech Republic to the Ownership of

Municipalities does not gain any standing. In this direction it is not

essential that the footnotes (explanatory notes) do not have, according

to the settled case law of the Constitutional Court, any normative value

or that, at the time of adoption of § 29 of the Act on Land, Act of the

Czech National Council No. 172/1991 Coll. had already been effective;

what is essential is that the thereby anticipated act pursuant to § 4

paragraph 2 in the given field has not been promulgated since.

Therefore, the issue in question is not that of release of the property,

as such release is not actually the concern of the petition. The

petitioner objects that, with respect to delays in its adoption,

development of the afflicted municipalities is hindered, and thus

encroachment upon their constitutionally guaranteed rights occurs.

Therefore, the considerations in clauses 50 to 53 aim beyond the

argumentation of the petition. On the contrary, by the majority opinion

in gross rejecting the possibility of unconstitutional encroachment upon

the position of municipalities (clauses 17 and 53), said opinion evades

the nature of the petition.

 

8.

The test of proportionality is thus paradoxically changed into

reasoning on why unconstitutional provisions cannot be annulled. The

Constitutional Court here extensively gives reasons for what would be

caused by their annulment (I agree with these reasons), but this does

not change unconstitutional provisions into constitutional ones

(illustratively clause 37). If the Constitutional Court applies the test

of proportionality in order to protect an unconstitutional regulation

(annulment is not necessary, is not appropriate and loss would be

greater than if the unconstitutionality were preserved), then it is

contestable under a circumstance when the Constitutional Court has

available, in order to prevent such loss, a means in the form of

postponement of enforceability, as was proposed by the initial

Rapporteur’s report.

 

9.

The task of the test of proportionality also is to find a balance

between clashing fundamental rights while maximally preserving all of

them. This, however, is in this case to the detriment of rights of

municipalities, as these rights are unconstitutionally violated through

inactivity on the part of the legislature. The reasoning does require

(clause 43) the weighing up of justified interests of all entities

concerned, but only via future enactment (…so that new cases of

injustice do not occur…). The task of the Constitutional Court, however,

was to evaluate whether this principle, in relation to municipalities

or other present owners of the given property, is not already violated

by § 29 of the Act on Land presently, this during an intolerably long

period of time. I leave aside the statement (clauses 41 and 47)

concerning irrelevancy of testing whether the state as the owner (that

is a legal entity in property relationships and as a vehicle of imperium

in relationships of power, when also the state – or state enterprises –

in this direction incur additional costs since there is usually not

much interest in renting such property) may be restricted, when the

whole problem of why the petition has been filed is, in the end,

returned to in just a few sentences in clause 48. Here the

Constitutional Court left the argumentation of the petitioner without

response, even when the municipalities do not claim such property, but

see the encroachment as being formed by the fact that its existence in

their territories encroaches upon the possibilities of their development

and restricts the possibilities of zone planning, as well as possibly

other attributes of local self-government in the management of property.

 

10.

In the second clause of the verdict of the Judgment, the Constitutional

Court states that they oblige the petitioner by stating that the

long-term inactivity by Parliament, consisting in non-adoption of a

special legal regulation that would settle the historic property of

churches and religious communities, is unconstitutional and violates

Article 1 of the Constitution of the Czech Republic, Article 11

paragraphs 1 and 4, Article 15 paragraph 1, and Article 16 paragraphs 1

and 2 of the Charter of Fundamental Rights and Basic Freedoms, and

Article 1 of the Protocol to the Convention for the Protection of Human

Rights and Fundamental Freedoms. However, this statement does not solve

the unconstitutional situation which has occurred to municipalities,

since, in my opinion, the persistent legal arrangement must be evaluated

in such a way that it attained such a degree of conflict with

constitutionally guaranteed rights of other legal entities and that the

blocking of disposal of property specified under § 29 of the Act on Land

reached such a level and such a degree that such a condition must be

removed by annulling such provisions, provided that the legislature

shall be seeking, within a defined (and limited) period of time, for

another solution that would first guarantee respect for the

constitutionally established rights of, in particular, municipalities,

or other legal entities, and on the other hand, would attempt to find a

solution to the relationship between the state and churches and

religious communities. In fact, the conditions pursuant to the Act on

Economic Support for Churches and Religious Communities by the State has

been conserved.

 

11.

The practice of constitutional courts shows that the relevant moment in

time is, for example, determination of enforceability at the end of an

election term (for more details see Krause-Palfner, Th.: Das

Verfassungswidrigwerden von Gesetzen. Frankfurt am Main 1973, especially

p. 70 et seq.). In the given case however, it was, with respect to the

number of elapsed election terms and the number of governments that

included a solution to this issue in their statements of policies, and

development of opinions in society, far exceeded. In Judgment file No.

Pl. ÚS 5/03 (No. 211/2003 Coll.), the Constitutional Court reached the

conclusion that restricting municipalities and regions as owners in

relation to immovable objects in terms of using the same, this during a

period of 10 years from the date of acquiring the same, merely to the

purpose for which they were used as to the date of devolution, forms an

unconstitutional encroachment upon the right to self-government. The

statement by the majority (clause 61) that it is a situation

incomparable to the matter under examination now, in my opinion,

disregards the fact that that the petitioner does not claim that

municipalities should continue to own the former property of churches

and religious communities, but the fact that blockage affecting the same

in the form of § 29 of the Act on Land obstructs their development. In

the case now heard, this restriction (not only of municipalities) has

lasted for almost 20 years. At the same time, it represents an

encroachment in particular upon the position of municipalities in whose

territories such immovable property is located, as it obstructs their

development and restricts, beyond a bearable degree, the implementation

of the right to self-government, especially after accession of the Czech

Republic to the European Union. Municipalities cannot implement

projects for which they could receive grants from the state budget or

structural funds of the European Union, since such receipt is

preconditioned by non-restricted ownership of the immovable property on

which the investments are to be expended. The nature of the part of the

immovable property leads to the conclusion that this condition became in

conflict with the objectives stated in Article 7 of the Constitution of

the Czech Republic. Additionally, there is a conflict with Article 101

paragraph 3 of the Constitution of the Czech Republic, when restriction

in ownership rights of municipalities as local self-governing entities

prevents uninterrupted exercise of the right of local self-government

guaranteed in Article 8 of the Constitution of the Czech Republic. Such

continuing legal uncertainty is also an encroachment upon attributes of

the term “democratic law-based state” according to Article 1 paragraph 1

of the Constitution of the Czech Republic, as well as the condition

when the state, regardless of the requirement of Article 2 paragraph 1

of the Charter of Fundamental Rights and Basic Freedoms, financially

supports churches and religious communities, since the present situation

and inactivity on the part of the legislature force the state to do so.

In this case, however, unconstitutionality does not consist only in

such long-term inactivity, but also in § 29 itself. In my opinion,

therefore, it is a case of unconstitutionality tolerable initially (cf.

Judgment file No. Pl. ÚS 8/02, No. 528/2002 Coll.), rather than of

gradual metamorphosis from a constitutionally conforming provision into

an unconstitutional one. The Constitutional Court failed to address

these arguments, as clause II of the verdict in fact addresses a point

other than that required by the petitioner.

 

12.

The European Court of Human Rights as well as the Constitutional Court

and the entire “restitution legislation” are based on the opinion that

there is no constitutionally based claim to restitution and that the

same does not follow from the international commitments of the Czech

Republic either. The sphere of remedying cases of property injustice is

an area which is delineated by the possibilities of each country from

the viewpoint of which cases of injustice and to which scope they

remedy. It is also an area which is given over to free consideration of

the legislature in the conditions of a democratic state. In the case

that the legislature decides to undertake restitution and other forms of

remedy for cases of injustice, then it falls within the field of

requirements of a law-based state and, from such a point of view, their

acts are subject to evaluation from the viewpoint of constitutionality.

The provisions under examination, however, are not provisions of

restitution (this could be the arrangement promised by such), but

provisions of a blocking nature. The only fact which follows on from

them is that the transfer of property, the original owners of which were

churches, religious orders and congregations, to persons different from

the same is possible only after adoption of acts on such property. Only

the circumstances of the adoption of the Act on Land in 1991, dealing

with the individual options of the same, provide the grounds for

arriving at more detailed conclusions from the viewpoint of what

actually should be the relations of the former, present and future

owners, but there were so many options of specific solutions raised in

the course of discussing the Act on Land (see below) and such options

were so much mutually conflicting, that eventually the Federal Assembly

managed to agree only on a compromising formulation. Therefore, this

situation is different from that existing in the case of restitution

acts, where there are definitions of an entitled party, obliged party,

cases to which the claim applies, the scope of the restitution, a

deadline within which the claim may be made and to which items it may be

made and the manner to do so.

 

13.

When the Constitutional Court is obliged to protect the fundamental

rights and freedoms, or constitutionality in general (Article 85

paragraph 2 of the Constitution of the Czech Republic), the Court should

do so consistently and conduct the legislature not to violate the same.

In this given case, the unconstitutional § 29 of the Act on Land should

have been annulled and the legislature should have been given a

sufficient term (for example, this election term) for them to prepare a

solution for the historic property of churches and religious communities

in such a way as would not interfere with the position of other holders

of fundamental rights and freedoms over the sustainable measure. The

majority opinion does not force the legislature directly to solve this

situation and retains the unconstitutional condition.
________________________________________

 

3. Dissenting opinion of Justice Jan Musil
I

do not agree with the verdict and the reasoning of the Judgment of the

Plenum of the Constitutional Court dated 1 July 2010, file No. Pl. ÚS

9/07, whereby (I) the petition for annulment of § 29 of Act No. 229/1991

Coll. on Arrangement of Ownership to Land and Other Agricultural

Property (hereinafter referred to only as the “Act on Land”) was

dismissed; and (II) the unconstitutionality of long-term inactivity on

the part of the Parliament of the Czech Republic, consisting in

non-adoption of a special legal regulation that would settle the

historic property of churches and religious communities, was declared.

Pursuant

to § 14 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations, I adopt a dissenting opinion to both

verdicts and the reasoning of the Judgment, substantiated as follows:

 

I. As for the verdict on dismissal of the petition for annulment of § 29 of the Act on Land
1.

I believe that the “blocking provisions” contained in § 29 of the Act

on Land, forbidding the transfer of property to which the original

owners were churches, religious communities, orders and congregations

into the ownership of other persons before the adoption of acts

concerning such property, should have been annulled and the legislature

should have been given (by postponing the derogative effect) a

sufficiently long enough time frame for an adequate response to such

annulment.

 

2.

In my opinion, the reason for annulment of the contested provisions is

in particular their conflict with Article 101 paragraph 3 of the

Constitution of the Czech Republic. The blocking provisions restrict the

ownership rights of municipalities as local self-governing units and

obstructs their uninterrupted exercise of the right to local

self-government guaranteed in Article 8 of the Constitution. However, it

may be admitted that, at the time of adoption of the contested

provisions, serious reasons justifying such encroachment upon the

freedom of disposal by the owners might have existed, although after

almost twenty years such restriction cannot be tolerated any longer, as

it prevents the development of municipalities and restricts beyond

bearable degree the execution of the right to self-government.

II.

As for the verdict on the unconstitutionality of the long-term

inactivity on the part of the Parliament of the Czech Republic,

consisting in non-adoption of a special legal regulation that would

settle the historic property of churches and religious communities

 

3. In my opinion, the conditions for declaring the inactivity of Parliament unconstitutional have not been fulfilled.

 

4.

The Judgment is based on the premise that the formulation “before

adoption of acts on such property”, used at the end of the contested

provisions of § 29 of the Act on Land, allegedly constitutes the pledge

which forms “legitimate expectation” on the part of churches, religious

communities, orders and congregations, to which constitutional-law

protection must be provided. I do not agree with this opinion.

 

5.

The vagueness of the statutory expression “before adoption of acts on

such property” does not make it possible to specify what are to be the

contents of the intended acts – whether it should be restitution in kind

or pecuniary restitution, or possibly a combination of these means,

what its contents are to be, when it should take place, which entities

should be the obliged parties and which the entitled entities, no rules

are determined for the process of applying the claims and so on. This

indefinite statutory provision, in my opinion, cannot establish any

legitimate expectation as per an individual legal claim or a new

individual property right that would receive protection of Article 1 of

the Protocol to the Convention for the Protection of Human Rights and

Fundamental Freedoms. The condition of exact specification of legitimate

expectation was also declared by the European Court of Human Rights,

for example, in clause 25 of the Judgment in the case of Bazil v. the

Czech Republic (Application No. 6019/02).

 

6.

I deem it necessary to remark again that restitution legislation is

generally based on the concept that there is no constitutionally based

claim to restitution and that no such claim follows from the

international obligations of the Czech Republic either. This was stated

in several decisions by the Constitutional Court of the Czech Republic

alone, for example, in Opinion Pl. ÚS-st. 21/05, dated 1 November 2005,

where it says: “The legislature … when constituting (restitution

regulations – insertion made by J. M.) proceeded from the factual

condition in 1990 or a little later, being aware of reasons, not only at

the time still engraved in memory, which have lead the legislature to

such encroachment upon ownership rights, but also the necessity of

limiting change in the ownership relations in such a way that the same

remain appropriate to the purpose that was pursued by the same and that

is best defined in the very provisions of § 1 of Act No. 229/1991 Coll.

and the Preamble of Act No. 87/1991 Coll.; that is to purposeful and

accurately delineated change in the division of property which prevailed

at that time. The will expressed in such a clear manner has contents

even more so important, as they were not obliged to take such a step.

Even when the cases of property injustice which they meant to mitigate

(and not adjust) occurred in principle in contravention of principles of

a law-based state in a past period, neither the Constitution nor

another legal regulation requires that such property be returned or that

compensation for such be provided, or that any changes be made for such

purpose in the legal order. It was the free will of the state whether

it makes it possible for the former owners of the property in question

to seek its return, since its ownership rights and the ownership rights

of persons which acquired such property in the meantime do not depend on

unconstitutional norms or procedures which originally comprised a basis

for the same. The very establishment of restitution claims was then a

benevolent act by the state – accurately defined from the viewpoint of

time and matter.”.

 

7.

The same standpoint was taken by the European Court of Human Rights;

according to their opinion, the Convention for the Protection of Human

Rights and Fundamental Freedoms in no way restricts member countries in

their freedom to determine the sphere of action for legislation in the

area of restitution of property and to elect conditions under which they

accept the return of property to persons who were earlier deprived of

such property [see for example the decision in the case of Jantner v.

Slovakia (Application no. 39050/97), Kopecký v. Slovakia (Application

no. 44912/98), Blücher v. the Czech Republic (Application no.

58580/00)].

 

8.

It is self-evident that the legislature may, at the level of ordinary

law, declare its intention to legislatively regulate any legal issues,

thus also settle relations relating to former property of churches and

religious communities; this was done by the Czech legislature in the

provisions of § 29 of the Act on Land. Compliance with this intention,

however, necessarily requires comprehensive assessment of extremely

complex social, political and economic problems, the solution for which

rests undoubtedly with the legislature, not with the Constitutional

Court. As is known, the legislature has repeatedly attempted to solve

this problem in past years, however, they have not managed (also with

respect to great economic burden and present economic troubles) to find

the necessary social consensus. I believe that under such circumstances

it is not possible to reproach the legislature for said “long-term

inactivity” and infer from the same any violation of constitutionality.
________________________________________

 

4. Dissenting opinion of Justice Pavel Rychetský
 
The

dissenting opinion which I apply according to § 14 of Act No. 182/1993

Coll. on the Constitutional Court, as amended by later regulations, is

aimed against both verdicts of Judgment file No. Pl. ÚS 9/07. For this, I

have the following reasons:

1.

The majority of the Plenum tended to the conclusion that, even after a

period of over nineteen years, the provisions of § 29 of Act No.

229/1991 Coll. on Arrangement of Ownership to Land and Other

Agricultural Property have not become unconstitutional with respect to

the long-term passivity on the part of the legislature. The given

provisions were indubitably adopted as a temporary instrument whereby

the legislature decided for only a transitionary period to restrict the

ownership right of municipalities (possibly other entities with

registered ownership right over property, the original owners of which

were churches, religious orders and congregations). Restriction of the

ownership right specified by the act in the form of a ban on disposal of

the property is indubitably in contravention of the provisions of

Article 1 paragraph 1 of the Constitution, Article 4 paragraph 1,

Article 11 paragraphs 1 and 4 of the Charter and Article 1 paragraph 1

of Protocol No. 1 to the European Convention. Such statutory provisions

may be considered constitutionally conforming only for the purpose of

temporary protection of another constitutionally protected right or

recognised public interest, and even so such time restriction of an

otherwise unconstitutional condition must be limited in time. If such

time restriction is justified by the need to adopt a new act of a

legislative nature, requiring a constitutionally conforming procedure of

preparation, discussion and adoption of a new norm – the end of such a

term may be seen at the end of the election term of the legislative

assembly which declared such a restriction and also declared the

obligation for adoption of a new norm. With respect to the fact that in

the given case this was an act adopted by the Federal Assembly of the

former Czech and Slovak Federative Republic, about one year before

cessation of the same, a delay of another term of the legislative

assembly elected for the first time after constituting the independent

Czech Republic would be potentially considered as constitutionally

conforming. In the given case, however, the inactivity on the part of

the legislative assembly and restriction of the ownership right have

lasted for over 19 years, when in relation to municipalities, which are

so prevented, in the long term, from uninterrupted exercise of the right

to local self-government, also violation of the right guaranteed in

Article 8 of the Constitution is concerned. For these reasons, during

the hearing by the Plenum, I supported the proposal of the initial

Rapporteur (JUDr. J. Mucha) for annulment of the contested provisions

with an adequate postponement of effectiveness of derogation in such a

way so that both the executive power as well as the legislative power

have leeway for a political and legislative solution to the

unconstitutional condition.

 

2.

In the verdict sub II, the majority of the Plenum of the Constitutional

Court consistently declare that the “long-term inactivity on the part

of the Parliament of the Czech Republic consisting in non-adoption of a

special legal regulation for settlement of historic property of churches

and religious communities is unconstitutional…”. Even though I with the

majority of the argumentation of the Judgment, criticising the fact

that neither the executive power nor the legislative power were able,

for a period of almost 20 years, to adopt a legislative solution that

would remove the condition established by the “blocking provisions of §

29, I cannot identify myself with the sole outlined conclusion of the

majority of the Plenum – i.e. that such provisions established

legitimate expectation concerning restitution of the historic

ecclesiastical property. The Constitutional Court has repeatedly stated

that the process of mitigation of cases of property injustice caused by

the Communist regime, through the “restitution acts”, is sovereignly a

political and moral act, but that a claim to restitution follows from

neither the Czech constitutional order nor international treaties which

are binding upon the Czech Republic. This was declared by the

Constitutional Court (as well as the European Court of Human Rights)

throughout its whole judgment case law and summarised in Opinion of the

Plenum of the Constitutional Court file No. Pl. ÚS-st. 21/05.

Determination of the scope and manner of mitigating cases of property

injustice as well as other cases of injustice caused by a past regime is

under the sole powers of the legislature, which cannot be taken over by

the Constitutional Court or ordinary courts. Besides, the legislature

proceeded to the general arrangement of restitutions only with respect

to cases of property injustice caused to natural persons, while as

regards legal entities the legislature has chosen the method of

“enumerative restitution acts”, which, in addition, were related only to

a limited range of entitled parties (churches, orders and

congregations, Junák, Sokol and the like).