2005/12/13 - Pl. ÚS 6/05: Evaluation of a Deadline

13 December 2005

HEADNOTES

1)

A deadline, prima facie, without anything further, does not and can not

demonstrate elements of unconstitutionality; those can appear only from

the “specific circumstances” of the evaluated matter, in other words,

evaluation of the constitutionality of a deadline is an evaluation in

context.
According to the existing case law of the Constitutional

Court, these “specific circumstances,” or the viewpoints for evaluation

in context of the constitutionality of a deadline, are:
1.

disproportionality of the deadline in relation to the time-limited

possibility for exercising a constitutionally guaranteed right (claim),

or to the defined time period for limitation of a subjective right. From

that point of view, the Constitutional Court, in judgment file no. Pl.

US 5/03 (Collection of Decisions, volume 30, judgment no. 109;

promulgated as no. 211/2003 Coll.), annulled § 3 and § 6 of Act no.

290/2002 Coll., which were a disproportionate limitation of property

rights, and violated Art. 11 par. 1 in connection with Art. 4 par. 4 of

the Charter of Fundamental Rights and Freedoms (in the context, the

Court considered constitutional a legal framework which would establish

such a limitation only in a completely essential timeframe, which can be

understood as only a minimal, and clearly, prima facie “transitional”

period, but not a period of ten years);
2. arbitrariness by the

legislature when setting the deadline (establishing or canceling it).

The Court applied this aspect for evaluating the constitutionality of a

deadline in the matter file no. Pl. US 2/02 (Collection of Decisions,

volume 32, judgment no. 35; promulgated as no. 278/2004 Coll.), in which

it found unconstitutional the annulment of § 879c to § 879e of the

Civil Code (the “CCC”) implemented by Act no. 229/2001 Coll., whereby

the legislature interfered in the legitimate expectation of a precisely

defined circle of subjects a mere one day before the expiration of the

time period in which property rights would have been acquired, as a

result of which, subjects who acted in confidence in the conditions

previously set by the state were, a mere one day before the expiration

of the time period, confronted with the arbitrary steps taken by the

state, which the court found inconsistent with Art. 1 of the Protocol to

the Convention (with reference to the case law of the European Court of

Human Rights in the cases Broniowski v. Poland of 2002, Gratzinger and

Gratzingerová v. the Czech Republic of 2002, and Zvolský and Zvolská v.

the Czech Republic of 2001);
3. the constitutionally unacceptable

inequality of two groups of subjects which results from the annulment of

a certain statutory condition for exercising a right due to

unconstitutionality, where this annulment does not, without anything

further, create an opportunity to exercise rights for the affected group

because of the expiration of deadlines as a result of derogation. With

this “specific circumstance” as a starting point, in judgments file no.

Pl. US 3/94 (Collection of Decisions, volume 1, judgment no. 38,

promulgated as no. 164/1994 Coll.) and file no. Pl. US 24/97 (Collection

of Decisions, volume 11, judgment no. 62; promulgated as no. 153/1998

Coll.) the Constitutional Court, by annulling the provisions setting the

beginning of the time period to exercise a restitution claim, created

an opportunity to exercise them for those entitled persons who, as a

result of the condition of permanent residence, could not successfully

exercise their claims by the original deadlines. In this regard, the

Court stated that “therefore these persons were de facto excluded from

the circle of entitled person who could seek financial compensation, and

were thus – compared to other entitled persons – unconstitutionally

disadvantaged and found themselves in an unequal legal position compared

to the others.”

2)

The deadlines established in § 13 par. 6 and 7 of Act no. 229/1991

Coll., as amended by of Act no. 253/2003 Coll., and Art. VI of Act no.

253/2003 Coll., impose a time limitation on the exercise of the right of

entitled persons under § 11 par. 2 of the Act on Land for the issuance

of substitute land, i.e. a right which does not have the benefit of an

effective procedural means, wherefore, in terms of the criteria for

evaluating in context the constitutionality of the deadlines, this is

legislative arbitrariness, inconsistent with the constitutional

principle of protecting the citizens’ justified confidence in the law,

which is a component of a law-based state (Art. 1 par. 1 of the

Constitution), and in the present context also inconsistent with the

principle of legitimate expectations when exercising property rights

arising from Art. 1 of the Protocol to the Convention.

Thus,

a contrario at the same time the possibility to exercise the right of

an entitled person (restituent) for the issuance of substitute land

under § 11 par. 2 of the Act on Land, limited by a proportional

deadline, is constitutional, of course, on the condition that there is a

valid effective procedural means to protect that right. Such a

procedural means may be established by express inclusion in a statute

and the corresponding practice in application, or it can be developed

and settled by case law. The prerequisite for the constitutionality of

it being established judicially is that the subject matter of a

complaint be specifically defined, that the procedural means for

protection of the right be settled in the decision making practice of

the courts, and that their decision making be predictable.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of Stanislav Balík,

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

Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová a Michaela Židlická

decided on a petition from a group of senators of the Senate of the

Parliament of the Czech Republic and a group of deputies of the Chamber

of Deputies of the Parliament of the Czech Republic seeking the

annulment of § 13 par. 6 and 7 of Act no. 229/1991 Coll., Regulating

Ownership of Land and Other Agricultural Property, as amended by Act no.

253/2003 Coll., and Art. VI part three of Act no. 253/2003 Coll., which

amends Act no. 95/1999 Coll., on the Conditions for Transfer of

Agricultural and Forest Lands from the State to Other Persons and

amending Act no. 569/1991 Coll., on the Land Fund of the Czech Republic,

as amended by later regulations, and Act no. 357/1992 Coll., on

Inheritance Tax, Gift Tax, and Real Estate Transfer Tax, as amended by

later regulations, as amended by Act no. 253/2001 Coll., and certain

other acts, as follows:

The

provisions of § 13 par. 6 and 7 of Act no. 229/1991 Coll., Regulating

Ownership of Land and Other Agricultural Property, as amended by Act no.

253/2003 Coll., and Art. VI of Act no. 253/2003 Coll., as far as they

concern entitled persons who have a right to another piece of land under

§ 11 par. 2 of Act no. 229/1991 Coll., Regulating Ownership of Land and

Other Agricultural Property, as amended by § 11 par. 2 of Act no.

229/1991 Coll. [Act] no. 183/1993 Coll., and their heirs, are annulled

as of the day this judgment is announced.



REASONING


I.
Definition of the Matter and Recapitulation of the Petition
 

On

7 February 2005 the Constitutional Court received a petition from a

group of 24 senators of the Senate of the Parliament of the Czech

Republic, represented by senator RNDr. J. S., and a group of 57 deputies

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

represented by deputy Ing. V. N., both represented by JUDr. P. Š.,

attorney, seeking the annulment of § 13 par. 6 and 7 of Act no. 229/1991

Coll., Regulating Ownership of Land and Other Agricultural Property, as

amended by of Act no. 253/2003 Coll., and Art. VI part three of Act no.

253/2003 Coll., which amends Act no. 95/1999 Coll., on the Conditions

for Transfer of Agricultural and Forest Lands from the State to Other

Persons and amending of Act no. 569/1991 Coll., on the Land Fund of the

Czech Republic, as amended by later regulations, and Act no. 357/1992

Coll., on Inheritance Tax, Gift Tax, and Real Estate Transfer Tax, as

amended by later regulations, as amended by of Act no. 253/2001 Coll.,

and certain other acts.
 

After

summarizing the passage of the contested Act by the Parliament of the

Czech Republic, the petitioners point to the background report to the

draft Act, according to which it was conceived as a response to

experience with the sale of state land under Act no. 95/1999 Coll. its

main aim was to permit completing the process of settling restitution

claims under Act no. 229/1991 Coll. (also the “Act on Land”) in the

foreseeable future, and for that purpose the regulation was supposed to

harmonize the disposal authorizations under acts no. 229/1991 Coll., no.

569/1991 Coll. and no. 95/1999 Coll. The attempt to speed up and make

more efficient the sale of state agricultural land and speedily settle

restitution claims was cited in favor of passing the law; at the same

time, the need to implement a maximum of land transfers in the seven

year transitional period after entry into the European Union was cited.
 

The

petitioners believe that these aims, which were supposed to be achieved

by amending § 13 par. 6 and 7 of Act no. 229/1991 Coll., appear correct

at first glance, but in fact these provisions, by giving preference to

the interest in the transfer of state land suppress and limit the rights

of restituents, including the rights which they already acquired in the

past. The contested legal framework does not distinguish in any way

between land which the state, as owner and party to a private law

relationship, transfer to other persons, and land which the state is

obligated to hand over to entitled persons – restitutents – on the basis

of restitution regulations. Maximum simplification of the process for

transferring state land would be achieved by removing the problem of

unsettled restitutions. However, in the opinion of the group of senators

and the group of deputies, restitution must be understood not as a

barrier to privatization, but also as one of the forms of privatization.
 

The

purpose of the Act on Land is to hand over a specific piece of land to

restitutents, and only in exceptional cases, if circumstances foreseen

by the Act arise, then if the land can not be handed over, the Land Fund

of the Czech Republic (the “Land Fund” shall transfer to the entitled

person, free of charge, other land owned by the state, in a procedure

under § 8 par. 4 of Act no. 284/1991 Coll., if possible in the same

municipality where the majority of the original lands are located, and

if the entitled person agrees.
 

The

petitioners believe that the amendment of the Act on Land implemented

by Act no. 253/2003 Coll. significantly interfered in the execution

phase of the restitution process, worsened the position of the

restituents – the creditors of the state – in comparison with other

natural persons and legal entities in the position of creditors of the

state, as well as in relation to several tens of thousands of entitled

persons who already achieved satisfaction of their claims in one form or

another in the past, which the petitioners see as violation of one of

the fundamental principles of a law-based state, the principle of legal

certainty and confidence in the law, as it follows from Art. 1 par. 1 of

the Constitution, as well as from the principle of equality under Art. 1

of the Charter of Fundamental Rights and Freedoms (the “Charter”).
 

Pointing

to the findings of fact contained in the Constitutional Courts judgment

file no. III. US 495/02, the petitioners consider the statement

justified that the Land Fund, even before Act no. 253/2003 Coll. was

passed, proceeded incorrectly in managing the state property entrusted

to it, and also proceeded incorrectly when fulfilling the obligations

arising from the restitution laws. in that judgment the Constitutional

Court said the following:
 

“The

Constitutional Court made use of its statutory ability and obtained the

publicly available audit results of the Supreme Audit Office of the

Czech Republic (the “SAU”), which indicates that the Fund erred in

applying § 11 par. 2 of the Act on Land. On the basis of an audit

performed from August 2002 until March 2003, stated that: “ … In the

case of the claims of entitled persons – the original owners – for

cost-free transfer of another piece of land under § 11 par. 2 of Act no.

229/1991 Coll., there were (as of 31 December 2002) 44.9% of

restitution claims left to settle, which were decided with legal effect.

However, Act no. 253/2003 Coll., which amends Act no. 229/1991 Coll.

and certain other acts, indicates that if the decision of the Land

Office went into legal effect before 6 August 2003, the period for

transfer of lands ends on 31 December 2005. That Act also newly

regulates a two year period for the right to cost-free transfer of other

land, and thus set a deadline for the so-called “full stop at the end

of restitution.” In exercising the right to cost-free transfer of

another piece of land the restituent is referred only to what is

available from the LF of the CR, which, in connection with the sale of

state land, is considerably limited. … The Fund, with reference to § 11

par. 2 made cost-free transfers of other lands to persons who do not

have the status of entitled persons under Act no. 229/1991 Coll.. … The

transfers were also made in municipalities where not all restitution

claims filed by entitled persons have been settled yet, outside the

so-called “public offering.” … When selling state land the Fund violated

the obligations of an administrator of state-owned real estate, when it

exceeded the authorization defined by statute by selling, on public

offer, land owned by the state to persons on the basis of a right of

first refusal which they claimed, but for which these persons did not

meet the statutory conditions. … The Fund gave priority to the sale of

state land over the settlement of claims of entitled persons in

restitution. Entitled persons can also apply within the framework of

sale of land to offer or tender, but in the sale of land restitutents

have the standing of claimants, not creditors. The price of land being

sold is set according to a different price regulation than in

restitutions, where it is derived from the price regulation in effect as

of 24 June 1991. Through the Fund, the state sells agricultural land

for a minimal price, despite the fact that the state’s obligations

arising from restitution laws have not been met.” (part 3 of the

Bulletin of the Supreme Audit Office, 2003: “02/14 State-owned real

estate administered by the Land Fund of the Czech Republic”; pages

218-219, the “audit conclusion,” obtained from


 

The

petitioners also argue on the basis of the content of a letter from the

Chairman of the Executive Committee of the Land Fund, Ing. J. M., dated

9 April 2004 no. PF 14294/04 1064/MI, addressed to senator RNDr. J. S.,

which, however, they did not present to the Constitutional Court and

did not propose stating its content as evidence, which allegedly

indicates that as of 31 December 2003 at least 39% of all restitution

claims, with a total amount of CZK 2,660.6 million, had still not been

settled. From this they then conclude that the contested statutory

provisions affect a wide circle of restituents.
 

They

are aware that the Land Fund makes an offer about four times a year,

but they do not consider it relevant; in their opinion it is not aimed

at specific restituents, but is only a kind of listing of state

agricultural land which the Land Fund is at that time offering for

transfer to other persons, regardless of the grounds on which that

transfer is made. They believe that even those restituents, who apply

for replacement land are not satisfied for various reasons, in

particular because of the lack of an offer in an appropriate locality,

or because unsuitable land is offered, or because in making land

transfers the Land Fund gives preference to persons who make claims to

the offered lands on the basis of other grounds.
 

The

petitioners also point to inequality between the group of restituents

whose claim is successfully satisfied and a second group, whose claim is

not satisfied, even in cases of objective difficulties caused neither

by the debtor (the state) nor the creditor (the entitled person).
 

They

emphasize the fact that if the debtor generally has an obligation to

refrain from conduct which would prevent satisfaction of the creditor,

then the constitutional principle of equality indicates that the state,

as a debtor, also may not frustrate the satisfaction of creditors with

claims whose existence was confirmed by a decision by a state body. They

point out that this is by its nature a private law relationship, and it

is constitutionally inconsistent for the state, in this regard, to

assign itself a significantly more advantageous position than that of

all other debtors in the private law sphere. They also critically point

to the concept of the Act on Land, under which the offer to satisfy an

obligation is not even addressed to the creditor, i.e. the entitled

party, but the state leaves it up to that person whether he will offer

his land to another circle of persons or will seek out land suitable for

satisfying his claim.
 

However,

in the opinion of the petitioners, the change brought by the amendment

of Act no. 229/1991 Coll. implemented by Art. V and Art. VI of Act no.

253/2003 Coll., significantly worsened the position of persons who had a

claim for cost-free transfer of another piece of land – creditors – and

unjustifiably gave an advantage to the state, as debtor, by putting a

time limit on its obligation to perform without regard to whether the

state failed to fulfill its obligation as a result of its own inaction

or the incorrect function of bodies to which it entrusted the

fulfillment of its tasks. According to the petitioners, the contested

provisions impermissibly connect the time limit on the state’s

obligations, which they compare to the institution of a statute of

limitations, to the possibility of the state’s inaction.
 

According

to the petitioners, the provision of § 11 par. 2 of the Act on Land,

under which transferred land is supposed to be, whenever possible, in

the same municipality where the majority of the original land is

located, and the entitled person must agree with the transfer of this

land, places entitled person before the alternative of accepting any

land, even unsuitable land, or financial compensation. Moreover, the

contested provisions necessarily divide entitled persons whose claim to

cost-free transfer of land has been recognized into two groups, the

group of those whose claim will be satisfied by the statutory deadline,

and those whose claims will not be satisfied by the final deadline. Yet,

according to the petitioners, the entitled persons will not be able to

directly influence their classification in one or the other group, and

as a result the state will thus treat differently individual citizens

who find themselves in the same situation, without these differences

being in any way objectively justifiable. This process, they believe,

shows signs of arbitrariness, violates the constitutional principles of

equality and a law-based state, especially the principle of

predictability of law, its understandability and internal consistency.
 

According

to the group of senators and the group of deputies the contested

provisions of the Act on Land remove the legitimate expectation of

issuance of property, which is also protected by the Protocol to the

Convention on the Protection of Human Rights and Fundamental Freedoms

(the “Convention”), and replace it with financial compensation using

prices as of 24 July 1991, i.e. prices which do not even correspond to

the prices for which it was possible to confiscate this property, so

this does not concern either confiscation for compensation, but taking

away of property and its replacement by a completely disproportionate

financial compensation. Thus, in their opinion, the provisions of § 13

par. 6 and 7 of the Act on Land and Art. VI of Act no. 253/2003 Coll.

also affect the rights arising from the Protocol to the Convention.

Based on the foregoing, the group of 24 senators of the Senate of the

Parliament of the Czech Republic and the group of 57 deputies of the

Chamber of Deputies of the Parliament of the Czech Republic propose

annulling § 13 par. 6 and 7 of Act no. 229/1991 Coll., Regulating

Ownership of Land and Other Agricultural Property, as amended by of Act

no. 253/2003 Coll., and Art. VI part three of Act no. 253/2003 Coll.,

which amends Act no. 95/1999 Coll., on the Conditions for Transfer of

Agricultural and Forest Lands from the State to Other Persons and

amending of Act no. 569/1991 Coll., on the Land Fund of the Czech

Republic, as amended by later regulations, and Act no. 357/1992 Coll.,

on Inheritance Tax, Gift Tax, and Real Estate Transfer Tax, as amended

by later regulations, as amended by of Act no. 253/2001 Coll., and

certain other acts.
 


II.
Recapitulation of the Essential Parts of the Statement from the Party to the Proceedings
 

The

Constitutional Court, under § 42 par. 4 and § 69 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations,

sent the petition to the Chamber of Deputies. In its statement of 15

March 2005, the Chairman of the Chamber of Deputies of the Parliament of

the Czech Republic, PhDr. Lubomír Zaorálek, states that the background

report to the draft of Act no. 253/2003 Coll. states that its purpose is

to permit, in the near future, completing the process of settling

restitution claims under Act no. 229/1991 Coll., Regulating Ownership of

Land and Other Agricultural Property, as amended by later regulations.

According to him, the time limitation did not restrict the property

rights of entitled persons, nor did it establish their unequal status,

as the petitioners claim. He also sees the problem of the existing

widespread failure to satisfy the claims of entitled persons to

alternative land in the opposite aspect than that raised by the

petitioners, in the fact that, despite improved conditions and the

approaching deadline of the “full stop” to restitution, interest in the

land offered is low. According to him there is high interest only in

land within municipalities or land for which they can in future expect

use other than agricultural use, and certain entitled persons have not

thought a long time about the offers of the Land Fund, others are

interested, but for various reasons their claims have not been

satisfied, for example because they choose an attractive piece of land

in which multiple entitled persons are interested.
 

He

further describes the current procedure followed by the Land Fund,

which processed the offers of substitute land so that the structure of

the land offered corresponded to the structure of the claims, and

entitled person could thus use their absolute priority. He states that

although the compensation is supposed to be provided for agricultural

land, the interest of many entitled persons is focused only on land

where one can, in view of the local conditions and other circumstances,

expect use other than agricultural use, and there are not enough of

those, in view of the extent of the claims. According to him, many

entitled persons prefer cash, and sell their claims; others wait for

better offers. He further notes that a large percentage of the claims

belongs to persons who bought the restitution claims, and these persons,

whether legal entities or natural persons, are only interested in being

issued very lucrative land.
 

According

to the Chairman of the Chamber of Deputies, the purpose of introducing

the time limit was to induce entitled persons to considerably greater

activity, so that the restitution process could be completed as soon as

possible and so that unsettled restitution claims would not be a barrier

to the development of economic relationships and ties and not bring

uncertainty into property relationships. In view of the need to set a

time framework for completing restitution claims and to thus create a

transparent environment in the land market, the contested provisions of

the Act on Land appear justified to him. Due to the foregoing, he states

the assumption that the current regulation in this area creates a

sufficient framework and space for priority satisfaction of entitled

persons, and he does not consider the solution to the situation to be

the annulment of the provisions establishing the so-called “full stop to

restitution,” but proper and speedy satisfaction of the claims of

entitled persons by the Land Fund. On the basis of these reasons, the

party to the proceedings believes that the conditions set in the

contested provisions of the Act ensure proportionate protection for the

rights of entitled persons and do not establish inequality in the

possibilities for satisfying various subjects according to the extent of

their claims. He points to the fact that certain specifics of the Land

Fund as debtor and entitled persons as creditors must be seen precisely

in the specifics of the restitution issue.
 

The

Chairman of the Chamber of Deputies also confirmed, in accordance with

the requirements contained in § 68 par. 2 of Act no. 182/1993 Coll., as

amended by later regulations, that Act no. 253/2003 Coll., which

contains, in part three, the amendment of Act no. 229/1991 Coll. and

Art. VI, was approved by the necessary majority of deputies of the

Chamber of Deputies of the Parliament of the Czech Republic, was signed

by the appropriate constitutional officials, and duly promulgated in the

Collection of Laws. In the conclusion of the statement he says that in

this situation he can not but state the opinion that the evaluated Act

was passed and issued within the bounds of constitutionally specified

jurisdiction and in a constitutionally prescribed manner, as well as the

opinion that the legislative assembly acted in the belief that the

passed Act was consistent with the Constitution, the constitutional

order, and international treaties by which the Czech Republic is bound,

and that it is up to the Constitutional Court to evaluate the

constitutionality of the Act in connection with the submitted petition

and to issue the appropriate decision. Under § 42 par. 4 and § 69 of Act

no. 182/1993 Coll., as amended by later regulations, the Constitutional

Court also sent the petition to the Senate of the Parliament of the

Czech Republic. In the introduction to his statement, of 18 March 2005

the Senate Chairman MUDr. P. S. points out the purpose of Act no.

229/1991 Coll., which was primarily to mitigate the consequences of

certain property crimes, which were committed against owners of

agricultural and forest property in the years from 1948 to 1989, to

renew ownership relationships to land, and thus to improve the care for

agricultural and forest land and also regulate ownership relationships

to land in accordance with the interests of rural economic development

and with the requirements for the creation of the landscape and the

environment. Unlike in the case of Act no. 87/1991 Coll., on

Extra-judicial Rehabilitation, the mitigation of the consequences of

property crimes did not consist in handing over things, but in renewing

the ownership rights to the confiscated things, so that the owner could

freely exercise his property rights.
 

The

main aim of the proponents of the draft of Act no. 253/2003 Coll. was

to permit the completion of the process of settling restitution claims,

to make more efficient the process of selling land by reducing the

administrative burden, and to set criteria for applying the priority of

persons acquiring land so that the first place would be given to persons

with a claim for substitute land in the locality where the original

un-issued land was found, and the second place would go to a tenant with

a limited claim for a transfer.
 

Concerning

the submitted petition from the group of senators and the group of

deputies, the statement then says that the draft Act regulating the

termination of deadlines for settling property relationships to land and

other agricultural property was the subject of extensive discussions in

the Senate, especially in the committees assigned to discuss the draft,

and also in the Senate’s plenary session which took place on 26 and 27

June 2003. It was stated, above all, that a significant part of the

transfers of agriculture land had already been implemented through

restitution entitlements, transfers to municipalities and other

institutions, or by sale without connection to restitution claims. It

was also pointed out that at the time the draft Act was discussed

restitution claims for the issuance of land under Act no. 229/1991 Coll.

had not been settled, and the introduction of the so-called “full stop

to restitution” was perceived as an attempt to end the process of

transferring land to entitled persons, although at the same time

limiting the claims of the group of entitled person to only financial

settlement and simultaneously removing the possibility of issuing

substitute land. On the other hand, according to the Senate Chairman,

there were serious concerns that introducing the “full stop to

restitution,” would injure those who have no claim for the return of

their original lands on statutory grounds, but expressed interest in

substitute land which, however, could not be issued to them without

their causation – e.g., because the demand for certain substitute lands

exceeded the supply. The objection was also raised that interfering in

the proposed manner in the Act on Land was dangerous in terms of

destabilizing the existing situation given the already settled

interpretation of the law and the Constitutional Court’s case law. Some

speakers expressed concerns about violation of equal rights in access to

the conduct of business, because, in their opinion, enacting the

so-called “full stop to restitution” significantly prioritized and

advantaged a tenant over those who do not lease land, and yet do

business with it, and can not buy it until tenants with preferential

rights declare that they have no interest in the land. In this regard a

request was made to reevalute the conditions for the sale of state land

to tenants with the aim of finding a more balanced relationship between

the individual groups of persons interest in buying land, in such a

manner as not to lead to discrimination. According to the Senate

Chairman, in the detailed debate the foregoing reasons then led to the

submission of an amending proposal which deleted from the Act the part

amending Act no. 229/1991 Coll., i.e. the “full stop to restitution.”
 

The

statement then states that the Senate, on 27 June 2003, in its 7th

session, by resolution no. 150 returned to the draft Act which amends

Act no. 95/1999 Coll., on Conditions for the Transfer of Agricultural

and Forest Lands from the State to Other Persons and amending of Act no.

569/1991 Coll., on the Land Fund of the Czech Republic, as amended by

later regulations, and f Act no. 357/1992 Coll., on Inheritance Tax,

Gift Tax, and Real Estate Transfer Tax, as amended by later regulations,

as amended by of Act no. 253/2001 Coll., and certain other acts, to the

Chamber of Deputies with amending proposals, by vote no. 38, in which

out of 64 senators present 60 were in favor and none were against.
 


III.
Basis for Decision Making under § 48 par. 2 of Act no. 182/1993 Coll.
 

Pursuant

to § 48 par. 2 of Act no. 182/1993 Coll. the Constitutional Court

requested from the Land Fund data concerning the current list of

settlements of un-issued land under the Act on Land, as well as a list

of court disputes between entitled persons exercising a claim under § 11

par. 2 of the Act on Land and the Land Fund.
 

According

to a report from the Chairman of the Land Fund’s Executive Committee,

Ing. J. M., dated 28 November 2005 ref. no. PF 2258/05MI-64297, out of

the total amount of claims for un-issued land from decisions of land

offices, with a value of CZK 7,346,154.44 thousand, as of 18 November

2005 the remaining unsettled claims for un-issued land amount to CZK

1,872,183.08 thousand, of which the balance of direct claims amounts to

CZK 660,432.31 thousand and the balance of assigned claims CZK

1,211,750.77 thousand. In 2004 direct claims in the amount of CZK

115,833.02 thousand and assigned claims in the amount of CZK 395,606.98

thousand were settled; in 2005 (as of 18 November 2005) direct claims in

the amount of CZK 108,892.17 thousand and assigned claims in the amount

of CZK 465,212.03 thousand were settled. Thus, in 2004 the share of

settled assigned claims was 77.35% of the total amount of settled

claims, and for the period from 1 January 2005 to 18 November 2005 that

share was 81.03%.
 

In 2004

and 2005 the Land Fund introduced a so-called “structured” offer, i.e.

it offered land in municipalities from which as yet unsettled claims for

un-issued land originated, whereby, with the exception of Prague and

some large cities, it offered in all municipalities a greater number of

land than the claims of entitled persons amounted to. Thus, according to

the Land Fund, the structured offer in 2004 amounted to CZK 1,495,200

thousand, and in 2005 it amounted to CZK 3,035,210 thousand, yet despite

this targeted offer the interest of entitled persons in the land

offered in 2004 was ca. 24% and in 2005 ca. 26%.
 

According

to the report from the Chairman of the Land Fund’s Executive Committee,

a total of 360 complaints for the satisfaction of claims under § 11

par. 2 of Act no. 229/1991 Coll., as amended by of Act no. 183/1993

Coll. were filed against the Land Fund; out of those, 9 complaints were

filed by 31 December 1999, 28 complaints from 1 January 2000 to 30 April

2005, and 323 complaints from 1 May 2005 to 24 November 2005. Legally

effective decisions have not yet been issued in suits begun in 2005;

regarding suits started in the past and concluded with legal effect the

report refers to the case law of the Supreme Court, under which a claim

for the provision of substitute land does not include the entitled

person’s right to choose the substitute land (2 Cdon 522/96, 26 Cdo

1478/2000 and others).
 

In

order to provide an opportunity to respond, the report from the Chairman

of the Land Fund’s Executive Committee Ing. Josef Miškovský, of 28

November 2005 ref. no. PF 2258/05MI-64297 was delivered to the

petitioners and the party to the proceedings (§ 60 par. 3 of Act no.

182/1993 Coll.).
 

The

petitioners took this opportunity, and in a filing delivered to the

Constitutional Court on 9 December 2005 they state that, although they

do not intend to question the statistical data presented in the report

from the Chairman of the Land Fund’s Executive Committee, they consider

it necessary to point out the fact that the claim that the supply of

suitable land fundamentally exceeds the amount of claims can be true

only in terms of nationwide statistics. A nationwide comparison includes

both land registration areas where many more pieces of land were

offered than the number of unsettled claims in that area, as well as

land registration areas where no land was offered at land registration

areas in the former district of Nový Jičín, where the Land Fund offered

no substitute land at all, and they point out that there are also areas

where the Land Fund did not even have any suitable land available. In

the conclusion of the statement, they express the belief that if the

Constitutional Court’s decision in the matter were to be based on the

report from the Chairman of the Land Fund’s Executive Committee, it

would have to be specified in more detail, in particular, instead of

general claims relating to the entire territory of the Czech Republic,

it would have to provide a picture of the status of settlements of

claims for un-issued land in smaller territories, ideally according to

the former districts.
 


IV.
Waiver of Hearing
 

Under

§ 44 par. 2 of Act no. 182/1993 Coll. the Constitutional Court, with

the consent of the parties, can waive a hearing, if it can not be expect

to clarify a matter further. In view of the fact that both parties,

i.e. the petitioners through their legal representative, in a filing

delivered to the Constitutional Court on 30 November 2005, as well as

through persons entitled to act in their name, in a filing delivered to

the Constitutional Court on 2 December 2005, and the party to the

proceedings, in the statement by the Chairman of the Chamber of Deputies

of the Parliament of the Czech Republic, delivered to the

Constitutional Court on 1 December 2005, and the Chairman of the Senate

of the Parliament of the Czech Republic, delivered to the Constitutional

Court on 8 December 2005, consented to waive a hearing, and in view of

the fact that the Constitutional Court believes that a hearing can not

be expected to clarify the matter further, a hearing in the matter was

waived.
 


V.
The Text of the Contested Legal Regulation
 

Under

§ 13 par. 6 of Act no. 229/1991 Coll., as amended by of Act no.

253/2003 Coll.: “An authorized person has a right to transfer of

state-owned land for 2 years from the day when the decision of the Land

Fund takes legal effect. If the Land Fund does not decide on the

transfer of land, an entitled person has a right to transfer of

state-owned land for 2 years from the time when it could have first

exercised the claim for a transfer with the Land Fund.” Under paragraph 7

of that provision: “After the expiration of the time specified in

paragraph 6 the right to transfer of state-owned land terminates.”
 

Under

Art. VI of Act no. 253/2003 Coll.: “If the decision of the Land Fund

went into legal effect or the claim to a transfer was exercised before

this Act went into effect, the time limit for transfer of land ends on

31 December 2005.”
 


VI.
Conditions for the Active Standing of the Petitioners
 

The

petition seeking or the annulment of § 13 par. 6 and 7 of Act no.

229/1991 Coll., Regulating Ownership of Land and Other Agricultural

Property, as amended by of Act no. 253/2003 Coll., and Art. VI part

three of Act no. 253/2003 Coll., which amends Act no. 95/1999 Coll., on

the Conditions for Transfer of Agricultural and Forest Lands from the

State to Other Persons and amending of Act no. 569/1991 Coll., on the

Land Fund of the Czech Republic, as amended by later regulations, a of

Act no. 357/1992 Coll., on Inheritance Tax, Gift Tax, and Real Estate

Transfer Tax, as amended by later regulations, as amended by of Act no.

253/2001 Coll., and certain other acts, as submitted by a group of 24

senators of the Senate of the Parliament of the Czech Republic,

represented by senator RNDr. Jitka Seitlová, and a group of a 57

deputies of the Chamber of Deputies of the Parliament of the Czech

Republic, represented by deputy Ing. Veronika Nedvědová. Thus, we can

state that the petitioners have met the conditions for active standing

in proceedings to review a norm under § 64 par. 1 let. b) of Act no.

182/1993 Coll.
 


VII.

Constitutionality of Jurisdiction and the Legislative Process
 

The

Constitutional Court, in accordance with § 68 par. 2 of Act no.

182/1993 Coll., as amended by later regulations, is required, in

proceedings to review a norm, to evaluate whether the contested statute,

its individual provisions, or another legal regulation or its

individual provisions, was passed and issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
 

It was

determined from chamber of Deputies publications and transcripts, as

well as from the party’s statement, that the Chamber of Deputies

approved the draft of the Act in question in the 3rd reading at its 16th

session on 22 May 2003 by resolution no. 505, when, out of 192 deputies

present, 118 deputies voted in favor, and 63 voted against.
 

On

27 June 2003, at its 7th session, the Senate, by resolution no. 150,

returned the act to the Chamber of Deputies with amending proposals, in

vote no. 38, in which, out of 64 senators present, 60 voted in favor and

none against.
 

The Chamber

of Deputies voted on the draft of the Act returned by the Senate at its

198th session on 22 July 2003; by 124 votes out of 196 deputies present,

with 57 voting against, it confirmed the draft of the Act as passed to

the Senate (resolution no. 621).
 

The

Act was signed by the appropriate constitutional authorities and was

duly promulgated as no. 253/2003 Coll. in part 86 of the Collection of

Laws, which was distributed on 6 August 2003, and, under Art. VII, went

into effect on the day of promulgation, i.e. the day that part the

Collection of Laws was distributed.
 


VIII.
Consistency of the Content of the Contested Statutory Provisions with the Constitutional Order


VIII./a

Significance and Purpose of the Act on Land
 

The

significance and purpose of the Act on Land, according to its preamble,

is to mitigate the consequences of certain property crimes, which were

committed against owners of agricultural and forest property in the

years from 1948 to 1989, to improve the care for agricultural and forest

land by renewing ownership relationships to land, as well as to

regulate ownership relationships to land in accordance with the

interests of rural economic development and with the requirements for

the creation of the landscape and the environment.
 

The

Act on Extra-judicial Rehabilitation, the second key “restitution law”

compared to the Act on Land, defines its purpose more narrowly in its

preamble. Its purpose is to mitigate the consequences of certain

property and other crimes which occurred in the period from 1948 to

1989.
 

The difference in the

legislative mechanism for mitigating the crimes of the communist regime

corresponds to the difference in these purposes.
 

Under

the Act on Extra-judicial Rehabilitation, a natural person has a claim

for issuance of a thing if it meets the conditions for being an entitled

person (§ 3), if the thing is in the possession of an obligated person

(§ 4), if the statutory conditions for issuing the thing exist (§ 6),

and finally if there are no statutory grounds for not issuing the thing

(§ 8 par. 1 to 4). If there are grounds for not issuing the thing and

the other conditions for restitution are met, there is a subsidiary

entitlement to the provision of financial compensation (§ 8 par. 5).
 

Under

the Act on Land, a natural person has a claim for issuance of land if

he meets the conditions for being an entitled person (§ 4), if the land

is in the possession of an obligated person (§ 5), if the statutory

conditions for issuing the land exist (§ 6), and finally, if there are

no statutory grounds for not issuing the land (§ 11 par. 1). As the

purpose of the Act is not only to mitigate crimes, but also to renew

rural areas, if there are grounds to not issue land, there is a

subsidiary claim for cost-free transfer of other land to the entitled

person (§ 11 par. 2). It is only for land which is not issued under this

Act and for which the entitled person can not be given a different

piece of land that the Act on Land establishes a second, subsidiary

claim, the claim for financial compensation (§ 16 par. 1).In cases where

the conditions for issuing the original, or substitute land, the Act

establishes as an alternative the possibility for entitled persons to

settle their claims by transfer or ownership of real estate owned by the

state and administered by the Land Fund [§ 18a, § 17 par. 3 let. a) of

the Act on Land].
 


VIII./b

Points of the Petition
 

The

first point in the petition is the objection that the contested

statutory provisions create inequality, of three kinds: first, the

inequality caused by the lack of justified differentiation between land

which the state, as the owner and party to a private law relationship,

transfers to other persons and land which the state is required to issue

to entitled persons – restituents – on the basis of restitution

regulations, second inequality between the group of restituents, whose

claims are successfully satisfied and a second group, whose claims are

not satisfied, both in cases of objective difficulties not caused either

by the debtor (the state) or the creditor (the entitled person), and in

cases caused by the actions of the Land Fund, and finally, inequality

between the value of substitute land and the amount of financial

compensation.
 

The second

point in the petition is the objection of interference with the

constitutional principle of protection of the citizen’s justified

confidence in the law (legitimate expectation), seen both in terms of

the principle of a ban on arbitrariness and legal certainty (arising

from the principle of a law-based state), and in terms of the right

arising from the Protocol to the Convention (which also protects

property claims).
 


VIII./c

Aspects for Review of Constitutionality of Deadlines
 

The

subject matter of the petition for review of norms are statutory

provisions which establish a deadline for exercising the right to

issuance of substitute land under § 11 par. 2 of the Act on Land.
 

In

judgment file no. Pl. US 33/97 [Collection of Decisions of the

Constitutional Court (the “Collection of Decisions”), volume 9, judgment

no. 163; promulgated as no. 30/1998 Coll.] the Constitutional Court

stated at the most general level regarding the concept of a deadline as a

legal fact: “The purpose of the legal institution of a deadline is to

reduce entropy (uncertainty) in the exercise of rights, or powers,

providing a time limit for a state of uncertainty in legal relationships

(which plays an important role especially in terms of evidence in

disputes), and speeding up the process of decision making with the aim

of realistically reaching the intended aims. These reasons led to

establishing deadlines a thousand years ago.”
 

The

Constitutional Court expressed its fundamental legal opinion defining

the scope of constitutional review of statutory provisions establishing

deadlines in judgment file no. Pl. US 46/2000 (Collection of Decisions,

volume 22, judgment no. 84; promulgated as no. 279/2001 Coll.), in

connection with evaluating the constitutionality of the deadline for

exercising claims arising from the Act on Judicial Rehabilitation (§ 6

of Act no. 119/1990 Coll.): “The task of the Constitutional Court is

review of constitutionality. In this framework the Court may only annul

unconstitutional regulations, or parts thereof, but it is not its task

to repair the consequences which arose because the petitioner did not

exercise its right by the specified deadline. Annulling deadlines

violates the principles of a law-based state, because it significantly

interferes in the principle of legal certainty, which is one of the

fundamental components of contemporary democratic legal systems. A

deadline can not be unconstitutional in and of itself. However, it can

become unconstitutional in specific circumstances. The petitioners claim

that he did not have confidence in the Czechoslovak courts and also did

not have the necessary information, and therefore did not exercise his

right by the deadline specified in § 6 of Act no. 119/1990 Coll., on

Judicial Rehabilitation, does not release him from the obligation to

comply with valid legal norms.”
 

Thus,

the tenor of this opinion consists of the fact that a deadline, prima

facie, without anything further, does not and can not demonstrate

elements of unconstitutionality; those can appear only from the

“specific circumstances” of the evaluated matter, in other words,

evaluation of the constitutionality of a deadline is an evaluation in

context.
 

According to the

existing case law of the Constitutional Court, these “specific

circumstances,” or the viewpoints for evaluation in context of the

constitutionality of a deadline, are:
 

1.

disproportionality of the deadline in relation to the time-limited

possibility for exercising a constitutionally guaranteed right (claim),

or to the defined time period for limitation of a subjective right. From

that point of view, the Constitutional Court, in judgment file no. Pl.

US 5/03 (Collection of Decisions, volume 30, judgment no. 109;

promulgated as no. 211/2003 Coll.), annulled § 3 and § 6 of Act no.

290/2002 Coll., which were a disproportionate limitation of property

rights, and violated Art. 11 par. 1 in connection with Art. 4 par. 4 of

the Charter (in the context, the Court considered constitutional a legal

framework which would establish such a limitation only in a completely

essential timeframe, which can be understood as only a minimal, and

clearly, prima facie “transitional” period, but not a period of ten

years);
 

2. arbitrariness by

the legislature when setting the deadline (establishing or canceling

it). The Court applied this aspect for evaluating the constitutionality

of a deadline in the matter file no. Pl. US 2/02 (Collection of

Decisions, volume 32, judgment no. 35; promulgated as no. 278/2004

Coll.), in which it found unconstitutional the annulment of § 879c to §

879e of the Civil Code (the “CCC”) implemented by Act no. 229/2001

Coll., whereby the legislature interfered in the legitimate expectation

of a precisely defined circle of subjects a mere one day before the

expiration of the time period in which property rights would have been

acquired, as a result of which, subjects who acted in confidence in the

conditions previously set by the state were, a mere one day before the

expiration of the time period, confronted with the arbitrary steps taken

by the state, which the court found inconsistent with Art. 1 of the

Protocol to the Convention (with reference to the case law of the

European Court of Human Rights in the cases Broniowski v. Poland of

2002, Gratzinger and Gratzingerová v. the Czech Republic of 2002, and

Zvolský and Zvolská v. the Czech Republic of 2001);
 

3.

the constitutionally unacceptable inequality of two groups of subjects

which results from the annulment of a certain statutory condition for

exercising a right due to unconstitutionality, where this annulment does

not, without anything further, create an opportunity to exercise rights

for the affected group because of the expiration of deadlines as a

result of derogation. With this “specific circumstance” as a starting

point, in judgments file no. Pl. US 3/94 (Collection of Decisions,

volume 1, judgment no. 38, promulgated as no. 164/1994 Coll.) and file

no. Pl. US 24/97 (Collection of Decisions, volume 11, judgment no. 62;

promulgated as no. 153/1998 Coll.) the Constitutional Court, by

annulling the provisions setting the beginning of the time period to

exercise a restitution claim, created an opportunity to exercise them

for those entitled persons who, as a result of the condition of

permanent residence, could not successfully exercise their claims by the

original deadlines. In this regard, the Court stated that “therefore

these persons were de facto excluded from the circle of entitled person

who could seek financial compensation, and were thus – compared to other

entitled persons – unconstitutionally disadvantaged and found

themselves in an unequal legal position compared to the others.”
 

In

the present matter, the task for the Constitutional Court is therefore

to evaluate whether, in the case of the statutory provisions setting a

deadline for exercising the right to issuance of substitute land under §

11 par. 2 of the Act on Land, there are “specific circumstances” which

make these provisions inconsistent with the constitutional order or not.

“Specific circumstances” under 1. and 2. can also be considered an

adequate test of the impermissibility of extreme disproportionality (the

rational basis test), and under 3. the test of a procedure arising from

the principle of proportionality (suspect classification) [regarding

this distinction see Constitutional Court judgment file no. Pl. US 7/03

(Collection of Decisions, volume 34, judgment no. 113; promulgated as

no. 512/2004 Coll.); among doctrinaire sources, see, e.g. W. Brugger,

Einführung in das öffentliche Recht der USA[Introduction to Public Law

in the USA]. München 1993, p. 116 et seq.; J. E. Nowak, R. D. Rotunda,

Constitutional Law 4th Ed., St. Paul 1991, p. 568 et seq.].
 


VIII./d

The Legal Regime for Issuing Substitute Land
 

The

Act on Land also seeks to achieve its aims, which, as previously

stated, are to mitigate the consequences of certain property crimes,

which were committed against owners of agricultural and forest property

in the years from 1948 to 1989, to improve the care for agricultural and

forest land by renewing ownership relationships to land, as well as to

regulate ownership relationships to land in accordance with the

interests of rural economic development and with the requirements for

the creation of the landscape and the environment (the preamble), by

applying the principle of giving priority to returning the original land

and other real estate to entitled persons and the principle of giving

priority to in-kind compensation if it is not possible to return the

original land. These principles are reflected in § 11 par. 2 of Act no.

229/1991 Coll., as amended by later regulations, under which, if the

land can not be issued, “the Land Fund shall transfer to the entitled

person, cost-free, other state-owned land in a procedure under § 8 par. 4

of Czech National Council Act no. 284/1991 Coll., on Land Adjustments

and Land Offices, as amended by later regulations, as far as possible in

the same municipality where the majority of the original land is

located, if the entitled person agrees.”
 

If

the entitled person agrees with the transfer of the offered substitute

land, the Land Fund is required to perform this in-kind compensation.

The provision of § 8 of Act no. 284/1991 Coll., under which the

substitute land is to be provided, indicates that this land should

correspond to the replaced land in size and be of the same quality.

Thus, the replaced land is defined in terms of type – generically.
 

Thus,

the Act connects issuance of substitute land with the mechanism of land

adjustments, limits discretion regarding land offered by the condition

of subsidiarity (under which offers of land in a different locality are

possible if there is no corresponding land in the original locality), as

well as by the consent of the entitled person.
 

The

Constitutional Court took a position on the question of the

relationship between the transfer of land which the state, as owner,

transfer to other persons, and transfers of land which the state is

required to issue to entitled persons – restituents – on the basis of

restitution regulations in judgment file no. III. US 495/02 of 4 March

2004 (Collection of Decisions, volume 32, judgment no. 33): “Claims

arising under the Act on Land have priority, which follows both from the

ratio legis of the Act on Land and the text of § 11 par. 2 (cf. the

words “shall transfer”), and from § 19 par. 1 of the Act on land

Transfers. If the Fund applies the opposite interpretation, it is

outside the framework of the authorization given to it by the Act (cf.

Art. 2 par. 2 of the Charter). Such an interpretation can not stand up

to systematic analysis. The law (§ 2 par. 1 of Act no. 569/1991 Coll.,

on the Land Fund of the Czech Republic, as amended by later regulations)

orders the Fund to act only within the framework of the Act on Land,

whose purpose is to satisfy the claims of entitled persons. The

framework later passed in the Act on Land Transfers could change nothing

about this legal situation, in view of the principles of protection of

legitimate expectations and legal certainty … In other words, the Fund

may not de facto give precedence to proceeding under the Act on Land

Transfers over satisfying the obligations of the state under § 11 par. 2

of the Act on Land, which the state recognized, because that is

inconsistent with its competence in the framework of fulfilling

obligations imposed on the state by the Act on Land. The purpose of the

Act on Land can not be ignored by reference to Act no. 95/1999 Coll.

being a special law. The valid wording of § 1 par. 2 let. a) of Act no.

95/1999 Coll. (under which that Act regulates the procedures of the Land

Fund in transferring agricultural land to entitled persons) must

evidently be interpreted in view of the principles of protecting

material interests (Art. 1 par. 1 of the Protocol to the Convention) and

legal certainty, and in view of § 19 par. 1 of the Act on Land

Transfers, which declares that it does not affect the Act on Land.”
 

The

fundamental question which arises from that legal opinion is the

question of legal instruments which pertain to the entitled person for

securing his claims against the Land Fund, especially for ensuring their

priority.
 

According to the

consistent position of case law and doctrine, the transfer of substitute

land is not decision making in administrative proceedings, and the

relationship between the Land Fund and the entitled person is not a

relationship of power, but is characterized by equality of both

subjects, is a private law relationship, and is a debtor-creditor

relationship (cf. Supreme Court decision of 10 May 2000, file no. 24 Cdo

212/2000, decision of the special panel under Act no. 131/2002 Coll.,

on Deciding Certain Jurisdictional Disputes, of 24 November 2004, file

no. Konf 80/2003, L. Kopáč, J. Švestka, Úvaha nad možností převodu

restitučních nároků k zemědělským pozemkům [Consideration of the

Possibility for Transfer of Restitution Claims to Agricultural Land],

Právní rozhledy [Legal Perspectives], 6, 1995, p. 224). According to the

Supreme Court decision of 10 May 2000, file no. 24 Cdo 212/2000, in

transfers of substitute land the Act on Land Adjustments can not be

applied directly to the legal relationship between an entitled person

and the Land Fund. However, under settled case law an entitled person

can not file a civil complaint seeking the issuance of a particular

parcel of land which he chose himself (cf. Supreme Court decision of 29

January 1997, file no. 2 Cdon 522/96, decision of the District Court of

Prague 8 of 2 August 2000, file no. 8 C 165/2000, decision of the

Regional Court in Ústí nad Labem of 29 February 2000, file no. 35 Co

4/2000; in its decision of 18 January 2001, file no. 26 Cdo 1478/2000,

the Supreme Court expressly said: “A claim for the provision of

substitute land does not include the entitled person’s right as against

the Land Fund to choose the substitute land. It is up to the Land Fund

to announce which state-owned land may be provided as substitute land.

This announcement can not be considered an offer to conclude a contract

on the transfer of substitute land.”)
 

If

the creditor does not have the opportunity to choose, i.e. the choice

for specific definition of the requested verdict, then the question must

be answered what claim the creditor in this private law relationship

can seek to enforce through a court complaint. Doctrine reacted to this

problem with the following legal construction: “If an entitled person

wants substitute land from the Land Fund, it can sue for a declaration

that the Land Fund has an obligation to conclude a contract on the

transfer of such land with him. Act no. 229/1991 Coll. provides an

obligation to conclude a contract, but does not specify by what means it

is to be obtained. Therefore … the general regime applies. Under § 161

par. 3 of the CPC a legally effective decision imposing the declaration

of will replaces that declaration ... Given the complete insufficiency

of special provisions in Act no. 229/1991 Coll. ... we ...work our way

to the Civil Code as the most general private law regulation, and to the

fact that the law also does not impose anything further on the Land

Fund regarding which land in a municipality (if there is more than one

parcel) it is obligated to transfer to the entitled person. Of course,

if it is possible to meet the obligation in more than one way, under §

561 par. 1 of the Civil code it is the debtor who has the right to

choose. ... In this situation the requested verdict must necessarily

provide alternatives and include (using the conjunction “or”) all

parcels of land in the real estate registration area of the municipality

which come under consideration” (M. Kindl, Restituce v soudní praxi.

[Restitution in Court Practice] Prague 1997, p. 20). Taking this

doctrinaire position as a starting point, the District Court in Děčín,

in the matter file no. 19 C 155/2000, ruled that entitled persons can

not exercise their claims against the Land Fund for provision of

substitute land in the form of cost-free transfer if it is verified that

by an acceptable deadline their entitled claims have not yet been

satisfied or have not yet begun to be addressed at all, and “a complaint

seeking a declaration replacing the expression of will for a contract

on cost-free transfer of land is derived from the claim of entitled

persons to the provision of substitute land, so – from the viewpoint of

maintaining the precision, definiteness and understandability of the

requested verdict – it is necessary to make the requested verdict

specific, which can not be achieved otherwise than by stating the

relevant parcels of land which can be subject to cost-free transfer to

entitled persons. The court is then bound by the scope of substitute

parcels which the entitled persons raised in the proceedings; from the

parcels of land which are specified in the requested verdict, it shall

take those parcels which meet the conditions for cost-free transfer to

the entitled persons who are plaintiffs, in proportional extent (value)

to the un-issued parcels, with the provision that the defendant is also

authorized to (alternatively) issue to the plaintiffs other parcels in

the real estate registration area of the same municipality, which would

come into consideration in the given case. Thus, in the beginning phase

of the complaint, when the entitled persons do not know whether a

restitution claim has been exercised for particular parcels of land or

it can not be issued due to other statutory reasons, the alternative

requested verdict meets the criteria in order for the court to be able

to address the matter on the merits, with the provision that in the

appropriate phase of the dispute (after verification of suitable parcels

of land which can be used as compensation or for cost-free transfer)

the entitled persons may modify their complaint with an appropriate

dispositional act (§ 95 of the CPC). Thus, using an alternative

requested verdict eliminates speculation that the complaining entitled

persons are seeking only a particular parcel (parcels) of land without a

substantive law entitlement, but that they are exercising the execution

of their right arising from their entitlement to cost-free transfer of

land under § 11 par. 2 of Act 229/1991 Coll.”
 

In

the cited judgment, file no. III. US 495/02, the Constitutional Court

evaluated the justification of the grounds for the complaint for the

issuance of a certain parcel of land by entitled persons under § 11 par.

2 of the Act on Land. It stated that “the plaintiffs’ entitlement for

the issuance of substitute land had not been satisfied for a long time.

The courts had an obligation to review whether this situation was not

the result of arbitrariness or even self-servingness by the Fund in

implementing the Act on Land. They had to deal with objections that the

Fund had no interest in issuing land, because it had benefits from

administering it, and that its public offers were not capable of

satisfying the statutory claims of entitled persons, who were thus de

facto forced to give up their claim in favor of financial settlement.

Such actions by the Fund are a clear violation of Art. 2 par. 2 of the

Charter, or Art. 2 par. 3 of the Constitution.” It also stated that

although the relationship between the Land Fund and the entitled person

under § 11 par. 2 of the Act on Land is a private law relationship (i.e.

ruled by the principle of equality) it is impossible not to be aware

that the Land Fund is “a public institution, because it fulfills a

public purpose,” and thus, “if the general courts are to meet their

constitutional obligation to provide protection to interests protected

by law, they must, when evaluating the procedures followed by the state,

or by persons authorized by it (fulfilling the state’s obligations),

consider whether self-serving conduct occurs.”
 

In

this regard the Constitutional Court took a position on the previous

relevant case law of the general courts: As regards the legal opinion of

the Supreme Court, contained in the decision of 18 January 2001, file

no. 26 Cdo 1478/2000, under which “a claim for the provision of

substitute land does not include the entitled person’s right to choose

the substitute land,” and “an announcement by the Land Fund of the Czech

Republic as to which land can be offered as substitute land is not an

offer to conclude a contract,: the Constitutional Court stated that

“this legal opinion must be applied and interpreted in a

constitutionally consistent manner,” the Supreme Court decision (which

took over its older legal opinion from the decision of 29 January 1997,

file no. 2 Cdon 522/96) “clearly comes out of the presumption that the

Fund duly performs its statutory obligations and limits a claim to seek a

specific substitute parcel of land only so that the allocation of land

will be fair. The reference to the Supreme Court’s legal opinion can not

serve to legitimize a procedure in allocation of substitute land which

would (from an objective point of view) be arbitrary or discriminatory.

Self-serving conduct or dilatoriness in allocating land is illegal and

illegal conduct can not be giving judicial protection. A complain

seeking the issuance of a particular parcel of land may be the only

means of defense against self-serving conduct. The Constitutional Court

also points out that the constitutional ban on denial of justice gives

rise to an obligation on the general courts to fill in gaps in the laws

where the opposite would make entitlements de facto impossible to

exercise. In any case, another Supreme Court decision, of 22 February

2002, file no. 28 Cdo 1847/2001 shows that the Supreme Court too is

aware of its obligation to ensure that a claim be enforceable under § 11

par. 2 of the Act on Land.”
 

In

the conclusion of the decision, the Constitutional Court expressly

emphasized that its review was limited to questions of

constitutionality, and respected the maxim of not replaced the function

of the general courts in the interpretation and application of simple

law, and therefore stated the following: “in conclusion, the

Constitutional Court points out that even if the general courts

continued to maintain that a complaint can not identify a specific

parcel of land, it must also take into account its obligation (in view

of the ban on denial of justice, or the obligation to provide protection

to legitimate expectations) to guide the plaintiffs to amend their

requested verdict so that, if they succeed, it will be possible to

impose on the Fund an obligation to issue, within a specific time, a

parcel of land designated by the court, so that its valued, based on the

size, location, and quality, will as much as possible approach the

current value of the original land. This requirement arises from the

text of § 11 par. 2 of the Act on Land, which presumes the consent of

the entitled person with the offered land. We must also point out that

the administration of state property was always subject to the rules

which are now expressis verbis expressed in the Act on the Property of

the Czech Republic, under which “The property must be used purposefully

and economically to fulfill the functions of the state and for the

performance of the specified activities; the property can be used or

disposed of in another manner only under conditions specified by a

special legal regulation or this Act.” (§ 14 par. 1 of Act no. 219/2000

Coll., on the Property of the Czech Republic and Its Functions in Legal

Relationships, which also binds the Fund – § 2 par. 2 of the cited Act).

The Fund can not ignore the already existing obligations of the state

which it took upon itself in § 11 par. 2 of the Act on Land.“.
 


VIII/e Ratio decidendi
 

Thus,

the case law of the general courts on the question of grounds for a

complaint applying to the entitled person in exercising the right to

issuance of substitute land under § 11 par. 2 of the Act on Land can be

generalized with two statements: it can be considered relevant and

settled only insofar as it defines the grounds negatively (i.e. if it

does not consider the transfer of substitute land to be decision making

in administrative proceedings and if it rules out the entitled person’s

choosing the land in a claim for provision of substitute land against

the Land Fund); insofar as the general courts, in some previous

decisions defined the entitled person’s grounds for a complaint

positively, we can not yet speak of a settled and predictable case law.
 

Under

§ 13 par. 6 and 7 of Act no. 229/1991 Coll., as amended by of Act no.

253/2003 Coll., an entitled person has a right to transfer of

state-owned land for 2 years from the day a decision of the Land Fund

goes into legal effect; if the Land Fund does not decide on the

transfer, for 2 years from the time when he could first have exercised

the claim for a transfer before the Land Fund, and this deadline

expires.
 

If a decision of a

Land Office went into legal effect or a claim for a transfer was

exercised before Act no. 253/2003 Coll. was in effect, i.e. before 6

August 2003, under Art. VI of the Act the period for transfer of land

ends on 31 December 2005.
 

Thus,

Art. VI of Act no. 253/2003 Coll. set a minimum period of two years,

four months and 25 days (i.e. until 31 December 2005) for the exercise

of claims for issuing substitute land for cases where the decision of a

Land Office, as grounds for issuance, went into effect before Act no.

253/2003 Coll. went into effect (i.e. 6 August 2003), as well as for

cases where there were other grounds for issuance on the day actionis

nata also before the day Act no. 253/2003 Coll. went into effect (i.e. 6

August 2003).
 

The

provisions of § 13 par. 6 and 7 of the Act on Land provide a period of

two years for those cases where a decision of the Land Office, as

grounds for issuing land, went into legal effect after the day that Act

no. 253/2003 Coll. went into effect, and for those cases where there are

other grounds for issuing land on the day actionis nata also after the

day that Act no. 253/2003 Coll. went into effect.
 

At

this point we must note the points in the petition from the group of

senators and the group of deputies, the objection of inequality caused

by the lack of justifiable differentiation between grounds which the

state, as the owner and a party to a private law relationship transfers

to other persons, and land which the state iw required to issue to

entitled persons – restituents – on the basis of restitution claims, and

the inequality between the group of restituents whose claims are

successfully satisfied and the group of restitutents whose claims are

not satisfied [both in cases of objective problems not caused either by

the debtor (the state) or the creditor (the entitled person) and in

cases caused by the procedures of the Land Fund], as well as the

objection that this violates the constitutional principle of protection

for the citizen’s justified confidence in the law (legitimate

expectations), both in terms of the principle of a ban on arbitrariness

and legal certainty (arising from the principle of a law-based state)

and in terms of the right arising from the Protocol to the Convention

(protection property entitlements).
 

The

Constitutional Court already fully accepted the first and third

objections in judgment file no. III. US 495/02; the following maxims

apply for the evaluation of all three objections:
 

Without

disputing the claim of the Land Fund on the adequacy of a “structure

offer” for satisfying the claims of entitled persons under § 11 par. 2

of the Act on Land (see report from the Chairman of the Land Fund’s

Executive Committee Ing. J. M., of 28 November 2005, ref. no. PF

2258/05MI-64297) and also without disputing the claim of the petitioners

concerning observance of the principle vigilantibus iura by entitled

persons, the Constitutional Court is of the opinion that there is no

evidence which would permit it to verify these claims in proceedings to

review a norm. Such verification is conceivable only given an effective

procedural means for protection of the right whose purpose is to verify

the sufficiency of an offer for a specific entitled person Such a

procedural means may be established by express inclusion in a statute

and the corresponding practice in application, or it can be developed

and settled by case law.
 

By

analyzing the relevant regulations in the Act on Land, as well as the

existing relevant case law of the general courts and the Constitutional

Court we can not but conclude that none of the cited alternatives has

been met. Legal doctrine is of a similar opinion in this regard: “The

entire process of providing other land is – apart from its legal,

organizational and territorial-technical difficulty – also affected by

significant subjective influences, which can lead to doubts about the

objectivity in the procedures followed by particular local offices of

the Land Fund of the CR. … In my opinion, all these considerations –

which, in many respects go beyond analysis of the valid legal

regulations – can lead to only one conclusion. The legislature’s idea

that there is nothing simpler than to provide different land to the

entitled person instead of the non-issued land, obviously appears to be,

at the very least, naïve. However, if the valid legal regulation is

based on this principle of material compensation, it is also necessary

to pay sufficient attention to legal regulation of the procedure in

which it is supposed to take place. And in my opinion, as regards the

process of providing other suitable land, that has not yet been achieved

(despite all the more or less successful amendments of the relevant

provisions of the Act on Land).” (I. Průchová, Restituce majetku podle

zákona o půdě. [Restitution of Property Under the Act on Land.] Prague

1997, p. 194.)
 

The foregoing

indicates that entitled persons under § 11 par. 2 of the Act on Land

have no effective procedural means for exercising their right to the

issuance of substitute land (in other words, at the level of simple law a

subjective right is established without a claim, that is, without a

procedural means for enforcing it). For the Constitutional Court, in

proceedings to review norms (review of constitutionality of § 13 par. 6

and 7 of Act no. 229/1991 Coll., as amended by of Act no. 253/2003

Coll., and Art. VI of Act no. 253/2003 Coll.), this then leads to the

statement that the deadlines established in § 13 par. 6 and 7 of Act no.

229/1991 Coll., as amended by of Act no. 253/2003 Coll., and Art. VI of

Act no. 253/2003 Coll., impose a time limitation on the exercise of the

right of entitled persons under § 11 par. 2 of the Act on Land for the

issuance of substitute land, i.e. a right which does not have the

benefit of an effective procedural means, wherefore, in terms of the

criteria for evaluating in context the constitutionality of the

deadlines, this is legislative arbitrariness, inconsistent with the

constitutional principle of protecting the citizens’ justified

confidence in the law, which is a component of a law-based state (Art. 1

par. 1 of the Constitution), and in the present context also

inconsistent with the principle of legitimate expectations when

exercising property rights arising from Art. 1 of the Protocol to the

Convention.
 

Thus, a

contrario at the same time the possibility to exercise the right of an

entitled person (restituent) for the issuance of substitute land under §

11 par. 2 of the Act on Land, limited by a proportional deadline, is

constitutional, of course, on the condition that there is a valid

effective procedural means to protect that right.
 

In

this regard the Constitutional Court has repeatedly pointed out that

such a procedural means must be established by express statutory

provisions and corresponding practice in application, or it may be

developed by the case law of the general courts. The prerequisite for

the constitutionality of it being established judicially is that the

subject matter of a complaint be specifically defined, that the

procedural means for protection of the right be settled in the decision

making practice of the courts, and that their decision making be

predictable.
 


VIII./f

The Function of Financial Compensation
 

In

the key restitution laws, Act no. 87/1991 Coll. and Act no. 229/1991

Coll., financial compensation, in terms of the original intentions of

the legislature, did not fulfill the function of an equivalent of the

non-issued thing or land.
 

This

fact can also be confirmed by speech made by the joint reporter of the

committees of the Chamber of the People of the Federal Assembly, deputy

Václav Benda, during discussions of the draft Act on Extra-Judicial

Rehabilitation at a joint session of the Chamber of the People and the

Chamber of Nations of the Federal Assembly of the CSFR on 19 February

1991, who stated: “We, deputies from the majority of committees and from

the initiating group which worked on the drafts, fundamentally

supported in-kind restitute whenever possible, but we did not want to

widely introduce financial or even, as in the original drafts, monetary

restitution.”
 

Similarly, the

proponent of the Act on Land was guided by the same intentions on the

question of financial compensation as was the case with the Act on

Extra-Judicial Rehabilitation. The background report to the draft Act on

Land states: Instead of land and buildings which it will not be

possible to return, there will be an entitlement to monetary

compensation, which will be provided to the original owners by the

appropriate central administration body of the republic in the same

scope and under analogous conditions as compensation is provided in

extra-judicial rehabilitation.”
 

In

both of the cited restitution laws, the principle of giving priority to

in-kind restitution over financial compensation resulted in a

construction under which financial compensation did not fulfill the

purpose of equivalent value for the non-issued thing or land, and

functioned only as symbolic satisfaction. This construction arose from

the economically limited abilities of the state, after 1989, to mitigate

through financial compensation certain crimes caused by the communist

totalitarian regime.
 

At this

point the Constitutional Court refers to its extensive settled case

law, in which it formulated the aspects of constitutional review of the

category of equality [see, especially judgments file no. Pl. US 16/93

(Collection of Decisions, volume 1, judgment no. 25; promulgated as no.

131/1994 Coll.), file no. Pl. US 36/93 (Collection of Decisions, volume

1, judgment no. 24; promulgated as no. 132/1994 Coll.), file no. Pl. US

4/95 (Collection of Decisions, volume 3, judgment no. 29; promulgated as

no. 168/1995 Coll.), file no. Pl. US 5/95 (Collection of Decisions,

volume 4, judgment no. 74; promulgated as no. 6/1996 Coll.), file no.

Pl. US 9/95 (Collection of Decisions, volume 5, judgment no. 16;

promulgated as no. 107/1996 Coll.), file no. Pl. US 33/96 (Collection of

Decisions, volume 8, judgment no. 67; promulgated as no. 185/1997

Coll.), file no. Pl. US 15/02 (Collection of Decisions, volume 29,

judgment no. 11; promulgated as no. 40/2003 Coll.), file no. Pl. US

33/03 (Collection of Decisions, volume 35, judgment no. 151; promulgated

as no. 584/2004 Coll.), file no. Pl. US 47/04 (promulgated as no.

181/2005 Coll., to be published in volume 36 of the Collection of

Decisions)]. in its understanding of the principle of equality it agreed

with the conclusion of the Constitutional Court of the CSFR (judgment

file no. Pl. US 22/92, Collection of Decisions of the Constitutional

Court of the CSFR, judgment no. 11, p. 37). In it, the Constitutional

Court of the CSFR understood equality as a relative category, which

requires the elimination of unjustified differences. Therefore, the

principle of equal rights must be understood such that legal

differentiation in access to certain rights may not be an expression of

arbitrariness; however, this does not mean that everyone must be granted

any right at all. The Constitutional Court thereby shifted the content

of the principle of equality into the area of constitutional

acceptability of aspects for distinguishing subjects and rights. It sees

the first aspect as ruling out arbitrariness. The second aspect in

evaluating the unconstitutionality of a legal regulation which

establishes inequality is the interference it creates in one of the

fundamental rights and freedoms. In other words, in its case law the

Constitutional Court interprets the constitutional principle of equality

in terms of accessory and non-accessory equality. Thus, a particular

legal regulation which advantages one group or category of persons over

others can not be described as a violation of the principle of equality

without anything further. The legislature has a certain discretion to

decide whether to establish such preferential treatment. In doing so, it

must take care that the preferential approach is based on objective and

reasonable grounds (a legitimate aim of the legislature) and that there

is a proportional relationship between that aim and the means for

achieving it (a legal advantage) (see, e.g., decisions of the European

Court of Human rights in the matters Abdulaziz, Cabales and Balkandali

of 1985, § 72; Lithgow of 1986, § 177; Inze of 1987, § 41).
 

Based

on these aspects of constitutional evaluation of the category of

equality, because the legislature based the differentiation between

subjects and rights in the present matter on objective and reasonable

grounds we can not agree with the petitioners’ objection that the

contested statutory provisions are inconsistent with the constitutional

order due to unconstitutional inequality between the price of substitute

land and the amount of financial compensation.
 


VIII./g

Modification Rationis Decidendi: the Legal Position of Assignees
 

Legal

doctrine took a position on the interpretation of § 11 par. 2 of the

Act on Land during the 1990s (see L. Kopáč, J. Švestka, Úvaha nad

možností převodu restitučních nároků k zemědělským pozemkům, [Thoughts

about the Possibilities for Transfers of Restitution Claims to

Agricultural Land] Právní rozhledy [Legal Perspectives], 6, 1995, p.

224), according to which claims under the Act on Land “are a right to

performance from a legal obligation relationships, which is generally

governed by the Civil Code(§ 488 – § 852),” and thus “they can be

assigned on the basis of § 524 of the CC; for the abovementioned

reasons, this assignment is not prevented by § 525 par. 1 of the CC,”

and “upon assignment of the claim the assignee acquires not only the

right to have the obligated party fulfill the obligation, but all rights

which the assignor had at the time of assignment (§ 524 par. 2 of the

CC). These rights include the right to choose alternative performance,

if the assignor has not yet made that choice.” Finally, “the right to

substitute land under § 11 par. 2 of the Act on Land can not be

considered a receivable to which § 33a applies, because § 33a concerns

only receivables the subject of which is the provision of proportional

financial compensation. However, claims for the return of restituted

land or issuance of substitute land must be considered receivables under

§ 488 of the CC.”
 

This

interpretation was subsequently confirmed by the amendment of Act no.

95/1999 Coll., implemented by Act no. 253/2001 Coll., which provided in

Art. I point 5: “In § 1 par. 2 letter a) reads: ‘a) the procedure of the

Land Fund in transferring agricultural land to entitled persons who

have a right to other land under § 11 par. 2 of Act no. 229/1991 Coll.,

Regulating Ownership of Land and Other Agricultural Property, as amended

by later regulations, (the ‘Act on Land’) and to natural persons or

legal entities to whom that right devolved or was transferred (‘entitled

persons’),’” Thus, this statutory provision includes in the set 

identified by the legislative abbreviation “entitled persons” the subset

of entitled persons under § 11 par. 2 of the Act on Land and the subset

of their heirs, and finally the subset of assignees.
 

The

background report said the following regarding interpretation of the

provision: “The regulation confirms the possibility of assigning claims

to other land.”
 

The

fundamental question which must be answered in this context is whether

grounds for derogation which favor annulling § 13 par. 6 and 7 of Act

no. 229/1991 Coll., as amended by of Act no. 253/2003 Coll., and Art. VI

of Act no. 253/2003 Coll. apply not only to entitled persons under § 11

par. 2 of the Act on Land, but also to assignees. In other words,

whether or not it is justified to extend the unconstitutionality of the

contextual deficit of statutory deadlines established in these

provisions, consisting of the lack of an effective procedural means to

protect rights, both to entitled persons under § 11 par. 2 of the Act on

Land, and to assignees.
 

The

settled practice of the general courts in a similar context [when

evaluating the reasons for income tax exemptions under § 4 par. 1 let.

g) of Act no. 586/1992 Coll., on Income Tax, as amended by later

regulations, in the case of income from the sale of issued real estate]

distinguishes the rights of original restituents and assignees: “Income

from the sale of real estate acquired under the Act Regulating Ownership

of Land and Other Agricultural Property can not be exempted from

individual income tax if the taxpayer acquired this real estate on the

basis of succession to a restitution claim exercised under provisions of

the Civil Code – this is because the tax payer did not become an

entitled person under provisions of the Act Regulating Ownership of Land

and Other Agricultural Property.” (decision of the Municipal court in

Prague of 10 June 2003, file no. 28 Ca 709/2002, decision of the

Regional Court in Brno of 2 September 2003, file no. 29 Ca 415/2001,

decision of the Supreme Administrative Court of 27 October 2004, ref.

no. 5 Afs 29/2004-74). The Regional Court in Ústí nad Labem, in its

decision of 27 March 2003, file no. 15 Ca 201/2001, states regarding the

reasons for this distinction: The common element of exempt incomes

under the Income Tax act is the fact that the exempt incomes in fact do

not represent an increase in the taxpayer’s property, because they

involve compensation for property taken away in the past, or income

obtained by sale of issued property.” The case law of the general

courts, which in this regard distinguishes the legal position of

original restituents and assignees, was subsequently confirmed by the

Constitutional Court (decision file no. I. US 406/2000, file no. IV. US

439/04). The Constitutional Court emphasized that this distinction is

justified by the fact that “the concept of § 4 par. 1 let. g) of the Act

on Income Taxes indicates the obvious intent of the legislature to give

tax exemptions to person previously injured, to whom property was

returned, and not to other persons; real estate issued under a special

regulation, as the cited provision has in mind, must mean real estate

issued to entitled persons on the basis of legal facts specified for the

purpose of eliminating property crimes, and not real estate issued on

the grounds of another, derivative entitlement” (file no. IV. US

439/04).
 

The significance

and purpose of the legal construction under which claims under the Act

on Land are a right to performance from an obligational legal

relationship, generally regulated by the Civil Code (§ 488 – 852), and

which can therefore be assigned on the basis of § 524 of the CC, was to

expand the range of alternatives for satisfying the claims of

restituents. However, one can not conclude from it that the purposes of

the Act on Land, as established in the preamble, also apply to

assignees. Therefore, the same consideration applies in this context as

that which guided the general courts in evaluating the grounds for

income tax exemption under § 4 par. 1 let. g) of the Act on Income Tax.

In this case, with assignees, the pecuniary purposes of assignment are

different from the purpose of issuing substitute land under § 11 par. 2

of the Act on Land to original restituents. When these receivables were

assigned, the assignees must have been aware not only of the possible

advantages, but also the risks of that assignment in view of the manner

in which the offers and allocation of substitute land by the Land Fund

were made; therefore, when evaluating the constitutionality of § 13 par.

6 and 7 of Act no. 229/1991 Coll., as amended by of Act no. 253/2003

Coll., and Art. VI of Act no. 253/2003 Coll., as regards their situation

these statutory provisions can not be said to be inconsistent with the

constitutional principle of protecting the citizen’s justified

confidence in the law, which is a component of a law-based state (Art. 1

par. 1 of the Constitution), or, in this context, inconsistency with

the principle of legitimate expectation of property rights arising under

Art. 1 of the Protocol to the Convention.
 


VIII./h

Formulation of the Verdict of the Derogation Judgment
 

Thus,

the ratio decidendi of the judgment applies only to part of the entire

circle of persons subject to § 13 par. 6 and 7 of Act no. 229/1991

Coll., as amended by of Act no. 253/2003 Coll., and Art. VI of Act no.

253/2003 Coll.; that part is entitled persons under § 11 par. 2 of the

Act on Land (i.e. original restituents) and their heirs, but not

assignees.
 

However,

annulling § 13 par. 6 and 7 of Act no. 229/1991 Coll., as amended by of

Act no. 253/2003 Coll., and Art. VI of Act no. 253/2003 Coll. in their

entirety would also apply to persons to whom the grounds for derogation

do not apply. In judgment file no. Pl. US 24/94 (Collection of

Decisions, volume 3, judgment no. 19; promulgated as no. 80/1995 Coll.),

which was followed by case law in proceedings to review norms, the

Constitutional Court defined the concept of a statutory provision to

mean any part of the text of a legal regulation with normative content,

that is, an expression, containing any linguistic means, which expresses

a legal norm or one of the components of its elements (e.g. the circle

of subjects or situations), or its legal consequences (i.e. a legal

obligation or penalty). The provision of § 1 par. 2 let. a) of Act no.

95/1999 Coll., as amended by of Act no. 253/2003 Coll., introduced the

legislative abbreviation “entitled persons” both for entitled persons,

who have a right to other land under § 11 par. 2 of the Act on Land, and

for natural persons or legal entities to whom that right devolved or

was transferred.
 

Thus, § 13

par. 6 and 7 of Act no. 229/1991 Coll., as amended by of Act no.

253/2003 Coll., and Art. VI of Act no. 253/2003 Coll. contain an

implicit definition of the set of persons concerned as the subset of

entitled persons under § 11 par. 2 of the Act on Land and their heirs,

and the subset of assignees.
 

In

derogation judgments file no. Pl. US 34/04, file no. Pl. US 43/04

(promulgated as no. 355/2005 Coll. and no. 354/2005 Coll., both to be

published in volume 38 of the Collection of Decisions) the

Constitutional Court, in comparable cases, annulled a certain statutory

provision only for a precisely defined subset of the entire set of

persons concerned, the subset to which the grounds for derogation

applied.
 

Based on the

reasons explained above, the Constitutional Court annulled § 13 par. 6

and 7 of Act no. 229/1991 Coll., as amended by of Act no. 253/2003

Coll., and Art. VI of Act no. 253/2003 Coll., insofar as they apply to

entitled persons who have a right to other land under § 11 par. 2 of Act

no. 229/1991 Coll., as amended by of Act no. 183/1993 Coll., and to

their heirs, due to inconsistency with the constitutional principle of

protection of the citizen’s justified confidence in the law, which is a

component of a law-based state (Art. 1 par. 1 of the Constitution), and

due to inconsistency with the principle of legitimate expectations in

the exercise of property rights arising under Art. 1 of the Protocol to

the Convention. Under § 58 par. 1 of the Act on the Constitutional

Court, judgments in which the Constitutional Court decided on a petition

to annul a statute or another legal regulation or their individual

provisions under Art. 87 par. 1 let. a) a b) of the Constitution are

executable on the date they are promulgated in the Collection of Laws,

unless the Constitutional Court decides otherwise. In this case the

Constitutional Court decided that the judgment goes into effect on the

day it is announced [it acted likewise in the matter file no. Pl. US

13/05 (the judgment was promulgated as no. 283/2005 Coll. and will be

published in volume 37 of the Collection of Laws)], for reasons of

achieving protection of constitutionality in the adjudicated matter.

Notice: Decisions of the Constitutional Court can not be appealed.

Brno, 13 December 2005