Decided 23 November 2003 – I. US 754/01
                              
            “Interpretation of Restitution Laws”


HEADNOTES
The  Constitutional  Court would  emphasize  that  with  the
restitution   laws   the  democratic  law-based   state   is
endeavoring at least partially to alleviate the consequences
of past property injustices, and state bodies are obliged to
conduct   themselves  in  accordance  with  the   applicable
restitution  law in harmony with the statutory interests  of
persons  who  should be at least partially  compensated  for
injuries  inflicted upon them by the totalitarian  communist
regime.   This  partial compensation  cannot  be  seen,  for
example, in an outcome where, although the restitution claim
is  determined  to  be  well-founded, the  entitled  persons
merely receives free of charge another parcel of land  owned
by  the  state  or  is awarded financial compensation.   The
guiding principle must always be the above-stated intent  of
the   restitution  law,  in  the  interpretation  of   which
preference  must in principle be given to turning  over  the
original  plot,  or  plots, of land, should  the  restituent
pursue that outcome and should the law not rule it out.
Restitution Act No. 229/1991 Coll., also pursues  above  all
the  aim  that  entitled persons actually  are  given  their
original  property.  It is only exceptionally, that  is  if,
without any doubt, all the requirements laid down in § 11 of
this Act are met, that a plot of land cannot be handed over.
If  the  plot of land, after the transfer or passage to  the
state,  was  build upon, § 11 para. 1 lit.  c)  of  the  Act
introduces  in  total  six separate exceptions,  which  when
satisfied permit even a built-upon plot of land to be turned
over.  The built-upon part of the plot of land is considered
to  be that part upon which a structure stands and that part
of  the  plot  directly connected with  this  structure  and
indispensable   to  its  operation.   There  are   questions
especially    as   to   what   “directly   connected”    and
“indispensable” mean, and in each particular case they  must
be carefully and responsibly, in conformity with the primary
purpose  of  the Land Act, examined and construed.   In  the
Constitutional Court’s view these provisions  cannot  anyway
be interpreted too broadly, thus it cannot be inferred that,
if  a  recreational area is “self-contained”, it  cannot  be
turned over, however extensive it is, and include within  it
all  surface  areas  forming part of  it,  including  (among
others)  open grounds with decorative greenery, pine  ground
cover,  and children’s playgrounds.  As far as concerns  the
asphalt parking lot, it is fitting to make reference to  the
Constitutional  Court’s  arguments (with  reference  to  the
conclusions expressed by the Supreme Court in its case no. 2
Cdon 1414/97), expressed for example, in its judgment No IV.
US  42/01  (Collection  of  Judgments  and  Rulings  of  the
Constitutional  Court  of  the  Czech  Republic,  Vol.   26,
Judgment  No.  48), according to which in restitution  cases
reinforced asphalt surfaces, e.g., a parking lot, cannot  be
considered  as a structure impeding the turning  over  of  a
plot of land pursuant to Act No. 229/1991 Coll.
It  must  be  pointed  out from a general  perspective  that
pursuant  to  Act No. 229/1991 Coll. a plot of land  can  be
transferred to an entitled person even though a structure is
built  upon  it  that  prevents the  use  of  the  plot  for
agricultural or forestry purposes, to the extent that,  from
the structural technology perspective, that structure can be
classified as one of the types of structures enumerated in §
11  para.  1 lit. c) of the cited act (a structure  that  is
movable,  provisional, simple, minor, or one that is  placed
below the surface of the earth).  It should further be noted
that,  while it was certainly intended that Act No. 229/1991
Coll. would safeguard the agricultural use of plots of land,
it  nonetheless follows from the preamble to  the  Act  that
this  aim should be subordinated to the requirement  of  the
alleviation of property injustices by the fact that it  ties
improved  care of the land with the renewal of the  original
ownership relations in it (compare, for example, judgment no
II. US 747/2000, The Collection of Judgments and Rulings  of
the  Constitutional  Court of the Czech Republic,  Vol.  26,
judgment no. 63).

JUDGMENT
The  Constitutional Court decided today, in a panel, in  the
matter of the constitutional complaint of joint complainants
Ing.  C. Z., Ing. J. Z., Z. K., RNDr. M. V., Ing. L.  Z.-P.,
MUDr.  O. P., L. B., S. R., MUDr. M. G., Ing. J. V., H.  P.,
D.  F.  a  Ing. A. B., all represented by JUDr.  V.  K.,  an
attorney,  against  the  17 October  2001  judgment  of  the
Municipal  Court  in  Prague, file no. 28  Ca  268/2000,  as
follows:
      The 17 October 2001 judgment of the Municipal Court in
Prague,  file  no. 28 Ca 268/2000-50, and the 1  March  2000
decision  of the District Office Pribram, Land Office,  file
no. 2940/92, R VIII 2/2000, are hereby quashed.

REASONING

I.
In  their  constitutional complaint the  complainants  (with
reference to the asserted infringement of Arts. 1,  4  para.
1,  11 para. 1, and 36 para. 1 of the Charter of Fundamental
Rights  and Basic Freedoms in conjunction with Arts. 90  and
95 of the Constitution) request that this Court quash the 17
October 2001 judgment of the Municipal Court in Prague, file
no. 28 Ca 268/2000, which affirmed the 1 March 2000 decision
of  the  District  Office Pribram,  Land  Office,  file  no.
2940/92,  R  VIII  2/2000.   The  Land  Office  decided   in
accordance  with § 9 para. 4 of Act No. 229/1991  Coll.,  on
the  Regulation  of Ownership Rights in the Land  and  other
Agricultural  Property, as subsequently amended (hereinafter
SAct No. 229/1991 Coll.”), that the complainants are not the
owners  of the immovable property in the cadastral  district
of Celina, Municipality of Borotice (land parcel no. 902/16)
with a surface area of 7038 meters.  It is the Land Office’s
position  that, in view of § 11 para. 1 lit. c) of  Act  No.
229/1991  Coll.,  the immovable property  cannot  be  turned
over,  as they are surface areas built upon with a  road,  a
sewage  water treatment plant, and areas directly  connected
with  structures  that are necessary  to  the  operation  of
structures of a residential facility.  In accordance with  §
11 para. 2 and § 17 of Act No. 229/1991 Coll., the Land Fund
shall,  in  exchange for such plots, convey to the  entitled
persons  title  to  some other plots of land  owned  by  the
State, or to provide then with compensation.
     It appears from the contested decision of the Municipal
Court  in Prague that an asphalt parking lot, a sewage water
treatment  plant, and open grounds with decorative greenery,
benches, children’s playgrounds, pine ground cover,  and  an
access  to  a  mooring  which belongs  to  the  recreational
center,  are  also  situated  on  the  plot  of  land.   The
Municipal Court stated that, in the case of structures of  a
residential facility, a storage area and a parking lot  must
be  constructed and that a sewage water treatment  plant  is
also  necessary  to  the operation of  the  structure.   The
Municipal  Court considers it a self-contained, recreational
facility, and in its view the purpose of recreation  is  not
satisfied  merely by a road ensuring the arrival of  guests,
and by the provision of accommodation and food, but even the
remaining parts of the plot of land at issue, which are made
up  of  open  grounds  with  decorative  greenery,  benches,
children’s playgrounds including pine ground cover,  perform
a  function.  It is an enclosed recreational facility within
which its individual parts are functionally interconnected.
      The complainants are of the view that, in adjudicating
the  matter, the Municipal Court in Prague used an incorrect
legal  analysis.   They  take the position,  in  particular,
that,  according to the intent of in the Land Act, the  term
“area   directly  connected  with  the  structure  or   area
indispensable to its operation” cannot be interpreted in the
manner  as  was  done by the Land Office and  the  Municipal
Court.  In the complainants’ opinion, with § 11 para. 1 lit.
c) of Act No. 229/1991 Coll., the legislature prohibited the
turning  over only of that portion of a plot of  land  which
can  be  brought within the definition, and this  definition
was  not intended to include the entire parcel upon which  a
structure stands, including the surrounding areas which  are
not  functionally  interconnected with it.   If  some  other
interpretation is to be adopted, the owners of a land parcel
with  an  extensive surface area would be  disadvantaged  as
against  the  original  owners of  small  parcels,  for  the
turning over of extensive parcels would be impeded even by a
structure which would take up only an insignificant part  of
the parcel.  They further stated that for the operation of a
structure  as  a  recreational  facility,  it  is  certainly
appropriate to have a certain functional base which  enables
the recreational guest meaningfully to spend their free time
in  the  vicinity of the structures, but such a base is  not
indispensable  to  the operation of the  structure  for  the
above-stated purpose; the absence thereof merely results  in
a  diminishment  of it attractiveness.  The legislature  did
not  intend  to include within the term, “operation  of  the
structure”, also its economic utilization, rather merely the
assurance  of  its functionality from a building  technology
perspective.   The complainants concluded that the  relevant
provisions of Act No. 229/1991 Coll. must be interpreted  in
the  spirit  consistent with the views they have  expressed.
The complainants consent to dispensing with an oral hearing.
      In  its  statement  of  views  on  the  constitutional
complaint stated that the complaint is not well-founded  and
in  essence merely repeated in brief the arguments contained
in  the reasoning of the contested decision.  In the court’s
opinion,  it  is  necessary to take into  consideration  the
character   and  purpose  of  the  use  of  the  structures,
according  to  which  the  related and  indispensable  areas
should  be delimited; it agreed with the complainants’  view
that only that part of the plot of land which enables access
to  the  structures  and which allows for their  maintenance
should  be  assessed  in  this  fashion.   It  consented  to
dispensing with an oral hearing.
      In  its  statement of views, the Land  Office  Pribram
summarized the course of the proceeding in the given matter,
during  which  recalled that it had first  of  all  taken  a
decision on 10 November 1997, file no. 2940/92 R VIII 92/97,
in  which, in accordance with the geometric plan determining
encumbrances,  it  turned  over  to  the  entitled   persons
portions  of the plot of land at issue.  That decision  was,
however,  quashed by the 24 February 1998  judgment  of  the
Regional Court in Usti nad Labem, file no. 15 Ca 647/97,  15
Ca  648/97,  and the matter was remanded to the Land  Office
with  instructions in further proceedings to deal  with  the
issue  of  whether  the plot of land is built  upon  and  to
ascertain  sufficiently the facts of  the  case.   The  Land
Office  then  ordered  a local investigation  in  which  the
entitled   and   obliged   persons   took   part,   as   did
representatives  of  the municipality and  of  the  building
office.   Afterwards it issued the above-mentioned decision,
in  which  it determined that the complainants are  not  the
owners  of the immovable property at issue, affirmed in  the
Municipal  Court’s  contested  judgment.   The  Land  Office
further stated that this case cannot be compared with  cases
involving  structures of agricultural facilities  which,  in
contrast to recreational or residential structures,  do  not
hamper  the agricultural utilization of a plot of land.   In
its  view,  the legislative intent was, first and  foremost,
that  property restituted pursuant to Act No. 229/1991 Coll.
continue to serve agricultural purposes, which is ruled  out
for  the  plot  of  land under consideration  owing  to  its
location.  It agrees to dispense with an oral hearing.
      The secondary parties to the proceeding, D. and u. K.,
st.  p.,  in  their statement of views on the constitutional
complaint,  stated  in  essence  that  there  has  been   no
encroachment  upon  any  of  the  complainants’  fundamental
rights  or basic freedoms, made reference to the content  of
the file and to the admitted evidence, and proposed that the
constitutional  complaint be rejected on the  merits.   They
also agree to dispense with an oral hearing.
      In  conformity with § 28 para. 2 of, the Land Fund  of
the  Czech  Republic relinquished its status as a  secondary
party to the proceeding.

II.
The constitutional complaint is well-founded.
      The  heart of the matter is the issue whether  and  to
what  extent  the  plot  of land at issue,  upon  which  the
complainants are asserting a restitution claim, is  a  tract
of  land  that is directly connected, and indispensable,  to
the  operation of structures of a residential facility which
are  situated  upon  it (§ 11 para. 1 lit.  c)  of  Act  No.
229/1991 Coll.).
     From the assembled documents in the instant case, which
the  Constitutional  Court  requested  be  sent  to  it  (in
particular from the file material of the Municipal Court  in
Prague, file no. 28 Ca 268/2000, and from the relevant  file
of  the  Land  Office  in Pribram),  as  well  as  from  the
contested  decisions, it is evident that the  structures  of
the  residential  facility are situated on building  parcels
no.  84, 85, and 86; it had already been finally decided not
to   hand   over  these  building  parcels.   However,   the
adjudicated case concerns parcel no. 902/16, forming an area
surrounding the mentioned building parcels, which is made up
of  an  asphalt parking lot, a road connecting the buildings
on  the  building plot, a sewage water treatment  plant  and
also   open  grounds  with  decorative  greenery,   benches,
children’s playgrounds, pine ground cover, and an access  to
a  mooring which belongs to the recreational center.  As was
already  stated  above,  the  ordinary  court  came  to  the
conclusion  that  this  space was  directly  connected  with
structures  designated for recreation and  indispensable  to
their operation.
      However conscious the Constitutional Court is  of  the
possibility that, due to their distinctive circumstances, it
will  be complicated to resolve concrete cases, in the first
place  it  would call to mind and emphasize  that  with  the
restitution   laws   the  democratic  law-based   state   is
endeavoring at least partially to alleviate the consequences
of past property injustices, and state bodies are obliged to
conduct   themselves  in  accordance  with  the   applicable
restitution  law in harmony with the statutory interests  of
persons  who  should be at least partially  compensated  for
injuries  inflicted upon them by the totalitarian  communist
regime.   This  partial compensation  cannot  be  seen,  for
example, in an outcome where, although the restitution claim
is  determined  to  be  well-founded, the  entitled  persons
merely receives free of charge another parcel of land  owned
by  the  state  or  is awarded financial compensation.   The
guiding principle must always be the above-stated intent  of
the   restitution  law,  in  the  interpretation  of   which
preference  must in principle be given to turning  over  the
original  plot,  or  plots, of land, should  the  restituent
pursue that outcome and should the law not rule it out.
      Restitution Act No. 229/1991 Coll., also pursues above
all  the aim that entitled persons actually are given  their
original  property.  It is only exceptionally, that  is  if,
without any doubt, all the requirements laid down in § 11 of
this Act are met, that a plot of land cannot be handed over.
If  the  plot of land, after the transfer or passage to  the
state,  was  build upon, § 11 para. 1 lit.  c)  of  the  Act
introduces  in  total  six separate exceptions,  which  when
satisfied permit even a built-upon plot of land to be turned
over.  The built-upon part of the plot of land is considered
to  be that part upon which a structure stands and that part
of  the  plot  directly connected with  this  structure  and
indispensable   to  its  operation.   There  are   questions
especially    as   to   what   “directly   connected”    and
“indispensable” mean, and in each particular case they  must
be carefully and responsibly, in conformity with the primary
purpose  of  the  Land Act, examined and construed.   It  is
precisely  in  this  respect  that  the  public  authorities
deciding in this matter interpreted the cited provisions  in
a  manner which is unacceptable from the constitutional  law
perspective;  otherwise, in view of the  complexity  of  the
matter,  from  the perspective of their procedural  approach
they  cannot in any significant manner be faulted.   In  the
Constitutional Court’s view these provisions  cannot  anyway
be interpreted too broadly, thus it cannot be inferred that,
if  a  recreational area is “self-contained”, it  cannot  be
turned over, however extensive it is, and include within  it
all  surface  areas  forming part of  it,  including  (among
others)  open grounds with decorative greenery, pine  ground
cover, and children’s playgrounds.  It can be asserted  that
in this case the ordinary court in essence proceeded more on
the  basis of the “purpose of the recreational area” or  the
“purpose  of  recreation” than from  the  above-interpreted,
paramount purpose of the restitution law itself.  As far  as
concerns  the  asphalt parking lot, it is  fitting  to  make
reference  to  the  Constitutional Court’s  arguments  (with
reference to the conclusions expressed by the Supreme  Court
in  its case no. 2 Cdon 1414/97), expressed for example,  in
its  judgment  No IV. US 42/01 (Collection of Judgments  and
Rulings  of the Constitutional Court of the Czech  Republic,
Vol. 26, Judgment No. 48), according to which in restitution
cases  reinforced  asphalt surfaces, e.g.,  a  parking  lot,
cannot  be  considered as a structure impeding  the  turning
over of a plot of land pursuant to Act No. 229/1991 Coll.
      As  far as concerns the objection of a secondary party
to  the  proceeding, to the effect that  the  plot  of  land
cannot  be  employed for agricultural purposes, it  must  be
pointed out from a general perspective that pursuant to  Act
No.  229/1991 Coll. a plot of land can be transferred to  an
entitled  person even though a structure is  built  upon  it
that  prevents  the  use  of the plot  for  agricultural  or
forestry  purposes, to the extent that, from the  structural
technology perspective, that structure can be classified  as
one  of  the types of structures enumerated in § 11 para.  1
lit.  c)  of  the  cited act (a structure that  is  movable,
provisional, simple, minor, or one that is placed below  the
surface of the earth; from the scholarly literature on  this
issue  compare, for example Pekarek, M.: Commentary  on  the
Amendment to the Land Act, Masaryk University Brno, 1993, p.
23  and following).  It should further be noted that,  while
it  was certainly intended that Act No. 229/1991 Coll. would
safeguard  the  agricultural  use  of  plots  of  land,   it
nonetheless follows from the preamble to the Act  that  this
aim  should  be  subordinated  to  the  requirement  of  the
alleviation of property injustices by the fact that it  ties
improved  care of the land with the renewal of the  original
ownership relations in it (compare, for example, judgment no
II. US 747/2000, The Collection of Judgments and Rulings  of
the  Constitutional  Court of the Czech Republic,  Vol.  26,
judgment no. 63).
      Since  neither  of  the  public authorities  concerned
itselves  with  the complainants´ restitution  case  in  the
light  of  the  above-mentioned analysis, the Constitutional
Court came to the conclusion that, in the instant case, this
inaction constituted a violation of Art. 36 para. 1  of  the
Charter  of Fundamental Rights and Basic Freedoms, in  which
is  enshrined  the right to fair process.  Accordingly,  the
Constitutional Court granted the constitutional complaint in
full  and  decided to quash the contested  17  October  2001
judgment  of the Municipal Court in Prague, file no.  28  Ca
268/2000.   Due to considerations of procedural economy,  at
the  same time it also quashed the 1 March 2000 decision  of
the  District Office Pribram, Land Office, file no. 2940/92,
R VIII 2/2000.
      The  Constitutional Court did not, however,  find  the
infringement  of any other of the complainants´  fundamental
rights.   In response to the objection that Art. 11 para.  1
of  the  Charter has been violated, it suffices  to  briefly
call to mind that this article protects already-existing and
constituted property rights, and not mere asserted claims to
them.  For completeness, the Constitutional Court would  add
that  Arts.  90  and  95  of  the  Constitution,  which  the
complainants  have  asserted were  also  infringed,  do  not
directly  and immediately guarantee fundamental  rights  and
basic  freedoms,  for  in  essence they  merely  govern  the
principles  of  court activities.  They are  then  merely  a
reflection and do not enshrine individual public-law rights.

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

Brno, 23 October 2003