IV.US 215/94


                      JUDGMENT

     of the Constitutional Court of the Czech Republic

              In the name of the Czech Republic

     In  the  matter of J. S, a citizen of the Slovak Republic,
represented  by JUDr. M. N., an attorney, in the  matter  of  a
constitutional complaint against the 6 April 1994  decision  of
the  District Office - District Land Office in Sumperk,  action
no. 1407/1716/94, and against the 27 September 1994 judgment of
the  Regional Court in Ostrava, file no. 22 Ca 264/94, with the
Regional  Court in Ostrava joined as a party and  the  District
Office  - District Land Office in Sumperk joined as a secondary
party,  the Constitutional Court of the Czech Republic, sitting
in  a  Panel composed of its Chairman, JUDr. Pavel Varvarovsky,
and  Justices,  JUDr.  Ivana  Janu  and  JUDr.  Eva  Zarembova,
decided:

                        THUSLY:


     The  27  September 1994 judgment of the Regional Court  in
Ostrava, file no. 22 Ca 264/94, is hereby annulled;

     The  6  April  1994  decision of  the  District  Office  -
District  Land  Office in Sumperk, action no. 1407/1716/94,  is
hereby annulled.


                           REASONING:


      In   her  timely  filed  constitutional  complaint,   the
complainant  sought the annulment of the final judgment  of  27
September 1994 of the Regional Court in Ostrava, file no. 22 Ca
264/94, and of the 6 April 1994 decision of the District Office
-  District  Land  Office in Sumperk, action no.  1407/1716/94.
This judgment upheld the decision by the Land Office in Sumperk
in which it refused to approve an agreement on the surrender of
real estate, an agricultural homestead (parcel number 12 and 32
in  the  Sec  Cadastral  Office),  the  agreement  having  been
concluded between J. S. and the obligated person, the  City  of
Jesenik.

     On  the basis of its legal analysis, the court reached the
same  conclusion as the District Office - District Land  Office
in  Sumperk, that the complainant did not have the status of an
authorized person under § 4 paras. 1 and 2 of Act No.  229/1991
Sb.,  on the Regulation of Ownership Relations to the Soil  and
to other Agricultural Property, as amended by later enactments,
for she does not meet the criterion of Czech citizenship.

     The main point made in the 15 December 1994 constitutional
complaint, and by the 28 April 1995 supplemental filing, is the
complainant's objection that, as a consequence of the  division
of  the  former  common  state, the Czech  and  Slovak  Federal
Republic, she has been discriminated against with regard to her
restitution claim.  Her request for the surrender of  the  real
estate  was  timely submitted and met all of the  requirements.
She  further  reasoned that, in accordance with  Constitutional
Act No. 4/1993 Sb., on Measures Relating to the Dissolution  of
the  Czech  and  Slovak Federal Republic, the principle  should
apply  that relations and claims arising prior to the  division
of  the  state  should be governed by the  enactments  then  in
force.  According to the complainant's assertion, the contested
decision  infringes the basic legal certainty of citizens  laid
down  in  Article 1 of the Constitution of the Czech  Republic.
It  is likewise in conflict with Article 1, Article 2 para.  3,
Article  3 para. 1, and Article 4 paras. 2 and 3 of the Charter
of   Fundamental   Rights   and  Basic  Freedoms   (hereinafter
"Charter"),  with Article 10 of the Constitution of  the  Czech
Republic, and with Article 1 para. 1 of the Additional Protocol
to  the  Convention  on  the Protection  of  Human  Rights  and
Fundamental Freedoms.  In addition, she asserts that it is  not
in  conformity  with Article 11 para. 1 of the  Charter  for  a
state administrative body, rather than a court, to be empowered
to  decide such a significant issue as one concerning property.
The  argument that such decisions are reviewed by a court under
the   procedure  for  the  judicial  review  of  administrative
decisions does not pass muster because a court reviews it  only
from the perspective of legality and the party has no appellate
remedy  against  its  decision.  Such a decision-making  system
conflicts  with  the  fundamental right  to  a  fair  procedure
(Article  36  paras. 1 and 2 of the Charter), as well  as  with
Article  6 para. 1 of the European Convention on the Protection
of Human Rights.  In addition, the court is empowered to decide
without a hearing, as occurred in this very case.

    The  complainant concluded her constitutional complaint  by
asking  that  the Constitutional Court declare that  the  above
mentioned constitutional rights and freedoms were violated and,
for  that  reason, that it annul the judgment of  the  Regional
Court in Ostrava and the decision of the District Office - Land
Office in Sumperk.

     The Justice Rapporteur requested that the other parties to
the  proceeding, that is, the Regional Court in Ostrava and the
District  Land  Office  in Sumperk, give  their  views  on  the
constitutional complaint.  In its 13 February 1995  submission,
the   District   Land  Office  stated  that  in  deciding   the
complainant's restitution claim under Act No. 229/1991 Sb.,  as
amended  by  later  enactments,  it  relied  above-all  on  the
provisions  of  Article  1 para. 2 of  Constitutional  Act  No.
4/1993  Sb.,  on  Measures Relating to the Dissolution  of  the
Czech and Slovak Federal Republic, which provides that, after 1
January  1993,  statutes  that tie rights  and  duties  to  the
territory  of  the  Czech and Slovak Federal  Republic  and  to
citizenship  of the Czech and Slovak Federal Republic  must  be
interpreted such that these terms shall be understood  to  mean
the  territory  of  the Czech Republic and citizenship  of  the
Czech Republic, unless otherwise provided by statute.  In  view
of  the fact that the Office was not aware of any statute  that
would provide otherwise in the case of the assertion of a claim
under  the Act on Land, it reached the conclusion that, as  the
applicant  did not meet the requirement of citizenship  of  the
Czech  Republic, she had no claim, regardless of the fact  that
she  asserted  her  claim  at  a time  when  she  met  all  the
requirements,  citizenship  of the  Czech  and  Slovak  Federal
Republic  in  particular.   At the 8  June  1995  hearing,  the
secondary party's representative then stated that, while it was
aware  of  the Czech Republic Agricultural Ministry's  position
that  claims asserted by citizens of the Slovak Republic  prior
to  the  division of the state should be granted, this position
was,  nonetheless, non-binding.  It further conceded  that  the
practice  in  these  matters varies and  that,  in  Moravia  in
particular,  a  negative  view  on  these  restitution   claims
prevails.   Finally then, the secondary party argued  that,  in
fact, the matter has not been finally concluded since the court
did  not  approve  the agreement and returned  the  matter  for
decision.

     In  its  submission, the Regional Court in Ostrava  stated
that it did not consider the complainant's assertion to be well-
founded  so  far  as  concerns the asserted  violation  of  the
fundamental   rights   and  basic   freedoms   cited   in   the
constitutional  complaint.  To the extent that the  complainant
makes  reference to the 23 November 1992 Agreement between  the
Governments  of the Czech Republic and the Slovak Republic,  on
the  Support and Mutual Protection of Investments, the Regional
Court  stated in its submission that this Agreement  is  not  a
generally  binding legal enactment, for it was not  promulgated
in  the  Collection of Laws (in contrast with the situation  in
the  Slovak  Republic,  where  it  was  promulgated  under  No.
231/1993 Z.z.).

     The  Constitutional  Court concurred with  the  objections
raised by both parties to the effect that they considered it to
be  in  conflict with the legal rules concerning the powers  of
commercial lawyers for the complainant to be represented  by  a
commercial  lawyer.   For this reason, on  15  March  1995,  it
requested  the complainant to cure the defects in her petition.
The complainant complied with this request and on 18 April 1995
delivered  to the Constitutional Court a power of attorney  for
JUDr.  M. N., an attorney from Hradec Kralove, authorizing  him
to  represent  her  before  the Constitutional  Court  in  this
matter.

      In   view   of  the  significance  of  the  matter,   the
Constitutional Court also sought the views of the  Ministry  of
Foreign  Affairs  of  the Czech Republic and  the  Ministry  of
Agriculture of the Czech Republic.

     In its 6 February 1995 submission, the Ministry of Foreign
Affairs took the position that the ratification process for the
Agreement between the Governments of the Czech Republic and  of
the  Slovak  Republic, on the Support and Mutual Protection  of
Investments,  was held up due to complications  encountered  in
negotiations  on  the  settlement  of  property   rights   with
Slovakia.   Even though the ratification process was  completed
on  the  Slovak  side and the Agreement was  published  in  its
Collection  of Laws, the Slovak side never notified  the  Czech
side  concerning  this  fact.  For this reason,  the  Agreement
cannot  be  considered valid.  The Ministry of Foreign  Affairs
did  not consider that it comes under its competence for it  to
express its views on the problems of restitution as they relate
to former citizens of the common state.

     The  Director  of  the Central Land Office  expressed  the
views  of  the  Ministry of Agriculture  on  the  matter.   His
submission  stated  that, when a state  ceases  to  exist,  the
private  law claims of citizens who become citizens of  one  of
the successor states should not be affected.  Stated otherwise,
whether  certain persons should be classified under the heading
of  an  "authorized  person under the Act  on  Land",  must  be
determined from whether that person was a citizen of the former
Czech  and Slovak Federal Republic at the time he asserted  his
restitution claim and whether he had permanent residence within
the   country.   The  Central  Land  Office  communicated  this
position to the district land offices in an Information  of  22
March  1993 and 15 December 1993.  In reality, however, certain
regional  courts, especially in Moravia, maintain  a  different
opinion and do not recognize citizens of the Slovak Republic as
having  the status of authorized persons, even if they  made  a
timely  assertion  of  their claims and if,  at  that  time  of
asserting the claim, they met all the conditions therefor.   In
the  view  of  the  Central  Land Office,  the  fact  that  the
responsible  district land office did not  manage  to  issue  a
decision by the time the common state was divided, whether from
the  excessive  quantity of submitted requests  or  from  other
objective  reasons, can not work to the detriment of claimants.
The  Ministry of Agriculture's efforts to resolve this  problem
by means of legislation were not successful.  It further stated
in   its   submission  that,  after  the  dissolution  of   the
federation, the Slovak Republic acknowledged restitution claims
made  by  Czech citizens to the same degree as it did those  of
Slovak  citizens.   At the beginning of 1994,  the  Czech  side
proposed  to the Slovak side that they conclude a new agreement
on  the  support and mutual protection of investments, however,
these negotiations have not as yet been concluded.

     The  Constitutional Court was concerned first of all  with
the  issue of whether the constitutional complaint should  have
been rejected on procedural grounds as premature.  However,  it
came  to  the  conclusion  that the proceeding  concerning  the
approval  of an agreement for the issuance of real  estate  was
concluded  with  full legal effect, so that the complainant  no
longer  has  any  procedural remedies at her disposal  in  this
proceeding.   Even  though  a  decision  of  the  Land   Office
concerning ownership under § 9 para. 4 of Act No. 229/1991 Sb.,
should  follow,  it could not be a decision  in  favor  of  the
complainant, for the Land Office is bound by the legal position
adopted  by the court.  Thus, even if the Constitutional  Court
were  to  take the position that both proceedings form a  unit,
without  a  doubt,  in  this instance,  the  conditions  for  a
proceeding in accordance with § 75 para. 2, letter  a)  of  Act
No.  182/1993 Sb., on the Constitutional Court, were  met  for,
considering  the  substance of the complaint, its  significance
extends beyond the personal interests of the complainant.

     When considering the actual contents of the constitutional
complaint itself, the Constitutional Court proceeded  from  the
following legal considerations:

     The principle of legal certainty and the protection of the
citizens'  faith  in  the  law  without  doubt  are  among  the
hallmarks   of   a   law-based  state.   The   prohibition   on
retroactivity of legal norms, or the retroactive interpretation
of  them,  then, also makes up a component of legal  certainty.
This  prohibition, which for the field of substantive  criminal
law  is  explicitly stated in Article 40 para. 6 of the Charter
of  Fundamental Rights and Basic Freedoms, may be deduced  from
Article  1  of  the Constitutional of the Czech  Republic  with
regard to other legal fields.  The Constitutional Court  of the
Czech  and Slovak Federal Republic has previously adopted  this
position in the matter Pl. US 78/92, and it has been reiterated
in  the  judgment  of  the Constitutional Court  of  the  Czech
Republic,  file no. Pl. US 16/93, as well as in  several  other
judgments.  Thus, if someone acts in reliance on some  statute,
he  should  not  be  disappointed in his reliance.   Among  the
principles  of the law-based state should be counted  also  the
principle that the period during which a proceeding did not  go
forward  can  not be counted to the detriment of a party,  with
the exception of cases when the party to the proceeding did not
take proper steps to  advance it.

     What is particular to the case at hand is that it does not
concern  the  issuance  of  a new legal  enactment;  rather  it
concerns  the fact that the division of the state has  resulted
in the situation where a legal enactment, the text of which has
not  be  amended,  begins to be interpreted  differently.   The
legal  relations existing prior to 1 January 1993, as  well  as
legal  transactions carried out prior to that date,  thus,  did
not remain a forbidden sphere.  The key issue is whether such a
practice on the part of administrative bodies can be considered
to be in conformity with the Constitution where restituents are
de facto divided into two categories:  those who asserted their
claims  within  the prescribed period, who met  the  prescribed
requirements  when they asserted their claim, and whose  claims
were decided upon before the moment when the state was divided,
and  those  who, after 1 January 1993, were informed that  they
actually  ceased to be authorized persons ex post, even  though
these persons did everything that was required of them for  the
assertion of their claim.  At the same time, it is necessary to
emphasize  the fact that the general deadline for the assertion
of  claims under the Act on Land was set as 31 January 1993  (§
13  para. 1) and the vast majority of applicants asserted their
claims   while  the  common  state  still  existed,  when   the
conditions  were  citizenship of the federation  and  permanent
residence within the federation.

     The  legal position adopted by the Land Office, and  later
also  by  the  Regional Court, in the case under consideration,
with  reference to Article 1 para. 2 of Constitutional Act  No.
4/1993  Sb., on Measures Connected with the Dissolution of  the
Czech  and Slovak Federal Republic, thus actually leads to  the
consequence   that  conduct  which  was  legally  relevant   in
accordance with the preceding legal rules became, on the  basis
of  the effect of the new legal rules (more precisely said,  on
the  basis of the new legal situation), legally irrelevant,  so
that   an  unjustifiable  inequality  was  established  between
authorized persons.  In this way, the constitutional principles
of  the  protection of the citizen's faith in law, of the  law-
based  state, and of equality, as they are laid down in Article
1 of the Constitution of the Czech Republic and in Article 1 of
the Charter, were infringed.

     The Court also agrees with the complainant's view that if,
in  such  a  significant case and in one that is certainly  not
simple,  a court makes a decision without the participation  of
the party, the principle of fair procedure, set down in Article
36  paras. 1 and 2 of the Charter and in Article 6 para.  1  of
the  Convention  on the Protection of Human  Rights  and  Basic
Freedoms, has been violated.

     Last but not least, the Constitutional Court then proceeds
from  the fact that the purpose of all restitution acts was  to
alleviate the consequences of certain property injustices which
occurred  during the decisive period.  Even if the  legislature
was  aware  that  it  was unrealistic  to  try  to  remedy  all
injustices,  so  that  it is necessary  to  be  satisfied  with
righting only some of them, still these legal enactments cannot
be  interpreted  so  dogmatically and  non-conformably  to  the
Constitution as to de facto give rise, in relation  to  certain
persons, to new injustices.

     Thus,  for  the  above-stated reasons, the  Constitutional
court has set aside the contested decisions.

Notice:   A  decision  of the Constitutional  Court  cannot  be
appealed.  Decisions of the Constitutional Court are binding on
all  authorities  and  persons  (Article  89  para.  2  of  the
Constitution).

In Brno, 8 June 1995
                            JUDr. Pavel Varvarovsky
                            Chairman of the Panel