IV. US 34/97

5  May  1997 Judgment of Panel IV. of the Czech Constitutional  Court,
IV.  ÚS 34/97, in the matter of the Constitutional complaint submitted
by  Ing.  P.U. against the 22 November 1996 judgment of the  Municipal
Court  in Prague, turning down his complaint against an administrative
decision  refusing  to  issue  him a certificate  of  citizenship  [as
reported  in the Collection of Judgments and Resolutions of the  Czech
Constitutional Court, Vol. 8, No. 49, p. 11].


                         I.  Judgment
                               
The 22 November 1996 judgment of the Municipal Court in Prague,
         file no. 38 Ca 305/96-21, is hereby quashed.
                               
                        II.  Reasoning
                               

.  .  .  .  .

     The   complainant  states  that  this  matter  was  already  once
considered by the Constitutional Court. . . . .  By its judgment of  8
November 1995, Pl. ÚS 5/95, his petition to annul § 17 was rejected on
the  merits.   . . . . The proceeding on his constitutional  complaint
then proceeded before the Constitutional Court's Panel I, which by its
judgment of 30 April 1996, I. 2/95, quashed the contested decision  of
the  Municipal Court in Prague due to the fact that in the  proceeding
before that court was violated the principle of fair process resulting
from Art. 38 para. 2 of the Charter [the court decided without hearing
the  parties]  . . . .  On the basis of this judgment,  the  Municipal
Court  in  Prague  held further proceedings in the matter,  this  time
holding an oral hearing, however it decided in the same way, that is ,
it rejected the complaint on the merits.

     From the wide-ranging arguments put forward in the constitutional
complaint, the following facts are crucial:

.  .  .  .  .

     Finally,   with   reference   to  the  linguistic   (grammatical)
interpretation  of  the difference between the concepts  "deprivation"
and  "loss"  of  citizenship, which the Constitutional Court  made  in
relation  to  Art. 12 of the Czech Constitution in its above-mentioned
judgment,  Pl. ÚS 5/95, the complainant is of the view that  the  same
logic should be applied when interpreting § 17 of the Citizenship  Act
so  far  as concerns the distinction drawn between the terms "request"
and  "election".  Pursuant to the cited Act, the prerequisite for  the
loss  of  Czech  citizenship is the acquisition of  citizenship  of  a
foreign state "at one's own request".  The complainant submits that he
never  submitted such a request, even though the Slovak law  currently
in   force  makes  provision  for  one,  rather  he  elected  to  take
citizenship of the Slovak Republic.  He made this election consciously
and  precisely  for  the  reason that  he  knew  that  loss  of  Czech
citizenship  occurs  only in the case that he obtains  citizenship  of
another  state  on the basis of a request; therefore, he  was  of  the
conviction that there was no danger of such a consequence in his case.

.  .  .  .  .

     Pursuant to Art. 89 para. 2 of the Constitution, all authorities,
thus  even  one  of the Constitutional Court's panels,  are  bound  by
Constitutional Court judgments.  Although there exist other  views  on
the  matter, it should not be open to doubt that Constitutional  Court
judgments are of such a nature that not only the statement of judgment
is  binding,  but the propositions of law stated in the reasoning  are
binding as well.  In view of this fact, when deciding this case,  this
panel  was  obliged  to respect the 8 November 1995  judgment  of  the
Constitutional Court Plenum, Pl. ÚS 5/95.. . . .

     The  heart  of  the matter under consideration is  the  issue  of
whether the complainant, who under § 1 para. 1 of the Citizenship  Act
was,  on  1  January 1993, a citizen of the Czech Republic,  lost  his
citizenship as the result of electing Slovak citizenship  on  30  June
1993.   In  this  regard,  the Constitutional Court  supplemented  the
record   by  hearing  the  complainant's  testimony,  from  which   it
ascertained that, on 30 June 1993 at the Slovak Embassy in Prague,  he
made  a declaration on electing citizenship of the Slovak Republic  by
filling  out the appropriate forms, which he submitted in the presence
of  the consul with the reservation that he wished to retain his Czech
citizenship  as  well.   Even prior to 30 June 1993,  the  complainant
spoke with dozens of people, to the same effect, concerning the action
he  intended  to take, and after obtaining the certificate  of  Slovak
citizenship,  issued to him on the same day, he spoke with  the  Czech
Press  Agency.  As the complainant further states, he was led to  this
action  by  three reasons, among which was included the fact  that  he
considered this legal route as something of a precedent for  thousands
and  thousands  of ethnic Czechs living in Slovakia.   When  adjudging
this  issue,  the  Municipal Court in Prague did  not  consider  as  a
decisive  issue  how  the complainant effected his legal  transaction,
rather  the fact that, voluntarily and by a manifestation of  his  own
free  will, he obtained the citizenship of a foreign state.  From  the
perspective of § 17 of the cited Act, the court considered as  legally
irrelevant  the  fact  that,  at the same time,  he  conditioned  this
manifestation  by the reservation that he did not wish to  lose  Czech
citizenship.  The Constitutional Court is, however, of the  view  that
this  argument  would be entirely on point and that, in  view  of  the
already-mentioned conclusions of the Constitutional  Court  Plenum  in
the matter, ,  it would be not only possible, but necessary, to accept
it,  under  the assumption that the election of citizenship  could  be
classified,  under § 17 of the cited Act, as a case of the acquisition
of  foreign  citizenship at one's own request.  In the  Constitutional
Court's view, however, it cannot be overlooked in this connection that
the two institutions consistently differ, and to a substantial degree,
since  an election is, by its nature, a unilateral at, while a request
presupposes the agreement of a second party.  However much, on the one
hand,  there may be doubts concerning the significance of the  content
of  the  term, election, on the other hand the consequence of loss  of
citizenship is, pursuant to § 13 of the cited Act, attached only to  a
declaration  (§  16) and to the acquisition of foreign citizenship  (§
17).   In accordance with the latter provision, the condition for  the
loss of Czech citizenship is the fulfillment of the statutory elements
which  are  the prerequisite for acquiring citizenship  of  a  foreign
country  "at one's own request"  While the Citizenship Act includes  a
Part  Three  containing  special provisions on  Czech  citizenship  in
relation  with  the  dissolution  of  the  Czech  and  Slovak  Federal
Republic, nonetheless, none of these provisions deal with the election
by  a Czech citizen to take foreign citizenship, thus neither with the
legal  consequences of such an election.  Such an election is provided
for  only  in the Slovak National Council Act No. 40/1993  Z.z.,  such
that  it  may  be made by any person who, on 31 December 1992,  was  a
citizen  of the Czech and Slovak Federal Republic and is not currently
a  citizen  of  the Slovak Republic (§ 3 para. 1).   Exactly  in  this
connection,  it must be emphasized that citizenship is a legal  status
with  which  the legal order attaches special rights and  duties.   In
addition, therefore, all acts by which an individual must or may  lose
citizenship  of  the Czech Republic, necessarily must  be  conditional
upon there being a manifestation of his consent.  In the complainant's
case,  however,  there  is no such unambiguous  manifestation  of  his
consent, all the more so due to the fact that the complainant made the
election in a situation where the Czech Citizenship Act lacks, as  was
already stated, any provisions concerning either the election to  take
foreign  citizenship  by a Czech citizen or the  effects  of  such  an
election,  that  is, a provision indispensable for the  foreseeability
and  knowability  of  the  consequences  of  such  legal  transaction,
indispensable precisely in the interests of legal certainty.  In  this
respect,  the Constitutional Court shares the position taken by  Czech
legal theorists that one of the elementary traits of and prerequisites
for  a  law-based state, as well as of one of its attributes  -  legal
certainty, is that the state be organized in a manner that will enable
each natural, as well as legal, person, to have confidence in the law.
The  essence  of  legal certainty consists precisely  in  this:   that
everybody  may  rely  on  the  fact that the  State  will  accord  him
effective protection of his rights, that the State will assist him  in
the  realization  of his individual rights, should someone  unlawfully
prevent  him in the enjoyment thereof, and also to relay on  the  fact
that  the  State  will apply against him legally foreseeable,  and  no
other than legally foreseeable, sanctions due to his violation of laws
and  finally  that  the State will not sanction  him  if  he  has  not
violated  any laws.  In what has been stated is found the  reason  why
the first prerequisite of certainty in the field of application of law
is  the fact that a legal norm, or rather a legal state of affairs, is
knownable and the fact that a legal decision is foreseeable. . . .

     To  the  extent that the Municipal Court in Prague  came  to  the
opposite  conclusion, in particular by the application of  17  of  the
cited  act,  which  in  the view of the Constitutional  Court  is  not
applicable  to  this case, then its conclusion is in extreme  conflict
with the complainant's actual manifestation of intent, as well as  the
mentioned  insufficiency of the current provisions of the  Citizenship
Act  as  far  as  concerns election of foreign  citizenship  by  Czech
citizens  and  the legal consequences thereof, and that  insufficiency
renders   irrelevant  any  further  questions  in   the   case   under
consideration   as,  for  example,  the  issue  of  the  complainant's
citizenship of other countries.

     In  view of the above-stated findings and conclusions, therefore,
the  Constitutional Court is of the view that the complainant did  not
lose his Czech citizenship as a consequence of the declaration he made
on 30 June 1993; consequently, he was not accorded protection from the
actions of the administrative authority, which refused to issue him  a
certificate  of his Czech citizenship, hence, the Municipal  Court  in
Prague  violated his constitutionally guaranteed rights  enshrined  in
Art.  90  of  the  Constitution, as well as Art. 36  para.  1  of  the
Charter.

     For  the above-stated reasons, the Constitutional Court, pursuant
to  § 82 para. 2 of Act No. 182/1993 Sb., on the Constitutional Court,
hereby grants the constitutional complaint and, pursuant to § 82 para.
3, lit. a) of the cited act, quashes the contested decision.
     


Dissenting opinion of Justice JUDr. Pavel Varvařovský

     In   my  view,  the  constitutional  complaint  should,  for  the
following reasons, be rejected on the merits:

     Pursuant to Art. 89 para. 2 of the Constitution, all authorities,
thus  even  one  of the Constitutional Court's panels,  are  bound  by
Constitutional Court judgments.  Although there exist other  views  on
the  matter, it should not be open to doubt that Constitutional  Court
judgments are of such a nature that not only the statement of judgment
is  binding,  but the propositions of law stated in the reasoning  are
binding as well.  In view of this fact, when deciding this case,  this
panel  was  obliged  to respect the 8 November 1995  judgment  of  the
Constitutional Court Plenum, Pl. ÚS 5/95.

.  .  .  .  .

     As the Constitutional Court has already emphasized numerous times
in  its decisions, when interpreting and applying legal enactments, it
is  necessary to take as the starting point their purpose and meaning,
and  the  purpose and meaning of the law is not to be  sought  in  the
words  and  clauses of enactments alone. Legal enactments must  always
contain within themselves the legal principles recognized as part of a
democratic  law based state.  From available comparative  studies,  it
appears  that  the  principles  which  are  recognized  as  being   in
conformity with basic human rights and fundamental freedoms are  first
and foremost the following:
     - nobody may be arbitrarily deprived of his citizenship,
     -  the  voluntary acquisition of the citizenship of another state
may  constitute  grounds for the legislature of a sovereign  state  to
connect with the loss of his currently held citizenship,
     -  a state may require, when conferring its citizenship, that the
applicant renounce citizenship of other states
     - citizenship cannot be lost if that would lead to a condition of
statelessness,

     In  public  international law, the institute  of  citizenship  is
considered  to  be  a  permanent relation which sets  apart  the  true
inhabitants  of  a  state from persons who live on a  given  territory
temporarily (aliens), even if in some cases long-term.  Therefore, the
permanent  residence in the territory of a state is usually considered
as one of the conditions for conferring citizenship, or at least as an
argument  that  calls  into  doubt the international  consequences  of
citizenship  of  another  state of certain  inhabitants  of  a  state.
Citizenship is, therefore, one of the characteristic legal authorities
of a state.

.  .  .  .  .

     As far as the linguistic interpretation is concerned, the meaning
of  the  word,  election, is entirely unambiguous  (according  to  the
Dictionary  of  Standard Czech, the word, election, is  understood  as
meaning deciding in favor of one of several options or the consequence
of  this  decision).  A historical interpretation speaks in favor,  as
well,  of  the above-cited understanding of the concept, election,  as
the  term, election, was conceived in quite the same fashion in  Czech
National Council Act No. 39/1969 Sb., on the Acquisition and  Loss  of
Czech  Citizenship, in international treaties on the or regulation  of
dual citizenship (for example, the Convention between the Czechoslovak
Socialist Republic and the Polish People's Republic promulgated as No.
71/1966 Sb.), as well as in constitutional Act No. 236/1920 Sb., which
resolved  the  right  of option in connection  with  the  break-up  of
Austria-Hungary.   The election laid down in the  laws  of  the  Czech
Republic  and  the  Slovak Republic thus appears  to  be  an  entirely
evident , that is a statutory empowerment of the citizens on territory
in  which  have  undergone  changes to state  sovereignty,  to  choose
between  the  citizenship of the new states (even if in  the  case  of
Czech  citizenship, with considerable restrictions).  There has  never
been  any  doubt, either in theory or practice, on the point that  the
optee  chooses  from  among the citizenship of  more  than  one  state
(either   selecting  or  rejecting  a  different   citizenship).    An
accumulation  of  citizenships is not concerned, rather  a  selection.
Election  (option) must be understood not only as a means of acquiring
citizenship of a state, but also as a specific means of losing it.

     It  is  clear from what is stated that grammatical, logical,  and
even  historical interpretations much more support the  view  that  an
election  is  a  unilateral act of selecting  one  of  two  (or  more)
options.   Apart  from  that,  one  cannot  overlook  the  fact   that
citizenship  should be a legal link the basis of which  is  an  actual
conjunction of existence, interests, and feelings, together  with  the
existence of mutual rights and duties (as defined by the International
Court  of Justice in the 1955 Nottebohm case).  Citizenship is a legal
tie,  the  basis of which is a social connection and a  solidarity  of
interests.   Thus the intention to acquire citizenship  should  be  as
well  the  intention to maintain permanent ties to the  territory,  on
which  the  person generally permanently lives, and even relations  to
legal state authority, which governs him.  In other words, citizenship
should be a bond, not a gesture.

Therefore, for the above-mentioned reasons, I am of the view
that the constitutional complaint should be rejected on the
merits.