Pl. US 14/94

                        Czech Republic
                               
                           JUDGMENT
                               
                  of the Constitutional Court
                               
                     of the Czech Republic
                               
                               
               in the Name of the Czech Republic
                               
                               



      The  Plenum  of the Constitutional Court  of  the  Czech
Republic,  composed of JUDr. Iva Brozova, Prof. JUDr.  Vojtech
Cepl,  CSc., Prof. JUDr. Vladimir Cermak, JUDr. Vojen Güttler,
Doc.  JUDr. Pavel Holländer, DrCs., JUDr. Milos Holecek, JUDr.
Ivana  Janu, JUDr. Vladimir Jurka, JUDr. Zdenek Kessler, Prof.
JUDr.  Vladimir  Klokocka, DrCs., JUDr. Vladimir  Paul,  CSc.,
JUDr.  Antonin Prochazka, JUDr. Pavel Varvarovsky,  JUDr.  Eva
Zarembova, in the matter of the petition of R. D., represented
by  JUDr.  K.  K.,  an  attorney, which  petition  sought  the
annulment of the Decree of the President No. 108/1945 Sb.,  on
the  Confiscation of Enemy Property and the Funds of  National
Renewal,  with the Assembly of Deputies of the Czech  Republic
joined  as  a  party to the proceeding and with the  following
individuals joined as secondary parties, 1) R. B., represented
by  JUDr.  L. M., an attorney, and 2) JUDr. J. S., represented
by JUDr. V. B., an attorney, decided,

                            THUSLY:


     The petition is rejected on the merits.


                          REASONING:


      With  reference  to § 74 of Act No.  182/1993  Sb.,  the
petitioner,  R.  D.,  submitted  a  petition  to  institute  a
proceeding under § 64 para. 1, letter d) of the cited  act  in
conjunction  with a constitutional complaint  against  the  26
October 1993 decision of the Regional Court in Usti nad Labem,
the Liberec Branch, file number 29 Co 647/93-30.  He stated in
his   petition  that,  in  conflict  with  both  the   current
constitutional  rules  and with the  constitutional  rules  in
effect  in 1945, the Regional Court in Usti nad Labem declared
Decree  No.  108/1945 Sb., to be a valid part  of  "our  legal
order"  and at the same time declared this decree  to  be  the
"legislative  act  on  the basis of  which  the  property  was
confiscated."    Under   the   1920  Constitutional   Charter,
legislative  power was vested solely in the National  Assembly
and  its  two chambers.  During any period when either chamber
was  dissolved or from the expiry of one electoral term  until
the  chamber  was reconvened, and also during any period  when
its  session  was  adjourned  or  had  expired,  a  24  member
Executive Committee took urgent measures, even though  an  Act
of  Parliament  would have otherwise been necessary  therefor,
and   it  exercised  governing  and  executive  power.    This
Executive Committee was composed of 16 members of the Assembly
of  Deputies and 8 members of the Senate.  This committee  was
competent   in  all  matters  coming  within  the  legislative
authority  of  the  National Assembly,  however,  it  was  not
authorized  either to amend a constitutional  act  or  by  its
measures  to  impose permanent financial obligations  (on  the
state)  or  to transfer state property.  Other than the  just-
mentioned  National  Assembly  and  its  24  member  Executive
Committee, no constitutional body was endowed with legislative
powers.   Thus, whatever Dr. Edvard Benes' status  was  during
the  decisive period when he was issuing decrees, even  if  he
was  President  (and according to the legal  argument  of  the
petitioner he was not, and could not have been, because  on  5
October  1938  he  resigned  and  another  President  of   the
Czechoslovak Republic was duly elected after him),  not  as  a
private  citizen nor even as the President of the Czechoslovak
Republic  could  he  be  endowed with  legislative  authority.
Thus,  to the extent that he issued any sort of act,  be  they
the  utmost ministerial acts of governing and executive power,
they  were  not  issued in conformity with the  constitutional
rules then in force and were invalid acts ab initio.  Thus, if
socialist legal theory, and immediately prior thereto also the
legal  theory influenced by the so-called "national democratic
revolution" supposedly under way in 1945, designated his  acts
as acts of revolutionary legislation, it must be observed that
no  revolutionary  legislation existed,  rather  it  was  only
lawless,  revolutionary force.  Assessed in  this  way,  these
acts  were, thus, acts of force of the highest order, and  not
of law.  In conflict with all the basic principles of the law-
based  state, in this instance a single person was  recognized
as  being  a  legislator  and at  the  same  time  as  holding
governing and executive power.  Decree No. 108/1945 Sb., which
the  Regional  Court  in Usti nad Labem, the  Liberec  Branch,
applied in the above-cited decision, is not in conformity with
Articles  2,  3,  4, 11, and 24 of the Charter of  Fundamental
Rights and Basic Freedoms, relating to the assertion of  state
authority and the bounds thereof, the rights of nationalities,
limitations upon the fundamental rights and basic freedoms, as
well as the right to own property.  For all these reasons, the
petitioner  petitioned  the Constitutional  Court  to  declare
Decree  No. 108/1945 Sb., to have been an act void ab  initio.
Should  the Constitutional Court, in spite of the legal canons
of  civilized European societies, conclude that it was a legal
act,  or even a statute, he petitioned it to annul this  legal
norm.

     In his petition proposing the annulment of § 2 para. 5 of
Decree No. 108/1945 Sb., R. B., a secondary party, stated that
this  norm  is  undemocratic  in  character  and  purpose  and
inhumane in substance.  So that the state did not have to take
up  time  concerning itself with possible co-owners  in  cases
where  the  decree  would otherwise affect immovable  property
only  in  part, the legislation came to its aid with  such  an
uncivilized solution.  Any affected co-owners were deprived of
the possibility of protecting their rights.  This principle of
the  decree  at  issue is in direct conflict with  Article  17
para. 2 of the Universal Declaration of Human Rights, which is
related  to Article 55, letter c of the U.N. Charter, as  well
as  in  conflict  with  Article 1 para. 1  of  the  Additional
Protocol  from  20  March  1952  to  the  Convention  on   the
Protection of Human Rights and Fundamental Freedoms, and  with
the  Declaration  of  the  Rights  of  the  Child,  especially
principles  No.  2  and 8 thereof, for  at  the  time  of  the
confiscation the petitioner was a minor.

      In his petition proposing the annulment of §§ 1 and 2 of
the  Decree  of the President No. 108/1945 Sb., JUDr.  J.  S.,
another secondary party, stated that in 1945 Dr. Benes was not
authorized to issue presidential decrees, for at that point in
time  he  was  not  the  President  elected  by  the  National
Assembly.

      Acting  on  behalf of the Assembly of  Deputies  of  the
Parliament  of  the Czech Republic, its Chairman,  PhD.  Milan
Uhde,  expressed  its view that the head of state  had  issued
Decree  of  the President No. 108/1945 Sb., fully  within  the
confines of his authority at a time when the National Assembly
was not constituted so that it forms a valid part of our legal
order.    For   the   period  during  which  the   Provisional
Constitutional   Order   was  in  effect,   where   such   was
indispensable, the President issued enactments in the form  of
decrees (on the government's proposal and countersigned by the
Prime  Minister  and the member of the government  responsible
for  implementing  it), which amended,  repealed  or  reissued
acts.    His   authority  for  so  doing   was   supplied   by
Constitutional Decree of the President from 15  October  1940,
No.  2  Official  Gazette  of Czechoslovakia,  concerning  the
Provisional Exercise of Legislative Power, promulgated in  the
Collection  of  Laws  and Orders of Czechoslovakia  under  No.
20/1945.   In  the  end, all of the President's  decrees  were
approved   by  the  Provisional  National  Assembly   of   the
Czechoslovak  Republic, namely by means of Constitutional  Act
No.  57  of 28 March 1946, which Approved the Decrees  of  the
President and Declared them to Be Law.  Thus, the presidential
decrees  were issued in a constitutional manner, were ratified
in  a constitutional manner, and are a valid component of  our
legal order.

      In  its  ruling of 27 May 1994, file No. IV US 56/94-15,
the  panel of the Constitutional Court which was dealing  with
R.  D.'s  constitutional complaint suspended  that  proceeding
pursuant  to  §  78 para. 1 of Act No. 182/1993  Sb.,  on  the
Constitutional Court, and certified his petition  seeking  the
annulment  of Decree No. 108/1945 Sb., on the Confiscation  of
Enemy  Property  and  the Funds of National  Renewal,  to  the
Plenum  of  the  Constitutional Court for its  decision  under
Article 87 para. 1, letter a) of the Constitution.

     The Plenum of the Constitutional Court dealt first of all
with  the  issue  of  whether  the  petitioner  satisfied  the
requirements  under  §  74 of Act No.  182/1993  Sb.,  on  the
Constitutional  Court, upon which his petition  relied.   This
section  provides  that  a  constitutional  complaint  may  be
accompanied by a petition proposing the annulment of a statute
or  other  legal enactment, or individual provisions  thereof,
the  application of which resulted in the situation  which  is
the subject of the complaint, if the complainant alleges it to
be  inconsistent  with a constitutional act  or  treaty  under
Article 10 of the Constitution, or with a statute in case  the
complaint  concerns a lower-order enactment.  On  this  issue,
the  Plenum of the Constitutional Court came to the conclusion
that,   in   the  case  under  consideration,  the  petitioner
satisfied  the  conditions relating to standing  to  submit  a
petition  proposing the annulment of a statute or  some  other
legal enactment.

      The  first  fundamental issue to be  considered  in  the
matter  at  hand  is  whether  the  contested  decree  of  the
President, that is the decree of 25 October 1945, No. 108/1945
Sb.,  on  the Confiscation of Enemy Property and the Funds  of
National  Renewal,  was  issued  within  the  bounds  of   his
legitimately prescribed powers or whether, on the contrary, as
the  petitioner  asserts, the issuance of it  conflicted  with
basic principles of a law-based state, for the authorities  of
the  executive  branch  issued  it  in  contradiction  to  the
constitution in force at that time.  In connection  therewith,
it  must be observed that the foundation upon which the  legal
order of Czechoslovakia was based was Act No. 11 of 28 October
1918,  on  the  Establishment of an  Independent  Czechoslovak
State.   The foundation of Czechoslovak law could not  be  put
into  doubt in any respect by the German occupation, not  only
due  to  the  fact  that the rules in Articles  42-56  of  the
Regulations  respecting the Laws and Customs of War  on  Land,
representing an annex to the IV Hague Convention of 18 October
1907, spelled out precise boundaries within which the occupier
could  exercise governmental power within the territory of the
occupied state, but primarily due to the fact that the  German
Reich,  as  a  totalitarian state governed  by  the  principle
expressed in the Rosenberg phrase, "Right is that which serves
German honor", exercised governmental power and established  a
legal  order  which in essence deviated from  the  substantive
value  base  of the Czechoslovak legal order.   This  fact  is
perhaps  best  conveyed  by two Reich's  statutes  from  1935,
namely the Act on the Protection of German Blood and Honor and
the   Act  on  Reich's  Citizenship,  in  which  extraordinary
emphasis  is  placed  on  the purity of  German  blood,  as  a
requirement for the continued existence of the German  people,
and  in  which  a Reich's citizen is defined as a  subject  of
German  or related blood who by his conduct demonstrates  that
he  is  willing and able to faithfully serve the German nation
and   Reich.    In   contrast  to  that,  the   constitutional
requirement laid down in the 1920 Constitutional Charter  that
the  Czechoslovak state have a democratic character, is rather
a  concept  of  a political science character  (and  which  is
juristically  definable only with difficulty) which,  however,
does  not  mean  that  it is a meta-legal concept,  hence  not
legally   binding.    On  the  contrary,  the   constitutional
principle   mandating  the  democratic   legitimacy   of   the
governmental system was a basic characteristic feature of  the
constitutional  system which as a result meant  that,  in  the
1920 Constitutional Charter of the Czechoslovak Republic, this
principle  was  ranked  above and  prior  to  requirements  of
formal, legal legitimacy.

      Thus,  it  was not the case that the Czechoslovak  legal
order  would have manifestly preferred the preeminence of  the
domestic legal order, that its constitution would indisputably
espouse  the  principle of its absolute  sovereignty  and  its
independence  of any other legal order whatever,  which  would
have  made  it  possible  for the Czechoslovak  constitutional
drafters, if they had merely observed the prescribed procedure
for  adopting norms, to validly prescribe whatever they wished
-   irrespective  of  the  requirements,  in  particular,   of
international   law.   For,  as  was  already  asserted,   the
principle  of  the  democratic legitimacy of the  governmental
system was laid down in the 1920 Constitutional Charter, was a
principle which, even in the Preamble to this Charter ("for we
desire to affiliate ourselves with the society of nations as a
cultivated, peaceable, democratic, progressive member of it"),
lays  stress on its links to the system of values, which  also
make up the foundation of the international legal order.   The
value  foundation of the 1920 Constitutional Charter  and  its
openness  in  relation  to  international  law  is  documented
without any doubt by the catalogue of rights and freedoms,  as
well  as  the  rules  governing the  protection  of  national,
religious,   and  racial  minorities.   On  the  other   hand,
convictions concerning the imperativeness of smashing the Nazi
regime  and  of compensation, or at least mitigation,  of  the
damages caused by that regime and the events of the war,  were
found  in  the value orientation which was formed  during  the
Second  World War and shortly thereafter.  Thus, not  even  in
this respect does Presidential Decree No. 108/1945 Sb., on the
Confiscation  of  Enemy  Property and the  Funds  of  National
Renewal,  conflict  with  the "legal  canons  prevalent  among
civilized European societies in this century," rather it was a
legal  act  that  was  a  product of  its  era,  supported  by
international consensus.

      Such considerations, among others, provide reasons  why,
even  during  the occupation, the Czechoslovak state  and  its
legal  order  were  internationally recognized  and  also  why
foreign  political leaders adopted positions  emphasizing  the
continuity  of Czechoslovak law.  As a consequence of  coerced
behavior on the part of the Czechoslovak state, beginning with
Hitler's  threats to launch an aggressive war  (which  was  in
conflict  with the Kellogg-Briand Pact, at that time  a  valid
international  obligation and one that  was  binding  even  on
Germany  itself),  the  conclusion of  the  Munich  Agreement,
President Benes' forced departure, and President Hacha's  trip
to Berlin, this state lost any credible democratic legitimacy,
for  its  conduct quite clearly deviated from an  attitude  of
constitutional sovereignty, that is, of a people whose  desire
to  live  in  a  democratic state had been manifested  by  the
mobilization  in  1938,  among  other  actions.   We  can  see
precisely in this fact the reason why none of these disastrous
acts  could be recognized as legitimate, regardless of whether
the  constitutional procedures were observed  when  they  were
carried  out.   After  the dismemberment of  the  Czechoslovak
Republic  and  the collapse of its constitutional foundations,
the  conditions  that  prevailed for a number  of  years  made
impossible   the   democratic  formation   of   the   people's
constitutive  power within the territory of the Republic.   In
this  respect,  our country did not differ from  a  number  of
other  European countries, the exiled representatives of which
and  the  legal  acts which they issued were, for  the  above-
stated  reasons, internationally recognized on a large  scale,
such  being  in  accord  with the generally  recognized  legal
principle  that  acts  brought about by means  of  duress  are
considered null and void.

      What  can otherwise be considered determinative  in  the
matter under consideration is that, during the period when the
Provisional Constitutional Order of the Czechoslovak  Republic
was  already  established and also internationally  recognized
(it  comprising the President, the government, and  the  State
Council,  as  laid down in the Constitutional Decrees  of  the
President of the Republic No. 1, No. 2 and in Decree No. 4  of
the Official Gazette of Czechoslovakia of 1940), on 3 December
1942,   the   Czechoslovak  government  issued  a   resolution
"Concerning  the Validity of President of the Republic  Edvard
Benes'  Continuance  in the Office of the  Presidency",  which
reads  as  follows:   "In  the  meeting  of  the  Council   of
Ministers, held on 3 December 1942, the Prime Minister,  Mngr.
Dr.  Jan  Sramek announced:  the seven-year term of office  of
Dr.  Edvard  Benes, the incumbent President of  the  Republic,
duly elected President of the Republic on 18 December 1935  at
a session of the National Assembly, will expire on 18 December
1942.  Pres. Edvard Benes resigned the Presidency on 5 October
1938, however, the Czechoslovak government, in accord with all
loyal  citizens  of  Czechoslovakia,  never  considered   this
resignation  to  be  valid,  for it  was  unlawfully  coerced.
Therefore,  the President of the Republic, Dr.  Edvard  Benes,
has  remained  the  head  of state of  Czechoslovakia  without
interruption since 18 December 1935, and is recognized as  the
head  of  state by the governments of the United  Nations,  as
well  as  by  the  governments of other  nations.   The  Prime
Minister  further declared that, pursuant to § 1  of  Act  No.
161/1920,  the Prime Minister is to convene a session  of  the
National  Assembly for the election of the  President  of  the
Republic and that, therefore, the act places upon him the duty
to  take care that the election of the new President is timely
held.   In  view  of paragraph 3 of § 58 of the Constitutional
Charter  and  §  2  of Act No. 161/1920, the  session  of  the
National  Assembly  for election of the  President  should  be
convened no sooner than four weeks prior to and no later  than
fourteen  days  prior  to the end of the President's  term  of
office.   As, under the prevailing conditions, such a  session
cannot  be  convened,  the Prime Minister  proposed  that  the
government  adopt  the  following  resolution:   pursuant   to
paragraph  5  of  §  58 of the Constitutional  Charter,  which
provides  that '[t]he former President shall remain in  office
until  a  new President is elected,' the current President  of
the  Republic, Dr. Edvard Benes, duly elected by the  National
Assembly  on  18  December 1935, shall continue  to  hold  the
Presidency  until  such  time as it is  possible  to  hold  an
election for the next President.  The government adopted  that
resolution unanimously and at the same time charged the  Prime
Minister  with  informing the President of the  Republic,  the
Czechoslovak  people, and the State Council, as  well  as  the
international public, of its resolution." (Off. Gaz. CS,  Vol.
III, 1942, p. 17).

      To  the above-mentioned resolution can be added the fact
that  the  resignation  of the President,  Dr.  Edvard  Benes,
occurred  during  the  "period of non-freedom",  by  which  is
understood the period from 30 September 1938 until 4 May  1945
(Constitutional Decree of the President from  3  August  1944,
No.  11/1944 Official Gazette of Czechoslovakia, an  annex  to
the  Interior  Minister's Notice No. 30/1945  Sb.,  Government
Order No. 31/1945 Sb.), during the period following the Munich
Agreement of 29 September 1938, which Article 1 of the  Treaty
concerning Mutual Relations between the Czechoslovak Socialist
Republic  and the Federal Republic of Germany, promulgated  by
Notice  No.  94/1974 Sb., declared to be null  and  void  (the
nullity  of  the  Munich Agreement of 29 September  1938  also
being  confirmed  by the Treaty between the Czech  and  Slovak
Federal Republic and the Federal Republic of Germany, on  Good
Neighborliness and Friendly Cooperation, promulgated under No.
521/1992 Sb., which at the same time recognized the fact  that
the  Czechoslovak state had never since 1918 ceased to exist).
The  Provisional  Constitutional  Order  of  the  Czechoslovak
Republic,  represented by the President, the  government,  and
after  21  July  1940  also  by  the  State  Council,  besides
international  recognition, also  received  support  from  the
resistance,  at  home  and abroad, and  universally  from  the
Czechoslovak   people.   So  far  as  concerns   international
recognition, first must be mentioned British Foreign Secretary
Halifax'  21 July 1940 letter to President Benes, in which  he
informed the President that "in response to the request of the
Czechoslovak National Committee, the government of his Majesty
in the United Kingdom hereby gladly recognizes the provisional
Czechoslovak  government, established in this country  by  the
Czechoslovak  National  Committee, and enters  into  relations
with  it."  (Off. Gaz. CS, Vol. I, No. 10, p. 4).   A.  Eden's
letter  of 18 July 1941, sent to Minister Jan Masaryk,  stated
that  the King had decided to accredit a special envoy to  Dr.
Benes, as President of the Czechoslovak Republic, and that the
British government considered the President and the government
of  the Czechoslovak Republic to have the same legal status as
that  of  the  allied  heads  of state  and  governments.   In
Franklin D. Roosevelt's 30 June 1941 letter to Dr. Benes, "Dr.
Edvard  Benes,  President  of the  provisional  government  of
Czechoslovakia"  is  given as the addressee.   On  26  October
1942,   the  United  States  of  America  officially  notified
Minister Jan Masaryk that the recognition of the United States
must  be  considered under international law as  complete  and
definitive.   The  Soviet  Union  also  fully  recognized  the
Czechoslovak provisional government in July, 1941.  Apart from
recognition  by  Great  Britain,  the  Czechoslovak  Republic,
represented de jure by the provisional government  in  London,
was  recognized  by 27 countries, either in  the  form  of  an
explicit  recognition  or by the establishment  of  diplomatic
relations.   Even  though its authorities could  not  exercise
governmental   power  within  the  occupied   territory,   the
Czechoslovak Republic had its own foreign troops, declared war
on  the  Axis  powers, and became one of the founders  of  the
United Nations.

      In  his speech delivered on 24 July 1940, that is  three
days  after  the  British  government's  recognition  of   the
Czechoslovak  provisional government, Dr. Benes expressed  the
intention to maintain the legal continuity of the Czechoslovak
legal  order  by explicitly stating:  "Refusing  to  recognize
Munich and all that it brought in its wake, we have upheld and
we  continue  to  uphold the principle that  the  Czechoslovak
Republic, Masaryk's republic, continues to live and exist even
after   Munich.    Therefore,   our   entire   legal   system,
internationally, legally, and politically, went on; for us  my
departure from office and from our homeland was not legal; for
us  the  Republic was not dismembered; for us  nothing  exists
politically  and legally if it was carried out in our  country
by  violent  nazism after 15 March 1939.  I  solemnly  declare
these  to be our political and legal principles, and I  stress
that they apply to us all, to subjects of our state and of our
nation,   to  Czechs,  Slovaks,  Germans,  and  Sub-Carpathian
Ruthenians, and others in our homeland.  I further declare  to
be  non-existent and unlawful everything which has been forced
upon us illegally and unconstitutionally since Munich."

      This  declaration by Benes is entirely  in  accord  with
Constitutional  Decree of the President  from  21  July  1940,
concerning  the  Establishment of the State  Council,  as  the
Advisory Body of the Provisional Constitutional Order  of  the
Czechoslovak   Republic   No.   1,   Official    Gazette    of
Czechoslovakia  from  4  December  1940,   as   it   is   with
Constitutional  Decree  of 15 October 1940,  No.  2,  Official
Gazette of Czechoslovakia, concerning the Provisional Exercise
of Legislative Power (promulgated under No. 20/1945 Sb.), §  1
of which declares the technical impossibility of observing the
norm-creating  procedure  under  the  Second  Chapter  of  the
Constitutional Charter ("Until it is possible  to  proceed  in
accordance  with the provisions of the Second Chapter  of  the
Constitutional   Charter  of  29  February  1920,   concerning
Legislative  Power, those powers assigned to the President  of
the  Republic  under  Article 64, No.  1  and  No.  3  of  the
Constitutional  Charter which require for their  validity  the
consent  of the National Assembly, shall be exercised  by  him
with the consent of the government instead"), and § 2 of which
at the same time declares that enactments which amend, repeal,
or  newly  issue acts shall, in imperative cases and only  for
the  period during which the Provisional Constitutional  Order
remains  in  effect, be issued in the form of decrees  by  the
President on the proposal of the government, each such  decree
to  be  countersigned by the Prime Minister and the member  of
the  government charged with implementing it.   This  document
testifies  to the clear intention, as concerns the legislative
process, to resume as soon as possible the procedure set  down
in  the 1920 Constitutional Charter and, thus, proceeds on the
basis  of  the  continued validity of the 1920  Constitutional
Charter,   considering  that  legislative  power  under   that
Constitutional  Charter shall, after  the  liberation  of  the
Republic, be formed in accordance with the provisions of  this
Second  Chapter.  Constitutional Decree of the President  from
22   February   1945,   No.   3/1945   Official   Gazette   of
Czechoslovakia,  concerning the Exercise of Legislative  Power
during the Transitional Period, extended the validity of  §  2
of  Constitutional  Decree of the President  from  15  October
1940, No. 2 Official Gazette of Czechoslovakia, concerning the
Provisional Exercise of Legislative Power, until such time  as
the  Provisional  Legislative Committee  of  the  Czechoslovak
Republic would be established.

      As  concerns the actual legislative process relating  to
presidential  decrees,  it  must be  said  that  decrees  were
drafted  by the government and, as a rule, were also discussed
by the State Council.  Pursuant to Article 3 of Constitutional
Decree  from  27 October 1942, No. 12/1942 Off.  Gaz.  CS,  in
exercising  legislative  power,  the  President  was  obliged,
within  the context of preparing an appropriate proposal,  "to
request  an  advisory report from the State  Council,  if  the
government had not already done so".  After the State  Council
was dissolved on 4 April 1945 (Prime Minister's Notice from  4
April  1945, No. 2/1945 Sb.), the decrees were also  discussed
in the Slovak National Council, depending on the nature of the
matters  in  the decree and the their territorial  reach.   In
accordance  with  these  rules,  decrees  always  included   a
reference  to  the  fact  that  they  were  issued   "on   the
government's proposal", "after consulting the State  Council",
or  "following the agreement of the Slovak National  Council".
Just as with statutes, each was likewise countersigned by  the
Prime  Minister and the member of the government charged  with
implementing it and, in the case of constitutional decrees, by
all  members  of the government (§ 2 of Constitutional  Decree
No.  2/1940  Off.  Gaz.  CS, on the  Provisional  Exercise  of
Legislative  Power).  The particular character of the  decrees
was  merely due to the extraordinary situation which  resulted
from  the Nazi occupation and which prevented the exercise  of
any  governmental  power at all, including legislative  power.
So  in the given historical situation and context, the decrees
represented  the  single  possibility  of  adopting  decisions
having  legal  force and the force of a statute.   During  the
period of Nazi occupation, other occupied countries also dealt
with  the issue of legislative procedure in a similar fashion.
It  is not pointless to make reference at this juncture to Act
No.  11  from  28  October 1918, on the  Establishment  of  an
Independent  Czechoslovak  State,  which  was  issued  by  the
National   Committee  but  which,  nonetheless,   became   the
foundation of the legal order of the Czechoslovak Republic.

     This intention to resume use of the legislative procedure
under the Second Chapter of the Constitutional Charter is also
clearly  expressed  in  §  1 of Presidential  Decree  from  26
October  1940,  No.  4 Official Gazette of Czechoslovakia,  on
Regulating the Public Pronouncement of Legal Provisions  Newly
Issued  by the Czechoslovak Government, which, in addition  to
the  Collection  of Laws, designated the Official  Gazette  of
Czechoslovakia for the purpose of the public pronouncement  of
legal  provisions newly issued by the Czechoslovak Government,
until the normal functioning of the constitutional life of the
Czechoslovak  Republic would be restored.   The  principle  of
formal  legal continuity with the pre-Munich legal  order  was
even  demonstrated by the President's Declaration, under §  64
para.  1,  No. 3 of the Constitutional Charter, of a State  of
War  between  the Czechoslovak Republic and the  states  which
were  at war with Great Britain, the Union of Soviet Socialist
Republics,  and  the United States of America (Off.  Gaz.  CS,
Vol.  III, No. 1, p. 7), just as by the grants of amnesty  and
pardons which the President made on 24 December 1941 by virtue
of  the  power  vested  in him in the field  of  the  military
judiciary  and military punitive and disciplinary  proceedings
or  in the field of military penal law by § 64 para. 1, No. 11
of  the  Constitutional Charter (see, likewise, Off. Gaz.  CS,
Vol. III, No. 1, pp. 7-8).  A clear element of continuity  can
also  be  noted in the already-mentioned government resolution
from 3 December 1942 concerning the problems brought on by the
expiration,   on   18   December  1942,  of   the   seven-year
presidential  term  of  office.   In  this  resolution,  which
confirmed  Dr.  Edvard Benes as the head of state  until  such
time as it would be possible, pursuant to the Constitution and
to  Act  No.  161/1920 Sb., to hold an election for  the  next
President,  there  is  a reference to §  58  para.  5  of  the
Constitutional  Charter, which governs this  exact  situation.
From  the  perspective of formal legal continuity, that  is  a
connection  to  the pre-Munich legal order, the Constitutional
Decree  from  3  August  1944,  No.  11  Official  Gazette  of
Czechoslovakia  (promulgated under No. 30/1945  Sb.),  on  the
Restoration  of  the  Legal  Order,  is  also  of  fundamental
significance.   This  decree  related  in  part  to  "domestic
enactments"  and  in  part  to  "enactments  of  the   foreign
constitutional order".  This decree distinguished three  types
of   legal  enactments,  that  is,  constitutional  and  other
Czechoslovak  legal enactments issued prior  to  29  September
1938  (pre-Munich law), further enactments issued  within  the
domain  of  the Czechoslovak legal order (that is, within  the
territory  of the Czechoslovak Republic) during the period  of
non-freedom (that is, from 30 September 1938 until 4 May 1945)
by  authorities of the Second Republic, the German Reich,  the
Protectorate and the Slovak Republic (law from the era of non-
freedom),  and  finally  enactments  issued  in  the  form  of
presidential decrees pursuant to the London Constitution  (the
law  of  the foreign constitutional order).  While  Article  1
para.  1  of  the above-cited decree declares that  enactments
issued  before  29  September 1938  were  expressions  of  the
Czechoslovak  people's free will, so that  they  comprise  the
Czechoslovak legal order, Article 2 of the Decree states  that
enactments issued during the era of non-freedom do not form  a
part  of the Czechoslovak legal order; however, that even they
must  be  applied  in the future "on an entirely  transitional
basis", with the exceptions set down in Article 2 para. 1.   A
court or an administrative agency applying the act (Article 3)
decided whether the case involved such an exception.  For  the
purposes  of  the case under consideration, however,  what  is
significant  is  what  Article  2  of  that  decree   provides
concerning  enactments of the "foreign constitutional  order":
to  the  extent  that  these  enactments  have  the  force  of
statutes,  they form a part of the Czechoslovak  legal  order,
subject  however to subsequent ratification, that is, approval
by   the  competent  constitutional  authorities.   Even   the
constitutional  decrees forming the London  Constitution  were
themselves subject to subsequent ratification (Nos. 1 and 2 of
the  Official  Gazette of Czechoslovakia).  For other  decrees
issued in accordance with this constitution (that is, pursuant
to § 2 of Constitutional Decree No. 2/1940 Official Gazette of
Czechoslovakia), it was said that they would lose validity six
months  following  the day the National Assembly  would  meet,
unless  they were newly adopted and proclaimed as law (Article
5  para.  2  of  the  decree), and even  presidential  decrees
designated  as constitutional could be repealed or amended  by
means  of  a  mere  law.   However,  Article  I  of  the  Act,
Introducing the Constitutional Charter, No. 121/1920, was  not
to  be  in  any  way  affected by this enactment,  so  far  as
concerns constitutional acts issued prior to 29 September 1938
(Article  5 para. 3 of the decree).  Constitutional Decree  of
the President from 23 June 1945, promulgated under No. 22/1945
Sb.,  concerning  the Promulgation of Legal Enactments  Issued
outside the Territory of the Czechoslovak Republic, attests to
the fact that the President and the government were constantly
endeavoring  to follow the principle of legal continuity  with
pre-Munich  law.  § 1 of this decree empowered the  government
to  determine  which  of  the constitutional  decrees  of  the
President  (excepting Constitutional Decree  from  15  October
1940,  No.  2,  Off. Gaz. CS, on the Provisional  Exercise  of
Legislative Power, and Constitutional Decree from 22  February
1945,  No.  3,  Off. Gaz. CS, on the Exercise  of  Legislative
Power  during  the  Transitional  Period)  and  which  of  the
ordinary decrees of the President, government orders and other
legal  enactments  which  were  promulgated  in  the  Official
Gazette of Czechoslovakia would remain in effect, empowered it
to  modify  the  date  they would go  into  effect  and  their
territorial  reach, and empowered it to have them  promulgated
in  the  Collection  of Laws and Orders.  What  is  essential,
however, is that Constitutional Decree of the President from 3
August 1944, No. 11, Official Gazette of Czechoslovakia,  made
even  the constitutional decrees which established the "London
Constitution"   subject  to  ratification,  which   meant   in
consequence that, even following the issuance of this  decree,
Act  No.  11 from 28 October 1918, as well as the Constitution
from  1920, remained the foundation of the Czechoslovak  legal
order.   This conclusion follows as well from the government's
explanatory report to the draft of the above-mentioned decree,
which  stated  that subsequent ratification  by  the  domestic
legislature  of the legislation adopted abroad  would  make  a
reality  of  the legal principle upon which the  struggle  for
liberation  of  the Czechoslovak state rested,  that  is,  the
principle of legal continuity.

      In  addition, the Constitutional Decree of the President
from   4   December   1944,  No.  18   Official   Gazette   of
Czechoslovakia,  on  National Committees and  the  Provisional
National Assembly, promulgated under No. 43/1945 Sb.,  in  its
introductory   declaration   cites   the   then    in    force
Constitutional  Charter  of  the  Czechoslovak  Republic   and
contained  the  following statement in its  Article  2:   "The
Provisional  National Assembly was formed  as  the  result  of
elections  by  the  national  committees  to  be  the  interim
legislative  body to which the government will be responsible.
It's composition, the manner in which it is to be created, and
its   competencies  shall  be  provided  for  by   a   special
constitutional decree."  The same occurred as well as a result
of Constitutional Decree of the President from 25 August 1945,
on  the  Provisional National Assembly, promulgated under  No.
47/1945  Sb.,  which  in relation to the  1920  Constitutional
Charter created a legislative body not provided for under  the
Charter  and  endowed with the powers which  the  Charter  and
other  acts  assigned to the National Assembly, including  the
authority to amend the Constitution, however, with the proviso
that  this Assembly could take such measures only "insofar  as
such  is strictly necessary" (Article 2, No. 2 of the decree).
The crucial thing is that even this decree, in its content and
substantive  purpose, respects the basis of  continuity.   For
Constitutional Decree No. 47/1945 Sb. reflects the fact  that,
on  the  one  hand,  due  to the post-war  situation  and  the
changing economic and social conditions, ratification  of  the
legislation adopted by the foreign constitutional order  could
not   be   fully  accomplished  on  the  basis  of  the   1920
Constitutional Charter, but that, on the other hand, from  the
perspective  of this Charter which placed, as has  been  said,
extraordinary   emphasis  on  the  principle   of   democratic
legitimacy, it in no way introduced a foreign element into the
Charter.  This fact is also evidenced by Article 2, No.  1  of
this  decree, empowering the Provisional National Assembly  to
confirm  the  President in office until the next  presidential
election  would  be  held, which was  done  by  means  of  the
Provisional National Assembly's unanimous resolution  from  28
October  1945.   It was President Benes himself  who,  in  the
graduation  address  he delivered on 15  December  1945,  made
reference   to  the  great  emphasis  our  foreign   political
leadership  always  placed on the continuity  of  Czechoslovak
law.  However, such was also confirmed by Act No. 12/1946 Sb.,
which   Adopted,  Supplemented,  and  Amended  the  Enactments
concerning the Restoration of the Legal Order and in which the
Provisional National Assembly adopted and re-introduced  as  a
statute  Presidential Decree from 3 August 1944, No.  11  Off.
Gaz.  CS,  on  the  Restoration of the Legal Order,  with  the
amendments   and   additions   introduced   in    this    act.
Constitutional  Act  No.  57/1946  Sb.,  which  Ratified   the
Presidential Decrees and Declared them to Have Force  as  Law,
represents  the final word so far as presidential decrees  are
concerned.   Under  Article I para. 1 of  this  constitutional
act,  the  Provisional National Assembly ratified and declared
to  have force as law, if such had not already occurred, those
constitutional decrees and decrees of the President that  were
issued  on  the basis of § 2 of Constitutional Decree  of  the
President  from  15 October 1940, No. 2, Off.  Gaz.  CS,  (No.
20/1945  Sb.),  on  the  Provisional Exercise  of  Legislative
Power, which general ratification also encompassed this  just-
mentioned  constitutional decree.  As  is  further  stated  in
Article  I para. 2 of the above-cited constitutional act,  all
presidential decrees had to be considered from their inception
as  legal acts, constitutional decrees as constitutional acts.
Even  though at that point it was not possible to ratify  them
under  Article  5  para.  1 of Constitutional  Decree  of  the
President from 3 August 1944, No. 11 Off. Gaz. CS, because the
"constitutional official" as called for in that decree was the
National  Assembly under the 1920 Constitutional  Charter,  so
far as concerns presidential decrees, the requirement of legal
continuity  was met by the fact that it was made  possible  to
effect the ratification of them and the declaration that  they
possess force as law, with the restrictions set out in Article
5  para.  2 of Constitutional Decree of the President  from  3
August  1944, No. 11, Off. Gaz. CS, which limited in time  the
legal  effect  of  the  presidential  decrees.   In  addition,
Article I para. 1 of Constitutional Act No. 57/1946 Sb.,  even
made  reference  to  the  very Constitutional  Decree  of  the
President from 15 October 1940, No. 2, Off. Gaz. CS, and para.
2  of this Article emphasized that, from their very inception,
all  presidential decrees were valid.  To this must  be  added
that,  as a result of Article 112 para. 1 and para. 3  of  the
Constitution  of the Czech Republic, the cited  constitutional
acts   in  force  in  the  Czech  Republic  on  the  day   the
Constitution came into effect, now have merely the legal force
of a statute.

      The continuity of the legal enactments contained in  the
presidential  decrees  with  the pre-Munich  legal  order  is,
however,  evidenced especially by a factor  which  represented
one of the fundamental conditions for this continuity, that is
the  consensus of the Czech nation with its links, legally and
in terms of values, to Masaryk's republic.  While Nazi Germany
endeavored to violate and destroy the basic principles of  the
Czechoslovak  legal and political order, our resistance,  both
at  home  and abroad, feeling a sense of continuity  with  the
legacy of the Czech legion in the First World War, just as the
resistance  to the occupiers put up by our whole nation,  with
the   exception  of  groups  of  traitors  and  collaborators,
confirmed that our people wished to live in a democratic, law-
based  state, for which the pre-Munich republic represented  a
significant  developmental stage.  This attitude included  the
consciousness that democratic values maintain their  character
and  quality only on the basis of continuity, on the basis  of
some sort of common language, and general agreement with these
values and principles.  It is true that the principles of  the
rule of law were accepted by the Czech nation on the basis  of
general  consensus, and it was also true that  they  could  be
abandoned  and  replaced by others only  on  the  basis  of  a
prevailing  societal  consensus, not by  means  of  force  and
terror.

       All  these  facts  and  considerations  have  led   the
Constitutional Court to the conclusion that, since  the  enemy
occupation  of the Czechoslovak territory by the armed  forces
of  the  Reich had made it impossible to assert the  sovereign
state  power which sprang from the Constitutional  Charter  of
the  Czechoslovak  Republic, introduced by Constitutional  Act
No. 121/1920 Sb., as well as from the whole Czechoslovak legal
order,   the   Provisional   Constitutional   Order   of   the
Czechoslovak Republic, set up in Great Britain, must be looked
upon    as    the   internationally   recognized    legitimate
constitutional  authority  of  the  Czechoslovak  state.    In
consequence  thereof  and as a result of the  ratification  of
them  in  the  Provisional National Assembly by Constitutional
Act No. 57/1946 Sb., from 28 March 1946, all normative acts of
the  Provisional  Constitutional  Order  of  the  Czechoslovak
Republic, therefore even Decree of the President No.  108/1945
Sb.,  on  the Confiscation of Enemy Property and the Funds  of
National   Renewal,  are  expressions  of  legal  Czechoslovak
(Czech)  legislative power, so that as a  result  thereof  the
striving  of  the  nations of Czechoslovakia  to  restore  the
constitutional and legal order of the Republic  was  achieved.
Thus,  it  is quite absurd, so far as concerns the legislative
process, to insist unconditionally upon observance of the 1920
Constitutional  Charter  for a  period  when  a  part  of  the
Czechoslovak state was first forcibly lopped off and then  the
rest  of  the  state  was  entirely occupied,  all  the  while
gradually   losing   its   political   representation.     The
consequence of such a conclusion would be to deny a subjugated
nation  its  natural  right  to resist  occupying  aggressors,
including  by  force of arms.  With regard to that  which  the
occupying aggressor managed to carry out or that which it  was
contemplating, it more than suffices to mention the occupation
by  the  German  Reich's  armed forces  of  the  rest  of  the
Czechoslovak state in the form of the Protectorate of  Bohemia
and  Moravia, the closing down of Czech Universities, and  the
planned  future  "Endlösung" of the Czech nation.   Also,  the
action by which Lidice was wiped off the face of the earth and
other  acts  of violence more than sufficed to make  perfectly
clear  that,  in  spite of "all legal canons  prevalent  among
civilized European societies in this century", what was placed
before the Czech and Slovak nations was the grave issue of the
very  physical existence, not just of the Czechoslovak  state,
but also of its individual nations.


     The petitioner has made the further assertion that Decree
No.  108/1945 Sb., just as other decrees issued by Dr.  Edvard
Benes,   violated  the  legal  canons  of  civilized  European
societies and that, therefore, they must be considered not  as
acts  of law but of force, that is to say, that they lack  any
legal character whatsoever.  In response to this assertion, it
is  necessary to emphasize, even in a general sense,  a  basic
consideration  that is relevant to any sort of  evaluation  of
the  past:   while  it is true in principle  that  that  which
emerges  from  the past must, face to face with  the  present,
pass   muster   in  respect  to  values;  nevertheless,   this
assessment  of the past may not be merely the present  passing
judgment  upon  the past.  In other words, the present  order,
which  has  been enlightened by subsequent events, draws  upon
those  experiences, and looks upon and assesses a  great  many
phenomena  with  the advantage of hindsight, may  not  sit  in
judgment  upon  the order which prevailed in the  past.   This
must be kept in mind when assessing the Decree from 25 October
1945,  No. 108/1945 Sb., on the Confiscation of Enemy Property
and  the  Funds  of National Renewal, and the matter  must  be
viewed in the context of all the circumstances and occurrences
of  the  era  of  Nazi  occupation and the period  immediately
following   thereupon.   This  decree  was  issued   in   that
historical situation and on the basis of the legal order  then
in  force and was nothing other than a measure in reaction  to
the  provocation  represented  by  the  elimination  of  state
sovereignty,  independence,  territorial  integrity,  and  the
Czechoslovak   Republic's   democratic-republican   form    of
government  and  to the elimination of the principles  of  the
democratic,   law-based   state   embodied   in    the    1920
Constitutional Charter of the Czechoslovak Republic.   All  of
this  was  perpetrated by the Nazi regime,  one  of  the  most
destructive  totalitarian systems in the history  of  mankind,
whose ideology of world domination by the master race and  the
terror inextricably bound up therewith laid millions of  human
lives  to  waste.   Therefore, it  must  be  considered  quite
logically consistent and legitimate that, as T.G. Masaryk  had
already emphasized, each democratic political system not  only
has   the  need,  but  also  has  the  duty,  to  protect  the
foundations upon which it is erected, as actually came to pass
in  the  pre-Munich  Czechoslovakia,  for  example,  with  the
adoption  of  Act  No. 50/1923 Sb., on the Protection  of  the
Republic,  and a whole series of other measures,  among  which
should  be  counted the mobilization of the  armed  forces  in
1938.   Considering the wording of § 1 para. 1 of  Decree  No.
108/1945  Sb., there is no doubt that this decree was intended
to  strengthen the fundamental democratic and legal principles
referred to above, for it was meant to affect precisely  those
hostile  to  them.   Such  a determination  to  safeguard  and
develop  the Czech Republic is otherwise explicitly  expressed
in  the  Preamble  to the Constitution of the Czech  Republic,
thus  maintaining  and  furthering  an  important  element  of
continuity even in this field.

     Another basic issue which arises at this point is whether
there  exists  the necessary functional, mutually  conditional
relation  between  this  end,  that  is  the  building  of   a
democratic  law-based state, and the means employed,  in  this
case  the  confiscation  of enemy property,  in  other  words,
whether  the means employed correspond to the end pursued  or,
on  the  contrary,  whether there is such a disparity  between
them that the means employed turn out to be incommensurate  to
the end.  The issue of the proportionality of the chosen means
is  a  question of the boundary which no means in a  means-end
relationship can exceed, if the end itself is not to be called
into  doubt.  In order to maintain the functional relationship
of end to means, it is, therefore, indispensable for the means
employed to be of the same kind or genus as the end, in  other
words, that they enable progress toward the end, in this  case
toward  democracy.   Viewed from this perspective,  therefore,
the  Decree of the President No. 108/1945 Sb., as a  normative
legal  act, can only pass muster if, at its core, it does  not
go against the aims of the democratic, law-based state.

      As  concerns the issue raised above, it is necessary  to
emphasize what the title of Decree No. 108/1945 Sb., (. . . on
the  Confiscation of Enemy Property) itself suggests, that the
underlying criteria employed in defining those persons subject
to  property confiscation was their enmity to the Czechoslovak
Republic  or to the Czech or Slovak nation.  Such  enmity  was
irrebuttably presumed in the case of legal subjects listed  in
§  1  para. 1, no. 1 of the Decree, that is the German  Reich,
the  Kingdom  of Hungary, public law persons under  German  or
Hungarian  law,  the  German Nazi Party,  Hungarian  political
parties,  as  well as other units, organizations, enterprises,
institutions,  associations of persons, funds and  foundations
belonging to these regimes or connected therewith, as well  as
other  German  or  Hungarian legal  persons,  whereas  it  was
rebuttably  presumed in the case of the legal subjects  listed
in  §  1 para. 1, no. 2 of the Decree, that is natural persons
of  German  or Hungarian nationality, rebuttably in the  sense
that the property of these persons was not confiscated if they
demonstrated  that  they remained loyal  to  the  Czechoslovak
Republic, that they never wronged the Czech or Slovak  nation,
and  that they either actively took part in the fight for  the
Republic's  liberation  or  suffered  under  Nazi  or  fascist
terror.  At the same time, pursuant to § 1 para. 1, no.  3  of
the  decree  and without regard to nationality,  property  was
confiscated  from those natural and legal persons who  engaged
in  actions  directed against state sovereignty, independence,
territorial  integrity,  the  democratic-republican  form   of
government,  or  the security and defense of the  Czechoslovak
Republic,  who  incited or sought to draw other  persons  into
such  activities, who intentionally supported  in  any  manner
whatsoever the German or Hungarian occupiers or who during the
period  of  the  heightened threat to the Republic  (§  18  of
Decree of the President from 19 June 1945, No. 16 Sb., on  the
Punishment  of Nazi Criminals, Traitors and their  Accomplices
and   concerning   Extraordinary  People's  Courts),   favored
germanization  or  magyarization within the territory  of  the
Czechoslovak Republic, or who acted hostilely, whether  toward
the  Czechoslovak Republic or the Czech or Slovak  nation,  as
well  as  those  natural or legal persons who  tolerated  such
actions from persons managing their property (§ 1 para. 1, no.
3  of  Decree No. 108/1945 Sb., as amended by Act No.  84/1949
Sb.).   Thus,  the relation of enmity in Decree  No.  108/1945
Sb., was not conceived on the basis of nationality, because it
was  first  and foremost the Nazi or fascist system which  was
deemed  the enemy (irrebuttably, as has already been  stated),
and  the  object that the decree was intended to  protect  was
above all the democratic-republican form of government.  Thus,
even though the decree speaks in terms primarily of the German
Reich  and  persons of German nationality, in  actuality  this
decree  has a more general scope and can be considered as  one
of  the  documents  reflecting the  age-old  conflict  between
democracy  and totalitarianism.  The dividing line  was  drawn
according  to  which side of the conflict a  person  chose  to
support:  therefore, a person was not considered an enemy,  be
he,  for example, of German nationality, if he actively  stood
up  in  the  defense of democracy or if he suffered under  the
totalitarian regime, whereas on the other side, one  qualified
as an enemy if, without regard to his nationality, he actively
stood up against democracy.

      In  this  connection, it is further necessary  to  judge
whether  the decree's alleged conflict with "the legal  canons
of  civilized European societies," consists in the  fact  that
Decree No. 108/1945 Sb., on the Confiscation of Enemy Property
and  the  Funds of National Renewal, is clearly based  on  the
presumption of responsibility on the part of persons of German
(and also Hungarian) nationality while, in the case of persons
of  other nationalities, the burden of proof is placed on  the
body  deciding whether the conditions for the confiscation  of
their property are met or not.  From the start, emphasis  must
be  placed  upon the fact that no presumption  of  "guilt"  is
concerned, not even for persons of German nationality,  rather
it  is  a  presumption of "responsibility".  For it  is  quite
evident  that  the  category  of "responsibility"  is  a  much
broader  concept than that of "guilt", so that in this respect
it has a far more extensive value, social, historical, as well
as  legal,  dimension.  The determinative factor for  defining
the  category  of responsibility is the consciousness  of  the
individual  that he himself is answerable for his  orientation
in  life, for his social and value decisions, and that  nobody
can ever take on this responsibility in his place, neither the
society  itself nor history.  It is mankind's fate that  human
beings  are  placed into power relations, and  this  situation
gives  rise  to  their responsibility to champion  the  forces
which  will  make  human rights a reality.   The  grounds  for
social,  political,  moral,  and in  some  cases  even  legal,
responsibility is thus precisely the person's neglect to  make
a  contribution  in  the structuring of power  relations,  his
failure, during the struggle for power, to act in the  service
of  right.  For this reason, also in a democracy the political
system  is founded on the notion, institutionally concretized,
that all people bear common responsibility for the fate of the
whole  human  society, so that this feature of  responsibility
pervades to a greater or lesser extent all areas of life,  the
personal  life  of the individual, as well as  the  legal  and
political spheres.  An inherent feature of the order  of  duty
and  responsibility  in  democracy is  not  only  its  general
character, but also its inner securing, which results from the
internal  attitude  the  person takes in  relation  to  social
behavior and the consequences thereof.  An individual can only
feel responsible for norms in the true sense of the word if he
has contributed the spontaneity of his thoughts and actions to
forming  them.  In contrast to that, in a totalitarian system,
such  as  Nazi  Germany,  responsibility  was  institutionally
transferred  to  the governing elite, even though  in  reality
that elite felt itself stripped of any sort of responsibility.

     At this particular juncture, it is necessary to raise the
following question:  to what extent and in what sense were the
representatives of the Nazi movement alone responsible for the
gas   chambers,   concentration  camps,  mass   extermination,
degradation, butchery and dehumanization of millions, or along
with  them  does  everyone who profited in silence  from  this
movement,  who  carried out its orders,  and  who  put  up  no
resistance  to them also bear joint responsibility  for  these
phenomena.   It can hardly be seen as a black-and-white  issue
in  which the representatives of Nazism are assigned exclusive
responsibility and all others lack any responsibility at  all.
So  just as other European states and their governments, which
from the start of the Nazi expansion were unable and unwilling
to  offer  resistance, bore their share of responsibility  for
the  origin and evolution of Nazism, the German nation  itself
bears  primary responsibility for those events, even if  among
their  ranks  could  be found no small  number  of  those  who
actively  and  bravely  stood up to the Nazis.   Nevertheless,
there  does  seem to exist after all a fundamental  difference
between the responsibility of the "rest of the world" and that
of  the  German nation, between the silence and  passivity  of
some  and the silence and the active role played by others,  a
difference  which  has some significance  for  the  burden  of
proof.  For it was a considerable portion of the German nation
which in myriad respects directly and consciously participated
in the creation of the power structure in Nazi Germany, in the
expansion  of Nazi Germany into Czechoslovakia, and  generally
in  Nazi aims and actions, leading to the point where the fate
of  the  entire  world was at stake.  For  not  even  life  in
political  darkness  justifies total  social  resignation  and
apathy:  if a certain society is dominated by tyranny,  it  is
most  often  due  to  the fact that it does  not  possess  the
courage  or the capability to put the situation right  itself.
A  humane world can be preserved only if everyone in it  bears
his  share  of the responsibility, a burden which nobody  else
can  take on in place of him.  In the 1930's, a fateful decade
for the Czechoslovak Republic, each of its citizens could have
realized,  or  rather  should have realized,that  right  here,
under  the  veil of propaganda and lies on the  part  of  Nazi
Germany,  one  of  the  crucial  historical  clashes   between
democracy  and totalitarianism was taking place,  a  clash  in
which  everyone bore responsibility together for the  position
they adopted and the social and political role they undertook,
that  is,  the role of a defender of democracy or an agent  of
its destruction.  As Emerson so aptly observed:  "[I]t is true
that  a  man would be quite dazzled, or even blinded,  by  the
sunny  glow of truth, nevertheless he can avoid its  light  to
such  an  extent that he no longer sees at all."  This applies
as  well to the German citizens in pre-war Czechoslovakia, and
to  them  in  particular, for the conflagration  which  Nazism
unleashed was in large part the work of their nation  and  its
leaders.   All  the more so should they have manifested  their
fidelity  to  the  Czechoslovak Republic whose  citizens  they
were,  fidelity  to  perhaps  the last  democratic  system  in
Central  Europe  and given to this fidelity the  status  of  a
fundamental political principle.

      What was in fact the case? It must be emphasized at this
point that it is not the Constitutional Court's duty to review
and  evaluate  Czech-German relations, how  they  began,  took
shape,  and changed over the centuries.  The issues  of  which
the  Constitutional Court have cognizance are  the  following:
what   position  did  the  Czechoslovak  citizens  of   German
nationality  take in the crisis years of the 1930's,  and  did
Presidential  Decree No. 108/1945 Sb., on the Confiscation  of
Enemy Property and the Funds of National Renewal, represent an
appropriate    and    justifiable   reaction,    as    regards
constitutional  law and values, to this position,  appropriate
in  so  far as it passes muster even in relation to the  legal
canons  recognized by civilized nations in  that  period.   It
should  be  emphasized  here that the  Czech-German  conflict,
which  at that time involved a conflict between democracy  and
totalitarianism,  ended catastrophically for the  Czechoslovak
Republic  with the Munich Agreement, the result of which  was,
among  other  things, the forced departure of roughly  half  a
million Czechs from the border regions to what remained of the
Republic.  If the Czechoslovak Republic was the mere object of
this  agreement,  the same cannot be said  about  Czechoslovak
citizens  of German nationality who played an important  role,
when  the  border regions were being torn from  Czechoslovakia
and  incorporated  into the German Reich, significant  because
their   political  stance  provided  Hitler   with   arguments
acceptable to the West as to why it was necessary to lop off a
piece of Czechoslovakia.  Even at that critical point in time,
there could be no question concerning the democratic tradition
of  the Czechoslovak Republic.  However much our many citizens
of  German  nationality  might still have  been  viewed  as  a
foreign element during that time period, the structure of  our
political   system   accorded   them   ample   and   effective
constitutional leeway to permit them to reject  their  leaders
and  distinctly express a view dissenting from their  leaders'
program,  namely  that, precisely due  to  its  already  overt
totalitarian character, marked by violence and brutality, they
did  not want to join the German Reich and did not wish to  be
annexed  to it.  However, developments after 1938  went  in  a
different direction.  While in the one-time border regions the
local  German inhabitants exhibited absolute loyalty  to  Nazi
Germany, persecution and terror reigned in the Protectorate of
Bohemia and Moravia.  K.H. Frank, who held the office of State
Minister for the whole occupied territory, contributed  in  no
small  measure to this state of affairs, and his name is  also
linked to the tragedies of Lidice and Lezaky and the reprisals
which followed upon the assassination of Heydrich.

       The  establishment  of  a  totalitarian  system  always
represents a massive assault on mankind and on history itself.
In  the matter under review, this attacker was Germany and the
prevailing majority of its people (without the wide support of
the  overwhelming  majority of the  German  people,  which  he
received, Hitler and his Nazi Party would never have been more
than  a mere fringe phenomena).  Its extraordinarily dangerous
nature, the fact that it became a social phenomena threatening
"the  fate  of all life on earth" (Preamble to the Charter  of
Fundamental Rights and Basic Freedoms), also presents  reasons
as   to   why   the  attempt  to  eradicate  all  sources   of
totalitarianism  demanded extraordinary legislative  measures.
In  other  words, in such situations it is always a matter  of
eliminating   the   causes   leading   to   the    birth    of
totalitarianism,  of doing away with the sources  which  could
bring on a recurrence of it with all of its horrible features.
Naturally,  these extraordinary legislative  measures  had  to
make the distinction between "guilt" and "responsibility":  in
the  Czechoslovak legislation, this was made by distinguishing
retributive  decrees, requiring evidence of individual  guilt,
from  confiscatory decrees, consisting, where natural  persons
were  concerned, in the rebuttable presumption  of  individual
responsibility.  Thus, in view of the facts just set down, the
fact  that  Decree  No. 108/1945 Sb., on the  Confiscation  of
Enemy Property and the Funds of National Renewal, is based  on
the  presumption  of responsibility of persons  having  German
nationality does not mean that it has a discriminatory nature;
it  does not represent a form of nationalistic revenge, rather
it  is  merely  a proportionate response to the aggression  of
Nazi  Germany,  a  response which set  as  its  political  and
economic  aim  at least to alleviate the consequences  of  the
occupation,    to   forestall   any   possible    return    of
totalitarianism,   and  to  strengthen  societal   and   moral
consciousness by confirmation of the principle that a sanction
should  always  be  tied  to  the violation  of  any  sort  of
obligation.   The  use  of  the term "German  nationality"  in
Decree No. 108/1945 Sb., on the Confiscation of Enemy Property
and the Funds of National Renewal, must be seen in relation to
the  post-war situation, when the defeated Germany  was  under
the  administration  of the victorious powers  and  was  later
divided into zones, at a time when the use of the term "German
citizenship" was problematic because no German state  existed.
Thus,  the  choice  of  the term "German nationality"  in  the
decree  was  not a type of "genetic" condemnation,  rather  an
adjustment  to  the  post-war situation, particularly  to  the
problematic nature of German citizenship.  Precisely for  this
reason,  the  decree cannot be looked upon  as  some  sort  of
genocidal  norm,  for  it  was meant  to  affect  those  whose
behavior, whatever form it took, supported the Nazi state.  As
far  as  the  presumption of responsibility  on  the  part  of
persons  of  German  nationality is  concerned,  the  apparent
inequality  between  "Czechs"  and  "Germans"  disappears   by
switching  the  perspective  of  the  decree  from   that   of
nationality  to that of citizenship.  It remains crucial  that
the Germans' duty to assist the aims of the totalitarian state
resulted  alone  from their citizenship, which  demanded  such
unconditionally loyal behavior towards the German Reich, while
if  Czechs  and  members  of  other  nationalities,  who  were
constitutionally bound in loyalty to democracy, chose  to  act
against Czechoslovak statehood and democracy, they had  to  do
so  entirely  of their own free will.  For that  matter,  this
rebuttable  presumption of responsibility is  not  an  element
foreign  to  law, because it is found as well in other  fields
that  are  certainly  scarcely comparable with  the  political
field,  retaining, however, certain common characteristics  in
that the source of a certain type of especially serious danger
arises therefrom (the rebuttable presumption of responsibility
is found in both international and municipal law, for example,
in the area governing liability for specific types of damage).
If  the  presumption  of responsibility exists  even  in  such
areas,  it  is  all  the more appropriate  when  the  fate  of
mankind,  socially  and  historically,  is  at  stake.   Thus,
however much we are dealing with scarcely comparable subjects,
it  cannot  be doubted that the inner logic of the law  allows
for  a  presumption  of responsibility in  such  extraordinary
cases.

      The  institution  of responsibility is always  connected
with a sanction, as such constitutes a basic condition for  it
to   be   able  to  serve  its  social  function.    To   have
responsibility without a sanction would have such  a  negative
impact upon the existence of the society's consciousness  that
it  would  probably  represent its destruction,  at  least  in
certain  areas.  Decree No. 108/1945 Sb., on the  Confiscation
of  Enemy  Property  and  the Funds of  National  Renewal,  is
without  a doubt just such a sanction:  even though  on  first
view  it  would  seem  to  concern only  "property",  it  also
doubtless  contains an important social and  ethical  subtext.
In  view of the nature of the responsibility analyzed in  this
case,  however, the decree cannot be examined  as  a  criminal
norm or a criminal sanction, even though confiscations without
compensation occurred pursuant to it.  Decree of the President
No.   16/1945  Sb.,  on  the  Punishment  of  Nazi  Criminals,
Traitors, and their Accomplices, and on Extraordinary People's
Courts,  as  amended  by later acts (see Minister  of  Justice
Notice  No. 9/1947 Sb., on the Full Version of the  Decree  of
the  President on the Punishment of Nazi Criminals,  Traitors,
and  their  Accomplices and on Extraordinary People's  Courts,
and Decree of the President on National Courts, Appendix I and
II  to this Notice), is indisputably just such a criminal norm
as  it  places upon courts the duty to declare, in conjunction
with a conviction for one of the crimes listed in that decree,
the  forfeiture of all the convicted person's property,  or  a
part  thereof,  in favor of the state (§ 14, letter  c).   The
purpose  of  this  decree was to punish the persons  described
therein  and  to  attach further unfavorable consequences  for
convicted persons to a conviction for one of the crimes listed
in  the  decree (for example, the loss of civic honor),  while
the   Decree  of  the  President  No.  108/1945  Sb.,  on  the
Confiscation  of  Enemy  Property and the  Funds  of  National
Renewal,  calls only for the confiscation of this property,  a
confiscation which was manifestly related to the damage caused
the   Czechoslovak  Republic  by  the  Nazi   aggression   and
occupation (see, the Potsdam Agreement of 2 August  1945,  the
Agreement on Reparations from Germany, on the Establishment of
the  Inter-Allied Reparations Authority, and on the Return  of
Gold Currency, promulgated under No. 150/1947 Sb.).

      A  further fundamental issue is the following:  is it at
all  possible in principle for such sanctions to infringe  the
rights  and freedoms of persons who themselves have  obviously
violated  those same rights and freedoms and who,  thus,  bear
responsibility themselves for that violation.  In other words,
can  one  demand the right to liberty, let us say, if  he  has
himself  destroyed it by his conduct? It was the brutality  of
the  Nazi  regime and the events of the Second World  War,  as
well  as all other experience garnered from this period, which
necessitated the response to this question given in Article 30
of  the  Universal  Declaration of Human  Rights  and  in  two
articles  which are linked with and identical  to  it,  namely
Article 5 para. 1 of both the International Covenant on  Civil
and  Political  Rights  and  the  International  Covenant   on
Economic,  Social and Political Rights, as well as Article  17
of  the  Convention  on the Protection  of  Human  Rights  and
Fundamental Freedoms, as amended by Protocols Nos. 3,  5,  and
8, which states:  "nothing in this Convention may be construed
so as to accord the state, a group, or an individual any right
whatsoever to engage in activities or to commit acts aimed  at
the  destruction of or the limitation upon any of  the  rights
and  freedoms  herein  granted to a  greater  extent  than  is
provided  for  by this Convention."  It is precisely  on  this
plane  that  it  is  possible to find the starting  point  for
conclusions  of  a more general nature, even  for  the  matter
under  consideration:   if  onetime Czechoslovak  citizens  of
German  nationality  contributed to  the  destruction  of  the
rights  and freedoms of the other citizens of the Czechoslovak
Republic,  then  it  follows as a natural consequence  thereof
that  in  this regard their rights and freedoms could  not  be
fully  preserved in the conflict then underway,  provided,  of
course,  that  the  relationship  between  means  and  end  is
maintained, for such social, even destructive, "naivete" would
necessarily  have  catastrophic consequences.   The  right  to
impose  the  necessary sanctions in reaction to an assault  on
democracy  and human rights and freedoms, thus, belongs  among
the "legal canons prevalent among civilized European societies
in this century", to which the petitioner appeals.

      To this should be added that property sanctions, such as
the   confiscation  of  enemy  property  located  within   the
Czechoslovak Republic, have a historical foundation  primarily
in  respect  of  the fact that it was decided in  the  Potsdam
Agreement  of  2  August 1945 that the German  inhabitants  of
Poland,  Czechoslovakia, and Hungary, or some portion thereof,
would  be  transferred to Germany (Chapter XIII) and,  at  the
same  time  and as a result of this agreement, decisions  were
also  made concerning German reparations as conceived  in  the
resolution  of  the  Yalta  Conference,  which  provided  that
Germany  would be obliged to pay compensation to the  greatest
extent  possible for the damage and hardship which  it  caused
the  Allied Nations and for which the German people could  not
evade  responsibility (Chapter IV).  This point of the Potsdam
Agreement  is  echoed  in the Agreement  on  Reparations  from
Germany,  on the Establishment of the Inter-Allied Reparations
Authority,  and  on  the Return of Gold Currency  (promulgated
under  No. 150/1947 Sb.), agreed upon in Paris on 21  December
1945 between 18 countries, with Czechoslovakia numbering among
them.   Part  I,  Article 6 A of the Paris Agreement  provides
that  "each  signatory government shall retain, in the  manner
which  they themselves select, the German enemy property under
their jurisdiction or shall deal with it in such a manner that
it  shall not be returned to German hands or to German control
and  shall  deduct  this  property from  their  share  of  the
reparations.  .  ."   Part I, Article 6 D  of  this  Agreement
declared  that "in implementing [Article 6] A above,  property
which  was  owned  by a country which was one  of  the  Allied
Nations, or one of the subjects thereof (provided he was not a
subject  of  Germany at the time that country was  annexed  or
occupied or entered into the war), shall not be deducted  from
their   reparations  .  .  ."   Thus,  in  the  matter   under
consideration, the confiscation of enemy property had a  basis
not  only in domestic law, in Decree No. 108/1945 Sb., on  the
Confiscation  of  Enemy  Property and the  Funds  of  National
Renewal   (allowing   for   a   rebuttable   presumption    of
responsibility and moreover, while operating ex lege, doing so
only towards those persons with regard to whom it was found in
a   final,  enforceable  decision  that  the  conditions   for
confiscation under this decree were met, § 1 para.  4  of  the
decree), but was based as well on international consensus,  as
expressed   in  the  above-cited  documents  of  the   Potsdam
Conference  and the Paris Settlement.  So, we are not  dealing
with  the arbitrary deprivation of property, which Article  17
of  the Universal Declaration on Human Rights declares  to  be
impermissible.  Also, discussions on the mentioned  aspect  of
arbitrariness  featured prominently in  the  deliberations  on
authorizing the confiscation of enemy property:   for  it  was
pointed  out  in  them  that the deprivation  of  property  is
legitimate  in  the case that, in addition to meeting  further
conditions, such an act cannot be viewed as arbitrary.  It can
scarcely  be  doubted that, as regards Czechoslovakia  in  the
context  of the events of the war and as one of the victorious
powers, it was not a matter of such arbitrariness, of the mere
clothing  in  the garb of the common good what was  rather  in
actuality the violation of the basic rights of the individual.

     For democracy itself is also unable to manage without the
use  of  force,  for force provides it with one  of  its  most
significant opportunities, that is, the opportunity to  combat
"evil",   infiltration,  and  the  approach  of   totalitarian
elements  and  makes  it possible finally to  eliminate  them.
After  all  democracy also represents one  form  of  political
government - otherwise it would not be able to function like a
political  system at all - however, this form is so dissimilar
to  totalitarianism that the two can hardly be  reduced  to  a
common denominator.  For democracy is meant to be a government
of  all,  even  though this aim will never  be  attained;  its
purpose  is to make it possible for all sectors of society  to
have  access  to  positions of power.  Making  such  positions
accessible to all groups cannot, however, represent a state of
anarchy.   If  they  are  to  preserve  the  positive  aspects
connected   with   the   element  of  power,   those   holding
governmental  power  are compelled, even in  a  democracy,  to
react  to  the ambiguity inherent in social processes  and  to
take  action  legally against behavior and acts by destructive
forces   which  exceed  the  bounds  defined   by   law.    If
totalitarianism represents an assault on humanity and history,
then it is precisely democracy which is obliged to respond  to
such  an  assault  in  an appropriate  manner.   The  positive
character  of such a response is dependent above  all  on  the
establishment  of  values  about  which  a  certain  consensus
prevails in society.

       Therefore,   in   the  clash  of  the  democratic   and
totalitarian  political  systems,  of  which  Czechoslovakia's
conflict  with  Nazi  Germany is an  example,  the  government
leaders in democratic Czechoslovakia could not have gotten  by
without  a  legal  measure, such as the  decree  referred  to.
During the 20 years of its [pre-war] existence, this democracy
had  a  political  process allowing for  conflict  and  social
equalization, an institutionally ensured political  foundation
even  for  manifestations of the most heterogeneous sort.   In
principle,  this  openness manifested itself  in  relation  to
citizens  of German nationality as well.  After the period  of
the  violent  occupation by Nazi Germany, and as a consequence
of  the losses and blows that Czechoslovakia suffered thereby,
no  other  route was left open to the Czechoslovak  government
leaders  than  to  deal  with the  consequences  of  the  Nazi
occupation and the events of the war, to a certain  degree  at
least.   The  means  by which this was done  was  entirely  in
conformity  with  the  value  orientation  expressed  in   the
Preamble  to the 1920 Constitutional Charter ("to  secure  for
future  generations the blessings of liberty"), and  was  also
supported by international approval, in particular on the part
of  the  western democracies, unambiguously expressed  in  the
decisions of the Potsdam Conference.

      Expressed  from  another  perspective,  this  system  of
values, which in its historical development was more and  more
manifested  in  the  understanding and  guarantee,  first  and
foremost,  of  human rights and freedoms,  fulfilled  such  an
important social, directive, classificatory, programmatic  and
oversight function in society, that it qualifies as one of the
basic  conditions for social life:  that is to say, it ensured
the  continuity of historical and social development  and,  in
this respect, it was society's lone supporting structure.  The
significance  of  the social function played  by  values  also
offers  an  explanation as to why one of the knotty points  of
the  conflict between democracy and totalitarianism  is  found
precisely in the field of values and why totalitarian  regimes
have  an unyielding tendency to place such importance on  this
particular  field.   If a totalitarian  regime  aims  to  gain
mastery  over the entire society, it cannot achieve this  goal
without  at the same time declaring an inverted value  system,
striving for pre-eminence not only over history but over human
society  itself.  In this respect, this conflict  over  values
turned out to be a conflict not only over democracy, but  over
the  essence  and  continuity of humanity.   In  this  battle,
German   Nazism  reached  deep  into  its  arsenal,  and   the
destructive  urge so brilliantly captured in  Plato's  phrase,
"the  thirst for blood", could be seen both in theory  and  in
practice and was gratified not only in the inhumanity  of  the
concentration camps, but also in the savagery of  the  war  of
extermination.   Concepts  such as  Führertum,  Volkstum,  and
Volksgemeinschaft represent only some of the hallmarks of  the
ideology which declares in an overt fashion the Nordic  race's
right  to world dominance.  Behind the rituals that were  part
and   parcel  of  the  Nazi  "value  system"  was  hidden  the
propensity  to  destroy and tear out by the roots  all  actual
values,  everything that enables the individual to have  self-
consciousness  and  a  social  orientation,  everything  which
prevents him from becoming a mere object.  The destruction  of
human  autonomy can also be pointed to as the goal of and  the
reason  for  Nazi propaganda, which created a  world  of  mere
illusion, presenting to the international public, for example,
the  concentration camps into which the victims of Nazism were
placed as re-education and labor facilities.

      In  the  system of social values, a crucial position  is
occupied precisely by liberty, which proves to be at  one  and
the  same  time a disruptive element and a necessary condition
for social development; the lack, or even total absence, of it
always  results in a retardation or even the complete halt  of
social advancement.  At its inner core, liberty co-creates the
awareness  of duties and responsibilities:  it inspires  human
beings  in  attaining their highest aims while letting  it  be
known to them, however, that, primarily within the inner logic
of   its  own  principles,  it  provides  for  its  own  self-
limitation.    It   is   from  this   perspective   that   the
Constitutional Court also views the issue of limitations  upon
human  rights  and  liberties and the  preservation  of  their
substance  and purpose, as the issue also emerged historically
at  the  time  the  contested  decree  was  issued.   Whatever
limitations  each democratic society places upon basic  rights
and  freedoms in the matters of "open" social action, in which
even  a  minority  is  accorded the right  to  adopt  its  own
political  position,  this right of  the  minority  cannot  be
linked to any and every capricious attitude lacking a positive
social  substratum.  Democracy would bring about its own  ruin
if,  in  regard to the opinions and actions of a minority,  it
felt itself unable to respond to measures which contradict its
basic  value orientation.  Thus, not even in this  respect  is
Presidential  Decree No. 108/1945 Sb., on the Confiscation  of
Enemy Property and the Funds of National Renewal, an arbitrary
act,  rather  it is a sanction aimed at ensuring the  function
and  purpose  of human rights and freedoms, their constructive
contribution  to society, and the deepening of  the  sense  of
responsibility.  After the Nazi occupation had ended,  it  was
necessary  to  restrict  the rights of the  then  Czechoslovak
citizens, not due to the fact that they championed a differing
position, rather due to the fact that, in its overall context,
their position was hostile to the essence of democracy and its
system of values, which in consequence represented support for
the  war  of  aggression.  In this instance, this  restriction
applied  equally  to all cases which met the  conditions  laid
down, namely a relation of enmity to the Czechoslovak Republic
and  the  democratic  form of government,  without  regard  to
membership in a national group.  If in exercising their  human
rights  and  freedoms, certain social groups place  no  limits
upon themselves and thereby destroy the rights and freedoms of
others,  no  option  remains  but to  sanction  such  behavior
legally and socially.  Thus, Decree No. 108/1945 Sb.,  on  the
Confiscation  of  Enemy  Property and the  Funds  of  National
Renewal,  also pursued the goal of the political and  economic
stabilization  of  a democratic land ruined  by  the  war  and
occupation,  the  same  as the interest  in  doing  away  with
further   possible   recurrences   of   analogous   historical
situations, as well as the interest in protecting  the  rights
and  freedoms  of  those citizens who did not  bring  on  this
burden   and   whose   social  and   moral   consciousness   -
indispensable for the exercise of these rights- would, in  the
absence of such sanctions, suffer unforeseeable ruptures;  all
this  despite the fact that the pursuit of this  goal  in  the
postwar  circumstances  had hidden  within  it  the  aims  and
practices of political forces who were endeavoring to  install
the  so-called  "people's democracy" as the route  to  another
totalitarian regime.

      To  what has already been stated can be added the  fact,
which   is  determinative  in  the  present  case,  that   the
legislation  adopted in exile, just as the immediate  post-war
legislation  of  the  liberated  Czechoslovak  state,  at  the
present concern what is in essence an already closed circle of
problems  and  issues intimately connected  with  the  wartime
events and the economic renewal of the land.  In addition, the
normative acts from this period accomplished their purposes in
the  immediate  post-war period, so that from  a  contemporary
perspective  they no longer have any current significance  and
already  lack  any further constitutive character  (Article  5
para.  2  of  Constitutional Decree of the President  from  13
August 1944, Official Gazette of Czechoslovakia, as amended by
Act No. 12/1945 Sb., which Approved, Supplemented, and Amended
Enactments concerning the Renewal of the Legal Order).   Legal
relations  created on the basis of this act  are  not  only  a
consequence  of  the events of the war but, in addition,  they
resulted  from  a  legal  exercise  of  Czechoslovak   (Czech)
legislative power, the aim of which was to repair  the  damage
which was caused by the extraordinary conditions of the period
of  non-freedom,  so  that  these legal  relations  enjoy  the
protection   that  results  from  being  enactments   of   the
Czechoslovak (Czech) legal order.

     Thus, on the basis of all the above-ascertained facts and
considerations,  the  Constitutional Court  has  come  to  the
conclusion  that, at the time of its issuance, the  Decree  of
the  President No. 108/1945 Sb., on the Confiscation of  Enemy
Property  and the Funds of National Renewal, was  not  only  a
legal  but  also a legitimate act.  In view of the  fact  that
this  normative act has already accomplished its purposes  and
for  a  period of more than four decades has not  created  any
further  legal  relations,  so  that  it  no  longer  has  any
constitutive   character,   in   the   given   situation   its
inconsistency   with  constitutional  acts  or   international
treaties  under  Article  10 of the Constitution  (Article  87
para.  1, letter a) of the Constitution of the Czech Republic)
cannot be reviewed today, for such a means of proceeding would
lack  any juridical function whatsoever.  To proceed otherwise
would  be to cast doubt upon the principle of legal certainty,
which  is  one  of  the  basic  requirements  of  contemporary
democratic legal systems.

     So, on all of the grounds adduced above and pursuant to §
70  para.  2  of  Act No. 182/1993 Sb., on the  Constitutional
Court, the Constitutional Court has rejected on the merits  R.
D.'s petition seeking the annulment of Decree of the President
No.  108/1945  Sb., on the Confiscation of Enemy Property  and
the Funds of National Renewal.

      The secondary parties R. B. and JUDr. J. S. are referred
to this decision.


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


Brno, 8 March 1995


                               JUDr. Zdenek Kessler, Chairman
                               Constitutional Court
                               of the Czech Republic