Pl. ÚS 3/94
                      Permanent Residence


Headnote:
1.  A  restriction on the acquisition of ownership  of  certain
things only by certain subjects is contained in art. 11 par.  2
of the Charter of Fundamental Rights and Freedoms, which states
that  “the law may also provide that certain items of  property
may  be  owned  exclusively by citizens or legal entities  with
their  headquarters in the Czech and Slovak Federal  Republic.”
(as  of  1  January 1993 in the Czech Republic). In  connection
with  art.  42  par.  1 of the Charter the  term  “citizen”  is
understood  to  mean a citizen of the CSFR (CR). However,  with
natural   persons  this  applies  only  to  the  condition   of
citizenship of the Czech Republic, and not generally, but  only
concerning  certain  things  provided  in  the  law.  In   this
provision,  the  Charter does not authorize the legislature  to
set  further conditions for acquiring ownership (whether in the
restitution  process  or  generally),  i.e.  the  condition  of
permanent  residence in the Czech Republic. Such  authorization
also  can  not be found in other constitutional regulations  of
the Czech state.

2.  The expression “permanent residence” is defined in § 3 par.
2  of Act no. 135/1982 Coll., on Reporting and Registration  of
the Residence of Citizens. Permanent residence is residence  in
the  place of a citizen’s regular place of residence, which is,
as a rule, the place where he has family, parents, an apartment
or  employment. Section 1 of the cited Act indicates  that  the
purpose of the Act is the regulation and securing of proper and
timely  reporting and registration of Czechoslovak citizens  in
the then CSSR. Thus, it is an Act in the area of public law, of
only an evidentiary and police nature; in any case this is also
clear from § 3 par. 3 of the Act, under which citizens may have
permanent residence only in buildings which are marked  with  a
number   under   special  regulations.  The   term   “permanent
residence”  should therefore not be relevant in  a  norm  which
regulates  private law relationships, such as, in the  reviewed
case, Act no. 87/1991 Coll., on Extra-Judicial Rehabilitation.


The  Constitutional Court of the Czech Republic, in the Plenum,
decided in the matter of the  complainant – a group of deputies
from  the  Chamber of Deputies of the parliament of  the  Czech
Republic on the petition to annul 1) part of § 3 paragraph 1 of
Act  no.  87/1991  Coll.1), on Extra-Judicial Rehabilition,  as
amended  by  Acts amending and supplementing it, in  the  words
“and has permanent residence in its territory” and part of §  3
paragraph  2  of the same Act, as amended by Acts amending  and
supplementing it2), in the words “and have permanent  residence
in  its territory,” 2) part of § 5 paragraph 2 and paragraph  4
of  Act  no.  87/1991 Coll., on Extra-Judicial Rehabilitation3)
4),  as  amended by Acts amending and suplementing it,  in  the
words “from the day this Act goes into effect,” as follows:


As of 1 November 1994 the following are annulled:

1)  in  §  3  paragraph 1 of Act no. 87/1991 Coll.,  on  Extra-
Judicial  Rehabilitation,  as  amended  by  Acts  amending  and
supplementing it, the part of the sentence after  the  (second)
comma  in  the  words  “and  has  permanent  residence  in  its
territory”  and in § 3 paragraph 4 of the same Act, as  amended
by Acts amending and supplementing it (numbered as paragraph  2
before  Act no. 116/1994 Coll. went into effect), part  of  the
sentence  in  the  words “and have permanent residence  in  its
territory”,

2) in § 5 paragraph 2 and paragraph 4 of Act no. 87/1991 Coll.,
on  Extra-Judicial Rehabilitation, as amended by Acts  amending
and  supplementing it, the words “from the day  this  Act  goes
into effect”.


Reasoning

I.
A  group  of  53  deputies in the Chamber of  Deputies  of  the
Parliament of the Czech Republic filed a petition:

1.  to  annul  part of the sentence after the comma,  i.e.  the
words  “and has permanent residence in its territory”  in  §  3
par.   1   of   Act   no.  87/1991  Coll.,  on   Extra-Judicial
Rehabilitation, as amended by Act no. 264/1992 Coll.,  Act  no.
267/1992 Coll. and Act no. 134/1993 Coll.1) and in § 3  par.  2
of  the same Act, as amended by later regulations, in the  part
of  the  sentence which reads “and have permanent residence  in
its territory”, pointing to the fact that they are in conflict:

a)  with  art.  1, 4 and 10 of the Constitution  of  the  Czech
Republic

b)  with art. 1, 3, 4 and 11 par. 1 second sentence, as well as
with  art.  36, 38 and 42 of the Charter of Fundamental  Rights
and Freedoms

c)  with  art.  1  par.  1 of the Additional  Protocol  to  the
European  Convention  for the Protection of  Human  Rights  and
Fundamental Freedoms

2.  to annul parts of § 5 par. 2 and par. 4 of the same Act, as
amended by later regulations, in the words “as of the day  this
Act  goes  into effect”. A supplemental filing of 2  June  1994
states  that  these  provisions, in the  cited  words,  are  in
conflict  with the same constitutional regulations  with  which
the  contested parts of § 3 paragraphs 1, 2 of Act no.  87/1991
Coll. are in conflict

The  petition by the group of representatives from the  Chamber
of  Deputies  of  the  Parliament of  the  Czech  Republic  was
justified as follows:

re  1)  The  aim  of  Act no. 87/1991 Coll., on  Extra-Judicial
Rehabilitation, as amended by later regulations (further  cited
as Act no. 87/1991 Coll.) is the mitigation of the consequences
of  certain property and other injustices arising through civil
law and labor law acts and administrative acts which were taken
in the decisive period (i.e. from 25 February 1948 to 1 January
1990)  in conflict with the principles of a democratic society,
respecting  the rights of citizens, expressed in  international
law  documents and treaties which are binding on our state.  In
order  to  achieve this aim the Act also specified  conditions,
the fulfillment of which is a prerequisite for the creation  of
new  rights and obligations governed by Act no. 87/1991  Coll.,
or  claims arising from annulled verdicts on the punishment  of
forfeiture of property, forfeiture of a thing or seizure  of  a
thing.

Under § 3 par. 1 of Act no. 87/1991 Coll. an entitled person is
a natural person whose thing was transferred to state ownership
in cases provided in § 6 of the Act, if the person is a citizen
of  the  CSFR and has permanent residence in its territory;  if
that  person  has  already died, the  entitled  person  is  the
natural person who is provided as a special legal successor  in
§  3 par. 2 letters a) to e), provided that person is a citizen
of  the  CSFR  and  has permanent residence in  its  territory.
Anyone  who  does  not  meet both these conditions  is  not  an
entitled person under these provision.

In  view of the constitutional order of the Czech republic  and
with  regard  to  the provisions of international  treaties  on
human  rights  and  fundamental freedoms  by  which  the  Czech
Republic is bound, the condition of permanent residence in  the
Czech   Republic   is   an  inadmissible   condition,   as   it
disproportionately   restricts   “seeking”   property   rights,
primarily   ownership  rights,  of  which  the  mitigation   of
consequences  of injustices caused in the past  consist.  As  a
result  of  setting  this  condition  (along  with  the   other
condition,  i.e. citizenship), natural persons  whose  property
had  been  taken  away in the past, or their legal  successors,
were  divided into a category of people with more equal  rights
and people with less equal rights.

Setting  the condition of “permanent residence” is of a clearly
discriminatory nature. This is an expression from  public  law,
which appears only in Act no. 135/1982 Coll., on Reporting  and
Registration  of  the  Residence  of  citizens,   i.e.   in   a
regulation, the aim of which (in addition to other aims typical
of  the  totalitarian regime) was to clearly  distinguish  from
each  other  two kinds of people. Such distinguishing  must  be
rejected, not only in the private law sphere, but in the entire
legal  order  of a state which declares itself to  be  a  state
governed  by  the rule of law. It is all the more necessary  to
reject use of such an expression in a law, the aim of which  is
mitigation of the consequences of injustices from past years.

re 2) Act no. 87/1991 Coll. also set unusual and, for the given
matter, disproportionately short deadlines both for the call to
issue  a  thing  and for exercising the claim  of  an  entitled
person  before a court. While the first of these is  preclusive
ex  lege,  the  second  deadline became  so  only  through  the
interpretation of the state notary offices and courts. in  view
of  the  fact that the conditions of citizenship and  permanent
residence  were to be met no later than the day of  filing  the
call,  or, according to the interpretation of courts, no  later
than the day when the Act in question went into effect, it  was
virtually impossible for persons living outside the Czech state
to meet them.

This line of argument indicates that the contested parts of § 3
par.   1   and   par.   2   of  Act  no.  87/1991   Coll.   are
unconstitutional, because, in conflict with constitutional laws
and  with  international  treaties  under  article  10  of  the
Constitution, they make unequal in rights people who are equal,
namely,   they  illegally  distinguish  between   owners.   The
contested  parts  of § 3 par. 1 and par. 2 of Act  no.  87/1991
Coll. also violate art. 1, 4 and 10 of the Constitution of  the
Czech  Republic, as well as art. 1, art. 3, art. 4 and art.  11
par.  1  second sentence, as well as art. 36, 38 and 42 of  the
Charter of Fundamental Rights and Freedoms and art. 1 par. 1 of
the   Additional  Protocol  to  the  European  Convention   for
Protection of Human Rights and Fundamental Freedoms.

Concerning the petition to annul parts of § 5 par. 2 and par. 4
of  Act no. 87/1991 Coll. in the words “as of the day this  Act
goes  into  effect”, it is justified particularly by the  close
connection with § 3 par. 1 and par. 2  of the same Act, as only
thus  can  those  whose claim will only  be  established  by  a
judgment  of  the  Constitutional  Court  be  enabled  to  duly
exercise  it  in the new period, which will begin at  the  same
time  as  the  decision of the Constitutional Court  goes  into
effect.

II.
The  petition from the group of deputies was first reviewed  in
formal  terms.  No  reasons were found to reject  the  petition
under  §  43  par.  1  of  Act  no.  182/1993  Coll.,  on   the
Constitutional Court.

III.
The Chamber of Deputies of the Parliament, in its statement  of
8  April 1994, stated that the passed Act no. 87/1991 Coll.  is
in  accordance with the Constitution and our legal  order.  The
aim  of the Act is to implement at least partial mitigation  of
the  created injustice, as the large number of areas of  social
life  in  which, in our country, property and other  injustices
were committed in the period from 25 February 1948 to 1 January
1990,  and  the  high number of affected persons,  considerably
limit  the possibility for comprehensive legal regulation which
would  cover  correction  of  the  consequences  of  all  these
injustices.   Likewise,  it  is  not  possible  to   completely
rehabilitate or compensate those who were injured in the  past.
In  accordance  with  this  principle,  the  Act  provided  for
entitled  persons  the condition of citizenship  and  permanent
residence  in  the country. Acceptance of this principle  fully
corresponds to international customs.

IV.
Analysis of the issue

1) The Constitutional Court first addressed the question of the
constitutionality of narrowing the circle of  persons  to  whom
certain property and other injustices were caused by civil  law
and  labor law acts and by administrative acts which were taken
in the decisive period (i.e. from 25 February 1948 to 1 January
1990)  in  conflict with the principles of a democratic  state,
respecting  the rights of citizens, expressed in  international
documents and treaties binding on our state (§ 1 par. 1 of  Act
no. 87/1991 Coll., on Extra-Judicial Rehabilitation). Narrowing
the  circle of entitled persons is based on § 3 par. 1  of  the
cited  Act,  under which an entitled person is only  a  natural
person whose thing was transferred to state ownership in  cases
provided in § 6 of the Act, if the person is a citizen  of  the
CSFR  and  has  permanent residence in its territory.  If  that
person  has  already died, the entitled person is  the  natural
person  who is specified as the legal successor in § 3  par.  4
letters  a) to e) of the Act (previously in § 3 par. 2  letters
a)  to  e)),  if the person is a citizen of the  CSFR  and  has
permanent residence in its territory.

During  the  entire period when these regulations were  applied
expert  discussion  was  conducted on the  accordance  of  this
statutory  regulation with international principles at  present
also  contained  in  the  Charter  of  Fundamental  Rights  and
Freedoms, particularly with regard to the possible violation of
the  principle  of  equality,  specifically  the  principle  of
equality  in  access  to property taken away  in  the  decisive
period  (from  25  February 1948 to 1  January  1990)  in  ways
described in the Act.

The arguments concerning violation of the principle of equality
also  point to the differing concept of this issue in  Act  no.
403/1990  Coll., on Mitigating Certain Property Injustices,  as
amended  by  later amendments and supplements, which  does  not
contain this restriction.

It  is  indisputable  that  in the process  of  restitution  of
ownership  it  is also necessary to evaluate the  principle  of
equality  before  the  law  in  connection  with  the   special
characteristics of the area in which it is to be  observed.  It
is necessary to consider whether, given the existence of merely
relative equality of potentially affected natural persons,  the
constitutional law concept of fundamental rights of  the  Czech
Republic  can tolerate the existence of a restrictive provision
concerning the circle of rights holders under the criterion  of
permanent residence in the Czech Republic.

In   the   first   place  it  is  necessary  to  evaluate   the
interpretative  importance of the preamble to Act  no.  87/1991
Coll.,  which indicates that the aim of the law is “the attempt
to  mitigate  the  consequences of certain property  and  other
injustices”,  which occurred in the period from 1948  to  1989.
The  point  is  thus to define the term “certain” property  and
other injustices. The question arises whether this term can  be
understood not only in relation to the circle and intensity  of
interference   with  property,  particularly   with   citizens’
ownership in the decisive period, or whether it is possible  to
also  see  in it a statutory area for narrowing the  circle  of
entitled  persons, with a view to whether they  have  permanent
residence  in  the  CSFR (as of 1 January  1993  in  the  Czech
Republic). This question must be answered in the negative.  The
term  “certain property and other injustices” can be considered
an  expression of the intent of the legislature to mitigate not
all  injustices in terms of content and extent, but – and  only
in  this regard – only the most serious injustices. However, it
is  not possible to derive from the formulation of the preamble
room  to exclude certain subjects from the circle of those  who
meet  the elements of particular grounds for restitution.  From
that  we  can  conclude  that  there  is  discord  between  the
definition of the term “entitled persons” under § 3 par. 1  and
par.  4 (previously par. 2)  of the contested Act and the  text
and purpose of its preamble .

The  possibility of express restriction of acquiring  ownership
of  certain  things by only certain subjects  is  contained  in
article  11 par. 2 of the Charter, which states that  “the  law
may  also  provide that certain items of property may be  owned
exclusively   by   citizens  or  legal  entities   with   their
headquarters in the Czech and Slovak Federal Republic.” (as  of
1 January. 1993 in the Czech Republic). In connection with art.
42  par.  1 of the Charter the term “citizen” is understood  to
mean  a citizen of the CSFR (the Czech Republic). However, with
natural   persons  this  applies  only  to  the  condition   of
citizenship of the Czech Republic, and not generally, but  only
concerning  certain  things provided  in  the  law.  The  cited
provision,  which  emphasizes the term “certain  things”,  does
provide  the condition of a registered office in the CSFR,  but
that  condition  applies  only to legal  entities  and  not  to
citizens.  This  is  given grammatically, by  the  use  of  the
conjuction  “or”,  which  in this  context  does  not  have  an
inclusive meaning but an exclusive one, as well as by  the  use
of  the  expression  “with  its registered  office”,  which  in
contemporary Czech expresses the location of legal entities and
not natural persons; with the latter we speak of “residence” or
“stay”.  In  this provision the Charter does not authorize  the
legislature  to set further conditions for acquiring  ownership
(whether  in  the restitution process or generally),  i.e.  the
condition  of  permanent residence in the Czech Republic.  Such
authorization  also  can not be found in  other  constitutional
regulations of the Czech state.

The  expression “permanent residence” is defined in § 3 par.  2
of Act no. 135/1982 Coll., on Reporting and Registration of the
Residence of Citizens. Permanent residence is residence in  the
place of a citizen’s regular place of residence, which is, as a
rule,  the place where he has family, parents, an apartment  or
employment.  Section  1  of the cited Act  indicates  that  the
purpose of the Act is the regulation and securing of proper and
timely  reporting and registration of Czechoslovak citizens  in
the then CSSR. Thus, it is an Act in the area of public law, of
only an evidentiary and police nature; in any case this is also
clear from § 3 par. 3 of the Act, under which citizens may have
permanent residence only in buildings which are marked  with  a
number   under   special  regulations.  The   term   “permanent
residence”  should therefore not be relevant in  a  norm  which
regulates  private law relationships, such as, in the  reviewed
case, Act no. 87/1991 Coll., on Extra-Judicial Rehabilitation.


In  addressing  the  question of the constitutionality  of  the
condition of permanent residence under the contested Act, it is
also necessary to consider article 14 par. 1 and par. 2 of  the
Charter,  even  thought the petition by the group  of  deputies
does not expressly refer to it. Under this article, freedom  of
movement   and  residence  is  guaranteed.  Everyone   who   is
legitimately  staying within the territory  of  the  Czech  and
Slovak Federal Republic (now the Czech Republic), has the right
to freely leave it. Thus, if the contested provision of Act no.
87/1991  Coll. (§ 3 par. 1, 2 – now 4)  considers  an  entitled
person  to be only a natural person who (in addition  to  other
conditions) has permanent residence in the CSFR (CR) -  and  if
the  Act  permits only such a person to successfully apply  for
issuance  of  things taken from him/her – then  this  statutory
condition,  in  its consequences, ignores the  constitutionally
guaranteed freedom of residence and movement.

The  cited article also indicates that the freedom of residence
guaranteed by the Charter is the right of an individual,  which
is enforceable against the state. It is a subjective claim of a
public  law  character, unlike private law  subjective  claims,
which  are an expression of the legal relationship between  two
equal  subjects. However, an individual himself does  not  have
any  means  of enforcement against the state power.  Therefore,
instruments  which balance this disparity must be  a  necessary
component of the legal order. Among the most important of  them
is the constitutional guarantee of fundamental human rights and
freedoms.

Forcing someone to tolerate or bear a restriction of rights  in
a  scope  exceeding the limits provided by constitutional  acts
and  the  Charter  of Fundamental Rights and Freedoms  must  be
considered   unauthorized  interference   in   constitutionally
guaranteed  fundamental rights and freedoms.  Under  article  4
par.  2  of the Charter the limits of these rights and freedoms
can  be regulated only by law, under conditions provided by the
Charter. As already stated, the Charter permits restriction  of
ownership  rights in article 11 par. 2 5), only with regard  to
the  citizenship  of natural persons, not with  regard  to  the
residence   of  citizens;  however,  the  substance   of   this
restriction  in  the  meaning of the  cited  provision  of  the
Charter  does not lie in the facts that article 11 paragraph  2
would  accentuate  the  condition  of  citizenship  of  natural
persons, but in the fact that the restriction concerns  certain
things defined by the law. (Other restrictions of ownership  in
article  11 par. 3, par. 4 of the Charter do not apply  to  the
adjudicated  matter).  In article 4 par.  3  the  Charter  also
emphasizes  that  statutory restrictions of fundamental  rights
and  freedoms  must apply equally to all cases which  meet  the
specified conditions. This provision is closely related to  the
basic  principle of equality of people under article 1  of  the
Charter. It is thus obvious that the cited regulations are  not
observed by § 3 par. 1, par. 4 (previously 2)  of the contested
Act.

The  Constitutional Court also evaluated the petition from  the
group of deputies in a wider context, and examined whether  and
how  restitution,  compensation of damages  and  rehabilitation
were  regulated  in other comparable countries in  central  and
eastern  Europe. Germany issued a decree of 11 October 1990  on
registering  property  claims (Federal Act  I,  p.  2162,  last
amended  by article 5 of the second amendment of 14 July  1992,
Federal Act I, p. 1257, 1268) as amended by an amendment  of  3
August  1992 (Federal Act I, p. 1481). This decree applies  for
evaluation  of property which was confiscated and  administered
by  the state or an executor on the basis of named regulations,
among  which  §  1  par. 1 letter e) cites  the  decree  of  11
November   1968   on   the  rights  and  obligations   of   the
administrator  of  property of owners who  illegally  left  the
German Democratic Republic (DDR) vis a vis creditors in the DDR
(§  1).The decree of 11 October 1990 also applies for  securing
property  which  was  taken  away in connection  with  criminal
proceedings for acting against the law-based state, if entitled
persons  applied  for review of the criminal verdict  or  other
measures  in  the  criminal  prosecution  under  the   law   on
rehabilitation of 6 September 1990 (Act I, no. 60, p. 1459)  as
amended by later regulations (§ 1 par. 2 letter b). Under  §  2
par.  1 claims under this decree may be made by natural persons
or  legal  entities whose property was affected under  measures
provided in the decree, which also applies for heirs and  legal
successors    of    legal   entities(cf.   “Regelung    offener
Vermögensfragen  in den neuen Bundesländern”,  Verlag  für  die
Rechts  -und-Anwaltspraxis Herne/Berlin, 2nd edition 1992,  pp.
65 et seq.).

Germany  also  passed  a  law on regulation  of  open  property
questions  of  23 September 1990, which is a component  of  the
unification  agreement with the DDR of 31 August 1990  (Federal
Act  1990,  pp.  885,  1159). In § 1 par. 1  this  law  governs
property claims to property which

a)  was confiscated without compensation and transferred to the
state;

b)  was confiscated with lower compensation than was due to the
citizens of the former DDR;

c)  was sold to third parties by state administrators or, after
transfer to the state, by the ordering party;

d)  was transferred to the state on the basis of a decision  by
the presidium of the Council of Ministers of 7 February 1972.

In  other paragraphs (2 to 8 of § 1) the law regulates a  range
of other property law questions.

The term “entitled persons” is defined in § 2 par. 1 of the Act
of 23 September 1990 as follows:

Entitled  persons under this Act are natural persons and  legal
entities  and personal commercial companies, whose property  is
affected by measures under § 1, and their legal successors.  If
claims are not exercised by Jewish entitled persons under  §  1
par.  6 or their legal successors, in view of claims under  the
property law, successor organizations of restitution law and  –
if  they  do not give notice of any claims – the Conference  on
Jewish Material Claims against Germany, Inc. are considered the
legal successors. This also applies if the state is the heir or
the heir of a Jewish persecuted person under § 1 par. 6 or if a
Jewish  legal  entity  or  a Jewish association  without  legal
capacity  was dissolved on the grounds of § 1 par. 6 or  forced
to dissolve itself (cf. the same source as above).

It is apparent from this text that, in both the above-mentioned
norms,  entitled  persons  are not restricted  in  any  way  in
exercising  their  rights,  either  by  determining   permanent
residence  in  the country or citizenship. Thus a comparativist
look  at  the adjudicated matter also indicates that there  are
grounds for the petition from the group of deputies.

Therefore, the Constitutional court concluded that the petition
from the group of deputies from the Chamber of Deputies of  the
Parliament  of the Czech Republic to annul the contested  parts
of § 3 par. 1, par. 2 (now par. 4) of Act no. 87/1991 Coll., on
Extra-Judicial Rehabilitation , is justified, where  it  points
to conflict:

-  with article 1 of the Constitution, which declares the Czech
Republic to be a state governed by the rule of law, founded  on
respect for the rights and freedoms of man and of citizens,

- with article 1 of the Charter, which guarantees equal rights,

-  with  article  3  par.  1  of  the  Charter,  which  forbids
discrimination in fundamental rights and freedoms,

-  with  article 4 par. 2 of the Charter, which  sets  for  the
principle that limitations may be set on fundamental rights and
freedoms under the conditions provided by the Charter and  only
by law,

-  with  article 4 par. 3 of the Charter, which  provides  that
statutory  limitations on fundamental rights and freedoms  must
apply  in  the same way for all cases which meet the  specified
conditions,

-  with  article  1 par. 1 of the Additional  Protocol  to  the
European Convention (Treaty) for the Protection of Human Rights
and  Fundamental  Freedoms, which provides that  every  natural
person  or legal entity has the right to peaceful enjoyment  of
its property.

- with article 10 of the Constitution, under which ratified and
promulgated   international  treaties  on  human   rights   and
fundamental freedoms by which the Czech Republic is bound,  are
directly applicable and take precedence before statutes.

The  contested  provision of the Act is also in  conflict  with
article  11  par.  2  of the Charter 5), which  authorizes  the
legislature  only to provide that certain things may  be  owned
only  by  citizens  or  legal entities  with  their  registered
offices in the Czech and Slovak Federal Republic. It is also in
conflict  with  art.  14  par. 1, 2 of  the  Charter10),  which
enshrine the freedom of movement and residence and other rights
specified in them.

However,  where  the deputies’ petition relies  on  the  below-
mentioned   articles  of  the  Constitution  and   Charter   of
Fundamental Rights and Freedoms, the Constitutional  Court  did
not find them to be violated, for the following reasons:

-  article  4  of the Constitution – provides that  fundamental
rights and freedoms enjoy the protection of the judicial power.
This article emphasizes the protection by judicial bodies,  and
thus has a different purpose and does not affect the parts of §
3 par. 1, par. 4 (previously par. 2) of Act no. 87/1991 Coll.,

-  articles  36  and  38 of the Charter – both  these  articles
emphasizes protection by judicial bodies, i.e. like  article  4
of the Constitution,

-  article  42 of the Charter – there is no conflict with  this
article.  The  petition challenges the condition  of  permanent
residence, but article 42 of the Charter concerns definition of
the   term  “citizen”  and  guarantees  of  human  rights   and
fundamental  freedoms guaranteed by the Charter for foreigners,
if  these  rights are not expressly granted to citizens.  Thus,
article  42  of  the Charter does not apply to the  adjudicated
matter at all.

2)  The petition by the group of deputies also hotly objects to
the  disproportionately short period provided in §  5  par.  2,
par.  4 of Act no. 87/1991 Coll. for submitting a call to issue
a  thing  (6 months from the day the Act goes into effect)  and
for  exercising the claim of an entitled person before a  court
(1  year  from the day the Act goes into effect). The  petition
mainly  argues that these provisions are organically  connected
to § 3 par. 1, par. 2 (now par. 4) 1) 2) of the contested Act –
which are clearly unconstitutional – as they make a rule of the
manner in which an entitled person may (and must) implement his
or  her  claim.  In this situation, according to the  deputies’
petition, it is necessary to repeal in § 5 par. 2, par.  4  the
words  “from  the day this Act goes into effect”, because  only
this  will  permit persons whose claim will only be established
by  a Constitutional Court decision (i.e. citizens of the Czech
Republic  who do not have permanent residence in  it)  to  duly
exercise  it in a period which will begin at the same  time  as
the  annulment decision by the Constitutional Court  goes  into
effect.

In   the  foregoing  deliberation,  the  Constitutional   Court
concluded that § 3 par. 1 and par. 4 (previously par. 2) of Act
no.  87/1991 Coll., insofar as it also established the rule for
entitled persons of the condition of permanent residence in the
CSFR  (as  of  1  January 1993 in the Czech  Republic),  is  in
conflict  particularly  with  the constitutional  principle  of
equality   between  people,  enshrined  in   the   Charter   of
Fundamental  Rights and Freedoms. However, this conclusion,  in
and  of  itself, would not suffice to remove inequality between
entitled persons, as the deadlines contained in § 5 par. 2  and
par.  4  of  the  contested Act have already  expired.  Natural
person  who are citizens of the Czech Republic and do not  have
permanent   residence   in  its  territory   could   thus   not
successfully  exercise  their  claims,  as  those  expired   by
expiration  of the statutory deadline. Thus the effect  of  the
annulment of unconstitutional provisions of § 3 par. 1 and par.
4  (previously  par. 2)  of the contested Act would  completely
miss the mark. Therefore, to observe constitutional principles,
evoked  by  the  need to annul parts of §  3  par.  1,  par.  4
(previously par. 2)  of the Act, it is also necessary to  annul
par  of § 5 par. 2 and par. 4 of the Act3) 4), specifically the
words “from the day this Act goes into effect”, because, as the
petitioner correctly states, only thus will it permit  citizens
whose  claim  will only be established by the decision  of  the
Constitutional Court to exercise it in time. The provisions  of
§  5 par. 2, 4 and § 3 par. 1, 4 (previously par. 2) of the Act
are thus so mutually interconnected, that it is not possible to
separate    them   from   each   other   and    consider    the
constitutionality  of  § 5 par. 2, 4 independently.  Therefore,
the Constitutional Court concludes that the contested part of §
5  par. 2, 4 of Act no. 87/1991 Coll. is, in its results,  also
in  conflict with the same constitutional regulations which are
violated by the contested part of § 3 par. 1, 2 of this Act.

If  the Constitutional Court annuls in § 5 par. 2 and par. 4 of
Act  no.  87/1991 Coll. the words “from the day this  Act  goes
into effect”, then the period provided in § 5 par. 2 and par. 4
3)   4)  of  the  same  Act  begins  to  run  on  the  day  the
Constitutional  Court  decision  becomes  enforceable,  i.e.  1
November  1994. This is a necessary conclusion,  for  otherwise
protection  of constitutional principles that led to  annulment
of  the  contested  parts  of § 3 paragraph  1,  4  (previously
paragraph  2) of Act no. 87/1991 Coll. would not be  guaranteed
in  the  adjudicated matter. However, this newly created period
applies  only  to  person who become entitled  because  of  the
decision.  Thus,  these  are  persons  who  did  not  meet  the
condition  of  permanent  residence  in  the  CSFR  (the  Czech
Republic),  which  the Constitutional Court decision  annulled.
However,  the  running  of  the new period  from  the  day  the
decision  becomes  enforceable does not  apply  to  person  who
already  were  entitled  persons  before  the  decision  became
effective,  because  they  met  the  then  valid  condition  of
permanent  residence in the CSFR (the Czech Republic)  and  for
various reasons did not exercise their claims on time.

For  thoroughness, the Constitutional Court also  reviewed  the
petitioner’s objection that the 6 month period for  a  call  to
issue  a  thing  and the 1 year period for exercising  a  claim
before a court, which begin to run on the day the Act goes into
effect, are disproportionately short. this objection, too, must
be  granted. The important thing is that both periods are  tied
to  the  effective date of the Act, which a number of  citizens
with  permanent  residence  outside the  country,  particularly
citizens  from overseas countries, might not or could not  have
learned  of  in  time. In this situation,  setting  periods  of
several months to exercise a claim, particularly in relation to
these citizens, is discriminatory, as it resulted in making  it
impossible  for many of them to exercise their  claims  in  the
statutory  period.  In  this  regard,  we  can  conclude   that
providing disproportionately short periods in § 5 par. 2, 4  of
the  Act is in conflict with the constitutional regulations  on
which the deputies’ petition relies. Taken fully, it is also in
conflict  with  art.  36 par. 1 of the Charter  of  Fundamental
Rights  and  Freedoms and with art. 6 par. 1  of  the  European
Convention  for  Protection  of Human  Rights  and  Fundamental
Freedoms,  as  setting  quite  unrealistic  deadlines  made  it
impossible, particularly for the citizens described, to  pursue
their rights before an independent and unbiased court.

Of  course,  the Constitutional Court cannot cancel the  period
provided  in  §  5 par. 2, 4 of Act no. 87/1991 Coll.  for  the
reason  that  a petition to cancel them was not made.  However,
even  if  such  a  petition were made,  cancellation  of  these
deadlines  would  deprive  both  provisions  of  any   material
meaning.  Even  with  regard to this, the Constitutional  Court
concludes that the above-mentioned conclusion, under which  the
existing  deadlines  are  tied to  the  enforceability  of  the
Constitutional  Court decision, i.e. 1 November 1994,  provides
protection  of constitutionality. It sufficiently respects  the
equal  rights  of all citizens, i.e. including citizens  living
permanently abroad, for whom it must be presumed that they  are
now,  with the passage of time, adequately informed about their
rights  under  Act  no.  87/1991 Coll.  and  can  realistically
exercise them in a timely manner.

In  this  regard, the Constitutional Court also considered  the
question whether deleting parts of § 5 par. 2 and par. 4 of the
contested  Act  is  retroactive and  whether  it  violates  the
principle of legal certainty which can be derived from  article
1  of the Constitution of the Czech Republic. The issue in  the
adjudicated  matter is the correction or removal of  injustices
which  happened  in the past, and this includes restitution  of
property. Correction is implemented by specific laws  (Act  no.
119/1990 Coll., on Judicial Rehabilitation, as amended by later
regulations,  Act  no. 298/1990 Coll., on the  Modification  of
Certain    Property    Relationships   of   Monastic    Orders,
Congregations  and  the  Archbishopric  of  Olomouc,  Act   no.
403/1990  Coll.,  on  the  Mitigation of  the  Consequences  of
Certain  Property Injustices, as amended by later  regulations,
Act  no.  87/1991  Coll., on Extra-Judicial Rehabilitation,  as
amended  by  later  regulations, Act  no.  229/1991  Coll.,  on
Regulating  Ownership of Land and Other Agricultural  Property,
as amended by later regulations, Act no. 173/1990 Coll., on the
Property   of  Physical  Education  Organizations),   governing
individual  areas of life while respecting the  principle  that
previous  norms will not be cancelled retroactively,  but  only
certain consequences of their previous use will be removed.  It
is true that the interference in the state governed by the rule
of  law  created under old norms in the previous period  has  a
certain aspect of retroactivity. However, Act no. 87/1991 Coll.
does  not  retroactively interfere in the legal  order  of  the
critical period (i.e. from 25 February 1948 to 1 January 1990),
as  it  applies only to the results related to the  effects  of
this legal order, and nothing else.

Legal  scholarship distinguishes true retroactivity  and  false
retroactivity. True retroactivity includes cases where a  legal
norm  regulates the creation of a legal relationship and claims
arising   from   before  the  norm  went  into  effect.   False
retroactivity   consists   of   the   situation   that    legal
relationships of substantive and procedural law that arose when
an  old  law was in effect are basically governed by  that  law
until  the  period when a new law goes into effect; afterwards,
however,  they  are  governed by the  new  law.  However,  this
principle  only applies insofar as the other closing provisions
of  the  legal  norm do not specify otherwise in  view  of  the
special features of certain legal relationships.

However,  with  Act  no.  87/1991 Coll.  if  we  can  speak  of
retroactivity  at  all,  then it is only  false  retroactivity,
which is acceptable from the viewpoint of legal certainty.  The
situation  is  similar as with Act no. 403/1990 Coll.,  on  the
Mitigation  of the Consequences of Certain Property  Injustices
(with  certain  exceptions, e.g. with  entitled  persons).  The
construction  of  the correction (rehabilitation)  consists  of
specifying  an  entitled person, an obligated  person,  in  the
necessity of submitting a call to the obligated person  by  the
specified deadline, in the obligation of the obligated party to
conclude  a  specific agreement to issue a  thing  and  in  the
necessity  of submitting, by the deadline, a complaint  against
the obligated person to enforce signing of such an agreement if
the obligated person refused to conclude the agreement to issue
a  thing.  Thus, this is not classic vindication,  even  though
there  is  a claim for issuance of a thing, which is,  however,
based on lex specialis (Act no. 87/1991 Coll.). This regulation
also  means  that the validity of the previous legal  order  is
recognized,  and if the claim for issuance of a  thing  is  not
implemented, the existing legal situation remains and it is not
possible  to apply a different legal provision, even a  general
provision.

It  is evident that these considerations, from the viewpoint of
evaluating the retroactivity of a legal regulation, concern not
only Act no. 87/1991 Coll. on Extra-Judicial Rehabilitation  as
a  whole,  but that they also apply to the results of  deleting
the  words  “from the day this Act goes into effect”  thus  far
contained in § 5 paragraphs 2, 4 of the Act.

Therefore,  the  Constitutional  Court  became  convinced  that
deleting  the cited words in § 5 par. 2 and par. 4 of  Act  no.
87/1991  Coll.  does not establish unacceptable  retroactivity.
Otherwise,  the entire Act no. 87/1991 Coll. would have  to  be
considered   unacceptably   retroactive.   However,   in    the
adjudicated matter, as already stated, there can only be  false
retroactivity,  which  legal  theory  and  practice   generally
consider acceptable.

The  objection that deleting parts of § 5 par. 2, 4 of Act  no.
87/1991  Coll. (specifically the words “from the day  this  Act
goes  into  effect”) violates the principle of legal  certainty
cannot  be  agreed  with  for  other  reasons  as  well.  Legal
certainty, as one of the basic concepts and requirements  of  a
state based on the rule of law must be certainty of its content
values   (cf.  R  14/1992  Collection  of  Decisions   of   the
Constitutional Court of the CSFR). These are closely related to
other  principles,  such  as that of all  people  having  equal
rights   (art.   1   of  the  Charter),  the   prohibition   of
discrimination  (art.  3  par. 1  of  the  Charter)  and  equal
protection of the ownership rights of all owners (art. 11  par.
1 of the Charter). Respecting these principles is guaranteed in
the adjudicated matter primarily by canceling parts of § 3 par.
1,  4  (previously par. 2) 1) 2) of the Act,  which  enact  the
permanent  residence of citizens in the country as a  condition
for exercising a claim for issuance of a thing. However, if the
consequences of legalizing this unconstitutional condition  are
to  be  repaired,  it  is  not only  necessary  to  cancel  the
condition  itself,  but  –  as already  stated  –  it  is  also
necessary  to  ensure that the new wording of §  3  par.  1,  4
(previously par. 2) of the Act can realistically be brought  to
life.  This  can  be achieved only by opening  the  period  for
issuing a thing and for exercising a claim before the court for
those citizens for whom the condition of permanent residence in
the  country  has  heretofore made impossible the  exercise  of
their right to issuance of a thing.

For these reasons the Constitutional Court decided as is stated
in the verdict of this decision.