Pl.US 9/94


                        Czech Republic

                           JUDGMENT

          Constitutional Court of the Czech Republic

              In the Name of the Czech Republic



      The  Plenum  of the Constitutional Court  of  the  Czech
Republic [hereinafter "Court"], 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, concerning the petition of a
group  of  Deputies  of  the  Assembly  of  Deputies  of   the
Parliament of the Czech Republic proposing the annulment of  §
6,  §  11, § 12, para. 3, § 18, para. 1, letters a), c) and  §
18a,  letters a), b) of Czech National Council Act No. 40/1993
Sb.,  on the Acquisition and Loss of Citizenship of the  Czech
Republic, as amended by Act No. 272/1993 Sb., decided


                           THUSLY:


           The petition is rejected on the merits.


                          REASONING:



                              I.

      On  14 April 1994, the Court received the petition of  a
group  of  46  Deputies of the Assembly  of  Deputies  of  the
Parliament  of  the  Czech  Republic  (hereinafter  "group  of
Deputies") to initiate a proceeding seeking the annulment of §
6,  §  11, § 12, para. 3, § 18, para. 1, letters a), c) and  §
18a,  letters a), b) of Czech National Council Act No. 40/1993
Sb.,  on the Acquisition and Loss of Citizenship of the  Czech
Republic, as amended by Act No. 272/1993 Sb.

      Since the submission met the requirements stated in § 64
of  Act No. 182/1993 Sb., on the Constitutional Court, and the
petition was admissible pursuant to § 66 of the same act,  the
Court  initiated a proceeding and requested the Parliament  of
the  Czech  Republic  to submit its views thereon  within  the
period defined by statute.  Pursuant to § 42, para. 3 and § 69
of  Act No. 182/1993 Sb., the petition in question was sent to
the Assembly of Deputies [the lower chamber of Parliament] for
its  opinion.   The Chairman of the Assembly of Deputies,  Dr.
Milan  Uhde,  confirmed  the position  that  the  Assembly  of
Deputies  took when it voted on the act.  He stated  that  the
purpose of the adopted act is, with regard to the creation  of
an  independent state (the Czech Republic), to newly  regulate
the  institution  of citizenship and to give it  comprehensive
treatment.  He referred to the fact that the act is  based  on
the  principal that each citizen should be the citizen of only
one  state,  that such a legal rule is found in several  other
states  of  Europe, and that it is not new even to  our  legal
system.   He further emphasized that each citizen should  have
the   possibility,  while  observing  the  legally  prescribed
conditions,  to  acquire  or lose  citizenship  of  the  Czech
Republic.   For  that  reason, in  addition  to  defining  the
conditions,  it  was  necessary, as exactly  as  possible,  to
establish the grounds upon which it is possible to waive  some
of the conditions for citizenship.  In relation to citizens of
the Slovak Republic, the act then contains a special procedure
which  enables  them  to  acquire  citizenship  of  the  Czech
Republic  if  they  meet  the  prescribed  conditions.     The
amendment  to  the act then took care of the  situation  which
developed  in  applying the act, when,  as  a  result  of  the
experience gained in applying the act, it was discovered  that
certain of its provisions might be considered as too severe by
certain groups of citizens.  In conclusion, he stated that the
adopted act was closely tied to the creation of an independent
Czech  state,  that  it  contained  a  complete  legal  regime
concerning  citizenship  in  conformity  with  internationally
protected human rights and fundamental freedoms.  At the  same
time with regard to the provisions contained in § 68, para.  2
of  Act  No.  182/1993 Sb., the Chairman of  the  Assembly  of
Deputies  confirmed in his opinion that Act No.  40/1993  Sb.,
was  adopted  by  the  required majority  of  Deputies  on  29
December 1992 and that Czech National Council Act No. 272/1993
Sb.,  was adopted in the same manner on 12 October 1993.  Both
acts were signed by the appropriate constitutional actors  and
were duly promulgated.

      Pursuant to § 42, para. 2 of Act No. 182/1993  Sb.,  the
Justice  Rapporteur  requested,  in  the  way  of  documentary
evidence  from  the  Assembly  of  Deputies,  the  appropriate
bulletins  relating  to the debates on the  acts  referred  to
(Czech  National Council, 1992, 7th electoral  term,  Bulletin
No.  208;  Parliament  of  the  Czech  Republic,  Assembly  of
Deputies,  1993,  1st  electoral  term,  Bulletin  No.   473),
containing  speeches of individual Deputies  relating  to  the
submitted act.

     In order to get an idea of how Czech National Council Act
No.  40/1993  Sb., and Act No. 272/1993 Sb., are  enforced  in
practice and of their impact, the Rapporteur also requested  a
report  from  the Interior Ministry concerning the  number  of
persons who had chosen citizenship of the Czech Republic by  a
declaration as called for in § 6 of Czech National Council Act
No.  40/1993  Sb., and how many of them had been unsuccessful,
and then a report concerning the number of exemptions made  by
the  Interior Ministry as provided for in § 11, § 12, para.  3
of the cited law and their make-up, and finally the Rapporteur
even asked to be informed concerning how many citizens of  the
Slovak Republic requested Czech citizenship under § 18,  para.
1,  letters a), c) of the cited act and under § 18a,  para.  1
[sic],  letters a), b) of Act No. 272/1993 Sb., and  how  many
applicants for Czech citizenship received it.

      The report of the High Director, Second Section, of  the
Interior  Ministry made clear that, in the  period  from  1992
until  June 1994, the Interior Ministry and the county offices
resolved  approximately  319 thousand  applications  submitted
relating to citizenship of the Czech Republic.  As concerns  §
6,  para. 1 of Czech National Council Act No. 40/1993 Sb., the
report  stated that submissions under that provision  involved
quite  exceptional cases, numbering ten at the  most  for  the
period   of  1993  and  1994,  concerning  persons   who   had
citizenship  of  the Czech and Slovak Federal Republic  on  31
December 1992, but were born abroad, never lived in either the
Czech  Republic  or the Slovak Republic, and  not  even  their
parents had residency in the Czech or Slovak Republic prior to
leaving  the country.  With regard to these facts, it was  not
possible  to  designate them either as citizens of  the  Czech
Republic,  pursuant to Act No. 39/1969 Sb., on the Acquisition
and Loss of Citizenship of the Czech Socialist Republic, or to
designate them as citizens of the Slovak Republic, pursuant to
Act  No.  206/1968  Sb.,  on  the  Acquisition  and  Loss   of
Citizenship of the Slovak Republic.

      As  regards cases when the Interior Ministry waived  the
conditions set out in § 11 and § 12, para. 3 of Czech National
Council  Act  No. 40/1993 Sb., as amended by Act No.  272/1993
Sb.,  the  report  stated  that  the  files  are  not  ordered
according to that information and that, considering the number
of  applications and the difficulty of obtaining the requested
information,  it was not feasible to compile the  information.
With  regard only to the waiver of the requirement  of  taking
the  citizenship oath pursuant to § 12, para. 3 of  the  cited
act,  the report stated that this provisions was used only  in
quite  isolated instances and that the taking of the oath  was
waived  only  for  persons  of advanced  age  or  with  health
problems.

      As  for  the cases when citizens of the Slovak  Republic
exercised  their  right  to choose citizenship  of  the  Czech
Republic,  the  report stated that this choice  was  available
until  June  30th of this year and that up until  the  present
approximately  319 thousand applications had  been  positively
resolved.    Thus,   65   thousand  persons   acquired   Czech
citizenship pursuant to Czech National Council Act No. 39/1969
Sb.  (that is, by applications submitted by the end of  1992),
240  thousand  persons pursuant to § 18  or  §  18a  of  Czech
National  Council Act No. 40/1993 Sb., as amended by  Act  No.
272/1993  Sb.  (that is, by election of citizenship),  and  14
thousand  persons pursuant to §§. 19 and 7 of  Czech  National
Council  Act  No. 40/1993 Sb., as amended by Act No.  272/1993
Sb.  (that is, by grant).  At the same time, approximately 100
negative decisions were issued in response to applications for
the grant or the election of citizenship.  From these facts it
is  evident that the overwhelming majority of citizens of  the
Slovak  Republic who requested Czech citizenship were  granted
it  because they fulfilled the conditions for the election  or
the grant of citizenship.

                             II.

      Citizenship  can generally be defined as a  relationship
between  an  individual and a state which is  not  limited  in
duration  and not restricted to the state's territory,  which,
as   a  rule,  is  not  revocable  against  the  will  of  the
individual,  and  on  the  basis  of  which  is   founded   an
individual's  capacity  for  reciprocal  rights  and   duties,
consisting  primarily of the right of the  individual  to  the
state's protection both within its territory and without,  the
right  of the individual to reside in the territory,  and  the
right  to  take part in the administration of public  affairs.
The  primary duties of the citizen consist in fidelity to  the
state,  commitment to its defense, the performance of  certain
tasks  for which he is competent, and the observance of  legal
enactments  of the state, even when outside of its  territory.
The specific content of the citizenship right is determined by
the  legislation of individual sovereign states.   It  is  the
sovereign prerogative of the state to determine the conditions
under which its citizenship is acquired and lost.

      Citizenship is unambiguously an institution of a state's
domestic law, and other states are guided by the principle  of
the non-interference in the internal affairs of another state.
However, the fact that a person is the citizen of one  country
can have impact even outside that country in consideration  of
the fact that citizenship extends protection to the individual
who  bears  it  even  in the territory of  other  states.   Of
course,  in  such cases a conflict of interests might  result,
and  in  this way the institution of citizenship comes  within
the   purview   of   international  law.   The   international
application  of  the  recognition  of  citizenship   in   each
individual  case  must be based on the  national  law  of  the
effected  state; the decision of the state to  grant  its  own
citizenship  does  not  have  to be  internationally  accepted
without  question.   In the Nottebohm case, the  International
Court  of  Justice adjudged that "a state is not  entitled  to
expect  that  the  rules  which it  lays  down  governing  the
acquisition  of  citizenship have a claim  to  recognition  by
other states if it does not comport itself in conformity  with
the universal goals of the legal bond of citizenship, pursuant
to  which the individual has 'genuine' ties to the state which
protects its citizens from other states."  (ICJ Rep., 1955, p.
23).   In  other  words,  from the international  perspective,
other  states do not have to recognize a state's grant of  its
citizenship to an individual who does not have close  ties  to
the  state granting the citizenship.  Even though the decision
of  the International Court of Justice is only binding on  the
states which were parties to the case, from the perspective of
general  international law, it can be asserted that, with  the
exception  of the application of certain international  treaty
commitments, the set of rules a state adopts for the  granting
of citizenship (including setting down the category of persons
upon whom citizenship may be conferred and the conditions  and
the  procedures which an individual must fulfill in  order  to
have  citizenship conferred on him) is a matter for each state
to determine independently (Nottebohm case, ICJ Rep., 1955, p.
20).




                             III.

      The petitioners claim that § 6 of Czech National Council
Act  No. 40/1993 Sb., is not in conformity with Art. 1 of  the
Czech  National Council Constitutional Act No. 4/1993 Sb.,  on
Measures  Connected  with the Dissolution  of  the  Czech  and
Slovak  Federal  Republic.  § 6 of the cited act  governs  the
acquisition (by declaration) of Czech citizenship  by  persons
who  on 31 December 1992 were citizens of the Czech and Slovak
Federal Republic but whom it was not possible to designate  as
either a Czech citizen or a Slovak citizen.  According to  the
petitioners,  the wording of § 6 of the cited  act  permits  a
foreign  citizen  to  acquire  Czech  citizenship  by  a  mere
declaration.  They further assert that "on 1 January 1969  and
on  31  December  1992, the possibility  was  ruled  out  that
someone  could be a Czechoslovak citizen and not at  the  same
time  be  a citizen of the Czech (or Slovak) Republic.   There
was  not a group of individuals who were Czechoslovak citizens
and who would not at the same time have also been either Czech
or  Slovak citizens."  However, this assertion does  not  pass
muster.   §  6  of the cited act in its present  form  is  not
applicable to foreigners (to persons with foreign citizenship)
because  the  basic  condition for  the  application  of  this
provision  is  that  the person have held citizenship  of  the
Czech and Slovak Federal Republic on 31 December 1992.  Such a
legal situation would come into consideration if a citizen  of
the  Czech and Slovak Federal Republic was at the same time  a
citizen   of  another  state  (therefore,  one  holding   dual
citizenship).   With regard to § 6 of the cited act,  however,
the  objection  of  foreign citizenship  does  not  come  into
consideration, because this section does not provide  for  the
new  acquisition  of  citizenship  by  means  of  a  grant  to
foreigners  (in which case the condition that  the  person  be
released  from ties to his state of origin would  have  to  be
satisfied),  rather it is only a confirmation of the  existing
original  citizenship of the Czech and Slovak Federal Republic
and  the  transformation  of it into Czech  citizenship.   The
existence of a second (foreign) citizenship is not decisive in
this instance.

      However, it is important to answer the question  whether
on  31  December  1992 it was possible for individuals  to  be
citizens  of  the  Czech and Slovak Federal  Republic  without
being  designated either as citizens of the Czech Republic  or
of the Slovak Republic.  By analyzing the previous legal rules
concerning  the  acquisition and loss of citizenship,  without
doubt  one may come to the conclusion that such a legal  state
of   affairs   was   indeed  possible.   The  institution   of
citizenship of the Czech Socialist Republic was constituted by
Act  No.  39/1969 Sb.  Pursuant to § 2, para. 1 of  the  cited
act,   a  person  who  had  citizenship  of  the  Czechoslovak
Socialist  Republic on 1 January 1969, was a  citizen  of  the
Czech  Socialist  Republic,  if  he  was  born  in  the  Czech
Socialist  Republic.  Pursuant to § 2, para. 2  of  the  cited
act, a citizen of the Czechoslovak Socialist Republic who  was
born abroad was a citizen of the Czech Socialist Republic,  if
on  1  January 1969 he had applied for permanent residence  in
the  Czech  Socialist Republic, or possibly even if  the  last
permanent residence that he or his parents had prior to  going
abroad  was  in the Czech Socialist Republic.  However,  Czech
National   Council  Act  No.  39/1969  Sb.,   even   contained
provisions   (in  its  §  3)   resolving  the   situation   of
individuals who had citizenship of the Czechoslovak  Socialist
Republic, but whose citizenship (of the Czech Republic or  the
Slovak Republic) could not be determined.  The above-mentioned
legal    state-of-affairs,   that   is,   individuals   having
citizenship of the Czechoslovak Socialist Republic without  it
being  possible  to designate them either as citizens  of  the
Czech  Socialist Republic or of the Slovak Socialist Republic,
could  actually have existed, for citizenship of the  national
republics  was  created  subsequently  in  1969.   Under   the
preceding   legal  rules  (Act  No.  194/1949  Sb.,   on   the
Acquisition  and Loss of Czechoslovak Citizenship),  a  person
acquired citizenship by birth in the Czechoslovak Republic  to
parents who were citizens (basic method - § 1, para. 1 of  the
cited act), and under § 1, para. 1 of the cited Act, even if a
child  was  born abroad, provided the father and  mother  were
citizens   of   the   Czechoslovak  Republic.    Under   those
conditions,  an individual could have Czechoslovak citizenship
(and, pursuant to Czech National Council Act No. 39/1969  Sb.,
citizenship of the Czechoslovak Socialist Republic,  and  even
subsequently  of the Czech and Slovak Federal Republic),  even
if  the  condition  of permanent residency was  not  satisfied
either  by  him or by his parents.  That is to say that,  with
such   parents,  Czechoslovak  citizenship  might  have   been
acquired by "inheritance" from ancestors.  Pursuant to § 3  of
Czech  National Council Act No. 39/1969 Sb., these individuals
were  able  to  acquire  citizenship of  the  Czech  Socialist
Republic by declaration.  However, these individuals, in  this
case citizens of the Czechoslovak Socialist Republic, had  the
right to make such a declaration, not the duty.  Of course, it
is  necessary  to emphasize at the same time  that  the  cited
legal regime did not provide for any deadline for the exercise
of this right and did not even lay down the legal consequences
of  a possible failure to exercise this right.  It is possible
to  easily  deduce from these facts that the right to  acquire
citizenship of the Czech Socialist Republic by declaration was
created  as  a  right to which no time limit was attached  and
which  did  not  expire  by  the  passage  of  time.   It  is,
therefore,  evident that a legal state-of-affairs  could  have
existed by which an individual could have citizenship  of  the
Czechoslovak  Socialist Republic (and later of the  Czech  and
Slovak  Federal  Republic)  and at  the  same  time  not  have
citizenship of the Czech Republic or the Slovak Republic,  and
by  which,  under  the  current law,  he  could  designate  by
declaration whether his national citizenship was tied  to  the
Czech  Republic or the Slovak Republic.  This legal  rule  was
then  taken  over, in its entirety, by Czech National  Council
Act No. 40/1993 Sb.

      For  that  reason, we cannot agree with the petitioners'
assertion   that   any   foreigner  whatsoever   may   acquire
citizenship of the Czech Republic by a declaration pursuant to
§  6  of  Czech National Council Act No. 40/1993 Sb.  Ties  to
their  state  of  origin (Czechoslovak Republic,  Czechoslovak
Socialist  Republic, Czech and Slovak Federal  Republic)  must
always  be  manifested, and these ties must be continuous  and
lasting,  even  from  the perspective of the  principle  cives
origo   facit.   The  issue  of  the  possibility   of   other
citizenships which the individual might have acquired  is  not
inquired into within the framework of the declaration  because
that  declaration  is  legally  based  on  the  existence   of
citizenship of the Czech and Slovak Federal Republic,  and  it
merely  puts  citizenship of the newly created Czech  Republic
into  concrete  form.  The condition that  a  person  must  be
released  from  the  bonds of some other citizenship,  as  was
already stated above, is not inquired into because we are  not
concerned here with a newly granted citizenship.  It  is  also
necessary to remember that the report of the Interior Ministry
confirmed that we are dealing with quite exceptional cases (at
most 10 persons in the course of a year).

      Thus, it is in no way possible to deduce from the above-
stated  facts  that  the provisions of § 6 of  Czech  National
Council Act No. 40/1993 Sb., is not in conformity with Art.  1
of  the  Czech National Council Constitutional Act No.  4/1993
Sb.,  because on 1 January 1969 and on 31 December 1992  there
existed  a  legal state of affairs which, under § 3  of  Czech
National Council Act No. 39/1969 Sb., enabled citizens of  the
Czechoslovak  Socialist  Republic  the  right,  without   time
limitation,  to  chose  citizenship  of  the  Czech  Socialist
Republic by declaration.




                             IV.



     The petition of the group of Deputies is further directed
against  § 11 and § 12, para. 3 of Czech National Council  Act
No.  40/1993 Sb., which, according to the petitioners, are not
in  conformity with the provisions of Art. 67, para. 1 of  the
Constitution of the Czech Republic.  The petition states that,
according  to  this  provision, the government,  and  not  the
Interior   Ministry,  is  responsible  for  issues  of   state
executive power at the highest level.  It further states  that
these provisions also violate Art. 2, para. 2, Art. 9, para. 2
of the Constitution of the Czech Republic and Art. 1, and Art.
2,  para.  1  of the Charter of Fundamental Rights  and  Basic
Freedoms  (hereinafter  "Charter") to the  effect  that  state
power must serve all citizens in conformity with the essential
requirements  of  the  democratic legal state,  without  being
bound  to  any exclusive ideology or religious confession  and
while respecting the equality of all persons before the law.

      §  11 of Czech National Council Act No. 40/1993 Sb.,  as
amended  by  Act No. 272/1993 Sb., contains the right  of  the
Interior Ministry to waive, for an applicant:


-    the  condition set down in § 7, para. 1, letter a) of the
     cited  act (namely, the uninterrupted permanent residence
     status in the republic for at least five years), if other
     conditions listed in § 11, para. 1, letters a) through f)
     are  fulfilled, (namely, if the person was  born  in  the
     Czech Republic, if he has lived here continuously for  at
     least 10 years, if he had in the past citizenship of  the
     Czech  Republic  or  of  the  Czech  and  Slovak  Federal
     Republic,  if the person irrevocably acquired citizenship
     of  the  Czech  Republic, if the  person's  spouse  is  a
     citizen of the Czech Republic, or if at least one of  his
     parents is a citizen of the Czech Republic;

-    the  condition set down in § 7, para. 1, letter b) of the
     cited act (namely, release from ties to another state) if
     the person also fulfills the other conditions listed in §
     11,  para.  2 of the cited act (namely, if the  applicant
     has  had  continuous permanent residence  status  in  the
     Czech Republic for at least five years, provided that the
     legal  rules of the country of which the applicant  is  a
     citizen  does not permit him to be released from ties  to
     the  state  or  if that state refuses to issue  documents
     concerning the release of the applicant from his ties  to
     the state),

-    the  condition set down in § 7, para. 1, letter d) of the
     cited  act  (namely, knowledge of the Czech language)  in
     cases meriting special consideration.

      Then  § 12, para. 3 of the cited act also sets down  the
right of the Interior Ministry to waive the taking of the oath
of citizenship.

      In its petition, the group of Deputies objects that "the
exercise   of  this  power  was  entrusted  to  the  exclusive
jurisdiction of the Interior Ministry, so that it is  a  power
exercised  in isolation from the government, and the  law  did
not  provide  for  the possibility that the  legality  of  its
decision   in   these  matters  be  reviewed,  which   failing
constitutes a violation of the provisions of Art. 2,  para.  1
and  Art. 67, para. 1 of the Constitution and of Art. 2 of the
Charter,  according  to  which  governmental  power  must   be
exercised  in a hierarchical fashion such that the  government
at  the  highest level is responsible for it and  so  that  it
serve   all   citizens  in  conformity  with   all   essential
requirements of a democratic legal state (Art. 9, para.  2  of
the Constitution).  When decisions are made about the granting
of  citizenship,  priority  is  to  be  given  to  the  public
interest,  which  is defined by the division  of  state  power
(Art.  2  of  the Constitution) and by democratic values,  and
which  may  not be dictated either by ideological or religious
motives  (Art. 2, para. 1 of the Charter) or by the particular
interests  of only certain individuals (Art. 1 of the  Charter
concerning the equality of people before the law)".

      None of the above-mentioned articles of the Constitution
nor the Charter are infringed by the contested provisions of §
11,  §  12, para. 3 of Czech National Council Act No.  40/1993
Sb.,  and  in  this  respect no connection was  designated  or
proven.   It  is the conditio sine qua non of every democratic
government  that  decision-making on a series  of  specialized
issues be entrusted to members of the government and to  their
respective offices; this is also true from the point  of  view
of   the  ordinary  and  necessary  division  of  power.   The
government is the supreme body of executive power (§ 67, para.
1  of  the  Constitution).   So  other  executive  bodies  are
naturally  subordinate to it.  The ministries are subordinated
to  the government not only by means of legal enactments  such
as  generally  binding normative acts, but also  by  means  of
internal normative instructions and individual acts (§  21  of
Czech  National  Council Act No. 2/1969  Sb.,  concerning  the
Establishment  of Ministries and other Central Authorities  of
State Administration of the Czech Republic, according to which
the  ministries  in  all  of  their  activities  shall  follow
constitutional  and  other  acts and government  resolutions).
The relationship between the government and the ministries  is
also  explicitly  stated in § 28, para. 1  of  Czech  National
Council  Act No. 2/1969 Sb., according to which the government
of  the Czech Republic directs, supervises and harmonizes  the
activities of the ministries.  In its capacity as the  supreme
body  of executive power, the government is, at the same time,
the  representative of that power in relation to the  Assembly
of  Deputies  as well.  In their given sector, the  ministries
deal  with  issues  assigned  to  their  competence,  and   in
prescribed  areas  of  state policy, it submits  them  to  the
government  as  a  whole  for its consideration.   It  is  the
government  which  presents these issues to  the  Assembly  of
Deputies  in the form of general documents and reports  or  in
the form of a legislative initiative.

      The  competent  minister is the bearer of constitutional
political responsibility for the actions of the ministry,  and
in this respect the common methods of parliamentary democracy,
such  as  interpellation  (Article  53,  para.  1,  2  of  the
Constitution), the subpoena right of the Assembly of  Deputies
and its bodies or investigating commissions (Art. 30, Art. 38,
para.  2  of  the  Constitution),  provide  oversight  of  his
actions.  The possibility to recall him from his office  is  a
further  supervisory mechanism by which a  minister's  actions
are  observed  and he is made accountable under constitutional
law.    Pursuant   to  Art.  74  of  the  Constitution,   this
supervisory  mechanism  was conferred on  the  Prime  Minister
(proposal  to recall a minister) and on the President  of  the
Republic  (the recall itself).  It unambiguously follows  from
these  facts that the activities of the ministry, as the state
administrative   authority  to  which  the  power   to   grant
citizenship has been delegated by Act of Parliament (and there
is no doubt that is was so delegated by Czech National Council
Act   No.  40/1993  Sb.,  on  the  Acquisition  and  Loss   of
Citizenship  of  the  Czech Republic, as amended  by  Act  No.
272/1993  Sb.  -  Art.  79, para. 1 of the  Constitution),  is
subject  to  all procedures which are common in  parliamentary
democracies.  The Interior Minister may be supervised by these
means,  and  it  may  be inferred that the  minister  is  held
accountable  under  constitutional,  if  in  the   course   of
performing  his  office he violates the  prescribed  rules  of
conduct.

      The  assertion that the power to grant Czech citizenship
was  entrusted to the exclusive jurisdiction of  the  Interior
Ministry,  so  that it is a power exercised in isolation  from
the government, thus, does not correspond to the facts.

       Considering  the  foregoing  discussion,  it   may   be
considered  that the provisions of § 11 and § 12, para.  3  of
Czech  National Council Act No. 40/93 Sb., as amended  by  Act
No.  272/1993 Sb., do not conflict with the provisions of  the
Constitution or the Charter as the petitioners have  asserted,
and no relation between the assertion of the petitioners and a
violation of the cited provisions has been shown.



                              V.



      Finally, the petition of the Deputies also touches  upon
the  provisions of § 18, para. 1, letters a,  c)  and  §  18a,
letters  a, b) of Czech National Council Act No. 40/1993  Sb.,
as  amended  by  Act  No.  272/1993 Sb.,  which  regulate  the
election  of  Czech  citizenship by  citizens  of  the  Slovak
Republic.

      Under  the provisions of § 18 of the cited act, citizens
of   the  Slovak  Republic  had  the  right  to  elect   Czech
citizenship  until  30  June  1994,  if  they  fulfilled   the
conditions  set  out in paragraph 1, letters  a)  through  c).
This conditions include:

-    at  least 2 years of uninterrupted permanent residence in
     the Czech Republic,

-    release from ties to the Slovak Republic,

-    a  good character (had not been finally convicted in  the
     past  five  years  for the intentional  commission  of  a
     criminal act).

      §  18a  of  the  cited act then governs acquisition,  by
election,  of  Czech  citizenship by citizens  of  the  Slovak
Republic  who were born in the Slovak Republic on 31  December
1939  or  earlier and whose parents, or at least one of  them,
were  born in the Czech Republic, or who had, in 1993  at  the
latest,  reached the age of 60 and at the same time  fulfilled
the following two conditions,

-    at  least 2 years of uninterrupted permanent residence in
     the Czech Republic,

-    a  good character (had not been finally convicted in  the
     past  five  years  for the intentional  commission  of  a
     criminal act).

     According to the petition of the group of deputies, these
provisions  are discriminatory due to the fact that  they  set
down  for citizens of the Slovak Republic, who were originally
also  citizens  of  the  Czech and  Slovak  Federal  Republic,
special  conditions  for acquiring citizenship  of  the  Czech
Republic,  that  is  conditions which were  not  part  of  the
previous legislation of the common state.  Thus, it is alleged
not   to  conform  to  the  provisions  of  Art.  26  of   the
International  Convention  on  Civil  and  Political   Rights,
according  to which all persons are equal before the  law  and
have  a  general right to equal and effective protection  from
discrimination on any grounds.

      As  an introduction to this issue, it must be emphasized
that  after the formation of the Czechoslovak Federation,  the
legal rules in the area of citizenship were found in Art. 5 of
Constitutional  Act  No.  143/1968 Sb.,  on  the  Czechoslovak
Federation, as amended by Constitutional Act No. 125/1970 Sb.,
and  in  Act  No.  165/1968 Sb., on  the  Principles  for  the
Acquisition and Loss of Citizenship, in Czech National Council
Act No. 39/1969 Sb., as amended by the legislative measures of
the Presidium of the Czech National Council, No. 124/1969 Sb.,
and  in  Slovak  National Council Act No.  206/1968  Sb.   The
wording  of  Art.  5 of Constitutional Act No.  143/1968  Sb.,
results   from  the  principle  of  the  primary   nature   of
citizenship  of  the Czech Republic or of the Slovak  Republic
(and  a  citizen  of either republic was at the  same  time  a
citizen  of the Czechoslovak Republic).  An amendment to  this
article was introduced by Constitutional Act No. 125/1975 Sb.,
which amended and supplemented Constitutional Act No. 143/1968
Sb.,  on  the  Czechoslovak Federation,  which  declared  that
Czechoslovak citizenship is unitary and that each Czechoslovak
citizen  is  at  the same time a citizen of either  the  Czech
Republic  or  of the Slovak Republic, as well as stating  that
this provision should be given more concrete form by means  of
statutes  of  both republics.  No such statutes were  adopted,
nevertheless  in  theory  and  in  practice  the   view   that
republican  citizenship was primary prevailed.   In  addition,
the  article authorized the Federal Assembly to set down in  a
statute  the  principles  for  the  acquisition  and  loss  of
citizenship  of  the  republics.  This was  done  in  Act  No.
165/1968  Sb.,  which  set down the criteria  for  determining
which   Czechoslovak  citizens  were  citizens  of  the  Czech
Republic  and which were citizens of the Slovak Republic.   It
further  provided that, as a result of the acquisition  (loss)
of citizenship of the Czech Republic or the Slovak Republic, a
person  also acquired (lost) Czechoslovak citizenship, and  it
also specified that a person who was a citizen of one republic
and  acquired citizenship of the other republic (for  example,
by  election  or grant) lost citizenship of the second  [Note:
seems  like  an error, and should read "first" or  "original"]
republic.  This legal rule was based on the principles that an
individual may be a citizen of only one republic and  that  he
immediately lost the citizenship of one republic the moment he
acquired citizenship of the second republic.

      Details concerning the designation of citizenship of the
Czech Republic or the Slovak Republic by citizens of what had,
until  that time, been a unitary state were set down  in  Acts
Nos. 39/1969 Sb. and 206/1968 Sb., as were conditions for  the
election  of  citizenship of one republic by citizens  of  the
other  republic  (at  that time, it was possible  to  make  an
election  until 31 December 1969) and the means for  acquiring
and losing citizenship of the republics.  After the period for
the  election  of  citizenship of the Czech Republic  expired,
citizens of the Slovak Republic were able to request that they
be  granted citizenship of the Czech Republic, and  they  only
had  to  fulfill the condition of permanent residence  in  the
Czech Republic, and the fulfillment of this condition could be
waived.   As soon as a person was granted citizenship  of  the
Czech  Republic,  he  automatically lost  citizenship  of  the
Slovak Republic, and for this reason he did not need to submit
proof  that  he  had  been released from ties  to  the  Slovak
Republic.

      It  must  be kept in mind that, in connection  with  the
expected division of the Czech and Slovak Federal Republic,  a
way  was  sought  to make possible the simplest  and  quickest
resolution  of the citizenship issue.  This way was  based  on
the  principle  of  the  prevention of the  creation  of  dual
citizenship   and  of  the  prevention  of  the  creation   of
statelessness.  It was also based on the principle, that it is
possible  to  change  the  then  current  citizenship  of   an
individual only on the basis of his own expressed wish.   This
proceeded from the fact that on 31 December 1992 each  citizen
of  the  Czech  and Slovak Federal Republic was a  citizen  of
either  the  Czech  Republic  or  the  Slovak  Republic.   The
adoption  of a bilateral treaty between the Czech  and  Slovak
Republics  appeared  to be optimal, and  a  draft  treaty  was
prepared  and  submitted by the Czech side.  The draft  treaty
was based on the following principles:

-    individuals  who had citizenship of one  republic  on  31
     December 1992 were also citizens of that republic from  1
     January 1993 on,

-    persons  who  were at that time citizens  of  the  Slovak
     Republic   were   allowed  the  right  to   elect   Czech
     citizenship  and vice versa (a six month period  to  make
     the  choice was provided for), and the condition therefor
     was  three  year permanent residence in the republic  the
     citizenship of which the individual was choosing,

-    the  acquisition by an individual of the  citizenship  of
     one  of the contracting parties meant for that individual
     the  automatic  loss  of  the citizenship  of  the  other
     contracting party,

-    the  prevention  of the creation of dual citizenship  for
     children,  one of whose parents was a citizen of  one  of
     the  contracting parties and the second a citizen of  the
     other contracting party, by allowing the parents to  make
     the  election of citizenship for the child;  and  at  the
     same  time,  it  set the criteria for the designation  of
     citizenship  of only one of the contracting  parties  for
     children  whose  parents  did not  make  an  election  of
     citizenship.

     Thus, the above-mentioned report of the Interior Ministry
(the top director of the second section) indicated that such a
treaty would have simplified as much as possible the procedure
for the acquisition of citizenship of one contracting party by
citizens of the other contracting party and that, at the  same
time,  it  would prevent the creation of dual citizenship  and
statelessness.   The same report also stated that  the  Slovak
side  did  not  accept  this draft treaty  and  was  favorably
inclined toward the possibility of dual citizenship.

     For that reason, the Czech Republic resolved the issue of
the  acquisition of Czech citizenship by a domestic enactment,
Czech National Council Act No. 40/1993 Sb., as amended by  Act
No.   272/1993  Sb.,  which  contains  the  principle  of  the
prevention  of the creation of dual citizenship and prevention
of  the creation of statelessness.  In this way, it was linked
to  the  legal enactments currently in force in the Czech  and
Slovak  Federal Republic, and it was based on  the  fact  that
analogous  principles  are found in the  legal  enactments  of
other European states as well.

      Citizens  of  the  Slovak Republic who  had  not  by  31
December  1992  submitted  an application  for  the  grant  of
citizenship   of  the  Czech  Republic  might  have   acquired
citizenship  of the Czech Republic pursuant to Czech  National
Council  Act  No. 40/1993 Sb., as amended by Act No.  272/1993
Sb.:


      a)  by the  election of citizenship under § 18 or §  18a
(by 30 June 1994),

     b)  by grant under § 19, by 30 June 1994,

      c)  by grant under § 7 (there is no time limitation upon
this method).

       The  above-mentioned  method  for  the  acquisition  of
citizenship  was, pursuant to § 18 and § 19 of Czech  National
Council  Act  No. 40/1993 Sb., available only  for  a  limited
period,  namely this declaration had to be made by 31 December
1993  at  the  latest, although this deadline was subsequently
extended to 30 June 1994, by virtue of Czech Government  Order
No.  337/1993  Sb.  from  15  December  1993.   By  virtue  of
Constitutional  Act  No.  542/1992  Sb.,  concerning  Measures
relating  to  the Dissolution of the Czech and Slovak  Federal
Republic,  the  Czech and Slovak Federal  Republic  ceased  to
exist  as an independent state on 31 December 1992, and  on  1
January  1993 two new independent states came into  existence.
Without  a  doubt they possess the sovereign power  to  govern
their  own  internal affairs.  Naturally, the  acquisition  of
citizenship  comes within that category.  It  is  possible  to
entirely  agree  with the petitioners' assertion  that,  as  a
result of the dissolution of the common state, citizens of the
Slovak Republic became foreigners in the Czech Republic  (and,
of  course,  vice versa).  Of course, the assertion  that  the
dissolution of the Czech and Slovak Federal Republic, as  well
as  the  termination of citizenship of that state, took  place
without  the  directly expressed will of the citizens  of  the
Czech  and  Slovak  Federal Republic and  in  an  undetermined
number  of cases against their will, is in the given situation
unsubstantiated and speculative.  On the contrary, it must  be
emphasized  that on the day the independent states (the  Czech
and  Slovak  Republics) came into existence, the  citizens  of
each  of  the  states became foreigners in  the  other  state.
Therefore, as an independent state, the Czech Republic may set
the  conditions  for  the  acquisition  of  citizenship  quite
independently of the legal rules of another state (the  Slovak
Republic).  This right was exercised by the adoption of  Czech
National  Council Act No. 40/1993 Sb., as amended by  Act  No.
272/1993  Sb.,  which, among other things,  provided  for  the
acquisition  of  citizenship by foreigners.  The  petitioners'
assertion that in the case of citizens of the Slovak  Republic
we are not dealing with foreigners simply does not hold water,
nor  does  their assertion that the choice brought on  by  the
termination  of  federal citizenship may be  conditioned  only
upon  the  subjective wish of the citizen and by his so-called
objective relationship to the territory.  It is precisely this
relationship (that is, the relationship to the Czech Republic)
which  must be manifested in an appropriate fashion,  and  not
merely  by  ties  to the territory, rather  it  must  also  be
objectively  manifested  to  the  Czech  Republic   as   such.
Precisely this manifestation was included among the conditions
under  which  it  was possible to acquire citizenship  of  the
Czech  Republic.   It is necessary to repeat again  that  each
sovereign  state  has  the right to set the  conditions  under
which  its  citizenship  can  be  obtained.   The  petitioners
further   make  the  irrelevant  assertion  that   since   the
continuation  of  dual  citizenship of the  Czech  and  Slovak
Federal Republic and the Czech Republic had not been qualified
by a requirement of good character, then there may not be such
a   requirement  now.   In  addition,  no  further   statutory
restrictions have been placed on their legal status and on the
states of affairs which came about before the new statute came
into  effect, rather those that came about on the day it  went
into  effect and subsequently.  As has already been said, when
a  citizen  of the Slovak Republic elects citizenship  of  the
Czech  Republic, it is necessary to take as a  starting  point
the  rules  to  which  foreigners in general  are  subject  in
connection  with citizenship.  In this regard, the  conditions
set down for citizens of the Slovak Republic are different and
more  favorable  precisely  for  them.   Naturally,  from  the
perspective of our past co-existence within a common state and
the  societal, professional and family ties which were created
during that period, in general these conditions were motivated
by  grounds  which can be called entirely decent  and  humane.
However,  not  even  in  this field can  we  consider  matters
voluntaristically.  The prescribed conditions are suitable  to
the permanent situation, sufficiently generalize and objectify
the  relationship to the Czech Republic, and  are  in  no  way
discriminatory.  It is then appropriate to say  the  following
concerning   these   conditions:    in   the   view   of   the
Constitutional  Court,  the  concept  of  permanent  residency
concerns a permanent residency which is manifested in  reality
and not one that is reflected only in official files - such as
an   application  for  permanent  residency   filed   at   the
appropriate  office  - but in a real sense.   Thus,  permanent
residency must be understood to mean that the person lives  at
his  place of continuous residence, that is, generally at  the
place   where  he  has  his  family,  parents,  apartment   or
employment  and  also  the  place  where  he  lives  with  the
intention  of  staying there permanently (in accord  with  the
decision of the Superior Court in Prague sp. zn. 3 Cdo 76/93).
Two  years of permanent residency as a condition for  electing
citizenship  was  also  set down with  a  view  toward  Slovak
National  Council  Act No. 206/1968 Sb.,  which  required  two
years  of  permanent residency in Slovakia as a condition  for
the  grant  of  Slovak citizenship to citizens  of  the  Czech
Republic.   At  the  time  the  law  on  the  acquisition   of
citizenship  of  the Czech Republic was adopted,  this  Slovak
National Council act was still in effect, and for that  reason
and  in  accord with the principle of reciprocity,  this  time
period  can  be  considered suitable.  It  is  appropriate  to
remember  that even in the case a person had a shorter  period
of permanent residency, the Interior Ministry was empowered to
grant  citizenship  of  the  Czech Republic  to  an  applicant
pursuant  to § 19 or to § 7 of Czech National Council  Act  No
49/1993 Sb.  Concerning the issue of a final conviction for an
intentional criminal act during the preceding five  years,  it
must   be  emphasized  that  this  provision  refers   to   an
intentional  criminal act (and not, therefore,  one  involving
negligence) and in this connection it must be stated,  keeping
in  mind  the explanatory report accompanying the adoption  of
the  act on citizenship of the Czech Republic, that as far  as
it   concerns  persons  who  were  finally  convicted  for  an
intentional  criminal  act, they will  meet  the  above-stated
conditions for the grant of citizenship of the Czech  Republic
if  their convictions are expunged by a court.  In accord with
the  Penal  Code  and  the Code of Criminal  Procedure,  these
persons (whose convictions are expunged) are, thus, viewed  as
persons  who  were  not convicted, and the conviction  is  not
included in the extract from their criminal record.   It  also
must be added that petty larcenies, for example, are generally
dealt  with  as  minor  offenses, while the  criminal  act  of
larceny  refers  to  an  illegal act  by  which  the  offender
appropriates  property  of a higher  value  which  belongs  to
someone  else.   Certain  peculiarities  resulting  from   the
dissolution of the federation were actually taken into account
in  those  temporary  extraordinary rules designated  for  the
possibility  of  electing citizenship of the  Czech  Republic.
Somewhat  more favorable conditions for the election were  set
down for the group of citizens of the Slovak Republic who  are
staying  abroad and who, prior to going abroad, had  permanent
residency  in  the  Czech Republic, but this  preference  must
again  be  understood as a humane gesture which shows  respect
for  possible family and other general human ties which  these
citizens might have to the Czech Republic.  Of course,  it  is
unnecessary  to  mention the possibility  of  these  emigrants
obtaining citizenship of the Czech Republic during the  period
when  provisional legal rules are in effect.  Concerning these
facts,  it  is  further necessary to point out  that,  in  the
overwhelming majority of cases, these persons remained outside
the  Czech Republic for more than 5 years, and thus could  not
have been convicted in the Czech Republic (the criminal record
only   includes  convictions  which  occurred  in  the   Czech
Republic).  It would be problematic to request such  documents
from  foreign  authorities because certain  countries  do  not
issue  them to individuals, and in the case that the  criminal
record  was  submitted, it would be difficult  to  assess  the
character  of  the  criminal  act.   Further  problems   would
evidently  arise if such a person lived in several  countries.
Thus,  it is not possible, under these circumstances, to speak
about  discrimination against a certain group of persons.   If
we   can   discuss  it  at  all,  then  we  can  only  discuss
discrimination  in  the positive sense:   foreigners  who  are
citizens  of the Slovak Republic were granted a more favorable
status  than  that granted to foreigners who are  citizens  of
states  other  than  the  Slovak Republic  or  to  apoliticals
[Translator's note: probably refers to stateless persons],  as
a result of the modification of rights which occurred from the
perspective of international law when the state was divided.

      A  practical approach to the current state of affairs is
found  in  the  Interior Ministry report, to the  effect  that
citizens  of  the  Slovak  Republic  who  did  not  submit  an
application  for  the  grant  of  citizenship  of  the   Czech
Republic, who had permanent residence in the Czech Republic on
31  December 1992 and whose stay here is still continuing, may
submit  an application for a Czech permanent residency permit.
These  applicants do not have to submit the documents required
for  other  foreigners, rather they need only show  the  entry
concerning permanent residence in their civil identity booklet
and  prove  citizenship  of the Slovak  Republic.   The  legal
status  of  citizens of the Slovak Republic who have permanent
residence  in  the Czech Republic is almost the  same  as  the
status  of a citizen of the Czech Republic.  For this purpose,
more  than  40 treaties were concluded between the  Czech  and
Slovak  Republics, and it is evident from  these  and  from  a
series  of  legal enactments that, for example, the  right  to
free  education,  health care, unemployment benefits,  welfare
benefits,  etc.  depend  on permanent  residence  and  not  on
citizenship.   The  institution of citizenship  of  the  Czech
Republic  differs only in respect of the right  to  vote,  the
qualifications for holding certain positions (judge,  soldier,
prosecutor), and the duty to perform military service.

     Finally, it is appropriate to keep in mind that the Czech
Republic  is  not  bound  by  the  legal  rules  relating   to
citizenship   of  the  Czech  and  Slovak  Federal   Republic,
considering the fact that that institution ceased to exist  in
conjunction with the dissolution of the federation.  By virtue
of  the  Constitutional Act of the Czech National Council  No.
4/1993 Sb., concerning Measures relating to the Dissolution of
the  Czech and Slovak Federal Republic, which came into effect
on  31  December 1992, the legal enactments in force prior  to
the  creation of the Czech Republic were incorporated into its
legal  system,  however, provisions conditioned  only  on  the
existence  of  the Czech and Slovak Federal Republic  and  the
Czech  Republic's  affiliation with it  may  not  be  applied.
Czech National Council Act No. 40/1993 Sb., came into force on
1  January 1993, and in § 28, paras. 1 and 2, it annulled  the
original  legal rules, namely those in Czech National  Council
Act  No. 39/1969 Sb., as amended by Czech National Council Act
No. 92/1990 Sb. and Act No. 165/1968 Sb.

      In  view  of  the above-stated facts, the Constitutional
Court has come to the conclusion that the provisions of §  18,
para.  1,  letters a) and c) and § 18a, letters a) and  b)  of
Czech National Council Act No. 40/1993 Sb., as amended by  Act
No.  272/1993 Sb., is not inconsistent with the provisions  of
Art. 26 of the International Convention on Civil and Political
Rights,  as  the petitioners claim, and no connection  between
the  petitioners'  assertion and  a  violation  of  the  cited
provisions have even been shown.


Notice:    There  is  no  appeal  from  a  decision   of   the
Constitutional Court.

In Brno on 13 September 1994

                                        JUDr. Zdenek Kessler
                                        Chairman of the Czech
                                        Constitutional Court


       Justices   JUDr.  Vladimir  Cermak  and   JUDr.   Pavel
Varvarovsky made use of their right, pursuant to § 14  of  Act
No.  182/1993 Sb., on the Constitutional Court,  to  append  a
separate opinion dissenting from the decision of the Court  on
the  petition to annul § 18, para. 1, letters a) and c) and  §
18a letters a) and b) of the contested act.






                                                   Pl. US 9/94



                      DISSENTING OPINION

      The opinion of Justice JUDr. Vladimir Cermak and Justice
JUDr.  Pavel Varvarovsky dissenting from the Judgment  of  the
Constitutional Court of 13 September 1994, which  rejected  on
the  merits  the petition of a group of Deputies  seeking  the
annulment of several provisions of Act No. 40/1993 Sb., on the
Acquisition and Loss of Citizenship of the Czech Republic,  as
amended by Act No. 272/1993 Sb., submitted in accordance  with
§ 14 of Act No. 182/1993 Sb., on the Constitutional Court.

      The undersigned Justices hold the view that the petition
of  the  group  of Deputies, so far as it concerns  the  point
proposing  the annulment of § 18, para. 1, letters a)  and  c)
and  §  18a, letters a) and b) of Act No. 40/1993 Sb., on  the
Acquisition and Loss of Citizenship of the Czech Republic,  as
amended by Act No. 272/1993 Sb., should have been granted, for
the following

                           reasons:


                              I.

      Article  I  of  the Constitution of the  Czech  Republic
proclaims  the  Czech  Republic to be a  democratic  law-based
state,  founded  on  respect for the rights  and  freedoms  of
persons  and citizens.  Apart from that, the Preamble  to  the
Constitution   professes  allegiance  to  the  traditions   of
Czechoslovak   statehood,  which,  among  other   things,   is
manifested in the reception of the legal order of the previous
state  and  even some of its symbols.  It declares  itself  in
favor   of  the  notion  that  Czechoslovakia  should   be   a
stabilizing  democratic  area in Central  Europe,  founded  on
humanistic principles and on the principles of democracy.  The
Preamble to the Constitution places emphasis on the civic  and
not on the national principle of the new state.

      A state which aspires to be a democratic law-based state
must  necessarily  acknowledge  the  requirement  of  its  own
constitutional  self-limitation, for along with  that  concept
necessarily  belongs  the  recognition  of  the  supranational
origin of the basic human rights, therefore the recognition of
the autonomy of human beings and of the civic society.  It  is
not  possible to apply to the state, in contrast to  citizens,
the principle that everything which is not expressly forbidden
is permitted.

      In  connection with the dissolution of the common state,
the Czech Republic expressly declared in its Constitution that
it  considered  itself to be continuing in the spirit  of  the
Czechoslovak  statehood.  That statehood is not  then  a  mere
abstraction, rather its territory contained and contains  real
subjects,  in particular citizens of that state.   It  can  be
expected  that  a  law  which  is directly  connected  to  the
Constitution and which does not merely contain rules governing
the acquisition and loss of citizenship of the Czech Republic,
but  which also includes extraordinary provisions relating  to
the  dissolution  of  the Czech and Slovak  Federal  Republic,
would respect the above-mentioned principles and the ideas  on
how  to  deal  with the former citizens of the  common  state.
Further, such an approach would be expected even more, in  the
case  that the Constitution of the Slovak Republic,  which  is
based  rather  on  the national principle  and  which  in  its
preamble  omits mention of the common Czechoslovak  statehood,
is  implemented  by a statute which enables persons  who  were
citizens   of  the  Czech  and  Slovak  Federal  Republic   on
31.12.1992, but who were not citizens of the Slovak  Republic,
to  choose citizenship without any qualifications (§ 3 of  Act
No. 40/1993 Sb.).

                             II.

      Without  question  there can  be  no  objection  to  the
statement  that, as an independent state, the  Czech  Republic
may  set the conditions for the acquisition of its citizenship
quite  independently of the legal rules in some  other  state,
and  thus  even  of  the legal rules in the  Slovak  Republic.
However, the undersigned justices are of the opinion that, for
citizens of the Czech and Slovak Federal Republic, the federal
citizenship was de facto the citizenship to which priority was
given,  in  particular  in  the  legal  consciousness  of  the
citizens  of  the state.  From the international  perspective,
there  was a single citizenship.  Therefore, the criteria  for
the   transformation  of  citizenship  for  citizens  of   the
federation who were citizens of the Slovak Republic should  be
considerably  different than the criteria for the  acquisition
of  citizenship by foreigners.  The statement that  the  rules
contained  in  the  provisions of § 18 or §  18a  of  Act  No.
40/1993  Sb.  are  considerably different  and  in  fact  more
favorable  is  unconvincing.  The above-mentioned  provisions,
which  were placed into the third part entitled "Extraordinary
Provisions  concerning Citizenship of the  Czech  Republic  in
connection  with  the  Dissolution of  the  Czech  and  Slovak
Federal Republic", are in essence extraordinary in name  only.
The  only "advantage" which these provisions grant to citizens
of  the  Slovak Republic living within the Czech  Republic  as
compared   with  real  foreigners  is  that  the  period   for
uninterrupted permanent residence was reduced from five  years
to  two,  and  certain  provisions that had  harsh  impact  on
elderly  persons  were  eliminated (the subsequently  added  §
18a).   The  conditions set down decisively do not  constitute
the  right of election, which one would expect to be  included
in  the  legal  order of a state which faithfully  adheres  to
principle  and to legal continuity, such as are  mentioned  in
section  I of this opinion.  We can agree with the opinion  of
the  group  of deputies that, as a result of these provisions,
discriminatory  conditions  were  introduced   for   obtaining
citizenship by former citizens of the Czech and Slovak Federal
Republic,  who  thereby became foreigners in a part  of  their
original homeland.  Statutory restrictions were (subsequently)
placed  after  the fact on legal states of affairs  and  facts
which  came about and existed prior to the time when  Act  No.
40/1993  Sb.,  entered into force.  In addition, these  rights
were  limited  in  a  manner  which,  for  reasons  which  are
difficult  to  understand,  are not  even  the  same  for  all
citizens  of  the  Slovak  Republic.   It  may  be  considered
especially  discriminatory that those citizens of  the  Slovak
Republic who might have proven their relationship to the Czech
Republic by long-term permanent residence within its territory
had  the least favorable conditions for obtaining citizenship.
The  non-waivable  condition  of five-years  without  criminal
conduct was applied to them, as it was to real foreigners, but
the  fulfillment  of  this  condition  was  not  demanded   of
foreigners who lived abroad permanently and who prior to going
abroad  had permanent residence in the Czech Republic  without
time  limitation.  Substantially more favorable conditions,  a
more genuine right of election, are applied to former citizens
of  the Czech and Slovak Federal Republic for whom it was  not
possible  to  designate  the  citizenship  of  either  of  the
republics  (§  6  of  Act No. 40/1993 Sb.).   The  undersigned
justices  take the position that the principle of the election
of  citizenship such as is laid out in § 6 of the act  is  the
standard  solution in a state which desires to be a democratic
law-based  state and which sincerely professes  allegiance  to
the  traditions of Czechoslovak statehood.  Any sort  of  rule
that falls below this standard is discriminatory.


In Brno, 16 September 1994


                                   JUDr. Vladimir Cermak
                                   JUDr. Pavel Varvarovsky