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HEADNOTES:
1. The Article 12 para. 2 of the Constitution,1) however, is a
response to the institution of forfeiture of citizenship which existed
before November, 1989, and attempts, by means of constitutional
regulation, to prevent such intrusion upon the rights of citizens. The
purpose of the constitutional directive enshrined in Art. 12 para. 2 of
the Constitution,1) thus, was and is to prevent the possibility of the
legislature adopting legal rules which would call for the deprivation of
citizenship as a sanction for any illegal conduct by a citizen. In the
present case, however, the criticized § 17 of the Citizenship Act2) has
a different aim, if it assumes that the citizen acted to acquire
foreign citizenship on his own initiative. From this viewpoint, it is
not a matter of depriving an individual of her citizenship, but of the
loss of citizenship through the acquisition of citizenship of another
state. It is evident from this that the meaning of Art. 12 para. 2 of
the Constitution1) is quite different from what the appellant infers.
If the appellant‘s interpretation of Art. 12 para. 2 of the
Constitution1) - in comparison with § 17 of the cited Act2) - were
correct, that would mean, as a consequence, that the Constitution
prohibits the legislature (even pro futuro) from barring the existence
of dual or multiple citizenship. Such a ban would, of course, be
completely absurd, as it would restrict the right of a sovereign state
to prevent dual citizenship, and would be in conflict - as stated
elsewhere in this decision - with draft international agreements
currently in force in contemporary democratic Europe, as well as draft
agreements.
The Constitutional Court considers it significant that the acquisition
of citizenship of a foreign state under § 17 of the cited act2) occurs
through the individual‘s (applicant‘s) own manifestation of intent, and
that the legal consequence of that manifestation of intent is the loss
of citizenship of the Czech Republic. If, then, a citizen manifested
(manifests) the intent to acquire, at his own request, citizenship of a
foreign state, he must have been (must be) aware - in view of the clear
and categorical wording of the contested legal provision - i.e., a
generally binding enactment - of the fact that de lege lata, as soon as
he acquires the citizenship of the foreign state, he will lose
citizenship of the Czech Republic.
2. Art. 12 para. 2 of the Constitution, 1) on the one hand, and Art.
12 para. 1 of the Constitution1) and § 17 of the Citizenship Act,2) on
the other hand, used different terms („deprivation“ of citizenship,
„loss“ of citizenship). This difference in terminology indicates the
legislature‘s intent to differentiate two qualitatively different
situations. This intent can be concluded, particularly by comparing
both paragraphs of Art. 12 of the Constitution. (Art. 12 para. 1 states
that the acquisition and loss of citizenship of the Czech Republic shall
be governed by law. Art. 12 para. 2 states that no one can have his
state citizenship removed against his will.) It is difficult to imagine
that the legislature would have used two different terms in one
provision, if it did not intend to bring about different legal results
and thus address situations which are not the same, but rather
different. This is also the issue in the matter at hand.
3. To adjudge the issue at hand we also cannot omit consideration of
the legal situation in the field of international law. In this area dual
citizenship is generally considered an undesirable condition.
The general practice of states can be characterized thus:
a)
a person with more than one citizenship cannot rely on his citizenship
of one state in relation to another state of which he is also a
citizen;
b) a third state is supposed to consider a person with more than one citizenship a citizen of only one state, as it elects.
The attempt to eliminate dual citizenship is also apparent from
bilateral treaties which the Czechoslovak Republic (or the former
Czechoslovak Socialist Republic) concluded with some neighboring states,
specifically with the USSR, Hungary, and Poland.
4. The legal framework for the termination of the state citizenship
of the Czech Republic is fully in accordance with the trend in
contemporary modern democratic Europe. In this regard, the 6 May 1963
Agreement on limiting instances of multiple citizenship and on services
in the armed forces in case of multiple citizenship, of 6 May 1963, is
significant. Art. 1 para. 1 of that Agreement states that adult
citizens of a signatory state who, by means either of a manifestation of
their own free will, naturalization, election or re-acquisition,
acquire the citizenship of another signatory state, shall lose their
previous citizenship. They are not entitled to retain their previous
state citizenship. An analogous framework also applies to minors.
The Czech Republic is not yet a signatory of this agreement, but its
very existence clearly indicates the trend among the Council of Europe
member states.
Nor does the forthcoming European Treaty on Citizenship and Military
Duty in the Case of Multiple Citizenship represent a break with the
principles of the Agreement of 6 May 1963, which is still in effect,
albeit not for the Czech Republic.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
The petition is rejected on the merits.
REASONING
The
complainant submitted a constitutional complaint against the judgment
of the Municipal Court in Prague . . . in which it was determined that,
in accordance with § 13 lit. c)4) and § 172) of Czech National Council
Act No. 40/1993 Coll., on the Acquisition and Loss of Citizenship of the
Czech Republic [hereinafter Citizenship Act], a certificate evidencing
citizenship of the Czech Republic may not be issued to the complainant.
The
complainant also submitted a petition proposing the annulment of § 17
of the Citizenship Act2) (the application of which brought about the
Municipal Court's judgment), in accordance with which citizens of the
Czech Republic shall lose Czech citizenship in the moment that they, at
their own request, acquire the citizenship of a foreign state, with the
exception of those who gained citizenship of a foreign state in
connection with entering into marriage or birth.
[Until
31 December 1992, the complainant was a citizen of the Czech and Slovak
Federal Republic and of the Czech Republic. Following the dissolution
of the federation, he remained a citizen of the Czech Republic. On 30
June 1993, he elected to take citizenship of the Slovak Republic, for
which he was eligible by the terms of the Slovak Citizenship Act. He
then requested a certificate of Czech citizenship from a local municipal
office in Prague. In view of § 17 of the Czech Citizenship Act,2) his
request was rejected, as was his appeal to the Municipal Court in
Prague, both institutions concluding that as a consequence of his
electing to take Slovak citizenship, his Czech citizenship was
automatically lost. He then filed a constitutional complaint with the
Constitutional Court of the Czech Republic, requesting that § 172) be
declared unconstitutional and that, as a consequence thereof, the
Municipal Court decision be quashed.]
. . . . .
The
complainant contested, among other things, the conclusion of the Prague
City Court, that the provisions of § 17 of the Citizenship Act2) do not
conflict with Art. 12 para. 2 of the Constitution.1) … According to the
contested decision it is not decisive whether the intent to lose
citizenship of the Czech Republic was explicitly expressed, “for if
losing Czech citizenship is a legal consequence of the manifestation of
intent to acquire citizenship of a foreign state, that manifestation of
intent aimed at acquiring foreign citizenship always also contains a
manifestation of intent aimed at losing Czech citizenship.”
. . . . .
II.
. . . . .
The
cited Assembly publications emphasize that a basic principle applied in
the draft law is the principle under which each citizen should have, if
possible, the citizenship of only one state. This is based on an
attempt to prevent problems connected with dual citizenship, both for
the individual and for the state. This is based on the principle that
individuals should have an opportunity, while observing requirements set
by law, to acquire or lose the citizenship of the Czech Republic.
Maximum emphasis is placed on maintaining only one citizenship.
. . . . .
III.
The
appellant first relies on Art. 12 para. 2 of the Constitution,1) which
states that no one may be deprived of his citizenship against his will.
This Article, however, is a response to the institution of forfeiture
of citizenship which existed before November, 1989, and attempts, by
means of constitutional regulation, to prevent such intrusion upon the
rights of citizens. The purpose of the constitutional directive
enshrined in Art. 12 para. 2 of the Constitution, 1) thus, was and is to
prevent the possibility of the legislature adopting legal rules which
would call for the deprivation of citizenship as a sanction for any
illegal conduct by a citizen. In the present case, however, the
criticized § 17 of the Citizenship Act2) has a different aim, if it
assumes that the citizen acted to acquire foreign citizenship on his own
initiative. From this viewpoint, it is not a matter of depriving an
individual of her citizenship, but of the loss of citizenship through
the acquisition of citizenship of another state. It is evident from
this that the meaning of Art. 12 para. 2 of the Constitution1) is quite
different from what the appellant infers. If the appellant‘s
interpretation of Art. 12 para. 2 of the Constitution1) - in comparison
with § 17 of the cited Act2) - were correct, that would mean, as a
consequence, that the Constitution prohibits the legislature (even pro
futuro) from barring the existence of dual or multiple citizenship.
Such a ban would, of course, be completely absurd, as it would restrict
the right of a sovereign state to prevent dual citizenship, and would be
in conflict - as stated elsewhere in this decision - with draft
international agreements currently in force in contemporary democratic
Europe, as well as draft agreements. The Constitutional Court therefore
does not share the appellant‘s view that Art. 12 para. 21) is relevant
in examining the constitutionality of § 17 of the Citizenship Act.2)
The
Constitutional Court considers it significant that the acquisition of
citizenship of a foreign state under § 17 of the cited act2) occurs
through the individual‘s (applicant‘s) own manifestation of intent, and
that the legal consequence of that manifestation of intent is the loss
of citizenship of the Czech Republic. The provisions of the Citizenship
Act were duly published in the Collection of Laws and were generally
known. Every citizen has a duty to know the laws of the republic, and
it can justifiably be expected of them that they do, particularly those
who intended or intend to perform one or another legal act connected
with citizenship. If, then, a citizen manifested (manifests) the intent
to acquire, at his own request, citizenship of a foreign state, he must
have been (must be) aware - in view of the clear and categorical
wording of the contested legal provision - i.e., a generally binding
enactment - of the fact that de lege lata, as soon as he acquires the
citizenship of the foreign state, he will lose citizenship of the Czech
Republic. If, despite that, he performed (performs) that act, he is
required to bear the legal consequences which valid law connects to that
act.
The
opinion that Art. 12 para. 2 of the Constitution1) is irrelevant to the
determination of the constitutionality of § 17 of the Citizenship
Act.,2) can also be supported by arguments based on the grammatical
analysis of both enactments.
Art.
12 para. 2 of the Constitution, 1) on the one hand, and Art. 12 para. 1
of the Constitution1) and § 17 of the Citizenship Act,2) on the other
hand, used different terms („deprivation“ of citizenship, „loss“ of
citizenship). This difference in terminology indicates the
legislature‘s intent to differentiate two qualitatively different
situations. This intent can be concluded, particularly by comparing
both paragraphs of Art. 12 of the Constitution. 1) (Art. 12 para. 1
states that the acquisition and loss of citizenship of the Czech
Republic shall be governed by law. Art. 12 para. 2 states that no one
can have his state citizenship removed against his will.) It is
difficult to imagine that the legislature would have used two different
terms in one provision, if it did not intend to bring about different
legal results and thus address situations which are not the same, but
rather different. This is also the issue in the matter at hand.
Concerning
the fact that the general term „deprivation“ has a different meaning in
contemporary Czech than does the term „loss“, we can point, in
particular, to expert literature in linguistics (cf. The Dictionary of
Standard Czech, 1989 Czech Academy of Sciences - Institute for Czech
Language, volume IV., p. 367, volume VII., p. 238). According to the
dictionary, the term „to deprive“, means: by some intervention to
eliminate the effect or influence of someone or something, to take
something away from someone, deprive someone of something (deprive
someone of a managerial position). Legal terminology contains the
terms, „depriving of capacity to engage in legal transactions“,
„depriving of parental rights.“ The grammatical significance of this
word and its comparison with familiar legal institutions clearly
indicate that the concept „deprivation“ presupposes an outside
intervention extranea (generally from a position of authority). In
contrast, the expression „loss,“ according to the dictionary, has the
meaning of „to lose“ (something, someone), „lose possession“ (of
something), in other words, the opposite of the concept „to acquire“:
e.g. to lose possession of money or property. „To lose something,“ in
contrast to the concept „be deprived of something,“ thus apparently does
not assume an outside intervention by a third party. It is, thus,
evident that even from the grammatical interpretation of compared texts,
the protection enshrined in Art. 12 para. 2 of the Constitution1) has
in mind cases when the deprivation (forfeiture) of citizenship comes
about as the result of an authoritative intervention by a third party
(the state). Thus, the loss of citizenship, which is regulated in the
provisions of §§ 13 to 17 of the Citizenship Act, is not such a case.
The
Constitutional Court has, thus, reached the conclusion that § 17 of the
Citizenship Act.,2) is not in conflict with Art. 12 para. 2 of the
Constitution. 1)
The
Constitutional Court also took into consideration provisions of the
Charter of Fundamental Rights and Basic Freedoms and of international
treaties, to which the complainant's constitutional complaint makes
reference. [The Court did not find § 172) to be in conflict with any of
them]
. . . . . .
IV.
Our
current legal framework is based on the principle that citizenship
should be single and exclusive. This is emphasized by the explanatory
report to the government‘s draft law on acquisition and loss of
citizenship of the Czech Republic. In this connection we must point to
judgment of the Constitutional Court of 13 September 1994, file no. Pl.
ÚS 9/94, which concerns several issues of citizenship of the Czech
Republic. This judgment states, among other things, that the Czech
Republic addressed the issue of acquisition of citizenship of the Czech
Republic by a domestic enactment, the Citizenship Act., which contains
the principle of preventing dual citizenship and limiting the creation
of statelessness. (In this way, the legal regime in effect in the Czech
Republic was linked to that which had been in effect on the territory
of the Czech and Slovak Federative Republic, and was based on the fact
that analogous principles are also applied in the legal systems of other
European countries.) Therefore, we can hardly accept the complainant's
categorical and generally formulated claim that neither any legal
regulation of the Czech Republic nor its constitutional order contain
the principle of forbidding dual citizenship, which, on the contrary, he
claims they expressly allow.
To adjudge the issue at hand we also cannot omit consideration of the legal situation in the field of international law.
1.
In this area dual citizenship is generally considered an undesirable
condition. On the one hand it can lead to international disputes,
particularly in issues of diplomatic protection, because a dual citizen
can be considered a citizen by more than one country. On the other hand
dual citizenship causes serious problems for the dual citizens
themselves, in particular concerning obligations of national loyalty and
the performance of military service, which two or more countries can
require of dual citizens. Third states may consider a dual citizen, as
they elect, as the citizen of either of the competing states, regardless
of the intent and interest of the dual citizen himself.
2. The general practice of states can be characterized thus:
a)
a person with more than one citizenship cannot rely on his citizenship
of one state in relation to another state of which he is also a citizen;
b)
a third state is supposed to consider a person with more than one
citizenship a citizen of only one state, as it elects, not according to
the election of the dual citizen himself or any of the states of which
he is a citizen. In this election, states are generally guided by the
principle of effectiveness, that is, they consider a foreigner a citizen
of the state to which he has the closest factual ties. In
Czechoslovakia the state citizenship which was acquired last was the
deciding one (§33 par. 2 of Act No. 97/1963 Coll., on International
Private and Procedural Law). The same legal situation applies in the
contemporary Czech Republic (Art. 1 of Czech National Council
Constitutional Act No. 4/1993 Coll., on Provisions Related to the
Dissolution of the Czech and Slovak Federal Republic).
3.
The attempt to eliminate dual citizenship is also apparent from
bilateral treaties which the Czechoslovak Republic (or the former
Czechoslovak Socialist Republic) concluded with some neighboring states,
specifically with the USSR, Hungary, and Poland. These treaties are
based on the principle that
a)
persons who simultaneously have the citizenship of both signatory
states can elect the citizenship which they wish to keep ...,
b)
persons to whom the treaty applies will be considered exclusively the
citizens of the signatory state whose citizenship they elected (Art. 7
of the CSR-USSR Treaty, Art. 6 para. 1 of the CSSR-HPR [Hungarian
People‘s Republic] Treaty),
c)
persons who do not make a declaration electing state citizenship by a
deadline (set forth by the treaty), will be considered exclusively the
citizens of the signatory country on whose territory they live (Art. 7
of the CSR-USSR Treaty, Art. 6 para. 3 of the CSSR-HPR Treaty, Art. 6 of
the CSSR-PPR [Polish People‘s Republic] Treaty).
4.
It can be said that the legal framework for the termination of the
state citizenship of the Czech Republic is fully in accordance with the
trend in contemporary modern democratic Europe. In this regard, the 6
May 1963 Agreement on limiting instances of multiple citizenship and on
services in the armed forces in case of multiple citizenship, of 6 May
1963, is significant. Art. 1 para. 1 of that Agreement states that
adult citizens of a signatory state who, by means either of a
manifestation of their own free will, naturalization, election or
re-acquisition, acquire the citizenship of another signatory state,
shall lose their previous citizenship. They are not entitled to retain
their previous state citizenship. An analogous framework also applies
to minors. The idea of strengthening the institution of exclusive
(sole) citizenship is then pursued by Art. 3 of the agreement, which
states that no provision of the Agreement bars the application of any
provisions which could restrict even further the creation of multiple
citizenship, whether it was included or subsequently implemented in the
legal framework of any signatory state or in any agreement, convention,
or treaty concluded between two or more signatory states.
The
Czech Republic is not yet a signatory of this agreement, but its very
existence clearly indicates the trend among the Council of Europe member
states. As of 2 January 1995, the Agreement had been ratified by 13
states (Austria, Belgium, Denmark, France, Germany, Ireland, Italy,
Luxembourg, the Netherlands, Spain, Sweden, the United Kingdom of Great
Britain and Northern Ireland) and one country had signed it (Portugal).
As a group, all the states which ratified the Agreement are significant
and traditionally democratic countries.
5.
Nor does the forthcoming European Treaty on Citizenship and Military
Duty in the Case of Multiple Citizenship represent a break with the
principles of the Agreement of 6 May 1963, which is still in effect,
albeit not for the Czech Republic. The preamble to the draft European
treaty recognizes the right of each state to decide whether it permits
its citizens to have only one or more than one citizenship. Art. 4 does
state that the internal laws ... of each signatory state shall be based
on the following general principles: 3. - no one shall be arbitrarily
deprived of his citizenship; however, Art. 6 par. 1 states this general
rule in more detail, saying that a signatory state may not lay down in
its domestic law ... the loss of citizenship either ex lege or at the
initiative of the signatory state, with the exception of the following
instances: a) voluntary acquisition of the citizenship of another state.
Art. 9 par. 2 further states that, depending on any ... international
agreement governing the issues of citizenship - a) each signatory state
shall grant its citizenship to person who:
i)
were citizens of and had permanent residence de jure and de facto on
the territory of a state which has ceased to exist ... and
ii)
still have permanent residence de jure and de facto on that territory,
which has become part of the territory of the signatory state.
It
is clear that the cited Article does not literally apply to the case at
hand, as no international treaty on citizenship was concluded in
connection with the termination of the existence of the Czech and Slovak
Federative Republic. However, even if such a situation were to occur,
we can point to the conclusion of Art. 9 par. 2 a), under which, when
citizenship is being issued, the persons in question can be required to
renounce the citizenship of any other state.
. . . . .
Pl. US 5/95
Overview of the most important legal regulations
1.
Art. 12 par. 1 of Act no. 1/1993 Coll., the Constitution of the CR,
reads: The conditions under which citizenship of the Czech Republic is
acquired and lost shall be provided for by statute. Par. 2 reads: No
person may be deprived of his citizenship against his will.
2.
§ 17 of Act no. 40/1993 Coll., on Acquiring and Losing Citizenship
of the CR, introduces the method of losing citizenship by acquiring a
foreign state citizenship and provides that a citizen of the CR loses
citizenship of the CR at the moment when, at his own request, he
acquired a foreign citizenship, except if he acquired the foreign
citizenship in connection with marriage or birth.
3.
Art. 10 of Act no. 1/1993 Coll., the Constitution of the CR,
provides that international treaties concerning human rights and
fundamental freedoms which have been duly ratified and promulgated and
by which the Czech Republic is bound are directly applicable and take
precedence over statutes.
4.
§ 13 letter c) of Act no. 40/1993 Coll., on Acquiring and Losing
Citizenship of the CR, provides that citizenship is lost by acquiring
foreign citizenship (§ 17) except in cases where acquisition of foreign
citizenship happens in connection with entering into marriage or the
birth of a child.
5.
Art. 3 par. 1 of Act no. 2/1993 Coll., the Charter of Fundamental
Rights and Freedoms, provides that everyone is guaranteed the enjoyment
of his fundamental rights and basic freedoms without regard to gender,
race, color of skin, language, faith and religion, political or other
conviction, national or social origin, membership in a national or
ethnic minority, property, birth, or other status.
6.
Art. 14 par. 1 of Act no. 2/1993 Coll., the Charter of Fundamental
Rights and Freedoms, provides that the liberty of movement and the
freedom of the choice of residence is guaranteed.