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HEADNOTES
Protection
of apartment tenants or apartment leases is a legitimate aim for
limitations on property rights, because it contributes to implementing
the right to an adequate standard of living under Art. 11 of the
International Covenant on Economic, Social and Cultural Rights, the
right of the family to social, legal and economic protection under Art.
16 of the European Social Charter, or under Art. 4 par. 2 let. a) of the
Additional Protocol to the European Social Charter. If the legitimate
aim of protecting a lease is motivated by social reasons (the
requirement to provide an adequate standard of living for the tenant,
which includes adequate housing to meet the fundamental need to have a
safe place to lay one’s head) then it is evident that further limitation
of an apartment owner beyond satisfying the basic housing needs of the
tenant would not stand up to the test of proportionality. If the law
limited the owner in his right of disposition of his property so much
that it would not permit him to terminate a lease relationship even in a
situation where the tenant’s basic need for housing is quite evidently
saturated, for example, because he has several housing opportunities at
an adequate level, such limitation of the owner would have to be
assessed as disproportionate to the aim pursued. If the protection of a
lease is motivated, besides that, by the state’s attempt to regulate the
market in rental housing and, in the face of excessive demand, to
support the just distribution of apartments, then it would not be a
proportional measure if the legal framework limiting apartment owners
permitted the accumulation of apartments in the hands of one tenant, or
purposeless management of the housing stock so that apartments remained
unused and unoccupied.
The Civil Code, in the version valid at the time in question, in § 711
par. 1 let. g) and h) gives the landlord the opportunity to terminate
the lease relationship under certain conditions, and only with the
consent of the court and if he provides accommodation once the apartment
is vacated. The argument that this violates the principle of the
parties’ free will can not be applied to these provisions in isolation.
The tenant’s free will, or his freedom of contract, can not be torn out
of the context in which it is applied. On the contrary, it is the
landlord whose free will is markedly limited when terminating a lease,
compared to the tenant. De lege lata, with every additional limitation
of the landlord’s right to unilaterally terminate a lease agreement, the
tenant’s right to the apartment could de facto become that
quasi-ownership right, to the detriment of the landlord’s true property
right, which would then survive only as bare ownership, despite the
constitutionally proclaimed principle of protecting it. Every further
reduction of the exclusively listed catalog of grounds on which the
landlord can terminate a lease goes against the spirit of private law,
because it deepens the inequality between the parties to a private law
relationship. Compared to the present situation, annulling the contested
provisions would, to the detriment of the landlord, further deepen the
unfair imbalance between the means used (the scope of limitation of
property rights by the Civil Code provisions on apartment leases) and
the legitimate aim pursued (protection of a lease, or a tenant).
Freedom of movement and residence do not give rise to a tenant’s
subjective right to have an apartment owner lease an apartment to him;
it also does not give rise to a right for it to be impossible to
terminate a lease on statutory grounds.
Equality is a relative category by definition: one can think in the
category of equality on in the relationship between two persons in the
same or comparable position. The provisions of § 711 par. 1 let. g) and
h) of the Civil Code, as regards lease of a co-operative apartment, on
one hand, and lease of a non-co-operative apartment, on the other hand,
are not interference in the constitutionally protected principle of
equality, because this is not a case of differentiating between the
rights and obligations of tenants either in view of traditionally
forbidden criteria (see Art. 3 par. 1 of the Charter), or in view of a
different status, but a case of comparing the legal institutions of
lease of a co-operative and non-co-operative apartment, to which the
constitutionally protected principle of equality does not apply.
Inequality can not be claimed to exist where the law provides the same
conditions for a claim to all subjects that can be included in the
personal scope of a legal regulation. The authority of a democratic
legislature in the area of statutory regulation of private law includes
the regulation of types of contracts. No provision of the constitutional
order gives rise to a binding order that the legislature regulate lease
relationships to apartments in a particular manner.
The differences of the institution of a co-operative apartment lease,
in view of general principles of justice, would deserve a restrictive
interpretation of the contested grounds for giving notice of termination
in relation to co-operative apartments. The present legal framework
gives sufficient space for such an interpretation. A general court may
take into account the special features of a lease of a co-operative
apartment when determining fulfillment of these grounds for giving
notice of termination under the contested provisions, i.e., in
evaluating whether the tenant can not justly be required to use only one
apartment [§ 711 par. 1 let. g) of the Civil Code], or in evaluating
serious or weighty reasons for which a tenant does not use an apartment
or uses it only occasionally [§ 711 par. 1 let. h) of the Civil Code].
It must also take into account § 3 par. 1 of the Civil Code, under which
the exercise of rights and obligations arising from civil law
relationships may not, without legal grounds, interfere in the rights
and justified interests of others, and may not be inconsistent with good
morals.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court, composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimír Kůrka, Dagmar Lastovecká, Jan Musil, Jiří Mucha, Jiří Nykodým, Miloslav Výborný, Pavel Rychetský, Eliška Wagnerová a Michaela Židlická decided on a petition from the District Court for Prague 7, represented by Mgr. T. M., Chairman of the Panel from the District Court for Prague 7, seeking the annulment of § 711 par. 1 let. g) and § 711 par. 1 let. h) of Act no. 40/1964 Coll., the Civil Code, as amended by later regulations, with the participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, as follows: The petition is denied.
REASONING
I.
Recapitulation of the Petition
1.
The District Court for Prague 7 (the “petitioner”), in a petition filed
under Art. 95 par. 2 of the Constitution of the Czech Republic (the
“Constitution”) and § 64 par. 3 of Act no. 182/1993 Coll., on the
Constitutional Court, as amended by later regulations, sought the
issuance of a judgment annulling § 711 par. 1 let. g) and § 711 par. 1
let. h) of Act no. 40/1964 Coll., the Civil Code, as amended by later
regulations, as of the day the judgment is promulgated in the Collection
of Laws.
2. The petitioner
stated that the District Court for Prague 7 is conducting proceedings,
file no. 26 C 386/2002, in the matter of the plaintiff B. d. Dělnická
1222 against the defendants T. S. and I. S. In those proceedings, the
plaintiff, as a housing co-operative, seeks the court’s consent to give
notice terminating the lease of an apartment in Prague 7 Holešovice.
Both defendants obtained the lease rights to this co-operative apartment
on the basis of an agreement on transfer of rights and obligations
connected with membership in the co-operative in 1997. However, they
never moved into the apartment, and are not using it; the plaintiff
claims that since 1988 to the present they have been living in a
different apartment in Prague 6. The plaintiff wishes to give notice of
termination on grounds under § 711 par. 1 let. d), g) and h) of the
Civil Code, i.e. on the grounds that the defendants have not paid the
rent and charges for services related to use of the flat for a period of
more than three months (from July 2001 to December 2001), and also on
the grounds that both defendants have more than one apartment, and that
they do not use the apartment in question, without serious reasons, or
use it only occasionally.
3.
According to the petitioner, the contested Civil Code provisions are
inconsistent with Art. 1 of the Constitution and with Art. 1, Art. 4
par. 2 and 4, Art. 10 par. 2 and Art. 14 par. 1 of the Charter of
Fundamental Rights and Freedoms (the “Charter”).
4.
The petitioner acknowledged, that the contested provisions are legal
norms with a relatively uncertain hypothesis (“cannot justly be
required” or “does not use the apartment without serious reasons, or,
without serious reasons, uses it only occasionally”), which permits the
court to define the reach of the norm in each individual case.
Nevertheless, it concluded that the contested provisions as a whole are
inconsistent with the constitutional order, because in the case it is
handling it is forced to apply the contested provisions to the lease of a
co-operative apartment .
5.
The petitioner believes that both contested provisions are inconsistent
with Art. 1 of the Charter, first sentence, because they violate the
principle of equal rights, as it has been interpreted in a number of
cases by the Constitutional Court (e.g., judgment file no. Pl. US 18/01
of 30 April 2002, published as no. 234/2002 Coll.). The legislature did
not distinguish between co-operative and non-co-operative apartments,
and set the same conditions for the termination of lease rights for both
co-operative and non-co-operative apartments. Thus, it is impermissibly
disadvantaging tenants of co-operative apartments compared to tenants
of non-co-operative apartments, and does so by unjustifiably setting the
same rules for different kinds of cases. The result is to negate the
purpose of association in housing co-operatives. The petitioner pointed
out that in the adjudicated case the plaintiff gave the defendants
notice of terminating a lease of a co-operative apartment, without the
defendants’ membership in the co-operative having terminated in any way.
6.
The petitioner sees inconsistency with Art. 4 par. 2 and 4 of the
Charter in the fact that the legislature impermissibly interfered in the
rights of co-operative apartment tenants with the contested norms, by
not ruling out their application to the lease of co-operative
apartments.
7. The
petitioner also pointed to the history of the contested provisions. Both
became part of the Civil Code only in the so-called “large” amendment
implemented by Act no. 509/1991 Coll., but this was not a new legal
regulation. Moreover, for the amended Civil Code the legislature more or
less adopted the legal framework contained in the Civil Code’s original
wording – § 184 let. c) and d). The legal framework of these grounds
for giving notice of termination became part of the legal order under
completely different social-economic conditions, at the time of a
centrally regulated state that appropriated the right to determine the
amount of housing construction and interfere in its management and
allocation to (and taking away from) individual users. The legal
framework of these grounds for giving notice of termination was
connected to the shift from the traditional framework of the lease of an
apartment to so-called “personal use” of an apartment. The background
report to the Civil Code justified this shift on the grounds, among
other things, that “a lease is not appropriate, in particular for
apartments of housing construction co-operatives, where the right to use
of an apartment is similar to the right to use an apartment on the
basis of ownership rights.” Specifically, it was justified by the need
to limit “negative speculation and obtaining revenues which are
difficult to determine and obtained without working.”
8.
In contrast, according to the petitioner, today, when the Czech
Republic is a fully democratic state that protects human rights and
individual freedoms, a law-based state founded on respect for the rights
and freedoms of man and of citizens (Art. 1 of the Constitution), there
can be no justification for a legal norm which punishes, through
grounds for notice of termination, a situation where the tenant, in his
own free will and freedom of contract, decides to obtain, by leasing,
the ability to use several apartments, or housing possibilities,
whatever reasons the tenant has for doing so. It is only up to the will
of the parties to a lease agreement whether they conclude it, under what
conditions, and whether the tenant will in fact use the apartment.
There is no reason to force a tenant to have only one apartment, if it
is within his abilities to meet his obligations from leasing several
apartments.
9. The
petitioner also explained the inconsistency which may be found between
its arguments based on the change in social-economic conditions and
arguments based on the principle of equality, or unjustified differences
between tenants of co-operative and non-co-operative apartments. The
petitioner believes that it is precisely because of the non-existence of
a positive legal provision excluding co-operative apartments from § 711
par. 1 let. g) and h) of the Civil Code, that these norms are
unconstitutional in another way (inconsistent with Art. 1 and 4 par. 2
and 4 of the Charter), and that the mere fact that both of the contested
provisions are part of the legal order is inconsistent with Art. 1 of
the Constitution.
10.
Finally, the petitioner sees the contested provisions as inconsistent
with Art. 10 par. 2 and Art. 14 par. 1 of the Charter because, since the
landlord of a co-operative apartment has a statutorily permitted
ability to give a co-operative apartment tenant notice of termination on
the grounds that the tenant has several apartments (housing
possibilities) or on the grounds that the tenant does not use the
co-operative apartment, the landlord can interfere in the tenant’s
private and family life and his freedom of residence. Moreover, this can
happen on grounds whose inclusion in the legal order lost its
justification with the fall of the totalitarian regime.
II.
The Proceedings and Recapitulation of the Statements from the Parties to the Proceedings
11.
The Chamber of Deputies of the Parliament of the Czech Republic,
through its Chairman, PhDr. L. Z., provided a response to the
Constitutional Court’s request, pursuant to § 69 of the Act on the
Constitutional Court. It stated that, insofar as the legislature
provided the same grounds for a landlord to give notice of terminating a
lease with the consent of the court for tenants of co-operative and
non-cooperative apartments, it did not thereby impermissibly favor one
group. It pointed to Art. 1, Art. 3 par. 2 and Art. 4 par. 2 and 3 of
the Charter and § 2 par. 2 of the Civil Code, which give rise to, on one
hand, a ban on exceptions, privileges for certain categories of people
or individuals, or discriminatory measures, and on the other hand, the
principle of equal status of subjects of civil law relationships.
12.
The Chamber of Deputies also disagreed with the petitioner’s claim that
the contested provisions of the Civil Code fail to respect freedom of
movement and residence. No provision of the law forbids the use of two
or more apartments. The contested legal framework merely also respects
the needs of the landlord, and thus eases the situation for him, because
he can not give notice of termination on grounds other than those
specified in the law. It is up to the court to carefully weight the
situations of the landlord and tenant. The Chamber of Deputies also
pointed out that freedom of movement under Art. 14 par. 1 of the Charter
means the right of any natural person to move about the territory of
the Czech Republic defined by its state borders, i.e. the ability of the
person to visit any place within the state borders. Freedom of
residence is the right to freely reside and settle in any place in the
Czech Republic, the right to freely choose one’s place of residence
inside the Czech state.
13.
In conclusion the Chamber of Deputies stated that Act no. 509/1991
Coll., which added the contested provisions to the Civil Code, was
approved by the necessary majority of deputies in the Federal Assembly
on 5 November 1991, and Act no. 267/1994 Coll., which added the words
“or uses it without serious reasons only occasionally” to the Civil
Code, in § 711 par. 1 at the end of let. h), was approved by the
necessary majority of deputies of the Chamber of Deputies on 15 December
1994. Both these laws were signed by the appropriate constitutional
authorities and were duly promulgated. The legislative assembly acted in
the belief that the enacted statute was consistent with the
Constitution and our legal order. According to the Chamber of Deputies,
evaluation of its constitutionality in connection with the petition from
the District Court for Prague 7 is up to the Constitutional Court.
14.
The Senate of the Parliament of the Czech Republic, through its
then-chairman, doc. JUDr. P. P., in its statement of 15 March 2004
stated that the provisions of the Civil Code concerned in the petition
were approved at a time when the Senate had not yet been elected.
15.
As regards the merits of the matter, the Senate stated the following.
The provision on notice of terminating an apartment lease in § 711 par. 1
of the Civil Code must be interpreted in connection with § 685 par. 1,
second sentence: “The lease of an apartment is protected; the landlord
may give notice of termination to the tenant only on grounds provided by
law.” The grounds for giving notice of termination in § 711 par. 1 of
the Civil Code are part of a wider set of measures identified in theory
and practice as tenant protection, or protection of the weaker party
(regulation of rent is considered to be the second component of tenant
protection). Such protective measures had their place at a time when, as
part of the consolidation of social relationships, or prevention of
undesirable economic-social consequences, there was a public interest in
creating stability in a particular area of social relationships. Such a
situation arose here in the sphere of rental housing after the creation
of Czechoslovakia, after both world wars, and again after 1989.
16.
As the Senate further stated, grounds for giving notice of termination
due to “lack of need” or “redundancy” have permeated our legal order in
various formulations since 1920 (e.g., Act no. 225/1922 Coll., on
Extraordinary Measures for Apartment Care, a series of laws on tenant
protection from the 1920s, laws on managing apartments in the era of the
planned economy, and the current versions of the Civil Code). In this
regard, it appears inappropriate for the petitioner to connect the
similarity between the relevant grounds for giving notice of termination
from 1964 and those from1991 to their pre- and post- November 1989
content or regulatory aim. The legal norm expressed by a legal text must
withstand being measured against the values of a law-based state, as is
declared in Art. 1 par. 1 of the Constitution, and interpretation of a
legal norm passed in 1991 can not be based on a background report from
1964. Such arguments in and of themselves can not be relevant to
reaching an opinion that Art. 1 par. 1 of the Constitution has been
violated.
17. According to
the Senate, protection of the weaker party finds support in the
imperative to protect the adequate standard of living of every
individual, including housing (see Constitutional Court judgment no.
231/2000 Coll.). Implementation of constitutional law in the
sub-statutory level can be done using the conclusions of European case
law, under which states are given the right to pass such laws as they
consider necessary to regulate the use of property in accordance with
the general interest. Such laws are especially necessary and usual in
the area of housing, which is becoming a central issue of social and
economic policy in modern societies. In order to realize such policies,
the legislature must have a wide margin of appreciation, both in
determining whether a general interest exists that authorizes applying
regulatory (control) measures, as well as in the choice of similar rules
for implementing such measures.
18.
According to the Senate, § 711 par. 1 can also be understood as an
exception from the total ban on giving notice terminating an apartment
lease. Seen thus, it is actually a positively stated “protection” of the
person and property of the landlord. Annulling each of the grounds for
termination in § 711 par. 1 of the Civil Code would increase the
protection of the tenant to the detriment of the landlord-owner. In this
regard the Senate pointed to the principle of a fair balance between
the means used and the aim pursued.
19.
The Senate rejected the petitioner’s deliberation on the
impermissibility of a legal norm which limits the tenant’s contractual
freedom or free will in acquiring the possibility of using several
apartments, or limiting him in the decision not to use an apartment.
According to the Senate, the legal status quo does not in any way forbid
a tenant from having two or more apartments, not using an apartment, or
using it only occasionally. Nor does the law order a landlord to rid
himself of such tenants, it merely gives the landlord the opportunity to
terminate the lease relationship under certain conditions, and only
with the consent of the court and if he provides accommodation once the
apartment is vacated. Thus, this case does not a priori concern the
limitation of contractual freedom or free will.
20.
In response to the petitioner’s argument that the legislature is
unjustifiably disadvantaging tenants of co-operative apartments compared
to tenants of non-co-operative apartments, the Senate stated that such
an exception to application [of these provisions] would require an act
by a positive legislature, which the Constitutional Court is not.
However, it pointed out that the provisions of Part Eight, Chapter
Seven, Division Four of the Civil Code are general provisions for
apartment leases; they apply to the creation, rights and obligations,
and termination of all types of apartment leases, so the petitioner’s
claim of a completely different group of conditions for the creation of a
lease for co-operative apartments is not appropriate. The creation of a
co-operative apartment lease is legally subject to the same uniform
principle. Its difference lies in the fact that an applicant for an
apartment must also meet the conditions for membership in the housing
co-operative. Ruling out application of the contested provisions to
co-operative apartments could appear discriminatory against tenants of
other types of apartments (including company apartments, special
designation apartments, and apartments in special designation
buildings). This would strengthen protection of a tenant who is a member
of a co-operative, which would have the effect of lowering the
protection of a landlord-owner, which, paradoxically, would distance
co-operative housing from ownership rights.
21.
As regards inconsistency with the right to protection of private and
family life, the Senate stated that the contested legal framework does
not impose an obligation on the tenant to give the landlord information
about whether he has an apartment that he does not need, not does it
permit the landlord to enter the tenant’s apartment and violate his
constitutional rights, including family life. As regards the guarantee
of freedom of movement and residence, the Senate considers it
indubitable that these directly applicable constitutional rights do not
conflict with the ability to give notice of termination of a private law
relationship (an apartment lease). If it were so, the entire § 711 par.
1, not just the contested grounds for giving notice of termination,
would lose its constitutional foundation.
III.
Recapitulation of the Statements of Other Entities under § 49 of the Act on the Constitutional Court
22.
Pursuant to § 49 par. 1 of the Act on the Constitutional Court, the
Constitutional Court also contacted associations of persons representing
the rights of owners of buildings and apartments, i.e. the interests of
landlords, and associations representing the interests of tenants, and
gave them an opportunity to respond to the petition.
23.
The Association of Tenants of the Czech Republic (the “Association of
Tenants”), in its response, through its chairman, JUDr. S. K., supported
the petition to annul the contested provisions of the Civil Code,
saying that it found the arguments relevant. It stated that both the
contested provisions had been included in the Civil Code primarily in
view of the rent control situation in 1992, when the legislature
undoubtedly intended to make it impossible for tenants to misuse
regulated rent in order to use multiple apartments, or to use an
apartment which they did not need at the time. According to the
Association of Tenants, the situation now is quite different. There is
no longer any rent control on newly concluded lease agreements, and if a
new lease agreement is concluded for another apartment then the
original legislative intent is evidently not being fulfilled, and this
measure has lost its original purpose. The Association of Tenants
pointed out that both grounds for notice of termination are determined
by case law, because in some cases the use of two apartments is
necessary, and, as the law in fact anticipates, the tenant can not
justly be required to use only one apartment. Non-use of an apartment is
difficult to prove, and it is equally difficult to prove use of an
apartment in a situation where people’s lifestyles are different, and it
is not possible to explicitly specify what extent of use of an
apartment is or is not consistent with the law, or how high a degree
(e.g. daily) of use of an apartment the law will or will not tolerate.
24.
The Civic Association of Owners of Buildings, Apartments, and other
Real Estate in the Czech Republic (the “Association of Owners”), through
its chairman, RNDr. T. Š., stated the opinion that the Constitutional
Court should deny the petition. In its opinion, applying the contested
provisions of the Civil Code to co-operative apartments, or to
apartments leased freely and for contractually agreed rent, could be
inconsistent with good morals under § 3 of the Civil Code; a court can
evaluate this and then not consent to notice of termination on those
grounds; in addition, a court also has the opportunity to evaluate these
facts within the contested provisions (arguments: “the tenant cannot
justly be required …,” “… the tenant has serious reasons to use the
apartment only occasionally”). According to the Association of Owners,
the case before the petitioner can be resolved by applying the contested
provisions of the Civil Code, merely by interpretation. After all, it
can be said that tenants who are also co-operative members and who have
expended a not insignificant sum to acquire their co-operative share,
which has value for them only in connection with lease of a co-operative
apartment, can not justly be required to use only one apartment. The
same arguments can be made concerning “serious reasons.” In both cases
the court can say that exercise of the property rights of the
co-operative, as owner, against a member of the co-operative, would be
inconsistent with good morals, and therefore it can refuse consent to
the termination notice, with reference to § 3 par. 1 of the Civil Code.
25.
Thus, according to the Association of Owners, the problem is only in
more detailed interpretation of the contested provisions. The contested
provisions are, and after a transitional period will be, an inseparable
part of inadequately transformed lease law, as established by Act no.
40/1964 Coll., the Civil Code, and by Act no. 41/1964 Coll., on Managing
Apartments. According to the Association of Owners, any changes to or
annulment of these grounds for giving notice of termination would have
to be accompanied by a systematic transformation of all lease
relationships into classic lease relationships characterized by the free
will of both parties to enter into the temporary relationship under
conditions to which both parties freely agree.
26.
The Association of Owners pointed out that the right to use an
apartment, which was renamed “lease of an apartment” in § 871 of the
Civil Code, lacks the character of a freely-concluded contract. This
preserved the situation which existed before 1989, when the right to use
an apartment had the character of a social support payment. In order
for the recipients of this social support payment not to be able to
misuse it for negative speculations and obtaining revenues which were
difficult to determine and obtained without working, and in order for it
not to be excessive, the socialist legislature included in the Civil
Code of that time the authorization for a court to decide on the
termination of the right to personal use of an apartment on the grounds
that the user used or owned two apartments, or that he did not use an
apartment at all, or only occasionally, without serious grounds [§ 184
let. c) and d)]. For the same reason, after 1989 a limitation was
introduced into the Civil Code on those who could, as part of their
social support in the form of the right to use an apartment for
regulated rent, misuse this advantage, when they did not need it. Thus,
even today a lease relationship is more similar to the earlier right to
permanent use of an apartment, and the owners of such apartments are
left with only “bare ownership.” The grounds for giving notice of
termination must also be seen in the context of other institutions that
were taken over from the framework of the right to personal use
[transfer of a lease without the landlord’s consent under § 706 et seq.
(previously § 179 et seq.), exchange of an apartment without the
landlord’s consent under § 715 et seq. (previously § 188), and creation
of a joint apartment lease for spouses by law without the landlord’s
consent under§ 703 et seq. of the Civil Code (previously § 175)].
27.
In this regard the Association of Owners also pointed to the
Constitutional Court’s deliberations expressed in judgments no. 231/2000
Coll. and, especially no. 528/2002 Coll. and no. 84/2003 Coll. It
stated that if the Constitutional Court now granted the petition, this
would deepen the quasi-ownership nature of a lease, and other
curtailment of ius utendi a ius disponendi as fundamental elements of
ownership rights. The Association of Owners acknowledges that it is
absurd to apply the contested provisions to co-operative, i.e. de facto
owned housing, but in its opinion the Constitutional Court should not
overlook what effects granting the petition would have on another group
of lease relationships, created on the basis of § 871 par. 1 of the
Civil Code; the consequence would be violation of property rights under
Art. 11 of the Charter. The Association of Owners pointed out that the
contested provisions also have a transformational significance: they
permit the shift of lease relationships concerning apartments from the
sphere of the unconstitutional rent control, and the endlessness of that
situation, into the sphere of ordinary lease relationships without
quasi-ownership elements in the tenant’s relationship to the rented
thing, the apartment.
28.
According to the Association of Owners the possible violation of
tenant’s rights also does not lie in the fact that the contested grounds
for notice of termination of an apartment lease exist, but in the fact
that there is no positive provision of ordinary law which rules out
applying these grounds for giving notice of termination to co-operative
apartments (or, as the case may be, to contractual lease relationships
created by a free lease agreement after 1 January 1992, where, in view
of free will, these grounds for giving notice of termination do not even
come into consideration).
IV.
The Text of the Contested Provisions of the Law and their Legislative History
29.
The Constitutional Court states that the provisions contested by the
petition, § 711 par. 1 let. g) and h) of the Civil Code, at the time the
petition was filed, and now, read as follows:
Ҥ 711
(1) The landlord may give a notice terminating the lease of an apartment only with the consent of the competent court, on the following grounds:
....
g) if the tenant has two or more apartment, unless he cannot justly be required to use only one apartment;
h) if the tenant does not use the apartment without serious reasons or if he uses the apartment without serious reasons only occasionally.
Ҥ 711
(1) The landlord may give a notice terminating the lease of an apartment only with the consent of the competent court, on the following grounds:
....
g) if the tenant has two or more apartment, unless he cannot justly be required to use only one apartment;
h) if the tenant does not use the apartment without serious reasons or if he uses the apartment without serious reasons only occasionally.
30.
The provisions of § 711 par. 1 let. g) and h) of the Civil Code were
introduced by Act no. 509/1991 Coll., which Amends, Supplements, and
Alters the Civil Code, with effect as of 1 January 1992. The original
text of the contested provisions according to this Act was the
following: “g) if a tenant has two or more apartments, except in cases
where he can not be justly required to use only one apartment; h) if the
tenant does not use the apartment without serious reasons.”
31.
The background report to the government draft of this Act (publication
685, 18th session of the Federal Assembly) states: “The former
institutions of personal use, particularly personal use of apartments,
are also returning to the law of obligations. Of course, there are
certain problems connected to the legal regulation of use of apartments
(in future, the lease of apartments). The primary problem is that there
is not yet a market in apartments, and in view of the situation,
creation of that market will be – as shown by experience in the
law-based states of our western neighbors – a long-term process. … The
previous framework took the special provisions on personal use of an
apartment (§ 685 et seq.) together with changes which reflect the new
social situation. ... The new regulation can not by itself create a
market in apartments, but it can stimulate and support its creation. It
removes the previous administrative interference in lease relationships.
... Protection of an apartment lease, which is specific to the
legislation of law-based states, is based on the fact that if there is
no agreement, a landlord can not terminate a lease without stating
grounds, but can only file a petition with a court for the court’s
consent to terminate an apartment lease on the basis of the grounds
exclusively listed in § 711. The amendment expands these grounds while
also respecting the needs of the landlord. ... The amendment assumes
that an apartment lease is also created with co-operative apartments.
However, the manner of concluding a lease agreement, the content of the
lease, and its termination are modified under conditions provided in the
by-laws of housing co-operatives.” In discussions of the government
draft of the act, no deputy from the Federal Assembly stated any
opinions on the provisions in question.
32.
Act no. 267/1994 Coll., which amends and supplements the Civil Code,
added the words “or uses it without serious reasons only occasionally”
to the end of § 711 par. 1 let. h), with effect as of 1 January 1995.
The proposal to amend the wording of this provision was not part of the
government draft. It became part of the draft Act on the basis of the
joint report of the Constitutional Law, Budget, and Economics Committees
of the Chamber of Deputies, and the proponent (the Minister of the
Economy, on behalf of the government) supported this amending proposal.
The joint committee report did not provide a justification, and during
discussion no deputy stated any opinion on the amending proposal.
V.
Conditions for the Petitioner’s Active Standing
33.
The Constitutional Court first considered the question whether the
petitioner – the District Court for Prague 7 – is authorized to submit a
petition to annul the contested provisions. It concluded that it is.
The petitioner correctly stated that it must apply the contested
provisions in civil law proceedings on consent to giving notice of
termination of an apartment lease, because the plaintiff in those
proceedings bases the grounds for the termination notice on the
contested provisions. Thus, the petition from the District Court for
Prague 7 is related to its decision making activity, and therefore that
court is an authorized petitioner under Art. 95 par. 2 of the
Constitution and § 64 par. 3 of the Act on the Constitutional Court.
VI.
Constitutional Conformity of the Legislative Process
34.
Under § 68 par. 2 of the Act on the Constitutional Court, the
Constitutional Court, apart from evaluating whether a contested law is
consistent with constitutional laws, is to determine whether it was
passed and issued within the bounds of constitutionally provided
jurisdiction and in a constitutionally prescribed manner. In doing so,
it relies on § 66 par. 2 of the Act on the Constitutional Court, under
which a petition is impermissible if the constitutional law with which
the regulation is inconsistent, according to the petition, ceased to be
in effect before the petition was delivered to the Constitutional Court.
The foregoing indicates that with legal regulations issued before the
Constitution went into effect (1 January 1993) the Constitutional Court
is authorized to review only their consistency with the existing
constitutional order, but not the constitutionality of the process by
which they were passed and observance of norm-creating jurisdiction (see
also judgment file no. Pl. US 10/99, published as judgment no. 150,
vol. 16 Collection of Decisions, pp. 115, 119).
35.
Thus, in this matter the Constitutional Court did not examine whether
Act no. 509/1991 Coll., which inserted the contested provisions into the
Civil Code, with effect as of 1 January 1992, was passed and issued
within the bounds of the jurisdiction provided by the federal
constitution at that time and in a manner prescribed by it.
36.
Act no. 267/1994 Coll., which the contested provisions amended, was,
however, passed and issued during a time when the Constitution was in
effect, and therefore it is first necessary to determine whether it was
passed and issued within the bounds of constitutionally provided
jurisdiction and in a constitutionally prescribed manner.
37.
The Constitutional Court determined from resolution no. 536 of the
Chamber of Deputies of the Parliament of the Czech Republic, from the
25th session, on 15 December 1994, that the government draft of the Act
which amends and supplements the Civil Code, according to Chamber of
Deputies publication 112, in the version from the joint committee report
from Chamber of Deputies publication 1264 and the approved amending
proposal, was approved by the Chamber of Deputies. The Constitutional
Court determined from the transcript of that session that, out of 163
deputies present, 96 deputies voted for the draft, 32 deputies were
against, 33 deputies abstained, and 2 did not vote (vote 399). At that
time the Senate had not yet been elected. The Act was delivered to the
president for signature on 16 December 1994, and the president signed it
on 22 December 1994. The Act was promulgated on 30 December 1994 in the
Collection of Laws, in part 79 as number 267/1994 Coll. The
Constitutional Court states that Act no. 267/1994 Coll. was passed and
issued within the bounds of constitutionally provided jurisdiction and
in a constitutionally prescribed manner.
38.
At this point the Constitutional Court notes that it is aware that the
Chamber of Deputies of the Parliament of the Czech Republic, on 14 March
2006, approved a draft Act on Unilateral Increases of Apartment Rent
and amending Act no. 40/1964 Coll., the Civil Code, as amended by later
regulations, in a version approved by the Senate, which also
substantially amends § 711 of the Civil Code, with the expected
effective date of 31 March 2006. However, in view of the fact that the
contested provisions, in their existing wording, will have to be applied
to legal relationships arising before the Civil Code amendment takes
effect, and many proceedings before the general courts may concern them,
the Constitutional Court did not find a reason to wait until the of the
Civil Code amendment is promulgated in the Collection of Laws and then
stop the proceedings under § 67 par. 1 of the Act on the Constitutional
Court (the Constitutional Court proceeded similarly in judgment Pl. US
33/2000 of 10 January 2001, published as judgment no. 5, vol. 21
Collection of Decisions of the Constitutional Court, p. 29, in the
Collection of Laws as no. 78/2001 Coll.). In any case, at the time of
the Constitutional Court’s decision making the contested provisions are
still in effect, and therefore conditions for stopping proceedings under
§ 67 par. 1 of the Act on the Constitutional Court have not been met.
VII.
The Constitutional Court’s Evaluation
39.
The petitioner’s constitutional law objects to the contested provisions
are presented from two positions: from the point of view of equality,
and from the point of view of protecting free will. Secondarily, the
petitioner makes arguments concerning interference in the tenant’s
private and family life and his freedom of residence. The Constitutional
Court first turned to evaluating the objects based on protection of
free will, private and family life and freedom of residence, because
these concern all tenants, without distinguishing among tenants of
co-operative and non-co-operative apartments. It subsequently considered
objections based on the specific features of a co-operative apartment
lease.
VII./A
40.
The petitioner’s first objection is that the contested provisions are
inconsistent with the principles of protecting free will and contractual
freedom, which it draws from Art. 1 par. 1 of the Constitution.
According to the petitioner it is the tenant’s business if he has the
opportunity to use several apartments, regardless of the reasons which
lead him to it. It is only up to the will of the parties of an apartment
lease agreement whether to conclude it, under what conditions, and
whether the tenant will really use the apartment. There is no reason to
force a tenant to have only one apartment, if it is within his abilities
to meet his obligations from the lease of several apartments.
41.
In a number of its decisions the Constitutional Court has recognized a
constitutional law dimension to the principle of free will and
contractual freedom. In the Constitutional Court’s opinion [see judgment
file no. Pl. US 24/99 of 23 May 2000 (judgment no. 73, vol. 18
Collection of Decisions of the Constitutional Court –“Coll. Dec.,” p.
135), Pl. US 5/01 of 16 October 2001 (judgment no. 149, vol. 24 Coll.
Dec., p. 79) and Pl. US 39/01 of 30 October 2002 (judgment no. 135, vol.
28 Coll. Dec., p. 151)] an essential element of a democratic law-based
state is protection of freedom of contract, which is derivative of the
constitutional protection of property rights under Art. 11 par. 1 of the
Charter (a fundamental component of which is ius disponendi). However,
it did not limit freedom of contract only to property rights, although
it is precisely in this context that it is most firmly enshrined in
constitutional law. In its judgment file no. I. US 113/04 of 4 May 2004
(judgment no. 63, vol. 33 Coll. Dec., p. 129) the Constitutional Court
stated that respect for the sphere of the individual is a general
condition for the functioning of a law-based state under Art. 1 par. 1
of the Constitution, or Art. 2 par. 3 of the Charter. The individual’s
right to free will, i.e. individual freedom, corresponds to the
requirement laid on the state power to recognize autonomous expressions
of the will of individuals and corresponding conduct. Provided such
conduct does not interfere in the rights of third persons, the state
power must only respect the expressions of individuals, or, as the case
may be, approve them. The state power can interfere in an individual’s
freedom only in cases which are justified by a certain public interest,
if such interference is proportional to the aims which are to be
achieved.
42. The principle
of protecting the free will of subjects of law is widely reflected in
private law, which is characterized by the principles of equality of the
parties (this is a concept of equality reflected in the reciprocity of
the internal structures in private law relationships, compared to public
law, which is characterized by the dominance of the representative of
public sovereign power, not the concept of equality before the law as
discussed below in part VII./C). Expressions of the free will of
subjects of law include contractual freedom, i.e. the freedom to
conclude contracts. However, even in the area of private law, objective
law places certain limits on free will, or freedom of contract (see § 2
par. 2 and 3 of the Civil Code). It can not be overlooked that as
regards regulation of apartment leases the Civil Code contains a number
of mandatory norms whose common denominator is protection of a lease, or
the tenant of an apartment. Thus, these mandatory norms limit free will
primarily on the other side of the lease relationship, i.e. on the side
of the landlord. Given that the landlord is typically the apartment
owner, it is evident that the increased level of protection of the
tenant is reflected in limitation of the property right of the landlord,
specifically in limiting the right of disposition with the owned
object. Thus, protection of a lease can come into conflict with the
constitutional guarantee of property rights under Art. 11 of the
Charter.1) Yet, as was stated in the as yet unpublished judgment file
no. Pl. US 20/05 of 28 February 2006, it is precisely the nature of a
legal relationship, including an apartment lease, as an obligations
relationship, that conceptually assumes that maximum space will be
created for exercising the free will and contractual freedom of the
parties (with the exception arising from point 46 of this judgment).
43.
Based on these starting points, the Constitutional Court must agree
with the arguments of the Senate of the Parliament of the Czech Republic
that the contested provisions, or all the grounds for giving notice of
terminating an apartment lease, are part of a wider set of measures
described by theory and practice as tenant protection, or as protection
of the weaker party (see also § 685 par. 1 of the Civil Code). It is not
reaching this conclusion for the first time. In judgment file no. IV.
US 524/03 of 23 September 2004 (judgment no. 138, vol. 34 Coll. Dec., p.
387) the Constitutional Court stated that Czech law on apartment leases
is based on marked protection of tenants. This manifests itself, in
particular, in termination of a lease relationship, on the one hand, in
the precisely defined grounds on which a court can consent to
termination notice being given, and on the other, tenant protection is
ensured by the fact that a tenant is not required to move out of an
apartment until comparable substitute housing has been secured.
44.
The Constitutional Court has also repeatedly considered another
component of lease protection – rent control: see Constitutional Court
judgment file no. Pl. US 3/2000 of 21 June 2000 (judgment no. 93, vol.
18 Coll. Dec., p. 287, 231/2000 Coll., 130/2001 Coll.), judgment file
no. Pl. US 8/02 of 20 November 2002 (judgment no. 142, vol. 28 Coll.
Dec., p. 237, 528/2002 Coll.) and judgment Pl. US 2/03 of 19 March 2003
(judgment no. 41, vol. 29 Coll. Dec., p. 371, 84/2003 Coll.). In these
judgments the Constitutional Court took the position that protection of
apartment tenants has been a permanent component of our legal order
since the 1920s, and in today’s context it can be understood as a
control on use of property, i.e. as a legitimate limitation on ownership
under Art. 1 of the Protocol to the Convention for the Protection of
Human Rights and Fundamental Freedoms (promulgated together with the
Convention as no. 209/1992 Coll., the “Protocol”). Under this provision,
states may enforce such laws as they deem necessary to control the use
of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties. Similarly, Art. 11
par. 3 of the Charter indicates that ownership entail obligations, and
may not be misused to the detriment of the rights of others or in
conflict with legally protected public interests.
45.
Under these provisions, the Constitutional Court, like the European
Court of Human Rights, briefly speaking, evaluates whether the
limitation on the use of property (ownership rights) pursues a
legitimate aim, whether it is consistent with domestic law, and whether
it is proportional in relation to the legitimate aim pursued [see, e.g.,
Constitutional Court judgment file no. II. US 482/02 of 8 April 2004
(judgment no. 52, vol. 33 Coll. Dec., p. 39)]. There is no doubt that
protection of a lease is based on a legal norm with the force of a
statute. In all the abovementioned judgments the Constitutional Court
also did not doubt that protection of apartment tenants or apartment
leases is a legitimate aim for limitations on property rights, because
it contributes to implementing the right to an adequate standard of
living under Art. 11 of the International Covenant on Economic, Social
and Cultural Rights (promulgated as no. 120/1976 Coll.), the right of
the family to social, legal and economic protection under Art. 16 of the
European Social Charter (promulgated as no. 14/2000 Coll. of
International Treaties), or under Art. 4 par. 2 let. a) of the
Additional Protocol to the European Social Charter (promulgated as no.
15/2000 Coll. of International Treaties). Therefore, we must turn to the
third part of the test, and evaluate the contested legal framework in
terms of the proportionality of the limitations on an owner in relation
to the aim pursued.
46. If
the legitimate aim of protecting a lease is motivated by social reasons
(see the abovementioned judgment file no. IV. US 524/03) – the
requirement to provide an adequate standard of living for the tenant,
which includes adequate housing to meet the fundamental need to have a
safe place to lay one’s head – then it is evident that further
limitation of an apartment owner beyond satisfying the basic housing
needs of the tenant would not stand up to the test of proportionality.
If the law limited the owner in his right of disposition of his property
so much that it would not permit him to terminate a lease relationship
even in a situation where the tenant’s basic need for housing is quite
evidently saturated, for example, because he has several housing
opportunities at an adequate level, such limitation of the owner would
have to be assessed as disproportionate to the aim pursued. Tenant
protection in this sense may not be misused to protect the tenant’s
doing business with leased apartments, or accumulating apartments to the
detriment of their true owners. It is also necessary to take into
account the landlord’s justified interest in properly making use of the
apartment [see judgment of the Constitutional Court file no. I. US
360/02 of 10 June 2003 (judgment no. 86, vol. 30 Coll. Dec., p. 303,
306)]. If the protection of a lease is motivated, besides that, by the
state’s attempt to regulate the market in rental housing and, in the
face of excessive demand, to support the just distribution of
apartments, then it would not be a proportional measure if the legal
framework limiting apartment owners permitted the accumulation of
apartments in the hands of one tenant, or purposeless management of the
housing stock so that apartments remained unused and unoccupied. It is
precisely the contested provisions that are supposed to resist such
situations. Annulling them would further deepen the limitation of
ownership rights of apartment owners, and in the given situation would
cease (if it hasn’t already) to meet the criterion of proportionality in
relation to the legitimate aim of protecting tenants.
47.
At this point it is appropriate to review the deliberations which the
Constitutional Court made in its judgment file no. Pl. US 8/02, cited
above. The Constitutional Court then noted that by European standards a
lease relationship is usually temporary, whereas in this country it is
generally concluded for an indefinite period of time, and, in view of
the fact that transfers of the right to personal use of an apartment
were very similar to rights in inheriting property, the right to
personal [use of] an apartment de facto established a permanent
relationship and developed into a kind of quasi-ownership. The majority
of lease relationships in the past were not created by a free contract,
but by an administrative order, often against the will of the owners, in
accordance with the plan to gradually transfer the entire housing stock
into so-called “higher socialist forms of ownership.” Thus the
so-called “housing right” became part of public law, and it is not
easily compared with the European concept of the classic private law
institution of a lease. In addition, this hybrid legal relationship,
described under socialism as “personal use,” and now merely renamed
“lease,” also, in terms of civil law theory, shifted from the area of
the law of obligations into some kind of new substantive rights. This
transformation took place and continues to exist in fact in real life:
people sell and buy rented apartments, often in the disguised form of
exchanges, but recently also openly for so-called “severance payments.”
The scope of the transfer of rights of use to apartments, or the rights
of tenants, is, in this country, comparable to inheriting these
apartments, whereas in European law it is more limited. The
Constitutional Court then also stated that the correlation between rent
control and the slow transformation of civil law relationships
regulating housing manifests itself in the fundamental conflict of every
modern housing policy, the search for a balance between the principle
of protection tenants, and the principle of protecting property rights.
48.
The Constitutional Court points out that the cited judgment was issued
more than three years ago, and it is evident that not much could have
changed in the housing market situation. The legislature, instead of
working with the government to flexibly respond to the judgments in
which the Constitutional Court emphatically criticized the then-existing
legal framework of stiff rent control, which denied the ownership
rights of apartment owners and the incomplete transformation of lease
relationships, did nothing for a long time. The result of this
inactivity was a de facto freeze of controlled rent, which further
deepens the violation of ownership rights of owners of apartments
subject to rent control. The Constitutional Court also emphatically
criticized the legislature’s inactivity in its last judgment concerning
the issue of rent, file no. Pl. US 20/05 of 28 February 2006.
49.
Thus, as regards the claimed violation of the free will of the tenant,
or his freedom of contract, it is evident from the foregoing analysis
that it is not affected by the contested provisions. The present legal
framework does not forbid a tenant from having two or more apartments,
or not using an apartment or using it only occasionally. The law only
gives the landlord a limited opportunity to termination a lease
relationship, on certain conditions, and, moreover, only with the
consent of a court, and if he provides accommodation when the apartment
is vacated. The tenant’s free will, or his freedom of contract, can not
be torn out of the context in which it is applied. On the contrary, it
is the landlord whose free will is markedly limited when terminating a
lease, compared to the tenant. If the lease of an apartment were not
protected, the standard framework for a lease relationship agreed for an
indefinite period would apply, in which both parties can, under equal
conditions, terminate the lease unilaterally by giving notice when they
no longer have any interest in continuing it further (see § 677 par. 1
of the Civil Code).
50.
Thus, annulling the contested provisions would lead to even greater
limitation of the rights of landlords to the benefit of tenants, whereby
the Constitutional Court would go against the purpose of its previous
judgments. De lege lata, with every additional limitation of the
landlord’s right to unilaterally terminate a lease agreement, the
tenant’s right to the apartment could de facto become that
quasi-ownership right, to the detriment of the landlord’s true property
right, which would then survive only as bare ownership, despite the
constitutionally proclaimed principle of protecting it. Every further
reduction of the exclusively listed catalog of grounds on which the
landlord can terminate a lease goes against the spirit of private law,
because it deepens the inequality between the parties to a private law
relationship. Compared to the present situation, annulling the contested
provisions would, to the detriment of the landlord, further deepen the
unfair imbalance between the means used (the scope of limitation of
property rights by the Civil Code provisions on apartment leases) and
the legitimate aim pursued (protection of a lease, or a tenant), which
is becoming notorious in our legal environment, even though the
Constitutional Court has not yet had an opportunity to consider the
special provisions on lease of an apartment (§§ 685 – 716 and § 719 of
the Civil Code) comprehensively, in terms of their consistency with the
constitutional order. The Constitutional Court here again declares (see
the cited judgment file no. IV. US 524/03) that it is not permissible to
transfer the social burden of one group of people (tenants) to another
group (landlords), which applies not only to the legal framework of rent
and increases of rent, but also comprehensively, to the legal framework
for rights and obligations between landlord and tenant.
51.
Difficulties in proving that a tenant does not use an apartment or uses
it only occasionally can not be an argument in favor of annulling the
contested provisions, as the Association of Tenants of the Czech
Republic argued. In addition, the Constitutional Court points out that
the burden of proof in that case falls on the landlord, not the tenant,
which is also indicated by the settled case law of the general courts.
2)
VII./B
52.
The Constitutional Court also disagrees with the petitioner’s further
claim that the contested provisions in abstracto are unconstitutional
interference in the fundamental right to private and family life. At the
abstract level, the contested grounds for giving notice of termination
are justifiable in terms of protection of the rights and freedoms of
others (see Art. 8 par. 2 of the Convention, or Art. 12 par. 3 of the
Charter), specifically property rights. The Constitutional Court agrees
with the Senate that the contested legal framework does not give the
tenant an obligation to provide the landlord information about whether
he has an apartment he does not need, nor does it permit the landlord to
enter the apartment and violate the tenant’s constitutional rights,
including his family life. The Constitutional Court does not rule out
the possibility that interference in private and family life could occur
in a particular case upon application of the contested grounds for
giving notice of termination, e.g. through arbitrary interpretation of
them or as a result of erroneous or insufficient determination of facts.
However, in such cases the injured party has at his disposal procedural
means of protection, including a constitutional complaint. The
Constitutional Court points out that the mere possibility that a
statutory provision will be applied in a manner inconsistent with the
constitutional order, is not by itself sufficient to disqualify it.
53.
As regards the guarantee of freedom of movement and residence, the
Constitutional Court, like the Chamber of Deputies and the Senate, finds
it quite indisputable that these directly applicable constitutional
rights in no way conflict with the ability to give notice of terminating
a private law relationship (an apartment lease). Just as freedom of
movement and residence do not give rise to a tenant’s subjective right
to have an apartment owner lease an apartment to him, it also does not
give rise to a right for it to be impossible to terminate a lease on
statutory grounds.
VII./C
54.
Finally, the petitioner claims that the contested provisions establish
inequality between tenants of co-operative apartments, on one side, and
tenants of non-co-operative apartments, on the other, by impermissibly
disadvantaging the first category of tenants compared to the second
category of tenants. According to the petitioner, tenants of
co-operative apartments are disadvantaged because the legislature has
applied the same rules for terminating a lease to them, without taking
into account the unique nature of the lease of a co-operative apartment,
which, according to the petitioner, is of a quasi-property nature.
Thus, the petitioner in fact objects that the legislature created an
unconstitutional gap in the legal framework for termination of an
apartment lease, because it did not provide a special framework to cover
the termination of a co-operative apartment lease.
55.
The Constitutional Court must first answer the question whether the
contested provisions of the Civil Code can constitute interference in
the constitutionally protected principle of equality, or the right to
equal treatment under Art. 1 of the Constitution, under which the Czech
Republic is a sovereign, unitary and democratic state governed by the
rule of law, founded on respect for the rights and freedoms of man and
of citizens, Art. 1 of the Charter, under which people are free, have
equal dignity, and enjoy equality of rights, Art. 3 par. 1 of the
Charter, which enshrines equality in guarantees of fundamental rights
and freedoms, and Art. 4 par. 3 of the Charter, under which statutory
limitation upon the fundamental rights and basic freedoms must apply in
the same way to all cases which meet the specified conditions. The
principle of equal rights must also be seen in connection with Art. 26
of the International Covenant on Civil and Political Rights (promulgated
as no. 120/1976 Coll.), under which all persons are equal before the
law and are entitled without any discrimination to the equal protection
of the law, and the law is to prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, color, sex, language, religion, political or
other opinion, national or social origin, property, or birth.
56.
In its case law, the Constitutional Court maintains the concept of
accessory equality, i.e. equality in relation to another fundamental
right or freedom, and the concept of non-accessory equality, i.e.
general equality before the law. It understands equality not as
absolute, but as relative: the principle of equal rights must be
understood such that legal differentiation between subjects in access to
certain rights may not be an expression of arbitrariness; see
Constitutional Court judgments file no. Pl. US 16/93 [judgment no. 25,
vol. 1 Coll. Dec., p. 189], file no. Pl. US 36/93 (Coll. Dec., vol. 1,
judgment no. 24, p. 175), file no. Pl. US 4/95 (Coll. Dec., vol. 3,
judgment no. 29, p. 209), file no. Pl. US 5/95 (Coll. Dec., vol. 4,
judgment no. 74, p. 205), file no. Pl. US 9/95 95 (Coll. Dec., vol. 5,
judgment no. 16, p. 107), file no. Pl. US 33/96 (Coll. Dec., vol. 8,
judgment no. 67, p. 163), file no. Pl. US 15/02 (Coll. Dec., vol. 29,
judgment no. 11, p. 79). The Constitutional Court of the CSFR understood
the principle of equality the same way. In its judgment file no. Pl. US
22/92 (Collection of Decisions of the Constitutional Court of the CSFR,
judgment no. 11, p. 37) it cited the monograph of J. Pražák, Rakouské
právo ústavní [Austrian Constitutional Law], Prague 1902, pp. 42-43, who
concluded that the expression “all citizens are equal before the law”
does not say that all citizens have the same rights, but merely provides
a directive that the manner in which already acquired rights are
exercised, as well as the conditions for acquiring individual rights,
must be the same for all citizens. The Constitutional Court of the CSFR
then subscribed to that concept of equality, and since its establishment
the Constitutional Court of the Czech Republic has also subscribed to
it.
57. Equality is also a
relative category by definition in another sense: one can think in the
category of equality on in the relationship between two persons in the
same or comparable position (see also the cited judgment of the
Constitutional Court of the CSFR file no. Pl. US 22/92). Determining a
group of persons who can be compared in terms of preserving the
principle of equality is one of the most difficult tasks when applying
this argument [see Constitutional Court judgment file no. Pl. US 47/95
(judgment no. 25, vol. 5 Coll. Dec., p. 209, 122/1996 Coll.)]. The basic
guideline is a list of objectivized attributes based on which any
differentiating or different treatment is impermissible (see Art. 3 par.
1 of the Charter and similar anti-discrimination provisions in many
international human rights instruments).
58.
From another point of view, the fundamental constitutional principle of
equality can be understood on two levels – as formal equality, and also
as de facto equality. There is no doubt that it is the task of the
legislature, when creating the legal order, to ensure formal equality to
all persons at whom legal norms are aimed, but in view of the fact that
in the real world of nature and society there is de facto inequality
for a number of reasons, the legislature must, in justified cases, also
consider cases where the norms establish inequality, which, for example,
will remove de facto inequality or some other handicap. It is evident
that, for example, a normative advantage for a physically handicapped
person over a healthy person in a specific life situation (for example,
in the area of employing persons with disabilities that reduce
employability, preferential access to so-called barrier free apartments,
etc.) would not conflict with the constitutional requirement of
equality. Even where the legislature did not choose the route of
consciously giving an advantage to a “weaker” person, in order to give
priority to de facto equality over formal equality in a specific life
situation, it leaves the body that applies positive law room to resolve
the tension between the incompleteness of written law and the nature of a
specific case by applying constitutional principles in the substantive
conception of a law-based state (judicial discretion).
59.
The Constitutional Court points out that the petitioner is confusing
the category of equality in the abovementioned conception, which applies
comprehensively to subjects of law, with “equality” among legal
institutions. It assumes that there are difference between the lease of a
co-operative apartment and the lease of a non-co-operative apartment
which would deserve a different regulation even as regards termination
of the lease by notice from the landlord. However, comparing the lease
of a non-co-operative apartment on one side with a co-operative
apartment on the other side and deriving from the differences in these
legal institutions a requirement that they be regulated differently at
the level of civil law is inappropriate in the context of the principle
of equality.
60. The
Constitutional Court was guided by the following deliberations. From the
point of view of sub-constitutional law, the lease of a co-operative
apartment, as regards the conceptual elements of a lease agreement, is
identical with the lease of a non-co-operative apartment. Unless the law
provides otherwise, the tenant who is a co-operative member is a party
to a lease relationship with all rights and obligations, like every
other tenant. The practical difference between these leases arises from
the fact that the lease of a co-operative apartment is primarily derived
from a co-operative member’s property share in the acquisition of the
apartment, and his membership in the housing co-operative. Thus, the
unique feature of co-operative housing does not come from the subject of
the lease, but from the legally distinct relationship between the
member of the co-operative (tenant) to the co-operative (landlord). In
this relationship the tenant who is a co-operative member finds a
greater degree of lease stability, which approaches the stability that
is provided by using an apartment that one owns. It is for this reason
also that the Civil Code in § 714 ties the termination of an apartment
lease to termination of membership in a housing co-operative. The tenant
of a housing co-operative, who is also a co-operative member, is in a
more favorable position because he is organized in the housing
co-operative and because, in accordance with the bylaws, he participates
in the activities of the housing co-operative, his landlord, including
in creating its will. In addition, membership in a housing co-operative
also carries effective instruments for legal protection against
co-operative decisions which are inconsistent with the law or with the
co-operative’s bylaws. Thus, the fact that the tenant of a co-operative
apartment is a member of the co-operative which is his landlord in
certain respects really does put him in a different position compared to
the tenant of a non-co-operative apartment, especially in the area of
conditions for the creation of a lease relationship, different structure
of rent (without the element of profit, and with the co-operative
member’s direct property participation in the maintenance, operation and
repairs of the building), and especially in the quite exclusive right
of disposition to the lease relationship and membership in the
co-operative through the entitlement to an unlimited transfer of
membership under § 230 of the Commercial Code. However, these
differences result from the different legal relationship into which he
has entered.
61. It is clear
from the foregoing arguments that the contested provisions are not
interference in the constitutionally protected principle of equality,
because this is not a case of differentiating between the rights and
obligations of tenants either in view of traditionally forbidden
criteria (see Art. 3 par. 1 of the Charter), or in view of a different
status, but a case of comparing the legal institutions of lease of a
co-operative and non-co-operative apartment, to which the
constitutionally protected principle of equality does not apply.
“Inequality can not be claimed to exist where the law provides the same
conditions for a claim to all subjects that can be included in the
personal scope of a legal regulation.” (see judgment Pl. US 47/95, cited
above). The creation, content, and guarantee of the right of a lease
are the same for all persons. In terms of the principle of equality, the
essential thing is that all persons have the same conditions under the
law for entering into the legal position of a tenant of a co-operative
apartment, or that they have the same conditions for becoming tenants of
non-co-operative apartments, and at the same time all tenants of
co-operative apartments have, under the Civil Code, the same rights and
obligations regardless of their sex, race, skin color, language, faith
and religion, political or other beliefs, national or social origin,
membership in a national or ethnic minority, property, birth or other
status.
62. In its judgment
file no. III. US 258/03 of 6 May 2004 (judgment no. 66, vol. 33 Coll.
Dec., p. 156, 167), the Constitutional Court stated, among other things,
that the authority of a democratic legislature in the area of statutory
regulation of private law includes the regulation of types of
contracts. No provision of the constitutional order gives rise to a
binding order that the legislature regulate lease relationships to
apartments in a particular manner. There is no provision of the Charter
that would (for example, similarly to ownership) provide that a lease is
guaranteed and the lease of all tenants, or that under specified
conditions a different legal framework is permitted depending on the
subject of the lease agreement. Thus, it is in the legislature’s
discretion whether to regulate leases generally for all imaginable
subjects of lease agreements, or whether to respond through special
provisions to the specifics of leases of agricultural land,
non-residential premises, or apartments, or whether civil law will
continue to differentiate and distinguish leases of co-operative and
non-co-operative apartments, company apartments, special designation
apartments, or other kinds of apartments, based on the aims pursued at
the time by the legal framework. Insofar as it passes such a legal
framework within the bounds of the constitutional order, and leaves the
court which applies it discretion for a constitutional interpretation of
the norm in question, it is not desirable for the Constitutional Court,
as a body for the protection of constitutionally and also as a negative
legislature, to further widen the alleged constitutional gap through
its derogative intervention.
63.
Although co-operative housing provides the tenant who is a co-operative
member a higher degree of lease stability than classical rental
housing, it also does not authorize the conclusion that the tenant’s
relationship to the co-operative apartments falls in the category of
ownership or quasi-ownership. The owner of a co-operative apartment is
not the co-operative member, but the co-operative, and it enjoys the
protection of ownership rights based on Art. 11 of the Charter [see
Constitutional Court judgment file no. IV. US 8/93 of 13 February 1995
(judgment no. 8, vol. 3 Coll. Dec., p. 35): according to that judgment
the decision to evict the complainant from a housing co-operative did
not “interfere in the right enshrined in Art. 11 of the Charter, not to
mention the fact that Art. 11 of the Charter protects already-existing
ownership, and the co-operative apartment was not and is not owned by
the plaintiff, nor does she own a co-operative share, when its value,
representing the property share of a member in the co-operative was
also, during the time that the complainant was in the co-operative,
owned by the co-operative.”]. 3)
VII./D
64.
Although the Constitutional Court did not agree with the cited grounds
for declaring the contested provisions unconstitutional, it must agree
with the petitioner that application of the contested grounds for giving
notice of termination of a lease of an apartment owned by a housing
co-operative to a tenant who is a member of that housing co-operative
raises doubts. It would undoubtedly be desirable and suitable if, in
addition to special provisions on concluding a lease agreement for a
co-operative apartment or on minor repairs and payment of expenses
connected with routine maintenance (§ 685 par. 2, § 687 par. 3 of the
Civil Code), on joint lease of a co-operative apartment by spouses (§
700 par. 3, § 703 par. 2, § 704 par. 2, § 705 par. 2 of the Civil Code)
or transfer of the lease of a co-operative apartment (§ 706 par. 2, §
707 par. 2 of the Civil Code), provisions were also passed which would,
in view of the special features of co-operative housing, also more
appropriately regulate the termination of a co-operative apartment lease
by notice. The Constitutional Court even acknowledges that the regime
of a lease agreement is not the most suitable solution for use of a
co-operative apartment and that transformation of the institution of
personal use into lease of a co-operative apartment was not thought
through in a number of aspects. However, doubts about the suitability of
a legal framework are not sufficient for the Constitutional Court to
conclude that it is unconstitutional. In its case law it has repeatedly
given priority to a constitutional interpretation of contested
provisions over their annulment.
65.
Thus, if the petitioner believes, and the Constitutional Court shares
this belief, that the differences of the institution of a co-operative
apartment lease, in view of general principles of justice, would deserve
a restrictive interpretation of the contested grounds for giving notice
of termination in relation to co-operative apartments, the present
legal framework gives sufficient space for such an interpretation. A
general court may take into account the special features of a lease of a
co-operative apartment when determining fulfillment of these grounds
for giving notice of termination under the contested provisions, i.e.,
in evaluating whether the tenant can not justly be required to use only
one apartment [§ 711 par. 1 let. g) of the Civil Code], or in evaluating
serious or weighty reasons for which a tenant does not use an apartment
or uses it only occasionally [§ 711 par. 1 let. h) of the Civil Code].
It must also take into account § 3 par. 1 of the Civil Code, under which
the exercise of rights and obligations arising from civil law
relationships may not, without legal grounds, interfere in the rights
and justified interests of others, and may not be inconsistent with good
morals.
66. In this regard
the Constitutional Court points out “that the unsustainable factor for
the use of a law is its application based purely on linguistic analysis;
linguistic analysis is only the first approach to the applied legal
norm, it is a starting point for clarifying and enlightening its
significance and purpose (for which a number of other procedures are
also used, such as logical and systematic analysis, analysis e ratione
legis, etc.); cf. judgment file no. III. US 258/03 cited above. And, in a
different context, in judgment file no. Pl. US 21/96 of 4 February 1997
(judgment no. 13, vol. 7 Coll. Dec., p. 87, 96) the Constitutional
Court stated : “The court … is not absolutely bound by the express
wording of a statutory provision, but may and must diverge from it if
this is required for serious reasons by the purpose of the law, the
history of its creation, the systematic context, or one of the
principles which are based in the constitutionally consistent legal
order as a unit of meaning. In doing so, it must avoid arbitrariness;
the decision of a court must be based on rational arguments.” These
conclusions can undoubtedly also be applied to interpretation of the
contested grounds for giving notice of termination in respect of a
co-operative apartment.
67.
After the conducted proceedings, the Constitutional Court states that
there are no grounds to annul § 711 par. 1 let. g) and § 711 par. 1 let.
h) of the Civil Code, because these provisions, in abstracto and
especially in context of the special provisions on an apartment lease (§
685 et seq. of the Civil Code), which were not contested and whose
constitutionality the Constitutional Court did not have an opportunity
to evaluate comprehensively, are not inconsistent with Art. 1 par. 1 of
the Constitution and with Art. 1, Art. 3 par. 1, Art. 4 par. 2 and 4,
Art. 10 par. 2 and Art. 14 par. 1 of the Charter, and therefore it
denies the petition from the District Court for Prague 7 under § 70 par.
2 of the Act on the Constitutional Court. However, the Constitutional
Court considers it important at this point to emphasize that this
conclusion does not prevent the constitutionality of the contested
provisions from being evaluated differently in a different context, in
particular as part of comprehensive evaluation of the constitutionality
of all the provisions of Part VIII, Chapter VII, Division IV of the
Civil Code.
Notice: Decisions of the Constitutional Court can not be appealed.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 28 March 2006
Dissenting Opinion
of judge František Duchoň
I
am of the opinion that proceedings in this matter should have been
suspended under § 67 par. 1 of Act no. 182/1993 Coll. on the
Constitutional Court, pending publication of Act no. 107/2006 in the
Collection of Laws.
The Plenum decided in the matter on 28 March 2006, in a situation when we all knew that the legislative process concerning Act no. 107/2006 Coll. on Unilateral Increasing of Apartment Rent and Amending Act no. 40/1964 Coll., the Civil Code, as amended by later regulations, had been completed. That Act newly amended the wording of § 711 of the Civil Code, to the effect that giving notice of termination of an apartment on grounds under § 711 par. l let. g), h) of the Civil Code before the amendment [now § 711 par.2 let. c), d)], no longer requires the consent of a court.
The Plenum decided in the matter on 28 March 2006, in a situation when we all knew that the legislative process concerning Act no. 107/2006 Coll. on Unilateral Increasing of Apartment Rent and Amending Act no. 40/1964 Coll., the Civil Code, as amended by later regulations, had been completed. That Act newly amended the wording of § 711 of the Civil Code, to the effect that giving notice of termination of an apartment on grounds under § 711 par. l let. g), h) of the Civil Code before the amendment [now § 711 par.2 let. c), d)], no longer requires the consent of a court.
Deciding
on the merits on a petition to annul a statute in a situation when the
legislative process for a statute annulling the provisions proposed to
be annulled has been completed, and whose publication in the Collection
of Laws is only a question of a short period of time does not appear to
me suitable, as a principle.
In this regard I point to the necessity of taking a definitive position as regards judgment Pl. US 33/2000.
Brno, 4 April 2006
In this regard I point to the necessity of taking a definitive position as regards judgment Pl. US 33/2000.
Brno, 4 April 2006
Dissenting Opinion
of Constitutional Court judges JUDr. Pavel Holländer, JUDr. Stanislav Balík and JUDr. Vlasta Formánková, taken pursuant to § 14 of Act no. 182/1993 Coll. to the judgment of the Constitutional Court in the matter of a petition from the District Court for Prague 7 to annul § 711 par. 1 let. g), h) of Act no. 40/1964 Coll., the Civil Code, as amended by later regulations.
This
dissenting opinion filed to the verdict of the judgment denying the
petition from the District Court for Prague 7 to annul § 711 par. 1 let.
g), h) of Act no. 40/1964 Coll., the Civil Code, as amended by later
regulations, is based on the following arguments:
The
Constitutional Court decide to deny the petition in question on 28
March 2006. In the reasoning of the judgment it stated that “it is aware
that the Chamber of Deputies of the Parliament of the Czech Republic,
on 14 March 2006, approved a draft Act on Unilateral Increases of
Apartment Rent and Amending Act no. 40/1964 Coll., the Civil Code, as
amended by later regulations, in a version approved by the Senate, which
also substantially amends § 711 of the Civil Code, with the expected
effective date of 31 March 2006. However, in view of the fact that the
contested provisions, in their existing wording, will have to be applied
to legal relationships arising before the Civil Code amendment takes
effect, and many proceedings before the general courts may concern them,
the Constitutional Court did not find a reason to wait until the of the
Civil Code amendment is promulgated in the Collection of Laws and then
stop the proceedings under § 67 par. 1 of the Act on the Constitutional
Court ( the Constitutional Court proceeded similarly in judgment Pl. US
33/2000 of 10 January 2001, published as judgment no. 5, vol. 21
Collection of Decisions of the Constitutional Court, p. 29, in the
Collection of Laws as no. 78/2001 Coll.). In any case, at the time of
the Constitutional Court’s decision making the contested provisions are
still in effect, and therefore conditions for stopping proceedings under
§ 67 par. 1 of the Act on the Constitutional Court have not been met.”
Under
the cited statutory provision, the Constitutional Court shall stop
proceedings on review of a norm if the statute, other legal regulation,
or the individual provisions thereof that are proposed to be annulled
shall cease to be in effect before the proceedings in question are
finished.
In the present
matter the Constitutional Court was making its decision by judgment at a
time after the passage of the Act on Unilateral Increasing of Apartment
Rent and Amending the Civil Code, under § 97 par. 5 of Act no. 90/1995
Coll., on the Rules of Procedure of the Chamber of Deputies, and after
it had been forwarded to the president (§ 98 par. 1, § 107 par. 2 of
that Act), i.e. at a time regarding which the Constitutional Court, in a
comparable context, authoritatively stated that “therefore, a
resolution by the Chamber of Deputies, expressing consent with the draft
Act must be viewed as a decision containing (in the given procedural
phase) a statement with final effect, whereby the legislative process in
the Chamber of Deputies has been completed” (file no. Pl. US 5/02). If
the president does not exercise his veto (Art. 50 par. 1 of the
Constitution), it is the constitutional obligation of the appropriate
state bodies to promulgate the Act in the prescribed manner (Act no.
399/1999 Coll., on the Collection of Laws and the Collection of
International Treaties), which is a condition for it going into effect
(Art. 52 of the Constitution).
If
the Constitutional Court annulled the provisions of a statute in the
period between its annulment by parliament until publication of a
derogative statute in the Collection of Laws (which is one of the
alternatives which the Constitutional Court has recognized by its
decision on the merits), this would create a situation of legal
uncertainty: there could be competing grounds for derogation,
uncertainty in the matter of the grounds for validity of statutory
provisions, for example, by publication of a derogative statute and
derogative judgment in the same part of the Collection of Laws, or by
publication of a derogative act which would precede the publication of
the derogative judgment. Such a procedure would be inconsistent with the
principle of a law-based state under Art. 1 par. 1 of the Constitution.
A constitutional interpretation of § 67 par. 1 of Act no. 182/1993
Coll. per analogiam, affecting the circumstances of the adjudicated
case, reflecting the maxims arising from Art. 1 par. 1 of the
Constitution, can be considered to be that the Constitutional Court
either waits for the publication of the statute in question and suspends
proceedings under § 67 par. 1 of Act no. 182/1993 Coll. or, if the
statute is vetoed by the president, which re-opens the legislative
process, decides on the merits (§ 70 of Act no. 182/1993 Coll.).
Under
the legal opinion in judgment file no. Pl. US 33/2000, which is
referred to in the reasoning of judgment file no. Pl. US 43/03, if a
general court judge concludes that a statute which is to be applied in
adjudicating a matter (that is, not only one in valid at that time, but
also one no longer valid but still applicable) is inconsistent with a
constitutional law, it is required to submit the matter to the
Constitutional Court (Art. 95 par. 2 of the Constitution). The
Constitutional Court considered that refusal to provide assistance to
the general court by its decision on the constitutionality or
unconstitutionality of the applicable statute would create an
irresolvable legal vacuum; it classified the general court’s decision on
the unconstitutionality of the applied provisions as a procedure
inconsistent with the Constitution, specifically inconsistent with the
principle of a concentrated constitutional judiciary (Art. 83 and Art.
95 par. 1 and par. 2 of the Constitution).
The
consensus of the dissenting opinion of six judges, filed to the verdict
of judgment file no. Pl. US 33/2000, is that this has exceeded the
constitutionally granted powers under Art. 87 of the Constitution.
In
the constitutional judiciary of the Czech Republic, proceedings on
review of a norm are conceived according to the Austrian model, as it
was formed under the influence of the ideas of Hans Kelsen. In them, the
Constitutional Court is a body for protection of constitutionality, a
so-called “negative legislature,” which has at its disposal derogative
authority, i.e. the authority to annul statutes and their individual
provisions due to inconsistency with the legal order, with effect ex
nunc (i.e., with effect for the future). As regards evaluation of the
constitutionality of statutes which contain so-called “Massnahmenormen,”
that is, statutes which were in effect at a point in time, the
Constitutional Court, in its legal opinion contained in resolution file
no. Pl. US 5/98, confirmed by judgment file no. III. US 288/04, stated:
“The legal framework for the constitutional judiciary in the Czech
Republic specifies the legal effects of derogative judgments of the
Constitutional Court when reviewing norms to be ex nunc and not ex tunc
(§ 70 a § 71 of Act no. 182/1993 Coll.). The purpose of this concept of
the constitutional judiciary is to prevent the creation of possible
unconstitutional legal consequences in cases where the evaluated legal
regulation at least hypothetically assumes the future existence of a
legal fact which could create such unconstitutionality. In legal
practice, however, there is a group of legal norms which are fulfilled
in one moment (e.g., § 871 par. 1 of the Civil Code, as amended, which
transformed the right of personal use of an apartment into a lease), and
there in future, no legal fact can arise, even hypothetically, which
would create consequences not foreseen by the legal norm. Evaluation of
such cases, which is, by its nature, retroactive evaluation, exceeds the
powers of the Constitutional Court, and fully belongs, with the
awareness of constitutional limitations, to the powers of the democratic
legislature. For that reason, all restitution related legislation, with
its necessary retroactive components, was implemented by the democratic
legislature, and not by the Constitutional Court.”
If
this statement applies to a “Massnahmenorm,” it should, in terms of the
constitutional maxim of a ban on retroactivity (Art. 1 par. 1 of the
Constitution) apply all the more to evaluation of the constitutionality
of legal regulations which are no longer valid.
This
thesis is illustrated by § 154 par. 1 of the Civil Procedure Code,
under which, in cases where a decision only declares the rights and
obligations of the parties, the decisive legal status quo is that at the
time when the rights and obligations concerned in the proceedings
arose, were changed, or ceased to exist. Thus, if a general court, in
proceedings on a so-called “complaint for determination” evaluates the
creation of a certain private law relationship in 1947, it will apply
the relevant provisions of General Civil Code. If it found these
provisions unconstitutional under the existing constitutional order,
then, under judgment file no. Pl. US 33/2000, it would suspend the
proceedings, and proceed according to Art. 95 par. 2 of the
Constitution. If the Constitutional Court then, let us say by an
academic verdict, granted the general court’s petition for review of a
norm, such a process would necessarily bear the signs of true
retroactivity (on the concept of true retroactivity see E. Tilsch,
Občanské právo. Obecná část [Civil Law. The General Part], Prague 1925,
pp. 75-78, A. Procházka, Základy práva intertemporálního [Foundations of
Intertemporal Law], Brno 1928, p. 111, A. Procházka, Retroaktivita
zákonů [Retroactivity of Laws]. In: Slovník veřejného práva [Dictionary
of Public Law]. Vol. III, Brno 1934, p. 800, L. Tichý, K časové
působnosti novely občanského zákoníku, Právník, č. 12, 1984, [On the
Applicability in Time of the Amendment to the Civil Code] p. 1104, and,
from the Constitutional Court’s case law, especially judgment file no.
Pl. US 21/96).
The
Constitution of Austria, in Art. 140 par. 4, par. 7, recognizes the
possibility of an academic verdict of the Constitutional Court on the
unconstitutionality of a statute which has already been annulled, but
assumes the possibility of “new” evaluation of previous factual events
only in cases which created an incentive for proceedings on review of a
norm which led to a derogative (but not academic) verdict. In any case,
the Constitutional Court of the Czech Republic has proceeded analogously
in its case law (see judgments file no. I. US 102/2000, I. US 738/2000,
IV. US 582/02, III. US 569/03).
The
unrestricted application of the procedure established by interpretation
of Art. 95 par. 2 of the Constitution, contained in judgment Pl. US
33/2000, and confirmed by judgment Pl. US 42/03, thus shows signs of
true retroactivity, and is therefore inconsistent with the principle of a
law-based state (Art. 1 par. 1 of the Constitution). The only possible
case of breaking the ban on retroactive effect of a legal norm by the
Constitutional Court that could have been accepted would have been
protection of values which fall into the substantive core of the
Constitution under Art. 9 par. 2 .
Brno, 28 March 2006
Brno, 28 March 2006
Dissenting Opinion
of judge Eliška Wagnerová
I
have a dissenting opinion to the reasoning of the majority decision,
because I maintain the opinion which I stated in my dissenting opinion
to the judgment in the matter file no. Pl. US 20/05. Also, I believe
that in the case of legal regulation of apartment leases it is not
possible to evaluate individual provisions in isolation, but only in the
context of the complete legal regulation of this subject matter.
Insofar
as I did not vote to annul the contested provision of the Civil Code,
it is only because annulling it would only worsen the already imbalanced
position of landlords.
Brno, 28 March 2006
Brno, 28 March 2006
Dissenting Opinion
of judges Dagmar Lastovecká and Jiří Nykodým to part of the reasoning under points 46 and 67
The
Constitutional Court found § 711 par. 1 let. g), h) of the Civil Code
to be constitutional, primarily in view of the existence of a special
legal regulation of apartment leases, which could not be evaluated as a
whole in the adjudicated matter. However, point 67 allows the
possibility that in comprehensive evaluation of that special legal
regulation of the leases of apartments even the contested provisions
would not necessarily be found to be constitutional.
As
a result of an excessively restrictive analysis of § 64 par. 3 of the
Act on the Constitutional Court, the Constitutional Court did not make
use of the ability to comprehensively evaluate this special legal
framework in the matter file no. Pl. US 20/05; therefore, we refer to
our dissenting opinions taken in that matter.
Brno, 28 March 2006
Brno, 28 March 2006
Notes:
1) See, e.g. judgment file no. III. US 114/94 (judgment no. 9, vol. 3 Coll. Dec., p. 45): “The provision of § 712 par. 2 of the Civil Code must also be considered a statutory provision that restricts ownership rights ... In its interpretation of that provision of the Civil Code the Regional court in Brno rejected an “expansive interpretation” of the concept of “fundamental” equality of the appropriate substitute apartment and the vacated apartment. It thereby concluded that if, in local conditions, it is “difficult” or impossible to secure an appropriate substitute apartment, then exercise of the owner’s right to give notice of termination is ruled out (in the given matter, under § 711 par. 1 let. a) of the Civil Code). This interpretation of § 712 par. 2 of the Civil Code led to elimination of the owner’s right of disposition (which includes the possibility of giving notice of termination), and thus did not preserve the significance and purpose of one of the constitutionally guaranteed fundamental rights. It thus led to violation of Art. 4 par. 4 of the Charter of Fundamental Rights and Freedoms.”
2) Supreme Court
decision 26 Cdo 1900/99 of 7 March 2001: “The court can agree with
notice of termination only on the assumption that … the landlord (and no
one else), in proceedings on consent to notice of termination, also
proves his claims about the facts on which the notice (contained in this
case in the complaint), i.e. the burden of proof in this case is on the
landlord – the Supreme Court of the Czech Republic reached the same
conclusion in its decisions of 8 June 1999, file no. 26 Cdo 2259/98, and
24 February 2000, file no. 20 Cdo 1456/99.”
3)
Similarly, judgment file no. III.US 445/04 of 16 December 2004. In the
constitutional complaint, the complainants – briefly summarized –
complained about the fact that although they, properly and in a timely
manner, called on the co-operative to transfer the apartment, it had not
been transferred to their personal ownership, and they are thus
required, in conflict with the law, to remain in a lease relationship to
the co-operative. They also disagreed with the fact that ownership
relationships to the land on which their apartment building is
constructed have not been sorted out. The co-operative wanted rent
payments from the complainants, although it was supposed to transfer the
apartment to their personal ownership. The Constitutional Court stated
that the objection of violation of Art. 11 of the Charter was not
justified. “The settled case law of the Constitutional Court within the
intentions of Art. 11 par. 1 of the Charter protects only already
acquired, existing ownership, and not only a claimed entitlement to it
(see, e.g. the judgment in the matter I. US 115/94 in The Constitutional
Court of the Czech Republic: Collection of Decisions – volume 3., no.
41, Prague 1995).”