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HEADNOTES
The petitioner was given an obligation to hand over property under Act
no. 87/1991 Coll., whose § 5 par. 5 allows so-called “overlooked”
entitled persons to exercise their claims against those entitled persons
to whom a thing was handed over.
The Constitutional Court considers it appropriate to point out that
until the time when Constitutional Court judgment of 4 December 1996,
no. 2/1997 Coll., was issued, inequality existed in the de facto
opportunity of entitled persons to exercise restitution claims under Act
no. 87/1991 Coll., because the same claims of entitled persons were
satisfied in different ways.
As stated in the reasoning of Constitutional Court judgment no. 2/1997
Coll., Act no. 87/1991 Coll., in § 5 par. 5, assumed a possible conflict
of the interests of several entitled persons, because it assumed that
the claims of some persons entitled under the Act would be satisfied,
while the claims of others would not be. The Constitutional Court
respected the will of the legislature expressed in that Act, and
emphasized that the Act offered a solution for the resulting conflict of
interests or claims of entitled persons by expressly establishing the
right of unsatisfied entitled persons to exercise their claims against
satisfied entitled persons in court, though by a one-year preclusive
deadline.
The fact that the legislature exposed satisfied entitled persons to
that risk is, in the Constitutional Court’s opinion, quite appropriate,
because it is done fully in accordance with the purpose of the statute,
which pursues the mitigation of the consequences of property and other
crimes from the period 1948-1989, and the trend to give priority to the
constitutional principle of equality and allow all entitled persons to
satisfy their claims in the scope granted them by law, regardless of the
fact that a thing was already issued to some of them. The purpose and
trend of Act no. 87/1991 Coll. are such important dominant features,
that in light of them exercising one’s acquire rights or the principles
of retroactivity, including in view of the already cited positions of
expectation on the part of satisfied entitled persons, exposed by law to
the disadvantageous risk of conflict with the interests of unsatisfied
entitled persons, appears inappropriate.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A Panel of the Constitutional Court, consisting of the Chairman Vladimíra Kůrka and judges Jiří Mucha and Jan Musil, decided, on 22 March 2007, without a hearing, without the presence of the parties, in the matter of a constitutional complaint from the petitioner Ing. M. H., represented by JUDr. L. Ch., attorney, against a decision of the Municipal Court in Prague of 28 June 2005 ref. no. 25 Co 126/2005-317, and against a decision of the Supreme Court of the CR of 31 May 2006 ref. no. 28 Cdo 3042/2005-336, with the participation of 1) the Municipal Court in Prague and 2) the Supreme Court of the CR, as parties to the proceedings, as follows:
The constitutional complaint is denied.
REASONING
I.
In
the constitutional complaint, which was delivered to the Constitutional
Court on 7 July 2006, the petitioner seeks the annulment of a judgment
of the Municipal Court in Prague, of 28 June 2005 ref. no. 25 Co
126/2005-317, as well as a decision of the Supreme Court of the CR, of
31 May 2006 ref. no. 28 Cdo 3042/2005-336, due to violation of Art. 11
and Art. 36 par. 1 of the Charter of Fundamental Rights and Freedoms
(the “Charter”), and Art. 6 par. 1 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the “Convention”) and Art. 1
of Protocol no. 1 to the Convention.
The
Constitutional Court states that the timely filed constitutional
complaint meets all the statutory formal requirements, and therefore
nothing prevents it from reviewing and deciding the matter on the
merits.
To review the
justification of the petition, the Constitutional Court requested the
file kept at the Municipal Court of Prague 5 as file no. 7 C 151/2003.
From
the file, the Constitutional Court determined that in a complaint filed
with the District Court for Prague 5, the plaintiff, MUDr. Milada
Marková, in her final proposedjudgment, sought from the defendant, Ing.
Miloš Havlas (the “petitioner” in the proceeding before the
Constitutional Court) payment of CZK 2,429,666.60 with late payment
interest of 26% from 22 December 1997 until payment; the plaintiff also
asked the court to order the defendant to hand over to her 3/16 of
building reg. no. 1064 with land parcel no. 87, of 633 m2, recorded on
title deed no. 2235 for Prague 5, land registration zone Smíchov, at the
Land Registry Office Prague-City. The matter was successively decided
by courts of all three levels.
The
Municipal Court for Prague 5, bound by the legal opinion of the Supreme
Court of the CR stated in the judgment of the Supreme Court of the CR
of 28 January 2003 ref. no. 28 Cdo 258/2002-195, and the judgment of 12
January 2005 ref. no. 7 C 151/2003-293, ruled to stop the proceedings in
the part wherein the plaintiff sought from the defendant 1/48 of
building no. 1064 with land parcel no. 87, measuring 633 m2, registered
on title deed no. 2235 pro for the municipality of Prague 5,
registration area Smíchov, at the Land Registry Office Prague-City. The
judgment also separated out for separate treatment the part of the
complaint in which the plaintiff sought from the defendant payment of
CZK 2,429,666.60. At the same time, the court of the first level granted
the complaint by ordering the defendant to hand over to the plaintiff
9/48 of building no. 1064, built on land parcel no. 87 and 9/48 of land
parcel no. 87, measuring 633 m2 – built-up area and courtyard,
registered on deed no. 2235 in the municipality Prague 5, registration
area Smíchov, at the Land Registry Office Prague-City. The court also
decided that the plaintiff was required to pay the defendant CZK 46,475
in compensation of court costs, and the defendant was required to pay
the Czech Republic court fees of CZK 1,000.
The
contested judgment of the Municipal Court in Prague of 28 June 2005
ref. no. 25 Co 126/2005-317 confirmed the judgment of the first-level
court in the verdict granting the matter on the merits and in the
verdict on court fees. The first-level court’s verdict concerning court
costs was changed, to not grant the plaintiff compensation of court
costs. The appellate court’s judgment also decided that the plaintiff
would not be granted costs of the appeal proceedings.
The
defendant filed an appeal on a point of law against the appellate
court’s judgment, which was denied by decision of the Supreme Court of
the CR of 31 May 2006 ref. no. 28 Cdo 3042/2005-336; it was also decided
that neither of the parties was entitled to compensation of court costs
for the appeal.
II.
In
the constitutional complaint the petitioner objects that the contested
decision of the Supreme Court of the CR, inconsistently with the right
to a fair trial and the principle of parties being equal in proceedings,
prevented him from exercising his right to file an appeal on a point of
law [in Czech “dovolání” – also referred to in the translation as a
“second appeal”] in the statutory scope specified in § 237 par. 1 let.
b) of the Civil Procedure Code (the “CPC”), i.e. on the grounds that the
decision was based on factual findings that, according to the file,
have no substantial support in the evidence presented, only with
reference to the previous judgment of the Supreme Court of the CR issued
in the same matter, which, however, was issued on the basis of the
plaintiff’s appeal on a point of law, where the second appellate court
was bound by the scope of the grounds stated for that second appeal.
The
petitioner states that in his appeal on a point of law against the
judgment of the second-level court he expressly stated that an appeal on
a point of law is permissible under § 237 par. 1 let. b) CPC, because
the judgment of the second-level court confirmed the decision of the
first-level court, in which that court decided the matter on the merits
differently than it had in an earlier (not the foregoing) judgment,
because it was bound by the legal opinion of the second appellate court
that had annulled the earlier decision. In addition, the petitioner
applied the grounds for an appeal on a point of law under § 237 par. 1
let. c) in connection with § 237 par. 3 CPC, because the contested
judgment of the appellate court is of fundamental legal importance to
the merits of the matter, in particular because it resolves a legal
issue inconsistently with substantive law, and a legal issue that had
not yet been resolved in the decision-making of the second appellate
court, or had been resolved differently by the second appellate court
for the appeal on a point of law and the appellate court for the
ordinary appeal. The petitioner also states that in his appeal on a
point of law against the judgment of the appellate court he expressly
stated, as grounds for the appeal on a point of law, that the
proceedings are afflicted by a defect that could result in an incorrect
decision on the merits under § 241and par. 2 let. a) CPC, that the
judgment of the appellate court rests on an incorrect legal assessment
of the matter under § 241a par. 2 let. b) CPC, as well as the fact that
the judgment of the appellate court is based on factual findings that,
according to the file, do not have substantial support in the presented
evidence, under § 241a par. 3 CPC
The
petitioner believes that the decision of the Supreme Court of the CR
contains an incorrect legal opinion regarding the permissibility and
scope of grounds for an appeal on a point of law and is inconsistent
with § 237 and § 241a of the CPC. The second appellate court allegedly
did not evaluate the petitioner’s grounds for the appeal on a point of
law in their full scope and only repeated the conclusions of the first
appellate court, without giving an opinion on them. The petitioner
believes that if the second appellate court, inconsistently with § 237
par. 1 let. b) CPC in connection with § 241a par. 3 of the CPC evaluated
his appeal on a point of law as regards permissibility and as regards
the scope of the grounds to the detriment of the appellant, it violated
his right to a fair trial under Art. 36 par. 1 of the Charter.
According
to the petitioner, the first appellate court’s judgment is
non-reviewable under § 157 par. 2 of the CPC, and incomplete in the
factual findings that are decisive for the result of adjudication on the
merits, because it lacks a factual finding on the date when a call was
delivered to the particular addressee, although the claim was not
undisputed. In addition, according to the petitioner, the first
appellate court’s judgment is extremely inconsistent with substantive
law, and rests on an incorrect legal evaluation of the matter also
regarding the issue of the plaintiff’s failure to exercise a claim under
§ 5 par. 5 of Act no. 87/1991 Coll., on Extra-Judicial Rehabilitation,
as amended by later regulations (Act no. 87/1991 Coll.).
The
petitioner states that the plaintiff did not call on the defendant to
hand over things under § 5 par. 5 of Act no. 87/1991 Coll. in the
preclusive period beginning with the issuance of the original judgment
denying her claim to have a thing handed over, or the date of legal
effect of that judgment, i.e. from 16 August 1996 to 15 July 1997,
whereby her claim to have a thing handed over expired. Because the
plaintiff did not claim, either in the complaint or in the supplement to
it (as the factual findings of the judgments of the first- and
second-level courts indicate), that she did not file, or did not
deliver, after issuance of the legally effective judgment of the
District Court for Prague 5 of 16 August 1996 ref. no. 16 C 228/95-24,
of after the judgment went into legal effect, i.e. 4 November 1996, the
defendant a new call to hand over things, that those that were the
subject matter of the original proceeding, according to the petitioner
this is a matter res judicata, which can not be newly adjudicated under §
159a par. 4 a par. 5 of the CPC.
Finally,
the petitioner objects that the first appellate court’s judgment is
extremely inconsistent with the simple law and the presented evidence as
regards the issue of whether the plaintiff is an heir under a will,
which contains an exclusive list of things to be handed over, to the
benefit of the defendant, and which could not be submitted by an
entitled party under § 3 par. 4 let. a) of Act no. 87/1991 Coll., or
under § 3 par. 4 let. b) second sentence after the semi-colon of the
Act, due to the probate matter being stopped due to insufficient assets
under § 32 of the Notarial Code, as amended.
According
to the petitioner the appellate court’s judgment is inconsistent with
Art. 11 of the Charter and with Art. 1 of the Protocol to the
Convention, because it orders the petitioner, after the Convention went
into effect, and with the coming into effect of a new legal framework as
of 15 January 1997, to hand over a thing without compensation to
another person, a thing that was issued to his ownership, and which was
bequeathed to the petitioner as the sole owner by the true will of the
original owner, even though the probate proceedings concerning the
original owner’s will did not take place, as a result of the property to
be handed over being taken away.
III.
The
Constitutional Court points out that its role is the protection of
constitutionality (Art. 83 of the Constitution of the CR). The
Constitutional Court is not part of the system of general courts, and
does not have the right to oversee the decision-making activities of the
general courts. It does not examine possible violation of ordinary
rights protected by simple law, unless that violation is simultaneously a
violation of a constitutionally guaranteed fundamental right or
freedom. The Constitutional Court is entitled to intervene in the
decision-making activity of the general courts only if a legally
effective decision by these bodies violated constitutionally guaranteed
fundamental rights or freedoms.
Thus,
the Constitutional Court reviewed the contested decisions, as well as
the proceedings that came before them, from the point of view of the
objections raised by the petitioner in the constitutional complaint, and
taking into account the fact that it could review only
constitutionality, it concluded that the constitutional complaint is
unjustified.
As regards the
petitioner’s objections and his claim of violation of his fundamental
rights and freedoms under Art. 11, Art. 36 par. 1 of the Charter, as
well as Art. 1 of Protocol no. 1 to the Convention, the Constitutional
Court considers it appropriate to point out again that until the time
when Constitutional Court judgment of 4 December 1996, no. 2/1997 Coll.,
was issued, inequality existed in the de facto opportunity of entitled
persons to exercise restitution claims under Act no. 87/1991 Coll.,
because the same claims of entitled persons were satisfied in different
ways. In other words, in view of the deadline specified in § 5 par. 5 of
Act no. 87/1991 Coll. (the version in effect from 1 April 1991 to 15
January 1997), the cited provision was an “obstacle” to the equal rights
of persons who were granted the status of entitled persons by
Constitutional Court judgment of 12 July 1994, no. 164/1994 Coll.
As
stated in the reasoning of Constitutional Court judgment no. 2/1997
Coll., Act no. 87/1991 Coll., in § 5 par. 5, assumed a possible conflict
of the interests of several entitled persons, because it assumed that
the claims of some persons entitled under the Act would be satisfied,
while the claims of others would not be. The Constitutional Court
respected the will of the legislature expressed in that Act, and
emphasized that the Act offered a solution for the resulting conflict of
interests or claims of entitled persons by expressly establishing the
right of unsatisfied entitled persons to exercise their claims against
satisfied entitled persons in court, though by a one-year preclusive
deadline. Thus, if the legislature quite intentionally exposed satisfied
entitled persons to the risk that their satisfied claims would
subsequently be reduced by the claims of as yet unsatisfied entitled
persons, the Constitutional Court emphasized, it did so with the
knowledge that this was taking place in accordance with the purpose and
essence of Act no. 87/1991 Coll., i.e. to allow not only a theoretical,
but also an actual opportunity for all entitled persons to satisfy their
restitution claims, in the scope recognized by statute, because it took
as its starting point the fact that property can be returned only to
its rightful owners.
The
fact that the legislature exposed satisfied entitled persons to that
risk is, in the Constitutional Court’s opinion, quite appropriate,
because it is done fully in accordance with the purpose of the statute,
which pursues the mitigation of the consequences of property and other
crimes from the period 1948-1989, and the trend to give priority to the
constitutional principle of equality and allow all entitled persons to
satisfy their claims in the scope granted them by law, regardless of the
fact that a thing was already issued to some of them. The purpose and
trend of Act no. 87/1991 Coll. are such important dominant features,
that in light of them exercising one’s acquire rights or the principles
of retroactivity, including in view of the already cited positions of
expectation on the part of satisfied entitled persons, exposed by law to
the disadvantageous risk of conflict with the interests of unsatisfied
entitled persons, appears inappropriate. In this context, if it were
even possible to consider so-called “acquired” rights, because
conceptually these are more newly-constituted rights, newly because it
takes place primarily on the basis of other substantive law regulations,
then evidently there is an appropriate argument that even at the time
they were constituted the rights of these entitled persons, in view of
the possibility of the statutorily foreseen conflict with the interests
of other entitled persons, a “risk” subtext; in other words, these
entitled person necessarily had to expect the consequences specified in §
5 par. 5 of the Act. Therefore, analogously, the objection of
retroactivity will also not stand, because the claims of satisfied
entitled persons, given the existence of § 5 par. 5 of the Act, were
recognized on the condition that the extent of satisfaction of these
claims will be reduced if they conflict with the claims of unsatisfied
entitled persons (see Constitutional Court judgment no. 2/1997 Coll.,
Constitutional Court decision file no. III. US 131/04, and
Constitutional Court decision file no. I. US 60/2000).
As
regards the petitioner’s claim that Article 1 of Protocol no. 1 to the
Convention was violated, we must point out that Article 1 of Protocol
no. 1 to the Convention primarily requires that intervention by the
state authorities into the exercise of a right to protect property be
lawful. The second sentence of the first paragraphs allows the
possibility of deprivation of possessions only “subject to the
conditions provided for by law,” and the second paragraph recognizes the
state’s right to control the use of property through “laws.” Moreover,
the principle of a law-based state, as one of the foundations of every
democratic society, permeates all the articles of the Convention [see,
e.g. the decision of the European Court of Human Rights (the “European
Court” in the matter Pincová and Pinc v. the Czech Republic, 2002, par.
45 et seq.].
As regards the
restitution laws of the Czech Republic being in accordance with the
Convention, the European Court of Human Rights takes the position that
the Convention does not impose any restrictions on states’ liberty as
regards regulating the scope of legal regulations that they may enact
concerning property restitution and setting conditions under which they
will permit the return of ownership rights to persons who have been
deprived of them.
The
petitioner was given an obligation to hand over property under Act no.
87/1991 Coll., whose § 5 par. 5 allows so-called “overlooked” entitled
persons to exercise their claims against those entitled persons to whom a
thing was handed over. We must conclude form this that the condition of
lawfulness was met. However, in this regard the Constitutional Court
states that evaluation of whether individual conditions set by law were
met in a particular case is exclusively in the jurisdiction of the
general courts. The Constitutional Court has already considered the
legality of this legal framework in the abovementioned judgment no.
2/1997 Coll.
Another issue
to evaluate is whether this deprivation of property had a legitimate
aim, whether there were grounds of “the general interest” under the
second paragraph of Art. 1 of Protocol no. 1 to the Convention.
Concerning the term “general interest,” and concerning the freedom of
the parties to the Convention when deciding on their own economic and
social policy, see the abovementioned judgment of the European Court in
the matter Pincová and Pinc (par. 47 et seq.). According to the European
Court, a legitimate aim of restitution is to correct the previous
illegality of a transfer or other interference in property rights by
returning a thing to its original legal state, with consequences ex
tunc. Thus, restitution does not become forced expropriation of
property, but an obligation to establish the original legal situation.
At the same time, however, the European Court stated the opinion (see
par. 58 et seq. of the cited judgment), that the legitimate aim of
restitution laws must be implemented so that the mitigation of previous
wrongs not cause new disproportionate wrongs. In its opinion, for that
purpose the legal framework should make it possible to take into account
the circumstances of every individual case so that persons who acquired
their property in good faith would not be forced to bear the burden of
the responsibility of the state that previously confiscated the
property. In that sense, it is necessary to further review whether the
petitioner, by handing over the real estate in question, was forced to
bear a special and excessive burden, which disrupted the just balance
that should exist between the requirements of the general interest on
one side and the preservation of the right to protection of property on
the other. Of course, the constitutional complaint contains no arguments
in that regard. In the Constitutional Court’s opinion, in the present
case it is significant that both of the entitled persons, i.e. the
petitioner and Milada Marková, were children of the original owner, and
thus had the same family relationship to him. In a situation where the
Constitutional Court annulled the condition of permanent residence in
the Czech Republic (judgment no. 16/1994 Coll.), it can then be
considered fair for neither of the entitled persons to be disadvantaged
in the circumstances of the case, as regards their share of the
restituted property (see also Constitutional Court decision file no. IV.
US 157/05).
The
Constitutional Court concludes from the foregoing that the petitioner
was not forced, as a result of the decisions contested in the
constitutional complaint, to bear a special and excessive burden that
would disturb the just balance between the requirements of the general
interest on one side and the preservation of the right to protection of
property on the other. Thus, there was no violation of Art. 11 of the
Charter or Art. 1 of Protocol no. 1 to the Convention.
As
regards the contested decision of the Supreme Court of the CR, we can
not agree with the petitioner that it deprived him of his right to file
an appeal on a point of law in the scope of review defined in § 237 par.
1 let. b) of the CPC. In that decision the Supreme Court of the CR
clarified in detail for the petitioner the reasons why it could not
agree to the scope of review requested by the petitioner.
As
regards the petitioner’s other objections [non-reviewability of the
judgment of the appellate court, the lack of factual findings about the
date of delivery of the call, the objection of incorrect legal
evaluation of the matter, the objection of the obstacle of a suspended
matter or res judicata, the objection concerning meeting the
requirements specified in § 3 par. 4 let. a), b) of Act no. 87/1991
Coll. on the part of the petitioner], we can summarize that the
petitioner repeats in the constitutional complaint the same objections
that he already raised in the previous proceedings before the general
courts. The Municipal Court in Prague considered these objections, and
explained in detail in its decision why it did not agree with them. As
the Municipal Court dealt exhaustively with the petitioner’s specific
objections, the Constitutional Court does not consider it necessary to
repeat the arguments already presented, and refers to the reasoning of
that court’s decision.
In
view of the foregoing, the Constitutional Court states that in this
matter the general courts met the requirement of transparency and
persuasiveness of the reasoning in their decisions. The Constitutional
Court found that the legal conclusions on which the general courts based
their decisions were not the result of application and interpretation
of legal regulations that went outside the bounds of constitutionality.
Obviously, the legal conclusions of the general courts are likewise not
extremely inconsistent with the factual determinations made, nor can one
conclude that the factual findings were extremely inconsistent with the
evidence presented.
The
Constitutional Court considers the arguments of the general courts, as
presented in the decisions issued in the matter, to be constitutional
and understandable, and the Constitutional Court did not find their
deliberations to be in any way disproportionate or extreme, which would
be the only thing that could justify it in intervening.
Thus,
we can not agree with the petitioner that his right to a fair trial was
not respected. His complaint was considered by an independent and
impartial court that followed procedural regulations that reflect the
principles contained in the Convention and in Part Five of the Charter.
It is necessary to realize that the scope of the right to a fair trial,
per Art. 36 of the Charter, can not be interpreted as a guarantee of
success in proceedings. The right to a fair trial means ensuring the
right to fair judicial proceedings, in which all the principles of
correct decision-making under the law, in accordance with constitutional
principles, are applied.
Based
on these facts, the Constitutional Court denied the complaint as an
evidently unjustified petition, without a hearing and without the
presence of the parties, under § 43 par. 2 let. a) of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations.
Instruction: Decisions of the Constitutional Court can not be appealed.
Brno, 22 March 2007
Instruction: Decisions of the Constitutional Court can not be appealed.