Czech version 

 

Decrees of the President of the Republic from the Contemporary Perspective

 

When examining the decrees of the President of the Republic it is necessary to bear in mind, on the one hand, the historical and legal circumstances under which they were issued and, on the other hand, their relationship to the legal system of the Czech Republic and to international law, including the law of the European Communities.

 

 

Historical and Legal Circumstances of the Introduction of the Decrees of the President of the Republic

 

World War II, initiated by Nazi Germany, and subsequently waged with its allies from the so called “Axis”, was based on the concept of “total war”, aimed to destroy the enemy’s civil population physically and spiritually, in order to gain the “living space” (Lebensraum). Hitler’s Germany forced a significant part of its own population, including its youth, into membership in the NSDAP and associated quasi-military organisations; from the legal point of view these organisations became de facto organs of the State. Former Czechoslovak citizens of German nationality were made German citizens. A part of them, under the influence of Henlein’s SdP and particularly through the participation in “Henlein’s Free Corps” (the so called “Sudetendeutscher Freikorps”), became de facto organs of the German State active on the Czechoslovak territory and aimed at destroying Czechoslovak statehood.

 

            It was Czechoslovakia that was the first victim of “total” war. The Munich Agreement, resulting in the separation of part of the territory in favour of Germany and in the subsequent occupation of the rest of the Bohemian and Moravian territory, is evidence of Nazi Germany’s intentions. The intensity of the threat underlying the conclusion of the Munich Agreement is witnessed by a document (No. 2798/PS, USA/118, published in the Collection of Materials “Nüremberg Process”, Volume I, Prague, 1953 p. 386), according to which “If Czechoslovakia hadn’t surrendered in autumn last year (ie. 1938), the Czech nation would have been exterminated. Nobody would have been able to prevent him (ie. Hitler) from doing this.”

 

            The decrees of the President of the Republic were a form of legislative activity in the period of constitutional exigency, when the constitutional organs of the Czechoslovak Republic were unable to exercise their functions according to the Constitution of the Czechoslovak Republic of 1920 (Constitutional Law No. 121/1920 Coll.) as well as the Czechoslovak legal order. The decrees of the President of the Republic were issued following the institution of the Provisional State Establishment in Great Britain in 1940. At the same time the President of the Republic was officially recognised by the British Government, and subsequently by other States of the anti-Nazi coalition, as the representative of national resistance abroad.

 

According to Constitutional Decree No. 2 of the President of the Republic of 15 October 1940 on the Interim Exercise of Legislative Powers (published under No. 20/1945 Coll.), decrees of the President of the Republic were to be issued upon the Government’s initiative and after hearing the State Council, an advisory political body sui generis. They were countersigned by the Prime Minister and the Ministers responsible for their implementation.

 

            The Legal Council also took part in the drafting of the decrees. It was a professional legal advisory body and existed until its dissolution together with the State Council shortly after the establishment of the Government of the Czechoslovak Republic in Košice on 4 April 1945. The decrees continued to be issued until the establishment of the Provisional National Assembly (until 28 October 1945).

 

            The decrees of the President of the Republic were subdivided into constitutional decrees and other decrees, according to their subject matter. There was no difference in the form of adoption of the two types of decrees, only in their subject matter.

 

            The decrees of the President of the Republic regulated the entire constitutional, administrative, social and economic sphere, ie. various fields of political, economical, cultural and social nature. A total number of 143 decrees of the President of the Republic were issued, out of which 44 were issued abroad before March 1945. They concerned, for example, the conduct of war – military tribunals, the status of soldiers, including women in armed forces abroad, the state budget, the completion of the study of medicine of Czechoslovak students in Great Britain. One of the most important decrees of that period is Constitutional Decree No. 11 of the President of the Republic of 3 August 1944 on the Restoration of Legal Order (published under No. 30/1945 Coll.), which expressed the principle of continuity of the Czechoslovak legal order. Further decrees were issued in the Czechoslovak territory in 1945, regulating post-war relations in various fields of daily life, eg. Decree No. 50 of the President of the Republic of 11 August 1945 on measures in the field of film (No. 50/1945 Coll.), Decree No. 77 of the President of the Republic of 21 September 1945 on Some Measures to Facilitate the Expedient Loading and Unloading of Freight in Railway Transport (No. 77/1945 Coll.), or Decree No. 38 of the President of the Republic of 31 July 1945 on Strict Punishment of Looting (No. 38/1945 Coll.).

 

            Constitutional Law of 28 March 1946 No. 57/1946 Approving the Decrees of the President of the Republic and Pronouncing Them Laws, confirmed the validity of all the decrees. All the decrees were officially proclaimed to be laws and constitutional laws respectively. After their adoption many decrees of the President of the Republic were amended or repealed. At present only 9 decrees of the President of the Republic issued abroad and 48 decrees of the President of the Republic issued in the territory of Czechoslovakia continue to be part of the legal system of the Czech and Slovak Republics.

 

            The decrees of the President of the Republic and their subsequent confirmation established the continuity of the Czechoslovak State and its legal order and restored legal certainty.

 

            Other exile governments and exile political representations of other States, eg. Norway, the Netherlands, Poland and Belgium, also exercised lawmaking functions similar to those of the Czechoslovak Government. Sometimes those legislative acts even bore the same designation (Decrees). They were relied on before national courts, which recognised them as legitimate, taking into consideration the exceptional state of constitutional exigency, which could not be predicted and provided for in the Constitutions of those States, and which were caused by outside intervention.

 

            Some decrees of the President of the Republic were directly connected to and prepared in accordance with the intentions of the Victorious Powers and their allies in World War II.

 

            At the Yalta Conference (otherwise known as the Crimean Conference) in February 1945 the Allies agreed that Germany must redress the greatest possible extent of losses and suffering caused to the Allied nations and that Germany could not absolve itself from this responsibility. It was also agreed that the confiscation of German property located outside its territory would be among the forms of redressing damage resulting from the war.

 

At the conference in Potsdam in August 1945, in accordance with the conclusions of the Crimean Conference, the Allies reached an Agreement on Reparations. According to that Agreement the reparation claims of the United States of America, the United Kingdom and other countries entitled to reparations should be met from the Western Zones and from appropriate German assets.

 

The representatives of 18 countries (including Czechoslovakia) entitled to reparations from the Western Occupied Zones, according to the conclusions of the Potsdam Agreements, met in Paris in 1945 at the Conference on Reparations. There, they concluded an Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold; the Agreement came into force on 24 January 1946 and the Czechoslovak Republic, one of the Agreement’s Signatories, acceded to it on 17 May 1946 (the Agreement was published under No. 150/1947 Coll.). This Agreement was considered the first step in solving the question of reparations; it defined reparation claims of all the countries entitled to reparations from Germany.

 

The Agreement also determined the percentage shares of the total value of reparations to be accorded to the respective countries. The share accorded to the Czechoslovak Republic was 3 % in relation to German assets located outside the territory of Germany, and 4,57 % in relation to industrial property located in Western Germany.

 

Among the most important provisions of the Agreement was Article 6, paragraph A and D. According to paragraph A, each Signatory Government shall, under such procedures as it may choose, hold or dispose of German enemy assets within its jurisdiction, in manners designed to preclude their return to German ownership or control, and shall charge such assets against its reparation share.

 

Paragraph D, which was added to the Agreement following a proposal from, inter alia, Czechoslovakia, also contains the international legal validation of the confiscation of Sudeten German property. In this connection, it is necessary to point out that according to the jurisprudence of the courts of the FRG, the term “German property” has to be understood as including “the property of Sudeten Germans”, because “German property” must be read as meaning the “property of German citizens”. The Sudeten Germans were German citizens pursuant to an Agreement between the German Reich and the Czechoslovak Republic of 20 November 1938 on Matters Concerning Options and Citizenship; they retained their citizenship even after the capitulation of Germany. For example, the High Land Court (Oberlandgericht) in Munich declared inadmissible an action for restitution of property which had been confiscated from a Nazi and later accorded to a German national – antifascist, who voluntarily moved with that property to the US Zone of Western Germany; the Court based its decision on the argument that according to Act No. 63 of the Allied Control Council of 31 August 1951 all actions for the clarification of the legal status of German assets outside the territory of Germany and other assets confiscated for the purposes of reparations are inadmissible. The Supreme Court of Austria also confirmed in a number of cases the legality of the Czechoslovak post-war confiscation measures, eg. in the decision of 19 November 1958, No. 27 Cg 407/57 (published in the Austrian Court Records AWD 1959, p. 128). This case concerned a Sudeten German, former owner of a lumber enterprise in the CSR (Czechoslovak Republic), who filed an action against an Austrian company which bought lumber formerly in the plaintiff’s ownership and imported it into Austria.

 

Upon the commencement of the Paris Conference on Reparations, the USA, Great Britain and France requested Czechoslovakia to determine the extent of losses. To that purpose Decree No. 54 of the President of the Republic of 31 August 1945 on the Reporting and Assessing Damage Caused by the War and the Extraordinary State of Affairs (No. 54/1945 Coll.) was issued in Czechoslovakia. This Decree provided the legal base necessary from the Czechoslovak legal point-of-view for the collection of information and creation of lists of losses for the purposes of determining reparation claims and the actual reparation in the future.

 

The Inter-Allied Reparation Agency, established after the Paris Conference on Reparations, included into each Signatory Government’s account the German assets within the jurisdiction of the respective Government and kept detailed accounts of dispensableassets and assets already divided for the purposes of reparation. It follows that the Czechoslovak Government and President E. Beneš did not act arbitrarily or illegally. On the contrary, they acted in accordance with international law. Czechoslovakia, as well as the other signatory countries, was entitled to a share in the German reparations and this claim was to be met from German property left behind and confiscated in the territory of the Republic (including the property of the Sudeten Germans).

 

The losses determined by the Czechoslovak Republic, totalling $ 19 471,6 mil, were redressed only partially, to the amount of $ 91,3 mil.; the outstanding $ 19 380,3 mil remaining to be redressed. It follows that only 0.4 % of damage caused by the war was redressed. At the final meeting of the Inter-Allied Reparation Agency in 1959 in Brussels, the Czechoslovak delegation made a proclamation, according to which the Czechoslovak Government reserved the right to claim full reparation of all losses incurred in the war.

 

In 1952 France, the USA, Great Britain and the FRG signed the Bonn Conventions, among others the Convention on the Settlement of Matters Arising out of the War and the Occupation (also referred to as the Transfer Convention). These Conventions were integrated in a slightly modified form into the Paris Agreements of 1954, which also reinstated the state sovereignty of the FRG. In Chapter 6, Article 3 of the Transfer Convention, the FRG obliged itself not to raise any objections in the future against measures taken, or measures to be taken, against German assets located outside the territory of Germany, or other assets confiscated for the purposes of reparation or restitution or as a consequence of a state of war, or pursuant to the agreements concluded by the Powers with other countries (eg. the Paris Agreement on Reparations); the Transfer Convention also contains an obligation of the FRG not to admit any claims of German nationals within the jurisdiction of the FRG against measures taken by virtue of a state of war in Europe by governments of States which signed the Declaration of the United Nations of 1 January 1942 or acceded to the Declaration subsequently, or States that were in a state of war with Germany, or States expressly mentioned in the Transfer Convention (eg. Czechoslovakia), either against those States or their nationals. The validity of this provision of the Transfer Convention was re-confirmed on the conditions applicable to reunified Germany in an Agreement between the Governments of the French Republic, Great Britain and Northern Ireland, the United States of America and the Federal Republic of Germany on the Final Arrangements in Relation to Germany, signed on 12 September 1990 (also called the 4 + 2 Agreement).

 

 

Some Decrees of the President of the Republic in More Detail

 

In the above mentioned international legal context, the Czechoslovak Republic carried out the confiscation of property of German nationals by adopting two decrees of the President of the Republic – Decree No. 12 of the President of the Republic of 21 June 1945 and Decree No. 108 of the President of the Republic of 25 October 1945. Decree No. 5 of the President of the Republic of 19 May 1945 on the Invalidity of Certain Legal Acts Concerning Property Carried Out during the Period of Occupation and on the National Administration of Property of Germans, Hungarians, Traitors and Collaborationists and Some Organisations and Institutes (No. 5/1945 Coll.), which came into force on 23 May 1945, preceded the actual confiscation measures. Based on the Decree, any transfers of property or other legal acts concerning property, whether movable or immovable, public or private, were declared void, if such acts were carried out after 29 September 1939 in duress under the occupation or because of national, racial or political persecution. Furthermore, the property of persons deemed “unreliable” by the State was placed under the national administration. “Persons deemed unreliable” were to be understood natural persons of German or Hungarian nationality, as well as persons who were pursuing activities undermining the State sovereignty, independence, unity, the Democratic-Republican form of the State, the security and the defence of the Czechoslovak Republic, and further persons intentionally aiding or abetting in any way the German or Hungarian occupants; legal persons were to be deemed unreliable, if their management intentionally served the German or Hungarian war interests or fascist or Nazi purposes. Persons of German nationality, carrying out activities as workers, farmers, small and medium-sized entrepreneurs, clerks, and the like, could apply to have their property excluded from the national administration, if they could prove with a substantial degree of certainty that they became victims of political or racial persecution and remained faithful to the Democratic-Republican ideology of the Czechoslovak State.

 

 Subsequently, Decree No. 12 of the President of the Republic of 21 June 1945 on the Confiscation and the Expeditious Redistribution of Agricultural Property of Germans, Hungarians, as well as Traitors and Enemies of the Czech and Slovak Nations (No. 12/1945 Coll.) expropriated ex lege agricultural property as of 23 June 1945, and Decree No. 108 of the President of the Republic of 25 October 1945 on the Confiscation of Enemy Property and on National Reconstruction Funds expropriated ex lege other enemy property as of 30 October 1945. It needs to be stressed that property of persons who remained faithful to the Czechoslovak Republic, who never conspired against the Czech and Slovak nations and who participated actively in the struggle for their liberation or suffered under Nazi or fascist terror, was not confiscated. The respective persons were provided with all the necessary procedural rights, including the right to appeal; effective judicial decisions were subject to judicial review before the Supreme Administrative Court, on a complaint by the defendant.

 

Decree No. 12 of the President of the Republic of 21 June 1945 was followed by Decree No. 28 of the President of the Republic of 20 July 1945 on the Redistribution of Land of Germans, Hungarians and Other Enemies of the State among Czech, Slovak and Other Slavic Farmers (No. 28/1945 Coll.). According to the Decree, certain categories of persons were given priority right to the land to be redistributed, namely applicants who played an important role in the national struggle for liberation, in particular soldiers and partisans, former political prisoners, their family members and legal heirs, as well as farmers who suffered damage as a result of war.

 

Pursuant to Decree No. 108 of the President of the Republic of 25 October 1945, the confiscated property was accorded to entitled applicants in return for remuneration. Persons who took part in the national resistance and their surviving family members, persons who suffered damage as a result of war or national, racial or political persecution, persons returning to the border areas they had been previously forced to leave or persons returning to the homeland from abroad, as well as persons who transferred their residence within the remaining territory of the Czechoslovak Republic as a result of the territorial changes, were given priority.

 

Measures taken by Czechoslovakia during World War II and shortly after against the enemy were comparable or entirely identical to those taken by other States of the Allied Coalition. All the European countries who were in a state of war with Germany or its allies, took various measures confiscating the enemy assets. The exile Governments of Belgium, the Netherlands and Luxembourg issued regulations freezing dispositions with enemy property as early as 1944.

 

In the Netherlands, the legal title to property previously owned by an enemy country or by an “enemy subject” was transferred to the State by means of a regulation. In Belgium all assets and rights, including securities, in direct or indirect ownership, control or disposition of an enemy country or an enemy national were placed under the administration of a national authority with the seat in Brussels.

 

The Luxembourg authorities also issued similar regulations in the period between 1944 and 1948. When ratifying the Convention on the Protection of Human Rights and Fundamental Freedoms, Luxembourg made a reservation to the First Protocol (1951) on the Right of Peaceful Enjoyment of Property in connection with the process of implementation of Law of 26 April 1951 Concerning the Liquidation of Confiscated Assets of the Former Enemy.

 

In 1946, Denmark approved a Law on the Confiscation of All German Property. This law was preceded by Laws adopted during 1945 on the Revision of Certain German Financial Transactions after 9 April 1940, on the Imposed Administration upon or Liquidation of Certain Companies, and on the Return of Excessive Profits from Transactions Carried Out in German Interest.

 

The scope of the Danish Confiscation Law extended over all German enemy property in Denmark, excluding property confiscated by the Allied Forces as ”spoils of war”; the confiscated property also included the property of natural and legal persons of other than German nationality, in respect to which the Ministry of Trade, Industry and Maritime Transport came to the conclusion that it should be treated as German property for the purposes of the implementation of the Law.

 

Greece adopted a State-of-Emergency Law Freezing All Dispositions with the Enemy Property as early as 1940. The scope of this law was extended to German property after the declaration of a state of war with Germany. The final arrangements were adopted by a Regulation with the Force of Law on Enemy Property of 1949. All German and Bulgarian property was considered “enemy property”. Among the “former enemy” were included, apart from nationals of Germany and Bulgaria and their public or private law corporations, natural persons who were nationals of an enemy State at the critical date, or persons who were German nationals at any time from the entry of Greece into war against Germany until the critical date. In Austria, similar regulations were issued by the military authorities of the Allies.

 

The problem of expulsion of persons of German nationality from Czechoslovakia is an issue, which differs greatly from the decrees of the President of the Republic; it was a measure arising directly out of the war, which was agreed on by the three Powers at the Potsdam Conference in August 1945. The document adopted at the Conference forms an international legal base for the expulsion. The transfer of persons of German nationality from Czechoslovakia had support in international law and did not form the subject matter of any of the decrees of the President of the Republic. None of the decrees were concerned with the expulsion of persons of German nationality. Article XII of the Potsdam Agreement provided that the transfer to Germany of German populations or elements thereof, remaining in Poland, Czechoslovakia and Hungary, will have to be undertaken. The actual implementation of the transfer, which was to be carried out in co-operation with the Control Council in Germany and the Allied Control Commission in Austria, remained within the powers of the national authorities of those states. Article XII of the Potsdam Agreement also provided that any transfers that take place should be effected in an orderly and humane manner. Regrettably, excesses occurred in particular during the initial stages of the implementation of this measure.

 

There is an indirect connection between the expulsion of persons of German nationality and Constitutional Decree No. 33 of the President of the Republic of 2 August 1945 on the Arrangements Concerning the Czechoslovak Citizenship of Persons of German and Hungarian Nationality (No. 33/1945 Coll.). According to this Decree, Czechoslovak citizens of German or Hungarian nationality who became German or Hungarian citizens pursuant to the laws of the foreign occupant power, lost their Czechoslovak citizenship ex lege as of 10 August 1945, unless they could prove that they remained faithful to the Czechoslovak Republic, never conspired against the Czech and Slovak nations, and participated actively in the struggle for the liberation of the Czechoslovak Republic or suffered under Nazi or fascist terror. While maintaining the principle of continuity of the Czechoslovak State, the Decree confirmed the retention of the German and Hungarian citizenship of the above mentioned groups of persons.

 

In the field of criminal law it is important to mention Decree No. 16 of the President of the Republic of 19 June 1945 on the Punishment of Nazi Criminals, Traitors and their Supporters and on the Establishment of Extraordinary People’s Tribunals (No. 16/1945 Coll.). The Decree defined crimes against the State, crimes against persons and property crimes, the crime of informing, and the respective sanctions for acts committed by their perpetrators during the period of intense threat to the Republic, ie. from 21 May 1938 to 28 October 1945. If a court of law convicted a person of a crime defined in the Decree, and the circumstances of the case did not allow for the waiver of punishment, under conditions set out in the Decree, the court would also determine at the same time, whether the convicted person lost his “civil honour” for a limited or unlimited period of time. The lack of “civil honour” meant, for example, that the respective person was deprived of the right to vote or the right to be elected, the respective person further lost the capacity to be an employer or a co-employer, and the capacity to be an owner, publisher or editor, or to be in any other position connected to the publishing and editing of periodical press. Those limitations represent, from the contemporary point-of-view, unacceptable violations of fundamental rights. The effect of Decree of the President of the Republic No. 16/1945 Coll., as subsequently amended, expired on 31 December 1948, pursuant to Law No. 33/1948 Coll., Extending the Effect of the Retribution Decree and the Regulation on People’s Tribunals and Amending Several of their Provisions. The Decree is not part of the present legal order and has no significance in the present state of legal affairs.

 

 

The Relationship between the Decrees of the President of the Republic and the Legal Order of the Czech Republic

 

            The decrees of the President of the Republic which remained part of the legal order of the Czech Republic, regulate matters which were subject to numerous legislative changes in the intervening decades. At present, the arrangements concerning public institutions and the exercise of their official authority, as well as the regulation of the commercial and other legal relationships are governed by entirely different laws. The decrees of the President of the Republic, including those which have become subject to discussion, fulfilled their purpose and have not formed the basis of any legal relationships entered into for the past four decades or more. Examination of their incompatibility with the present constitutional order would be missing the necessary legal purpose. On the contrary, such analysis would cast into doubt the principle of legal certainty, one of the essential characteristics of the contemporary democratic legal system (see Reasons given for the Finding of the Constitutional Court concerning the action for abolition of Decree No. 108 of the President of the Republic of 1945, published under No. 55/1995 Coll.). The act of confiscation was effected pursuant to the Confiscation Decrees No. 12 and No. 108 of the President of the Republic of 1945, on the days of their entry into effect. Their legal effect was thus exhausted and the Decrees have not been applicable since. Their application today comes into account only for the purposes of determining whether the property in question had been subject to confiscation ex lege or not, provided that the question has not yet been resolved by a judicial decision in force.

 

 

The Relationship between the Decrees of the President of the Republic and International Law

 

According to the intertemporal rule, the law to be applied to a fact in dispute is the international law in force at the time when the facts of the case actually occurred. First, this means that the decrees of the President of the Republic were legal and legitimate acts, even from the point of view of international law. Second, this means that eg. the Confiscation Decrees of the President of the Republic and the Decree of the President of the Republic on the Arrangements Concerning the Czechoslovak Citizenship of Persons of German and Hungarian Nationality cannot be repealed for their incompatibility with the Conventions on Human Rights because those Conventions were adopted at a later date and have no retroactive effect. This conclusion is acknowledged by the European Court of Human Rights in Strasbourg (see eg. Judgment of the European Court of Human Rights in the case “Malhous v Czech Republic”, adopted unanimously by the Grand Chamber, or Judgment of the European Court of Human Rights in the case “Prince Hans-Adam II of Liechtenstein v Germany”, adopted unanimously by the Grand Chamber).

 

The expulsion of the majority of persons of German nationality in 1945 was, from the point-of-view of international law, part of the sanctions and security measures imposed, and constituted the exercise of a right. The Czech party expressed regrets about the excesses which occurred during the transfer in the Czech-German Declaration on Mutual Relations and their Future Development of 21 January 1997. The authorities of the Czech Republic involved in criminal proceedings are, without any doubt, ready to investigate any notifications in respect to any crimes against humanity committed during the expulsion, which are not subject to any expiration, and to punish the perpetrators should they be found guilty.

 

 

The Relationship between the Decrees of the President of the Republic and the Law of the European Communities

 

The Treaty Establishing the European Community, and the Treaty on European Union respectively, are subject to the principle expressed in the Vienna Convention on the Law of Treaties of 1969 (published under No. 15/1988 Coll.), according to which “unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” The European Union Treaties do not contain any provisions on the retroactive effect of Community law. The principle of non-retroactivity applies to all acts of the European Communities. It follows that the assumption of obligations arising out of the Treaty Establishing the European Community, and the Treaty on European Union respectively, by the Czech Republic after its accession to the European Union will not require any derogation from the effects of the decrees of the President of the Republic or the administrative measures taken in accordance with law concerning the transfer of persons of German nationality in 1945.

 

            The Treaty Establishing the European Community, and the Treaty on European Union respectively, do not regulate questions of expropriation, the consequences of invalidity of legal acts concerning the duration of property rights or questions of restitution or privatisation; that area of law remains within the sole competence of the Member States. The law of the European Communities does not in any way prejudice the rules in Member States governing the system of property ownership (Article 295 of the Treaty establishing the European Union); these rules are considered to be - according to constant case-law of the European Court of Justice - an inherent part of their economic and social systems and their national identity. Additionally, the law of the European Communities affects in no way the rules governing matters of nationality and citizenship; the citizenship of the European Union is complementary to the citizenship of a Member State. The essential requirement imposed by Community law on the internal legal systems of the Member States is that they should abstain from any measures that could jeopardise the attainment of the objectives of the Treaty Establishing the European Community, and the Treaty on European Union respectively, which are based on principles such as the prohibition of discrimination, the freedom of establishment, the freedom of movement and residence in the territory of the Member States. In the case of a collision between the provisions of the law of a Member State and the law of the European Communities, the Community law shall prevail over the internal law of a Member State, notwithstanding the date of entry into effect of such law. Accordingly, this principle applies only in cases of internal laws which were fully applicable until the adoption of the respective acts of the European Communities, ie. those which had constitutive effects. This principle does not apply to internal laws which had already become ineffective before the adoption of the respective Community measure. On the contrary, the principle of legal certainty, which is one of the fundamental principles of Community law, requires that the supremacy of Community law must apply without prejudice to legal relationships entered into or terminated before the adoption of Community law by the internal law of a Member State. It follows from the above mentioned principles of Community law that the assumption of obligations arising out of the Treaty Establishing the European Community, and the Treaty on European Union respectively, will not create an obligation for the Czech Republic to revise the decrees of the President of the Republic.

 

            In addition, it is necessary to mention the European Convention on the Protection of Human Rights and Fundamental Freedoms, which is not a source of Community law in the formal sense, but is a source of Community law in the material sense, pursuant to Article 6 of the Treaty on European Union. The Convention does not have a retroactive effect and an amendment to this effect would require unanimous consent of all the Signatory Parties. Any amendment is therefore highly improbable.

 

 

Conclusion

 

The decrees of the President of the Republic issued in the circumstances of World War II and shortly after, and the international agreements concluded in the same respect, have fulfilled their purpose. A significant number of them have been repealed subsequently and the ones remaining in force have no effect on the constitution of present legal relationships. At present the Czech Republic has an entirely different legal environment, corresponding to the efforts of the Czech Republic to build a democratic system based on the doctrine of rule of law, and following the development in other democratic countries. It does not mean, however, that we should forget about the consequences of World War II and the legitimate measures taken by the Victorious Powers and their allies, among others Czechoslovakia, after the War, based on the principle of renunciation of war as an instrument of national policy. This is an underlying principle of a number of decrees of the President of the Republic and other related measures. To cast the validity of the decrees and the related measures into doubt would mean in turn to cast doubt on the results of World War II and this principle of international law.