Pl. US 5/95

8  November  1995  Judgment of the Plenum of the Czech  Constitutional
Court,  Pl. ÚS 5/95, in the matter of the petition submitted  by  Ing.
P.U. proposing the annulment of § 17 of Czech National Council Act No.
40/1993   Sb.  [as  reported  in  the  Collection  of  Judgments   and
Resolutions of the Czech Constitutional Court, Vol. 4, No. 74, p. 205,
also  reported in the Collection of Laws of the Czech Republic as  No.
6/1996 Sb.].

                         I.  Judgment
                               
            The petition is rejected on the merits.
                               
                        II.  Reasoning
                               

     The complainant submitted a constitutional complaint against the
judgment  of  the Municipal Court in Prague . . . . in which  it  was
determined  that, in accordance with § 13 lit. c) and § 17  of  Czech
National Council Act No. 40/1993 Sb., on the Acquisition and Loss  of
Citizenship  of the Czech Republic [hereinafter Citizenship  Act],  a
certificate evidencing citizenship of the Czech Republic may  not  be
issued to the complainant.

     The   complainant  also  submitted  a  petition  proposing   the
annulment  of § 17 of the Citizenship Act (the application  of  which
brought  about  the Municipal Court's judgment), in  accordance  with
which citizens of the Czech Republic shall lose Czech citizenship  in
the  moment  that they, at their own request, acquire the citizenship
of   a  foreign  state,  with  the  exception  of  those  who  gained
citizenship  of  a  foreign state in connection  with  entering  into
marriage or birth.

[Until  31 December 1992, the complainant was a citizen of the  Czech
and Slovak Federal Republic and of the Czech Republic.  Following the
dissolution  of the federation, he remained a citizen  of  the  Czech
Republic.   On  30 June 1993, he elected to take citizenship  of  the
Slovak Republic, for which he was eligible by the terms of the Slovak
Citizenship Act  He then requested a certificate of Czech citizenship
from  a  local municipal office in Prague.  In view of §  17  of  the
Czech Citizenship Act, his request was rejected, as was his appeal to
the Municipal Court in Prague, both institutions concluding that as a
consequence  of  his electing to take Slovak citizenship,  his  Czech
citizenship  was automatically lost.  He then filed a  constitutional
complaint  with  the  Constitutional Court  of  the  Czech  Republic,
requesting  that § 17 be declared unconstitutional  and  that,  as  a
consequence thereof, the Municipal Court decision be quashed.]

.  .  .  .  .

     The complainant contested, among other things, the conclusion of
the Prague City Court, that the provisions of § 17 of the Citizenship
Act  do  not  conflict  with Art. 12 para. 2 of the  Constitution.  …
According  to the contested decision it is not decisive  whether  the
intent  to  lose  citizenship of the Czech  Republic  was  explicitly
expressed, “for if losing Czech citizenship is a legal consequence of
the  manifestation  of  intent to acquire citizenship  of  a  foreign
state,  that  manifestation  of intent  aimed  at  acquiring  foreign
citizenship always also contains a manifestation of intent  aimed  at
losing Czech citizenship.”

.  .  .  .  .

II.

.  .  .  .  .

     The cited Assembly publications emphasize that a basic principle
applied  in  the draft law is the principle under which each  citizen
should have, if possible, the citizenship of only one state. This  is
based  on  an  attempt  to  prevent  problems  connected  with   dual
citizenship,  both  for the individual and for the  state.   This  is
based  on  the principle that individuals should have an opportunity,
while  observing  requirements set by law, to  acquire  or  lose  the
citizenship  of  the Czech Republic. Maximum emphasis  is  placed  on
maintaining only one citizenship.


.  .  .  .  .


III.

     The   appellant  first  relies  on  Art.  12  para.  2  of   the
Constitution,  which  states  that no one  may  be  deprived  of  his
citizenship against his will.  This article, however, is  a  response
to  the institution of forfeiture of citizenship which existed before
November,  1989, and attempts, by means of constitutional regulation,
to  prevent such intrusion upon the rights of citizens.  The  purpose
of  the constitutional directive enshrined in Art. 12 para. 2 of  the
Constitution,  thus,  was and is to prevent the  possibility  of  the
legislature adopting legal rules which would call for the deprivation
of  citizenship as a sanction for any illegal conduct by  a  citizen.
In  the present case, however, the criticized § 17 of the Citizenship
Act  has  a  different aim, if it assumes that the citizen  acted  to
acquire  foreign  citizenship  on  his  own  initiative.   From  this
viewpoint,  it  is  not a matter of depriving an  individual  of  her
citizenship,  but of the loss of citizenship through the  acquisition
of  citizenship of another state.  It is evident from this  that  the
meaning  of  Art.  12 para. 2 of the Constitution is quite  different
from what the appellant infers.  If the appellant‘s interpretation of
Art. 12 para. 2 of the Constitution - in comparison with § 17 of  the
cited Act - were correct, that would mean, as a consequence, that the
Constitution prohibits the legislature (even pro futuro) from barring
the existence of dual or multiple citizenship.  Such a ban would,  of
course,  be  completely absurd, as it would restrict the right  of  a
sovereign state to prevent dual citizenship, and would be in conflict
-  as  stated  elsewhere in this decision - with draft  international
agreements  currently in force in contemporary democratic Europe,  as
well  as  draft agreements.  The Constitutional Court therefore  does
not  share  the appellant‘s view that Art. 12 para. 2 is relevant  in
examining the constitutionality of § 17 of the Citizenship Act.

     The  Constitutional  Court considers  it  significant  that  the
acquisition of citizenship of a foreign state under § 17 of the cited
act  occurs  through the individual‘s (applicant‘s) own manifestation
of  intent,  and that the legal consequence of that manifestation  of
intent  is  the  loss  of  citizenship of the  Czech  Republic.   The
provisions  of  the  Citizenship  Act  were  duly  published  in  the
Collection  of  Laws and were generally known.  Every citizen  has  a
duty  to  know  the laws of the republic, and it can  justifiably  be
expected  of  them that they do, particularly those who  intended  or
intend   to   perform  one  or  another  legal  act  connected   with
citizenship.  If, then, a citizen manifested (manifests)  the  intent
to  acquire, at his own request, citizenship of a foreign  state,  he
must have been (must be) aware - in view of the clear and categorical
wording  of the contested legal provision - i.e., a generally binding
enactment - of the fact that de lege lata, as soon as he acquires the
citizenship  of  the foreign state, he will lose citizenship  of  the
Czech Republic.  If, despite that, he performed (performs) that  act,
he  is  required  to  bear  the legal consequences  which  valid  law
connects to that act.

     The  opinion  that  Art.  12  para. 2  of  the  Constitution  is
irrelevant to the determination of the constitutionality of §  17  of
the Citizenship Act., can also be supported by arguments based on the
grammatical analysis of both enactments.

     Art.  12 para. 2 of the Constitution, on the one hand, and  Art.
12  para. 1 of the Constitution and § 17 of the Citizenship  Act,  on
the  other  hand, used different terms („deprivation“ of citizenship,
„loss“ of citizenship).  This difference in terminology indicates the
legislature‘s  intent  to  differentiate two qualitatively  different
situations.  This intent can be concluded, particularly by  comparing
both  paragraphs  of Art. 12 of the Constitution. (Art.  12  para.  1
states  that  the acquisition and loss of citizenship  of  the  Czech
Republic  shall be governed by law.  Art. 12 para. 2 states  that  no
one can have his state citizenship removed against his will.)  It  is
difficult  to  imagine  that  the legislature  would  have  used  two
different terms in one provision, if it did not intend to bring about
different legal results and thus address situations which are not the
same,  but rather different. This is also the issue in the matter  at
hand.

     Concerning  the fact that the general term „deprivation“  has  a
different meaning in contemporary Czech than does the term „loss“, we
can  point,  in particular, to expert literature in linguistics  (cf.
The  Dictionary of Standard Czech, 1989 Czech Academy of  Sciences  -
Institute  for  Czech Language, volume IV., p. 367, volume  VII.,  p.
238).  According to the dictionary, the term „to deprive“, means:  by
some intervention to eliminate the effect or influence of someone  or
something,  to take something away from someone, deprive  someone  of
something   (deprive  someone  of  a  managerial  position).    Legal
terminology contains the terms, „depriving of capacity to  engage  in
legal transactions“, „depriving of parental rights.“  The grammatical
significance  of  this word and its comparison  with  familiar  legal
institutions   clearly   indicate  that  the  concept   „deprivation“
presupposes  an  outside  intervention  extranea  (generally  from  a
position   of  authority).   In  contrast,  the  expression   „loss,“
according to the dictionary, has the meaning of „to lose“ (something,
someone),  „lose  possession“ (of something),  in  other  words,  the
opposite  of  the  concept „to acquire“: e.g. to lose  possession  of
money  or property.  „To lose something,“ in contrast to the  concept
Dbe  deprived  of  something,“ thus apparently  does  not  assume  an
outside  intervention by a third party.  It is,  thus,  evident  that
even  from  the  grammatical interpretation of  compared  texts,  the
protection  enshrined in Art. 12 para. 2 of the Constitution  has  in
mind  cases  when  the deprivation (forfeiture) of citizenship  comes
about as the result of an authoritative intervention by a third party
(the  state).   Thus, the loss of citizenship, which is regulated  in
the  provisions of §§ 13 to 17 of the Citizenship Act, is not such  a
case.

     The  Constitutional Court has, thus, reached the conclusion that
§ 17 of the Citizenship Act., is not in conflict with Art. 12 para. 2
of the Constitution.

     The Constitutional Court also took into consideration provisions
of  the  Charter  of  Fundamental Rights and Basic  Freedoms  and  of
international  treaties,  to  which the complainant's  constitutional
complaint  makes reference.  [The Court did not find § 17  to  be  in
conflict with any of them]

.  .  .  .  .  .

IV.

     Our  current  legal  framework is based on  the  principle  that
citizenship  should be single and exclusive.  This is  emphasized  by
the  explanatory report to the government‘s draft law on  acquisition
and loss of citizenship of the Czech Republic. In this connection  we
must  point  to judgment of the Constitutional Court of 13  September
1994,  file  no.  Pl.  ÚS  9/94, which  concerns  several  issues  of
citizenship of the Czech Republic.  This judgment states, among other
things, that the Czech Republic addressed the issue of acquisition of
citizenship  of  the  Czech  Republic by a  domestic  enactment,  the
Citizenship  Act.,  which contains the principle of  preventing  dual
citizenship  and  limiting the creation of statelessness.   (In  this
way,  the legal regime in effect in the Czech Republic was linked  to
that  which  had  been in effect on the territory of  the  Czech  and
Slovak  Federative Republic, and was based on the fact that analogous
principles  are  also applied in the legal systems of other  European
countries.)   Therefore,  we  can  hardly  accept  the  complainant's
categorical  and  generally formulated claim that neither  any  legal
regulation of the Czech Republic nor its constitutional order contain
the principle of forbidding dual citizenship, which, on the contrary,
he claims they expressly allow.

     To  adjudge  the issue at hand we also cannot omit consideration
of the legal situation in the field of international law.

1.   In  this  area  dual  citizenship  is  generally  considered  an
undesirable  condition. On the one hand it can lead to  international
disputes, particularly in issues of diplomatic protection, because  a
dual  citizen  can be considered a citizen by more than one  country.
On  the  other hand dual citizenship causes serious problems for  the
dual  citizens  themselves, in particular concerning  obligations  of
national  loyalty and the performance of military service, which  two
or  more  countries can require of dual citizens.  Third  states  may
consider  a dual citizen, as they elect, as the citizen of either  of
the  competing states, regardless of the intent and interest  of  the
dual citizen himself.

2.  The general practice of states can be characterized thus:

     a)   a person with more than one citizenship cannot rely on  his
citizenship of one state in relation to another state of which he  is
also a citizen;

     b)   a  third state is supposed to consider a person  with  more
than  one citizenship a citizen of only one state, as it elects,  not
according to the election of the dual citizen himself or any  of  the
states  of  which  he  is a citizen.  In this  election,  states  are
generally  guided by the principle of effectiveness,  that  is,  they
consider  a  foreigner a citizen of the state to  which  he  has  the
closest  factual ties. In Czechoslovakia the state citizenship  which
was acquired last was the deciding one (§33 par. 2 of Act No. 97/1963
Sb.,  on  International Private and Procedural Law).  The same  legal
situation applies in the contemporary Czech Republic (Art. 1 of Czech
National  Council  Constitutional Act No. 4/1993 Sb.,  on  Provisions
Related to the Dissolution of the Czech and Slovak Federal Republic).

3.   The attempt to eliminate dual citizenship is also apparent  from
bilateral  treaties which the Czechoslovak Republic  (or  the  former
Czechoslovak  Socialist  Republic) concluded  with  some  neighboring
states,  specifically  with  the USSR,  Hungary,  and  Poland.  These
treaties are based on the principle that

     a)   persons  who  simultaneously have the citizenship  of  both
signatory  states can elect the citizenship which they wish  to  keep
...,

     b)   persons  to  whom  the treaty applies  will  be  considered
exclusively  the  citizens of the signatory state  whose  citizenship
they  elected (Art. 7 of the CSR-USSR Treaty, Art. 6 para. 1  of  the
CSSR-HPR [Hungarian People‘s Republic] Treaty),

     c)   persons  who  do  not  make  a declaration  electing  state
citizenship  by  a  deadline  (set forth  by  the  treaty),  will  be
considered exclusively the citizens of the signatory country on whose
territory they live (Art. 7 of the CSR-USSR Treaty, Art. 6 para. 3 of
the  CSSR-HPR  Treaty,  Art.  6  of  the  CSSR-PPR  [Polish  People‘s
Republic] Treaty).

4.   It  can be said that the legal framework for the termination  of
the  state  citizenship of the Czech Republic is fully in  accordance
with  the  trend in contemporary modern democratic Europe.   In  this
regard,  the  6 May 1963 Agreement on limiting instances of  multiple
citizenship  and on services in the armed forces in case of  multiple
citizenship, of 6 May 1963, is significant.  Art. 1 para. 1  of  that
Agreement  states that adult citizens of a signatory  state  who,  by
means   either   of  a  manifestation  of  their   own   free   will,
naturalization,  election or re-acquisition, acquire the  citizenship
of  another  signatory state, shall lose their previous  citizenship.
They are not entitled to retain their previous state citizenship.  An
analogous   framework   also  applies  to  minors.    The   idea   of
strengthening the institution of exclusive (sole) citizenship is then
pursued by Art. 3 of the agreement, which states that no provision of
the  Agreement  bars  the application of any provisions  which  could
restrict  even further the creation of multiple citizenship,  whether
it was included or subsequently implemented in the legal framework of
any  signatory  state  or  in any agreement,  convention,  or  treaty
concluded between two or more signatory states.

     The Czech Republic is not yet a signatory of this agreement, but
its  very existence clearly indicates the trend among the Council  of
Europe  member states.  As of 2 January 1995, the Agreement had  been
ratified  by  13 states (Austria, Belgium, Denmark, France,  Germany,
Ireland,  Italy,  Luxembourg,  the Netherlands,  Spain,  Sweden,  the
United Kingdom of Great Britain and Northern Ireland) and one country
had  signed it (Portugal).  As a group, all the states which ratified
the Agreement are significant and traditionally democratic countries.

5.   Nor  does  the  forthcoming European Treaty on  Citizenship  and
Military Duty in the Case of Multiple Citizenship represent  a  break
with the principles of the Agreement of 6 May 1963, which is still in
effect, albeit not for the Czech Republic. The preamble to the  draft
European treaty recognizes the right of each state to decide  whether
it   permits  its  citizens  to  have  only  one  or  more  than  one
citizenship.  Art. 4 does state that the internal laws  ...  of  each
signatory  state shall be based on the following general  principles:
3.  -  no  one  shall  be arbitrarily deprived  of  his  citizenship;
however,  Art.  6  par. 1 states this general rule  in  more  detail,
saying  that  a signatory state may not lay down in its domestic  law
...  the  loss of citizenship either ex lege or at the initiative  of
the  signatory state, with the exception of the following  instances:
a) voluntary acquisition of the citizenship of another state. Art.  9
par.  2  further  states  that, depending on  any  ...  international
agreement  governing the issues of citizenship -  a)  each  signatory
state shall grant its citizenship to person who:

     i)   were citizens of and had permanent residence de jure and de
facto on the territory of a state which has ceased to exist ... and

     ii)  still have permanent residence de jure and de facto on that
territory,  which has become part of the territory of  the  signatory
state.

It  is  clear that the cited article does not literally apply to  the
case at hand, as no international treaty on citizenship was concluded
in  connection with the termination of the existence of the Czech and
Slovak  Federative Republic.  However, even if such a situation  were
to  occur, we can point to the conclusion of Art. 9 par. 2 a),  under
which, when citizenship is being issued, the persons in question  can
be required to renounce the citizenship of any other state.

.  .  .  .  .