The Concept of Nationality in Court Decisions Martin Škop – Department of Legal Theory, Faculty of Law, MU Brno Barbora Vacková – Institute for Research on Social Reproduction and Integration (MU Brno)

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková2 Citizenship – main features is formal and founded on formal conditions the state can decide to accord or not the citizenship this is manifestation of state sovereignty and is absolutely depending on discretion of authorities of the state there is no right on the conferment of citizenship state authorities need not to give reasons for its decision not to grant citizenship e.g. reference number 6 A 77/ (decision of the Municipal Court in Prague)

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková3 Nationality – main features we can perceive this as a negative right the state has only the duty not to disturb a commander of this right “Everybody has the right freely to choose his nationality. It is prohibited to influence this choice in any way, just as is any form of pressure aimed at suppressing a person’s national identity.” (article 3 par 2 of the Charter of Fundamental Rights and Human Freedoms) the concept of nationality is more value while the concept of citizenship is more technical or administrative „The concept of nationality is not useful in the sphere of law and must be substituted by the concept of citizenship.“

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková4 Decision of the Constitutional Court of the Czech Republic (Pl. ÚS 14/94) deals with one of the decrees of the president of the republic. It is the decree no. 108/1945 Col. about confiscation of enemy’s property (Decree No. 108/1945 Sb., on the Confiscation of Enemy Property and the Funds of National Renewal) The concept of nationality and citizenship is not the cardinal interest of it. The Constitutional Court repeated the words of the Decree when he differentiated between two enemy groups of nations. On the one side are Czech and Slovak nations and on the other side are German and Hungarian nations.

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková5 Persons stricken by the norms of decree ought to prove “that they remained loyal to the Czechoslovak Republic, that they never wronged the Czech or Slovak nation, and that they either actively took part in the fight for the Republic's liberation or suffered under Nazi or fascist terror.” “Thus, even though the decree speaks in terms primarily of the German Reich and persons of German nationality, in actuality this decree has a more general scope and can be considered as one of the documents reflecting the age-old conflict between democracy and totalitarianism.” The gap between nations created in the decree is intentional.

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková6 “In this connection, it is further necessary to judge whether the decree's alleged conflict with "the legal canons of civilized European societies." “The determinative factor for defining the category of responsibility is the consciousness of the individual that he himself is answerable for his orientation in life, for his social and value decisions, and that nobody can ever take on this responsibility in his place, neither the society itself nor history. It is mankind's fate that human beings are placed into power relations, and this situation gives rise to their responsibility to champion the forces which will make human rights a reality.”

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková7 the Constitutional Court here emphasizes the citizenship over nationality “… [T]he fact that Decree […] is based on the presumption of responsibility of persons having German nationality does not mean that it has a discriminatory nature; it does not represent a form of nationalistic revenge, rather it is merely a proportionate response to the aggression of Nazi Germany, […]“ “The use of the term "German nationality" […] must be seen in relation to the post-war situation, when the defeated Germany was under the administration of the victorious powers and was later divided into zones, at a time when the use of the term "German citizenship" was problematic because no German state existed.“ the term "German nationality" was not a type of "genetic" condemnation, rather an adjustment to the post-war situation, particularly to the problematic nature of German citizenship

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková8 The Court creates many reasons to justify the decree and he goes so far that he accepts the confusion of citizenship with nationality. The judgment from one perspective leaves the formal basis of modern law when it substitutes citizenship (a formal sign) with nationality (a material sign) from second perspective it refuses to identify the content of the term nationality “… while it is true in principle that that which emerges from the past must, face to face with the present, pass muster in respect to values; nevertheless, this assessment of the past may not be merely the present passing judgment upon the past.“

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková9 The Judgment of the Constitutional Court – Pl. ÚS 19/93 deals with Act No. 198/1993 Col., regarding the Lawlessness of the Communist Regime and Resistance to It The judgment admits to democratic values but doesn’t need to address the problem of national responsibility. But if we accept the concept of responsibility of any member of nation for its government, the Constitutional Court should express the national responsibility as in above mentioned case regardless.

Definition of Nationality in Court Decisions / Martin Škop, Barbora Vacková10 Thank You! Martin Škop – Department of Legal Theory, Faculty of Law, MU Brno Barbora Vacková – Institute for Research on Social Reproduction and Integration (MU Brno)