96/2000 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 22 November. March 2000 in plenary on the draft m. M.
repeal of section 139 (a). c) Act No. 50/1976 Coll., on urban planning
building code (the building Act), as amended, as follows:
Date of publication of this finding in the journal of laws shall be repealed the provisions of §
139 (a). c) Act No. 50/1976 Coll. on territorial planning and building
Code (the building Act), as amended.
Justification
(I).
On 20 April. May 1999 m. lodged a constitutional complaint against the decision
The regional court in Hradec Králové, of 4 November 1993. March 1999, no. 30 Ca
3/99-19. In this decision the Court stopped the trial on its proposal on the
a review of the decision of the District Office in Chrudim, which was
confirmed the decision of the Department of construction and land use planning of urban
Office in Hlinsko. In its administrative action the complainant stated that
does not agree with the decisions, which was subsequently allowed the construction
garages on the land, which is adjacent to its land. While he initially
the proceedings for the removal of the garage (also called black construction),
It was eventually released additional permits to build garages,
in doing so, it has not been taken of its objections, they will not have access to your own
a plot of land and will be able to dispose of them, as originally intended, i.e..
give him a grandson to the construction of the House. Similar objections were also the second
the plaintiff then argued that he was not invited to the building management at all,
Although the owner of the land, which is separated from the land
construction of the garage only Brook.
The regional court in Hradec Králové, proceedings on the grounds that under section
250 paragraph. 2 of the code of civil procedure (hereinafter referred to as "CCP") is to submit a
action in the administrative judiciary is open to only the one who was a participant in the
already for the administrative procedure (whether it was actually
treated or not). The provisions of § and § 97 paragraph 88. 1 of law No.
50/1976 Coll., on zoning and the building code (the building Act),
(hereinafter referred to as the "construction Act"), although it appears that the proceedings for
the removal of the building. people who have property or other rights of
to adjacent land and buildings on them, if their rights may be
directly affected by a decision, however, what is meant by the term "neighbouring
a plot of land, "defines the building Act in section 139 (a). (c)), this means the
the only "land, which have a common border with the plot, which is
subject to administrative proceedings conducted under this Act, and the construction on
These plots. " Due to the fact that it was found that between land
the applicants and the land on which the buildings garages retrofitted
granted, it is still a parcel owned by the municipality, it is not a neighborhood in
the meaning of the provisions of the building code, and therefore the plaintiffs were not
the participants in the administrative procedure and are therefore not legitimováni to bring an action.
In the opinion of the Court on that nothing can change the fact that their
the grounds are from the border of the land on which the building was carried out,
only 40 cm. For this reason, it has been an action stopped
According to section 250 d of paragraph 1. 3 CCP
In the light of the above, the complainant filed with the constitutional
complaints proposal to repeal section 139 (a). (c)) to the building Act. The fourth
the Senate's Constitutional Court after finding that the contested order is based on the
This provision of the building Act, decided by order of 8 June 2004. October
1999, SP. zn. IV. TC 248/99 of the proceedings on constitutional complaints and
assignment of the claim for annulment of the provisions of the building code
the plenum of the Constitutional Court.
II.
The appellant in its proposal to repeal the legal provisions indicated that
the provisions of § 139 (a). (c)) was added to the building Act amendments
carried out by Act No. 82/1998 Coll., and that this amendment has
the participants of the construction tender only on owners of land bordering.
This reduction excluded from building control persons by the law
may feel to be affected by construction in their rights. They were excluded
of the right to challenge the decision before an independent court building.
The appellant submits that such a restriction of participants for the building management
It considers unconstitutional, since it is not disputed that a participant should be
everyone whose rights may be affected, the intended construction limited,
or even cancelled. Moreover, the contested provision invites abuse,
as if the owner of the land on which is to be set up by the controversial
construction, converts e.g. belt in the minimum width to someone else (eg.
the municipality), and thus separate from the neighbor, excludes from the building management of this
a former neighbor, and he even make it impossible to apply any objection no longer
in the construction control, and also excludes it from the right of recourse to the independent
the Court. For these reasons, the applicant considers that the contested provision for
inconsistent with article. 11 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"), as well as the right to judicial protection. 36 and 38 of this
Of the Charter, respectively. the rights arising from article. 6 (1). 1 of the Convention on the protection of
human rights and fundamental freedoms (hereinafter referred to as ' the Convention '), as well as with the article. 1
The additional protocol to it.
III.
The Chamber of deputies of the Parliament of the United Kingdom in its observations
said that the term "adjacent land and buildings on them" is present in the
construction law in conjunction with more provisions. Whereas that of
section 140 of the construction law, that, where the construction Act provides
explicitly something else, you cannot use the law No. 71/1967 Coll., on administrative
Management (administrative code), it is clear that as regards the definition of participants
individual proceedings pursuant to the building Act, it must be presumed that
law, and not of the administrative procedure. The purpose of the definition of "adjacent
land and buildings on them "was disproportionate and inappropriate elimination number
the participants of the construction management. It is therefore a legal definition of the term, and
not about the intention of excluding from the proceedings persons whose interests may be affected
proceedings. In addition, the law allows the construction Office invited him to
the proceedings and persons other than the participants, and is even obliged to under the
This control properly assess their comments and deal with them.
Every owner of a building or plot of land whose ownership rights are directly
, then may invoke the protection through the Court, which he
allows its fundamental right enshrined in the Charter. Then it is no longer
the decisive character of its process capability in the current
administrative (construction) control, but the nature of the violation of his rights. In this
Thus, the context in the opinion of the Chamber of Deputies building section 139
the law is not adjusting immediately affecting or limiting the basic
human rights or freedom. At the end of their administration of the Chamber of Deputies
confirmed that Act No. 82/1998 Coll., amending Act No 50/1976
Coll., on zoning and the building code (the building Act), as amended by
amended, and amending and supplementing certain other acts, was
approved by the necessary majority of members of the legislature, signed
respective constitutional factors and properly declared in the collection of laws, and
at the same time, the Commission expressed the opinion that the legislature acted in
the belief that the law is adopted in accordance with the Constitution of the Czech Republic,
the constitutional order and our legal system, however, on the Constitutional Court, in order to
in the context of the examination of the proposal to assess the constitutionality of the contested
provisions of the Act and issued the appropriate decision.
The Senate of the Parliament of the United Kingdom on challenge of the Constitutional Court on the matter said,
that one of the main reasons for the extensive amendment to the building code,
made with effect from 1. July 1998 Act No. 82/1998 Coll., has been
the effort to reduce the administrative complexity of certain procedural acts and
procedures related to the management of construction sites. Under the law governing the
building regulations was therefore made a number of changes and simplification aimed
the formal bureaucratic page thereof. To achieve this
the objectives of the Act was supplemented by the interpretation of the term "neighboring land", thus also
to improve building management participants in the enumeration specified in § 59 and 97
the building Act. The intent of the precise definition of circuit as
only the owners of adjacent land and buildings has been carried out on them
in particular in order to facilitate the progress of the construction by the following
defined circle of participants will be determined by the State in the
real estate. This method should not give rise to the need for further
search for other owners of the land. This clear definition of participants should
should the final circuit of the participants of the construction management and should
will be positively reflected on the legal certainty and the decision. The Senate
also expresses doubt as to whether, in the present case was
stěžovatelčino property right has been infringed to the extent protected by the Charter.
The complainant is not restricted in their right to own something or is not in the
relation to other owners of alienated, because its position is the same
as in the case of other owners whose land nehraničí with another
plot of land. It's not even a case of expropriation here, nor a limitation of the
of property rights. Into account the possibility that the applicant comes is in the
exercising its right of ownership in any way disturbed and could therefore
going by the article. 1 of the additional protocol to the Convention on intervention in the peaceful
the use of property. That assessment, however, depends on the specific circumstances
the case, as the article. 11 of the Charter, as well as its other provisions,
Similarly, as the Convention regulates the relations between public authorities and individuals, and
not between individuals to each other. The complainant's plea that the
the provisions of the building code of the neighboring land and
under specify the participants for the building management can be easily and
to exclude the possibility of effective defense of some of the owners, in the comments
States that the amendment to the construction law in § 32 building
of the law with the decision and the decision of the territorial division or
land consolidation. By the Division or land consolidation should be
Zoning decision, to which the competent Building Authority, is given by
guarantee that it will not be a speculative subdivision or consolidation
the land for the benefit of individual land owners. Such division or
mending should always be carried out in accordance with the aims and objectives of the
town and country planning or to ensure access to land and buildings.
The Senate did not act when discussing the reasons for which the
the amendment to the building Act could not agree.
In the opinion of the Ministry for regional development says that building
law as a standard of public law obliges anyone who wants to build to
except for the exceptions permitted by law should the decision on the location of the building and
a building permit. If someone violates the statutory obligation and
performs construction without a building permit and unannounced, his building Office
order its removal. Deletion is ordered only if the
the client demonstrates that the construction is in accordance with public interests, in particular with
spatial planning documentation, the objectives and intentions of the town and country planning,
General technical requirements for the construction, the technical requirements for
construction, interests protected by specific provisions, and if the client in
the procedure for the removal of buildings asks for its additional permit and submit
the documents and evidence requested construction by the Office within the time limit, and
as to the application for a building permit. Definition of the circuit
management in the construction law [§ 34 paragraph 1, § 59, paragraph 1 (b)) and § 97
paragraph. 1] is also related to the delimitation of the concept of ' neighbouring land and buildings on the
"in section 139 (a). (c)) to the building Act. For the purposes of proceedings conducted by the
pursuant to the building Act, the concept was explicitly defined by law No.
83/1998 Coll., the amendment was based on the steady-state interpretation and decades of
lasting legal and judicial practice, that a neighbouring plot of land is the land that
has a common border with the land on which to build. That interpretation
in the opinion of the Ministry questioned nor the Constitutional Court, when your
by order of 10. March 1996, SP. zn. IV. TC 53/95 refused the constitutional
a complaint by the owners of real estate located in Austria
against the decision of the former Ministry of economy from 3.
June 1994 no MH-482/94 relating to the building permit on
intermediate storage of spent fuel at Dukovany and resolution of the High Court in
Prague from 30. December 1994, SP. zn. 6 and 121/94, which was stopped
an action against this decision to the complainants. Because of the greater
legal certainty was this steady interpretation explicitly expressed in the law.
This fact does not diminish in the procedures conducted pursuant to the building Act
protection from interference to the rights and legally protected interests and obligations.
The right of ownership and other rights and interests of natural and legal persons
different from the Builder and other participants in the proceedings to protect their
the institutes building Act already by itself to build you need to enable
(additional authorisation). The rights of these people are protected and related
the provisions of public law (provisionally, when assessing the admissibility of
the building at all, and the impact of the proposed construction before its realisation) by
the Building Authority may not allow the construction of place or without the consent or agreement
with the public authorities, which further the public interest by following these
regulations. By monitoring the public interests in proceedings conducted by the building
authorities pursuant to the building Act is given the protection from interference to the rights and
the law protected the interests of tolerance enshrined in the
public service regulations (section 4 (1) of Decree No. 134/1998 Coll.,
which implements certain provisions of the construction Act) to persons,
that the parties are not, even those who do not have property or
other rights to adjacent land and buildings on them. Admissible
interference with the rights and legally protected interests and obligations is given by
public standards and lies in a particular solicitation, which is a necessary
the result of mass coexistence more people. The nature and subject of the substantive
in the administrative law-the diversity of situations, which must deal with-
objectively requires adequate procedural solutions, including the definition of the circuit
the parties, therefore, the people to whom the law confers on the public
subjective neighborhood rights. Persons before placement and
by enabling the construction of procedures conducted in public building
the authority to apply its objections, nor can it be of such breadth that you
He admits the civil code in the private sphere (each against
each), where it may be relied on to protect against existing interventions to
the exercise of ownership rights over the level of reasonable conditions (section 127 of the code of
Code). Repeal the provisions of § 139 (a). (c)) for the building of the law would be
extension of the definition of circuit parties, led by the Building Authority.
Directed to granting legal status of party to the proceedings on the location
construction, construction management, pursuant to section 85 up to 96 building Act
closer neohraničenému, unlimited and infinite circle of people that would
They argued that the decisions could be without prejudice to their rights and the law
protected interests or obligations. This would have caused legal uncertainty as
the Builder, or those individuals who have been granted by a certain
right or obligation, so the Building Authority. In addition, it would not necessarily
brought about a delay in the proceedings, and increase its costs. Therefore, The Ministry Of
for local development of the proposed repeal of the provision of section 139 (a). (c))
the building Act is not recommended.
IV.
Navrhovatelčin the proposal is to repeal the provisions of § 139 (a). (c))
building code, which is for building Act legal ratios
definition of the term "neighboring land and buildings on them". In terms of the
legislative techniques it is possible to conclude that the use of cookies. legal
the definition has its justification. However, it is necessary to respect (and it
i generally correspond to the theoretical conclusions-cf. Knapp, V.: The Theory
law, c. h. Beck, Prague 1995), it is necessary to use them in moderation and always
After considering their advantages and disadvantages in a particular situation, IE. only if the
If it can be reliably concluded that a definition is necessary in this case to
eliminate any ambiguity, without, however, at the same time threatened to throw an
other and without causing the unwanted excessive fixity legal standards. (I)
under this angle, it was necessary to assess the impacts resulting from the legal
de lege lata the definitions contained in section 139 (a). (c)) to the building Act.
The definition of "adjacent land and buildings on them" has been added to the building Act
inserted by the amendment made by Act No. 82/1998 Coll. and is legally
relevant in relation to those provisions of the building code, which
define circuit parties.
Construction management presents a summary of management of multiple species, of which
the most important are the management of the territorial (section 32 to 42), the authorisation procedure for
buildings, changes in construction and maintenance work (section 54 to 70),
removal of buildings (section 88-97), and the procedure for expropriation (section 108 to 116).
While abetting people that have ownership or other rights to
the adjacent land and buildings on them, it is accepted in all these
proceedings (§ 34, 59/97), with the exception of national control, and that's when you
compliance with the common conditions that may be affected by a specific decision
their rights, the law protected interests or obligations. The problem that
stood out in practice before the amendment, was, who can be considered as
"concerned neighbor". Practice-how to do it points out in its opinion, and
Ministry for regional development-already before the amendment was inclined to do that
in such a neighbor is only the owner or user of the land mezujícího.
[As an example the judgment of the regional court in Ostrava 22 Ca 104/94
published in administrative law, 4/95, p. 220 et seq., pursuant to which the
the neighbouring plot of land pursuant to § 34 paragraph 1. 1 of the building Act, only such
the plot, which has the land, the territorial decision
common border (mezující land). At the same time the Court held that, under
§ 250 paragraph. 2 not to submit CCP administrative action open to it,
which administrative authority beyond the law admitted the position of participant
proceedings].
However, it should be noted that in the literature before the amendment
were the views that this procedure is contrary to good morals, when
for example. a neighbor, which pitted divided stream or trail from the meter
the land on which it was build, was excluded from the possibility to exercise their
legitimate objections. At the same time it was argued that the constitutionality of such a procedure,
It is at least questionable (see doc. JUDr. P. Průcha, CSc.: some
procedural aspects of the civil law, construction law Bulletin No.
3/1996). Therefore, already in the period before the amendments that can be recorded
It is possible to use the definition of the intervention by the subsidiary of the administrative
procedure (section 14 (1)), which is considerably broader,
argued that the exclusion of the use of the code of administrative procedure, as
regulated in § 140 building Act, namely the words "unless provided
expressly otherwise '' should be interpreted in a restrictive way, at any time by
such an interpretation was closer to real life. Of amendments and legal
the definition of "adjacent land and buildings on them", however, it is clear that
the legislature to exclude such considerations, because while the wording of construction
the law would be wider and more favourable for "neighbor" interpretation of the hit
at least the rules of formal logic.
At this point it should be recalled and the practice of the first
The Supreme Administrative Court ("NSS"), that (and that's even with the
the use of the case-law of the former Austrian Supreme Administrative Court)
He said the concept of ' neighbor ' ' in the construction management of far liberálněji. For example.
in the award of 22. June 1938 (Boh. 14314/38) and the NSS said that the neighbor
It is not only the one whose immovable property directly related to the
construction sites, but also the owner of mainly real estate, in particular also
the land which lies opposite the projected building across the road, if the
a project can have on its immovable property, civil-police reflex. In
this case, NSS admitted to the complainant the evidence to the appeal in administrative
control. As well as in finding Boh. 9764/32 and held the NSS that the neighbors
According to building law are not only property owners of adjacent
immediately with construction sites, but also the owners of the objects more distant,
If these objects in such a relation to the job site, that construction can have a
on the interests of the owner of that object, the effects of which enjoy the protection of the
building law. It should be noted that the NSS was established
the case-law that not every neighbor's objection may be considered
a competent judicial protection ("Administrative Court is called upon to protect only
subjective public rights '-Boh. And 7679/29).
It is thus clear that the current definition of the status of the participants of the construction management in
While they are, or are to be honoured by human rights, is for "neighbors"
significantly worse than the State at the beginning of the century. This condition is not, however,
given only the contested provisions of section 139 (a). (c)) to the building Act, but
also, the definition of locus standi to file an administrative lawsuit in accordance with 250
paragraph. 2. s. l. it is apparent from that provision that not everyone "who
claims that he was on their rights by a decision of the public authority is truncated
the Administration "may apply to the Court. To submit an administrative action is entitled to
a significantly narrower range of natural or legal persons-the claimant had to be
a participant in the administrative procedure (and that, de lege, not de facto). In the light of
the specific nature of the administrative process that occurs to the situation that
by far not all persons who may be a final administrative
affected by a decision in rights or obligations may be in court
management of participants.
It is evident that the reason for the inclusion of the legal definition in the
the building Act was to strengthen the principle of speed and efficiency
the relevant procedure pursuant to the building Act, and it fixed the conclusion
the categories of persons that seek intervention with reference to ownership or
other rights to adjacent land and buildings on them. However this can be
the intention to understand the point of view of the Constitutional Court cannot be ignored that the closed
legal definition, absolutely negative option to accommodate for the participants
the management and owners of other neighboring plots of land than the land that have
a common border with the land that is the subject of proceedings (therefore also
the owners of the land "in the stream", "path", "manifestly small co.
the acreage of vklíněným plot of land owned by another person "), whose rights
may be affected by the proceedings, limits the scope for administrative discretion
the administrative authorities where it is clear that despite the absence of common
the boundaries of the nemezujícího rights may be affected by a neighbor.
The contested provision that defines the concept of "neighbour" directly in the law,
administrative authority takes the opportunity to be treated as a party to the proceedings
whether or not the person who obviously can be issued by the decision in
construction management without prejudice in their rights, even rights constitutionally
protected, such as the right to peaceful use of property, or the right to
ownership (article 1 of the additional protocol to the Convention, article 11 of the Charter). It,
It is possible to invite such person to control (but not as
participant) under section 59 paragraph 1. 3 the building Act, is inadequate, since the
with regard to paragraph 1(b). paragraph 250 diction 2. s. l. eliminating the contested provision
such a person of the right to apply to an independent court. In this sense, therefore,
the contested provisions of § 139 (a). (c)) the building Act clearly
contrary to the article. paragraph 36. 2 of the Charter, since the right of access to a court and
judicial protection excludes the person who not only argues that it may be an administrative
without prejudice to the decision in their rights, but where such prejudice may be
quite obvious.
The Constitutional Court is aware of the potential of the interpretative problems in that direction,
"far"-to what width or distance-can the so-called. the neighbouring land,
If you do not pay a common border, the range condition. Left, however, than
held that the assessment of this question will always be the thing of the individual
cases (obviously taking into account the nature of the proposed buildings and out of it
potential adverse impacts stemming), both at the level of decision-making
practice building authorities, and at the level of decision-making about the review
These decisions in the context of the administrative judiciary. The very complexity of the
such an assessment cannot, however, be sufficient grounds for the procedure
the opposite, consisting (as de lege lata) in the design
legal definition, which will not be made any interpretation problems,
However, its existence can narrow the space for the protection of constitutionally
guaranteed rights.
For these reasons, the application for revocation was section 139 (a). (c)) for the building
law for his conflict with the article. paragraph 36. 2 of the Charter accepted and the contested
the date of the publication of this provision was hit in the collection of laws repealed
(article 70, paragraph 1, of Act No. 182/1993 Coll., on the Constitutional Court).
For completeness, the Constitutional Court to refer to the Ministry of regional development
the resolution of the Constitutional Court from 10. March 1996, SP. zn. IV. TC 53/95, he adds,
in that case, the specific fact that concerned the construction management,
the construction was not the standard, played a role in the
assessment of the question of the participation of the complainants and the spatial
the scope of the building Act.
The President of the Constitutional Court:
JUDr. Kessler v. r.