In The Matter Of The Application For Revocation Of Section 139 (A). (C)) The Building Act

Original Language Title: ve věci návrhu na zrušení § 139 písm. c) stavebního zákona

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96/2000 Sb.


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Date of publication of this finding in the journal of laws shall be repealed the provisions of §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.



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.


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.


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.


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


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.

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