152/1998 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


Constitutional Court decided on 27 May 1998 at the plenary session on the proposal
group of deputies of the Chamber of Deputies of the Czech Parliament to repeal the provisions of §
9b to 9h Czech National Council Act no. 284/1991 Coll., On || | land consolidation and land offices, as amended by Act no. 217/1997 Coll
.

Follows:

Petition is denied
Reason


I.

On 9 October 1997, the group of 46 deputies of the Chamber of Deputies of the Czech Parliament
proposal to annul § 9b to 9h
Czech National Council Act no. 284/1991 Coll., On land consolidation and
land registries, as amended.
Draft the contested provisions were to Czech National Council Act no. 284/1991 Coll.
inserted by Act no. 217/1997 Coll., containing the legal regulation, among other things,
procedure for land consolidation in areas with unfinished consolidation
control. Amendment took effect on publication of Act no. 217/1997 Coll
. in the Official Gazette, ie. on 8 September 1997 and thus became part of the text
Czech National Council Act no. 284/1991 Coll.

Group of deputies in its application that the contested provisions of the Act
are in conflict with Art. 11 paragraph. 1 and 4 of the Charter of Fundamental Rights and Freedoms
(hereinafter the "Charter"). Specifically point to the fact that
cited provisions permit the transfer of ownership rights without the consent of the existing
owner and prefer exploitation relations (which do not enjoy constitutional protection
) before the right to property, which is hampered by one of
fundamental rights, and the right to own property. The petitioners
simultaneously point to the fact that the transitions property rights lack
character expropriation under Art. 11 par. 4, mainly because
is not done in the public interest because there is no public interest to terminate
unfinished splicing control, and that the rules contested
does not provide compensation for all participants unfinished scelovacího management.
Replacement, according to the wording of the Act, does not lie with those whom the district office after
agreement with the Land Registry does not pass, and those in whose jurisdiction
landscaping is not required land area. Moreover, even where the law allows
compensation is granted to persons other than those whose
benefit was forced transfer of ownership rights. According to the opinion
petitioners amendment modified the compulsory transfer of property rights
occurs ex tunc, probably from the time the bill was scelovacího
plan, or where the party took over the consolidation according to the draft plan
scelovacího land to an alternative use. These aspects in its
summary evaluates applicants as another way
forced deprivation of property rights than those provided for in Article. 11 par. 4.

II.

Annulment § 9b to 9h Czech National Council Act no. 284/1991 Coll.
Amended by Act no. 217/1997 Coll., Filed under Article. 87 paragraph. 1 point. a)
Constitution of the Czech Republic (hereinafter "Constitution") and § 64 para. 1 point. b)
Act no. 182/1993 Coll., on the Constitutional Court, a group of 46 deputies
Chamber of Deputies of the Parliament of the Czech Republic, who from their ranks
mandated representation in proceedings before the Constitutional Court Ing. Miroslava
Tyla.

After finding that there were no grounds for rejecting a petition under § 43
Act no. 182/1993 Coll., Nor for stopping proceedings under § 67 of the Act
was a proposal in accordance with § 69 of the cited Law
sent to the Chamber of Deputies of the Czech Parliament and the Senate
Czech Republic's request for comment. Within
providing other documentary evidence in accordance with § 42 para. 2, § 48 para. 1 and 2 and § 49 para. 1
Act no. 182/1993 Coll. The Constitutional Court requested the opinion of others
selected central authorities, namely the Ministry of Agriculture - Central
Land Office and the Czech Office for Surveying, Mapping and Cadastre and Ministry of Agriculture
asked to provide all written documents
of preparing the contested regulation.

III.

Observations of the parties

A)

Chamber of Deputies of the Parliament of the Czech Republic

Deputies as an intervener in its statement signed by its chairman
Ing. Milos Zeman, based on the content of the explanatory
report. In particular it highlighted the fact that the Land Act (sc. Law no. 229/1991
Coll., As amended) will not deal with the long term

Unresolved chaotic legal situation in about 450 cadastral areas
arising in various stages of interrupted and unfinished scelovacího
scelovacího proceedings under Law no. 47/1948 Coll.
a previous government decree no. 171/1940 Coll., on land and farm consolidation
about other adjustments to land tenure, and also the consequences of unfinished allotment
management of land reforms.
Solving accumulated problems is not possible without the active intervention of the state in property relationships
register. The contents of a specific section of the explanatory memorandum emphasizes
particular reference to ensuring the protection of rights and legitimate interests of the owners
(appeals body decision approving
land consolidation proposal by the court).

Deputies confirmed that the resulting chaotic relationship to
land in areas with unfinished assembling are the result of a broken
scelovacího procedure after February 1948 and at the time when the land replacement and
common facilities have already been handed over and participants taken into use, but was not carried
writing new ownership in the land registry.
This created a condition where the ownership right to the land was designated
associated usufruct of land entirely different with the fact that this relationship was of use
participants considered property. On that basis
Deputies believes that there is no possibility of resolving
individual case, without interference in the legal relations
other entities.

Expression of Deputies specifically responds to some objections
petitioners. To them such. States that criticized prioritization
usufruct rights before the property right is not contested legislation
allowed generally, but only in conjunction with addressing the issue of property rights
persons, which was after the assignment and acceptance of others (spare )
land consolidation participants prevented from using their own land, and land users
taken continuously received in good faith, they are the owners.
The objection regarding the effectiveness of transfer of ownership rights
Chamber of Deputies recalls that efficiency is linked to the effective date of the
decision of the District Land Office on the transfer of property rights
unless the cases stipulated by law in § 9d.

Thought conclusions of the Assembly of Deputies concentrate on
evaluate the purpose of the legislation. In this spirit, we emphasized the objective of the Act
achieving legal certainty in ownership relations to land in
areas where there are unresolved questions - whether the participants mending
according to state control has become a substitute land owners or not (and | || eg. on the basis of adverse possession) - and where it is necessary at present to solve the consequences
performed transfers, transitions, purchase and expropriation of land for
past 40 years, during which they were sometimes considered proper owner || | holders after their consolidation and sometimes their owners library.
The aim of the Act is certainly not, according to the Chamber of Deputies, expropriation or other
limiting ownership rights, but rather to protect it by removing
state where owners still unfinished due scelovacího
parties were limited in their rights so it has lost the subject
their ownership or have lost the opportunity to have this
property.

In conclusion, expression pronounce Chairman of the Chamber of Deputies opinion
that the legislative assembly acted in the belief that the law is in line
with the Constitution and laws of the Czech Republic, the law was passed on 30 July 1997
he was signed by the appropriate constitutional officials, and duly promulgated
. In his view, the Constitutional Court, in connection with the petition
assess the constitutionality of this law and issue an appropriate decision
.

B)

Czech Senate

In a statement signed by its Chairman of the Senate doc. JUDr. Petr Pithart
used substantively the same arguments as in the expression
Chamber of Deputies. In concreto emphasizes the Senate's idea
that one of the main reasons for the adoption of the contested law is correct
long unsolved chaotic legal situation in about 450
cadastral areas arising in the various stages of interrupted and unfinished
scelovacího management.

The Senate also focused on the objection of MPs regarding the effects of transition

Property rights. This indicates that this activity is associated with
day when the decision of the District Land Office on the transition
property rights, unless the cases stipulated by law in § 9d.

At the end of the statement notes that the Senate when discussing
Act approved by the Chamber of Deputies did not find the reasons for which he could not
with this law to consent. According to his opinion on
Constitutional Court to evaluate the constitutionality of the law and issue an appropriate decision
.

IV.

Recap requested opinions

A)

Department of Agriculture - Central Land Office

Central Land Office notes that landscaping in areas with
unfinished assembling could not be done before the amendment
implement practically because guidelines for the management of land arrangements
assume clear ownership rights to land in a given circuit.
Only after the effective date of Act no. 217/1997 Coll. can land offices in
proceed with regard for the opportunities that brought them
legislation, especially in § 9d-9h.

The most important contribution of the amendment made by Act no. 217/1997 Coll.
Sees Central Land Office that:

A) the status of land ownership in areas where results from a consolidation
been introduced to real estate records, and then taken into the Land
property became state valid,

B) in the cadastral districts, where the status of land ownership in
cadastre maintained by the state before assembling, it is possible

- To include landscaping and the land, which, according to the general principles
under § 3 para. 2 Czech National Council Act no. 284/1991 Coll.
were excluded from land consolidation,

- Compile demands of owners that there are rules and procedures in
cases specified in § 9d, 9e and 9f

- Decide to approve the landscaping in compliance with the rules laid down
without the consent of the owners.

B)

Czech Geodetic and Cadastral Office

In a lengthy statement by the Czech Office for Surveying
(ČÚZK) is given a thorough legal analysis of the development scelovacího management.
At the same time it expressed the view that the provisions of the Act that
allow for the land to individuals (or their predecessors)
scelovacího intervened in the proceedings, to receive appropriate compensation in
neduplicitním full-fledged ownership of land or other financial
to monetary compensation can not be in conflict with Art. 11 of the Charter.
Editing was motivated to find the optimal solution for years
unsolved problem when seeking funding were preferred especially in efforts to preserve
rights acquired in good faith, attempt to everyone who put
once lands into scelovacího management must be avoided
adequate compensation and that the completion of unfinished the consolidation led to renewed confidence
owners in the affected areas.

V.

Constitutional Court, as required under § 68 para. 2 of Act no. 182/1993 Coll.
First examined whether Act no. 217/1997 Coll., The unconstitutionality of the provisions
petitioners contend, was adopted and issued within the bounds
provided jurisdiction and in a constitutionally prescribed manner. From the statements
Chamber of Deputies of the Parliament of the Czech Republic, the stenographic report on the meeting of the Chamber of Deputies
12 (part 2), the second term, as well as from
Parliamentary Print no. 139, 139 and 139/1 / 2, it is clear that the Act no. 217/1997 Coll
. proposed by the Czech government. The law was adopted
Chamber of Deputies of the Czech Parliament under Article. 15 paragraph. 1 and Art. 106
paragraph. 2, third sentence of the Constitution. Quorum prescribed by the provisions of Article. 39 paragraph.
1 and 2 of the Constitution have been complied with. For the resolution to the Chamber of Deputies, where he was pronounced
agreement with the government bill, as approved
amendments, out of 179 deputies present voted in favor to 146 against the second


From the statements of the Czech Senate and the stenographic record of his
7th meeting shows that the Senate approved the law of 30 July 1997, and it
the poll, in which 75 senators present for the approval of the bill
64 senators voted in favor, respectively.
senators and no votes against. The constitutionally prescribed way of taking the law was complied with,
well as its release because it was signed by the chairman of
Deputies, the President and the Prime Minister (art. 51 of the Constitution) and was

Published in the Collection of Laws (Art. 52 of the Constitution, § 2 of Czech National Council
no. 545/1992 Coll., On the Collection of Laws of the Czech Republic) in the amount of 76
year 1997, distributed on 8. September 1997. This date became Act no. 217/1997
Coll., which amends and supplements Czech national Council Act no. 284/1991
Coll., on land consolidation and land offices, as amended by Act || | Czech national Council no. 38/1993 Coll., and supplementing law no. 455/1991 Coll., on
Trades (Trade Act), as amended
regulations, validity and efficiency at the same time.

Opposition group of deputies concentrate on pointing out contradiction
adopted legislation and its contents with the constitutional protection of fundamental
human rights and freedoms. There is no doubt that the subjective right of ownership
belong in a democratic society to file legislation
rights protected by the highest legal force. Any interference in property rights, especially
restrictions and withdrawal must respect strict rules. That is why
Charter guarantees the right to own property (art. 11 par. 1) and admits
expropriation or forced curtailment of ownership rights only in the public interest
, on the basis of law and for compensation (Art. 11 par. 4).
The petitioners argue that this provision of the Charter was the adoption of the contested provisions
breached for the following reasons:

A) transitions property rights [based on existence of a draft plan
scelovacího - § 9b paragraph. 2, the establishment of property rights person
which itself uses a lot since its takeover of consolidation - § 9d paragraph
. 1 point. a) based on the decision of the Land Office - § 9e
without the consent of the owners (§ 9 g par. 1)] lack the character of expropriation
because it is not done in the public interest, though, according to the petitioners, not the public interest to terminate
unfinished splicing procedure

B) the contested provisions do not guarantee the provision of compensation to all participants
scelovacího management - receives compensation for those who do not comply district office after
agreement with the Land Registry, and those in whose jurisdiction the land
adjustment is needed acreage land.

Because of the content of petitioners' objections, the Constitutional Court examined the factual
reasons which led to the adoption of the contested legislation, as well as consistency
adopted legislation with the Czech constitutional order.

Ad a)

Individual cases in which petitioners object
lack of public interest, are legislatively defined as:

§ 9b paragraph. 2

The cadastral area, which was not completed consolidation and cadastre of real estate leads
ownership of the land in accordance with the proposal scelovacího
plan, the ownership of the land created by this proposal.

§ 9d. 1 point. a) introductory words including

If as a result of incomplete consolidation of some land or
parts registered in the Land Registry as owners of two or more persons and
unless the ownership, then the owner of the land
that person or its legal successor, which itself uses a lot
continuously since its takeover in mending or ...

§ 9e

If a participant consolidation taken over by the draft plan to scelovacího
use for the land, with whom he entered into a consolidation which have hitherto
own properties in the replacement property of others, and these
lands himself or his legal successor yet uses a custom build
placed on any such land or for land with permanent vegetation
(orchard, vineyard etc.), or the garden, the district land office
decide on the transfer of title to the given land to his
users.

There is no doubt in that land, especially
intended for agricultural use, have been in the history of human society
considered a part of nature and landscape, the opinions on the suitable arrangement
nature and landscape have developed .
Interventions accompanying this arrangement were not in all cases be considered
activity performed in the public interest. An essential product of landscaping
were encroachments on the ownership and other rights to the land. In principle
this was done for compensation, either substantive compensation (
assigned an equivalent land), or relutární (granting adequate compensation in money).
It is a procedure common in all developed countries also nowadays, even if
him not to the same extent as in the Czech Republic. However, they

There are signs that in these cases, such a procedure
classified as a violation of fundamental human rights.

In this respect, belonged to the avant-garde states in the 19th century
Germany, which was the model for the Austrian laws on agrarian operations
(the Czech Republic, mostly in force until the mid 20th century
) also in Hungary we were devoted to land tenure adjustments
considerable attention since the first half of the 19th century. The agrarian operations was primarily
marshaling consolidation (komasace) of farm land, forests
consolidation, division of common land (agricultural communities) and
treatment of use and administrative rights to common land and forests from refining
foreign enclaves and balancing forest boundaries.
At present, such interventions are referred to as "landscaping".

Beginnings of landscaping the territory of the Czech Republic appeared in the last century
. First, they were based on voluntary exchange
ownership rights to the land because they lacked the necessary legislation. Coupage
was considered a modification of land tenure based on the fact that
landowners surrendered all of their economic or forest land
particular circuit to the common masses, from which they received as compensation
new land, if possible, regular and purposeful shape of
much smaller, but in a larger area of ​​the individual pieces. At the same time carried
redistribution of soil treatment facilities needed for effective
cultivating the land (eg. New access roads, drainage ditches,
draw for the protection of the beast), and the legal relationships with land tenure related
(eg. the settlement of servitudes and real encumbrances).
Reparcelling were either private or official.
Private consolidation is carried out by mutual agreement of the parties who exchange contracts
individual plots among themselves exchanged so that each of two or more neighboring land
was formed a greater whole for each
Changer. Because this event is always required consent of the parties, but merely
usually just a few shifts of land and causing her
fairly rare. For the development of agriculture because their input was evaluated as
dwarfed in comparison with the official assembling.

Inning property rights within the landscaping is very difficult
process, which must be formally made at one time throughout the
landscaping. It is not possible for one participant
ownership right to land in the context of the multiple exchanges of property rights exchanged while another
not. Otherwise, there would be the fact that for certain plots of land should
full right of ownership along with several owners, which is due to its content
conceptually excluded (unless it is a co-ownership). Official
mending carried out under special laws cited state authorities
administrative management by closely edited. These so-called.
Agrarian offices were established in Moravia and Silesia. Their scope covering
discussion and decisions on all real and legal conditions that
at mending could not remain in the state. From the scope of agrarian
authorities were only exempted disputes over ownership and possession of land, building things
modified rules and regulations about railways and public roads.
To start scelovacího management sufficient draft mid-owners
farm land (possibly. Also a third of the owners).
Principles cited legislation were taken to Government Decree no. 171/1940
Coll., On the basis of which it was initiated, incorporated in the vast range of
cadastral territories after World War II. World War II, but was splicing control
completed, which created a problem that solves the amendment.

The last piece of legislation that in the pre-November period
regulate the procedure for land consolidation on the principle of adequate compensation for intervention
into ownership of land, the Act no. 47/1948 Coll. (
This law would preserve the possibility to complete the already initiated proceedings under splicing
previous regulations, if in these matters has been completed appraisal
management). Adequate compensation while resting in allocation of substitute
land or monetary compensation. Generally when you start landscaping
was limited ownership rights of all participants adjustments to land in it included
. The scope of this restriction with another course change.

Significant restriction of ownership rights of the land consolidation
occurred when they were established so.
Right of interim use of spare land to land owned by third parties (§ 60 cit. Law)
if they have not been paid financial compensation. Since the establishment of the interim law
use led to the situation where ownership of the land weight of the subject
The consolidation does not allowed to use land owned or enjoy its fruits, but
was with him the right to use the land in the interim use and enjoy
the fruits of this land. So after handing over land to the interim replacement
use, the right of ownership of one parcel permanently associated with a use
rights to the land totally different. However, that condition was not
time-limited. Splicing law, but guessed that it is a temporary condition,
which will last only until the splicing procedure is concluded after
formally and legally there is a shift of ownership of land,
in which changes interim use right on the property when
simultaneous extinction of ownership of the original land that was inserted into
scelovacího management. Coupage should be completed by a
management, which should be implemented, among other things, change, repair and foundation
Terriers and Land Cadastre as a basic tool
former real estate records. Termination scelovacího management should be notified
decree in the Official Gazette II.

State that during the Communist regime did not respect the laws that
himself had received, gradually lost interest in ensuring that an
procedure prescribed by law, and the notification of the termination proceedings
abandoned. Do landscaping began to strongly promote
political overtones. Starting in 1950, the landscaping become a tool that
quickest liquidation of conflict between the nationalized sectors of national
economy, especially industry and continuing relatively strong
agricultural sector. Widely was used by Act no. 69/1949 Coll., On uniform
agricultural cooperatives, which should give our agriculture
a new direction - a newly organized agricultural land fund and support in agriculture
development of agricultural production modeled after the Soviet collective farms and state farms
at maximum suppression of private ownership of agricultural
property.

Government decree no. 47/1955 Coll., On measures in the field of
economic and technical adjustments to land were canceled scelovacího
law, but has not canceled any rights acquired thereunder.
The new legislation did not include any rule of conduct on the basis
would be possible to complete the initiated but still pending splicing
management, or in fact did not allow a return to the original property.
This was all incomplete splicing control virtually stopped and legal
relations to the lands in question were unfinished consolidation
left in the condition in which they were. Temporary use of the substitute
land was changed to a right replacement use their content
remained virtually identical, the difference lay in the fact that the right to use the interim
was to last only until its transformation in ownership right replacement
the use of ownership rights should never change. Government Regulation no.
47/1955 Coll., Even though it took place by economic and technical adjustments
land nekalkulovalo that would reflect adjustments
landscape and farmland configuration changes should occur inning
property rights. According to him might have caused the land in private ownership experience
just to relay usage rights.

Implementing regulations (first decree no. 212/1955 p. L.)
Declared only previous landscaping for modifications made by the government
Regulation no. 47/1955 Coll. and stated that alternative land given to the use
are considered the land assigned to use (similar regime
hit usufruct and usufruct rights), then (Decree no. 27/1958 p. l.)
expressed their integrity ownership of land, which were conceived
to landscaping carried out in accordance with the purpose of the government
Regulation no. 47/1955 Coll. before its effectiveness. A second implementing regulation
attempt was made to express the fact that the land
editing scelovacího launched under the law to shift ownership
occurred. This provision was not respected by the state power (the

Conclusion is particularly true of the practices of the Ministry of Agriculture in 70 years
).

From administered survey it is evident that temporary condition caused in accordance with the splicing
law, the right of ownership to certain land
not correspond usufruct and use the owned land, but the land
replacement takes until now. Link between owned and
replacement land has virtually substantive legal nature, because it takes
even when there is a change of the landowner. Any legislation
not use the right to substitute canceled, even after the adoption of the Law no.
229/1991 Coll., On the ownership of land and other agricultural
property preserved under the assumption of up to approval of the proposal
landscaping.

This legal status means that the owner of the land, which has been subjected
scelovacímu management later disrupted, the person who plot to
scelovacího estate management, ev. its legal successor (unless the
extinction of ownership rights in any other way). The ownership rights to this land
is called its content. Bare ownership.
Owner can not own land use, he does not belong to him or the right to use and enjoyment.
The ownership of the land, precisely because of the unfinished scelovacího
management, inseparably belongs the right to substitute another
use the land owner, whose content includes the right to use replacement land and
pocketing his fruit.

In connection with the ongoing so-called. Socializing village proliferated cases
disregard of property rights, emphasis was placed on the rights of usufruct.
The State Library has never tidy, although to do so by law no. 90/1947 Coll
. by Law no. 47/1948 Coll. obliged. Ceased to be guided by the basic
registration in the land books were abandoned traditional principles
acquisition of property rights, while the introduction of a single registration
land, whose task was to describe and display only use relations, and moreover by
factual situation, regardless of the legal title. Neither this
evidence did not depict any use rights, which included the right
interim use, right replacement use, the right to use cooperative
like.

Tackling did not bring a new filing system -
registration of real estate - in 1964. The original intent towards next registration
use relations also to capture the relations of property, but not
consistently implemented. E.g. agricultural and forest land owned
citizens who enjoyed Socialist organization or who have been
replacement use, the maps real estate records showing entirely
and did not register in accordance with parcel numbers. Proprietary Rights to such
land was registered only in Part D of the certificate of ownership reserved for
notes, and text "other land in the cat. FS. ... In taking
socialist organization." Establishment and maintenance of records of real estate
was particularly difficult in the cadastral, which was in 1955
suspended splicing procedure. The writings of splicing works were deposited in various organs
, some were lost, others could not be traced.
The implication arising from scelovacího law that the allocation of land to use
interim state was continuing to shift ownership rights when
ownership of one parcel was inextricably linked with the right of use
to land completely different, with regard to the political situation was not
respected. Geodesy centers, responsible for maintaining records of real estate
had the cadastral territory of the unfinished consolidation in the documentation
usually surveying Opera describing the state of land tenure
before and after blending sealed. The basis of land register maps
real estate was at its foundation usually employed surveyor operate of
already showing the arrangement of land after sealed. In cases where the
unfinished splicing control combined with incomplete allotment
management, the situation was complicated by the existence of documents depicting
another possible state land holdings. Thanks to
was unclear situation, it is uncertain which of documented land tenure relations
displays the status of property rights, which captures the state of the law
interim or substitute use and the state is completely invalid.

The area affected by incomplete blending occurred during
next decade and the many other changes, for transitions and transfers

Property rights, other dispositions, which in many cases led to the creation of duplicate
relations. There were, however, different legal opinions
question which of the possible state ownership of land holdings reflects
relationship, opinions often differed and changed.
Differences between the actual state of legal relations and recorded the relations further expanded.

Introducing new methods for the management of the land registry (eg.
Digitalisation of written information) can detect duplicates, if necessary.
Also triplicity in documents indicating ownership rights
various subjects to the same parts of the earth's surface. Cadastral offices are
led the effort to remove these unwanted effects, but do not have enough
legal means to deal with them. Therefore, they can reduce
recommendations on various subjects to questionable property deal either extrajudicially
(recognition of property rights), or the action for declaration
property. This process is only possible in a specific case
does not address the very essence of unfinished scelovacího management. I
eventual legal proceedings in an individual specific case faces big
practical difficulties. If the court's decision should be binding on other
person other than the plaintiff and the defendant, it would be necessary that a party
such a dispute, all participants were interrupted scelovacího management
(or their successors), therefore all participants in the past
ongoing with multiple land swaps. Many of them would undoubtedly
able to plead the adverse possession of property rights to some land.
Scope of such judicial proceedings would actually correspond extent
implementation of landscaping. If the court's decision should be
fair, it would anyone who had entered into any land
scelovacího interrupted proceedings to determine appropriate compensation.
If you experience because the structure of property rights ex lege [§ 9b paragraph.
2, § 9d. 1 point. a)], or to the creation of property rights as a result
administrative decision (§ 9e) can think of two consequences:

- Either this confirms the existing ownership rights to existing user
acquired usucaption (in accordance with the terms of prescription, which
Civil Code edited differently in different historical periods)
then you can not even talk about interference with the property rights of the original owner
already lost through adverse possession. Filling conditions
prescription can be expected in a large number of cases. Constitutional court of
expression Surveying Inspectorate in Brno found that unfinished
The consolidation in the South Moravian Region (which can be described as the center of gravity
problems with incomplete blending) affects 179,540 land owners
while u 173076 is in the real estate led state after
the consolidation and 151,372 (ie approx. 88%) has already called this state.
covered changes made at the discretion of inheritance, registration of contracts
or transfer of ownership . For these owners protect their amendment
legal certainty, moreover, supported by a legal presumption of good faith (
§ 11 and § 16 para. 1 of Act no. 265/1992 Coll., On the registration of ownership and
other rights to real estate , as amended).

- For an interference in property rights of his imprisonment in relation to constructing
property rights of another entity to the same thing.
Previous findings show that in the state occurred
was necessary to proceed to a comprehensive deal with the consequences of unfinished scelovacího
management, generally binding rules of conduct contained in the legal
regulation. This kind of solution prevents the emergence of parallel
pending litigation in individual cases.
From this perspective, the choice of the method of solution, ie. Control legislation,
adequate public interest. It is undoubtedly in the public interest that the
eliminated clutter in use and ownership relationships
correcting long unsolved chaotic legal situation in 439
cadastral areas. Court dealing with individual cases would
impossible, eventually. significantly delayed the implementation of land consolidation.

Petitioners' objections that the contested provisions favored
right of use before property rights whose protection is enshrined in Article
. 11 of the Charter, which hindered the right to own property, can not be evaluated in isolation
. Art. 11 paragraph. 1 at the constitutional level guarantees

Right of ownership, ie. Law ensures that everyone can be an owner
and no one in his possession shall be discriminated against in relation to other
owners, as the Constitutional Court stated in the resolution of the case file. zn.
II. US 249/95. This principle contested provisions infringe. Art. 11
paragraph. 1 does not contain any general clause of limitation of property rights
law, because it is followed by other paragraphs reglementující exhaustively
options constraints.

These include conditions for the expropriation or forced curtailment of ownership rights
(Art. 11 par. 4).

For the above reasons, formulated the petitioners can not agree that interventions in property rights
lack of public interest. Conversely, long-term consequences
unresolved relationships and their relatively high frequency
do not complete the landscaping. It is clearly evident that
landscaping are determined by a set of public interests, one of which is the dominant
interest in further development of agricultural production while respecting
justified environmental requirements. This can also be used
former jurisprudence of the Supreme Administrative Court
Czechoslovak Republic. E.g. in finding God. adm. no. 14224 is worded opinion
that the public interest is given, if the business work for the order to be accepted
lifestyle needs of a larger whole, state, territorial, social, etc.
. In other findings it was concluded that the public interest
may not be the absolute concern, since such public interest
either did not, or occurs only very rarely. If
expropriation should be subject to an absolute necessity, it would be practically by the Institute
devalued and private interest owners would be disproportionately elevated above
public interest. It was meant only relative need (Boh. Adm. No. 5766 and
no. 14396).

The petitioners rightly point out that approval of the proposal in
territory in which consolidation has not been completed, the agreement does not require
landowners concerned Reparcelling (§ 9 g par. 1).
It is, however, only the first instance decision of the authority of government;
law respects the principle of judicial protection, it enshrines the possibility for parties to appeal against this decision
appeal to the courts within the meaning of § 250 l et seq.
Civil Procedure (§ paragraph 9 g. 2). In this context, it is desirable
recalled that in management when deciding on appeals against decisions of administrative bodies
court may
evidence necessary to review the contested decision (§ 250q paragraph. 1
Civil Procedure) .

Constitutional Court states that land consolidation in its most
not constitute an expropriation of property rights in the true sense of the word,
because they are basically a public voluntary exchange of property rights
owners concerned. However, for the group of owners that with
implemented land consolidation disagree
are constitutional rules applicable to expropriation (compulsory restriction of property rights)
extreme criterion protect their property.

The legislature also took into account the fact that if
The consolidation was completed according to the design plan scelovacího, interim users would become "full"
owners. These are therefore not arbitrary, but about respecting the possible consequences
interrupted and unfinished process. In proceedings before the ordinary courts
it was even expressed an opinion that ownership of the new land acquisition by participants
The consolidation already a decision of the competent authority, without
have the registration of ownership in land register.
Splicing procedure was not formally legally completed but ownership
by this opinion have already been raised recently (judgment of the Regional Court in Plzeň
sp. Ref. 15 Ca 142/94). The procedures selected its consequences, in
final stage, evidently lead to the removal of uncertainty in the ownership
relations. The Constitutional Court, in contrast to the petitioners, the view that
provisions whose annulment is sought, on the contrary, contribute to the fulfillment
one of the fundamental principles of the rule of law - legal certainty.

As regards evaluation of the time when the legal effects of the transition
property rights of the appellants place by the time the bill was
scelovacího plan, if necessary. where the party took mending designed by
scelovacího plan to substitute land use (correctly interim
use), the Constitutional Court concurs with the opinion
both chambers of the Czech Parliament.

Ad b)


The petitioners also argue that the compensation does not receive all owners who
property right has expired. For a defined group of cases, the establishment
property rights (which the appellants refer to as transitions)
law formulated in accordance with Art. 11 par. 4, the right to compensation.

§ 9d. 2

Persons who are not based property pursuant to a) or subparagraph b)
entitled to compensation.

§ 9e last sentence

The current owner receives compensation in another plot by type
before starting the consolidation.

If it be the case provided for in § 9c paragraph. 2 (If the data scelovacího
register plans, which is based at the Land Registry Office, shows that a subscriber
consolidation was not compensated for their land conceived to || | consolidation, the district land office after consultation with the land Registry Office
this participant or his heirs are entitled to determine
land in an area corresponding to the non-provision of compensation, if necessary
land area in the perimeter landscaping available) , says
applicants that do not receive compensation for those whose district office after agreement with
cadastral office fails, and those in whose jurisdiction the land
adjustment is not required land area.

This case compensation for land and introduced to the consolidation
apply only in relation to the establishment of land ownership
scelovacího according to the draft plan (§ 9b paragraph. 2). Already under the former rules should
everyone who brought up The consolidation land, receive compensation and
rule in other lands, even under the Act no. 47/1948 Coll., Whose
§ 41 paragraph. 1 stated: "Each owner of land included to the consolidation
is a direct participant in consolidation and is entitled to compensation (paragraph 4)
for its current land prices by such land, agreed
direct participants or by their general price determined
on the basis of opinion of experts. "likewise, paragraph 4 of the same provision read:" the replacement if
paid in cash (§ 85), must be given the land to be
rovnati grade, acreage and distances where possible, existing land,
although it will also take into account the advantages obtained by assembling. " Thus, such
owner became (in the cat. Areas with unfinished consolidation)
provisional member, and he suggests construction of an ownership right to land
surrendered to the interim use pursuant to § 9b paragraph. 2. Only
rarely come into consideration monetary compensation.

It can therefore be reasonably assumed that cases where one party
consolidation was not compensated for their land conceived in consolidation, with
will occur only in very small numbers. For such a situation
incorporate the right to compensation in § 9c paragraph. 2 is sufficient. Compensation may consist
claim to the land (it is logical that it will only be necessary if
land area in the perimeter landscaping available).
The actual determination of the conditions for granting compensation to the existence of appropriate
land is not in itself unconstitutional - in violation of Article. 11 paragraph. 4
Charter. Only if in a specific case could not be a substitute
granted, while this time it is impossible to predict whether such a case
ever happens, it would be possible to accept that the party demanded
individual way of protection for its violation fundamental rights.
The Constitutional Court recalls that the chosen wording in § 9c
paragraph. 2 shown by the verb "may" not be interpreted as a manifestation
option for the arbitrariness of the District Land Office.
If the required land area in the perimeter landscaping available, the district land office
entitled to compensation for the land shall determine. The adoption of this opinion leads
systemic approach to the interpretation of the word
"may", that surpasses the results of isolated semantic analysis.
Then, when the provisions of the Act establishes a right for the participants (here
right to material compensation), the competent authority may protect this right
deny and must admit it if they meet all the conditions laid down in the hypothesis
legal standards, although the legislature used a very precise
statement, talking about possibilities. Finally, it should be taken into account
possibility of direct application of Art. 11 par. 4, which clearly envisages compensation
(substantive or relutární). The provisions of § 9c paragraph. 2
used the wording "may" gives legislators indicated that preference (if
for a given condition) replacement material.


Petitioners' objections that refunds will not be provided to those who are forced
transition ownership of these rights will become, from a constitutional perspective
meaningless. The Charter protects the subjective right of ownership for
against his limited right to compensation. It does not decide who
provide compensation. In the present case, in the opinion of the Constitutional Court
provide compensation to the state, because it is obvious that in the past his inaction has caused
described a chaotic state, so they can avoid
its consequences.

For all the above reasons the Constitutional Court for the annulment of the provisions
§ 9b to 9h Czech National Council Act no. 284/1991 Coll., On land
consolidation and land offices, as amended by Law no. 217 / 1997 Coll., which
amends and supplements Czech national Council Act no. 284/1991 Coll., on
land consolidation and land offices, as amended by Czech national Council
no. 38/1993 Coll. and supplementing Act no. 455/1991 Coll., on
Trades (Trade Act), as amended
regulations, dismissed.

Chairman of the Constitutional Court:

Pp. JUDr. Holeček vr
Vice


Rights putting dissenting opinion to the finding in the record of the hearing and
its connection to the decision stating his name in accordance with § 14 of Act No.
. 182/1993 Coll., On the Constitutional Court, the judge took JUDr. Vladimir Cermak.