88/1998 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 11 July. March 1998 in the plenary on the proposal of the regional

the Court in Ústí nad Labem on abolition of the provisions of § 9 para. 5 of law No.

229/1991 regulating ownership of land and other agricultural

assets,



as follows:



The proposal is rejected.



Justification



On 18 July 2005. November 1997, the Constitutional Court received a proposal from a regional court in

Ústí nad Labem on abolition of the provisions of § 9 para. 5 of the Act No. 229/1991

Coll., on the adjustment of the ownership of land and other agricultural property,

(hereinafter referred to as the "law of the land"). The proposal is based on the appeal

authorised persons against decisions of the District Office-Land Office in

Held with the applicant under the Chomutov, SP. zn. 15 Ca 459/97. The legitimate

the person submitted an appeal to the part of the decision of the land Office,

that was according to the provisions of § 9 para. 5 of the law on land has been established on

issued by the land easement. Objection lies in the fact that the

easement without fixing and authorised persons so

a significant injury. Authorized persons shall be considered a decision of the land

the authority in this part of the illegal.



Because the regional court in Ústí nad Labem in proceedings on appeal

came to the conclusion that the provisions, which should land authorities in

establishment of easements to rely their decision is in breach of article. 11

paragraph. 4 of the Charter of fundamental rights and freedoms ("the Charter"), decided to

a stay of proceedings pursuant to § 109 paragraph. 1 (b). (b)), section 250 l of paragraph 1. 2 and §

246c code of civil procedure, and at the same time decided pursuant to article. 95 para. 2

The Constitution on the submission of the case to the Constitutional Court with a proposal pursuant to section

64 para. 4 of law No. 182/1993 Coll., on the Constitutional Court, to cancel

the provisions of § 9 para. 5 of the law of the land.



District Court States that, in the absence of provisions on the powers of the soil

land authorities to provide for compensation for established easement cannot

interpreted as meaning that would land the authority was not entitled to decide on the establishment of

easement at all, since its jurisdiction is expressly provided

the provisions of § 9 para. 5 of the law of the land.



Easement means interference with the right of ownership, so that

in the opinion of the appellant can be inferred from the provisions of section 128 paragraph 1. 2

of the civil code, in the resulting constraint belongs to the owner

replacement. Therefore, the question whether the provisions of §

paragraph 128. 2 of the civil code cannot be inferred the power to land

authorities to decide about compensation for easement. But

to the view that under the current editing in the easement the provisions of § 9 para.

5 of the law on the land authorities are not entitled to land in the case of

a positive audit opinion of the easement and the compensation for such

the load of the land. To support this opinion refers to the provisions of §

paragraph 108. 2 (a). (d)) and section 111 of the Act No. 50/1976 Coll., on urban planning

and the building code (the building Act), as amended, of the

that can be used not only to conclude that these provisions allow the administrative

the decision about the conditions for necessary access to land and

the construction restrictions of ownership rights by a decision of the building authority of the

easement, but also by the power of the administrative authority to

deciding on the establishment of compensation for its establishment. Otherwise,

He admitted to the view that the jurisdiction of the land authorities to decide on the

compensation in the application of § 9 para. 5 of the law on land may be based on the text of the

section 128 paragraph 1. 2 of the civil code, that provision would be lost

the building act warranted. Your rapporteur concludes this account

findings, for the purposes of compensation for easements cannot be used

the provision of section 128 paragraph 1. 2 of the civil code, but it is always necessary to

to provide for administrative authorities in the law special treatment as well as the power to

deciding on a replacement for the limited right of ownership. Does not consider the

Therefore, the current legal regulation of § 9 para. 5 of the law on land lacking

the adjustment of the refund, for the State, since it is contrary to the constitutionally-compliant article. 11 (1)

4 of the Charter. Proposes therefore, cancelling all § 9 para. 5 of the law on land,

When having regard to the stylistic editing this paragraph cannot be canceled

only that part which relates to the easement.



With the proposal were the Constitutional Court referred to the writings of the regional court in Ústí

nad Labem SP. zn. 15 Ca 459/97 and 15 Ca 761/95.



The challenge of the Constitutional Court sent its statement to the Chamber of Deputies

Parliament of the Czech Republic, non-dated 18. December 1997 No.

j. 6061/97 Sp. The Chamber of deputies of the Parliament of the United Kingdom in

your expression refers to the General section of the explanatory memorandum, in which it is

stated that the law on land has restored the right of landowners to dispose of it in the

accordance with the basic rights arising out of the Constitution in force and

of the civil code. The design of the regional court in Ústí nad

Labem States that even when not in § 9 para. 5 of law about land obligation

the land Office to decide on the compensation expressly provided for, you need to

take into account the article. 11 (1) 4 of the Charter as part of the constitutional order

The United States and realigned land authority in decision making

a specific case. Considers that the solution is not constitutionally Conformal

in canceling the provisions of § 9 para. 5 of the law on land, but in a shift away from

unduly restrictive interpretation, which, when the judgment of the

easement committed the competent District Office, while at the same time

not decided on compensation for its establishment. In the event that the provisions of section 9 of the

paragraph. 5 of the law on land has been cancelled, dropped out of the Law Institute

easements and land Office would at the release of the property could not

take into account the protection of the environment or to important interests of the other

owners.



The analogy with the building law, the Chamber of deputies in its observations

States that it is rather necessary to search for similarities in the construction of the order of establishment

easement under section 66 paragraph 1. 2 the building Act. This provision

It also does not regulate and explicitly does not provide for the fixing of the establishment

easement or does not provide for the obligation of the competent authority of the refund

decide. In this state of things, in the observations of the

the Chamber of Deputies, expressed the opinion that the legislature acted in

the belief that the law is adopted in accordance with the Constitution and our legal

of procedure. It is then on the Constitutional Court, in the context of the examination of the proposal

to assess the constitutionality of the contested provisions and issued the appropriate decision.



The law of the land has been approved by the required majority of the members of the Federal

Assembly on 21 February 2006. May 1991, was signed by the respective constitutional

agents and has been properly declared.



The Constitutional Court also requested's opinion on the proposal from the Ministry of

agriculture-the Central Land Office.



In its observations of 9 October. December 1997 no 2549/97-Central

Land Authority, after considering all the circumstances relating to the issue of

establishment of easements by an administrative authority, and also taking into account the

experience consider the proposal of the regional court in Ústí nad Labem

on the repeal of § 9 para. 5 of the law on soil for reasonable. Regard, that should be

by establishing the easement limitation of ownership rights

beneficiaries, and in some cases to limit rather considerable. This

limitations, in accordance with the civil code should be offset by the

the corresponding refund.



In itself, the provisions of § 9 para. 5 of the law on land, as further described in the

representation of the Central Land Office, causes problems in practice, and

in particular, the interpretation of terms used. It is not for example. clear, such as

criteria to weigh "the need for" easement and how Parallels

grab, used the word "may". The biggest complications then come from

in cases where the District Court on appeal

cancels the operative part of the land Office of the easement, and returns this

part of the decision of the land Office for reconsideration. While statement

establishing land ownership to beneficiaries, keep in

the validity of. The Central Land Authority is of the opinion that an easement is

can be set up only in proceedings pursuant to § 9 para. 2 or 4 of the Act on the soil in the

connection with the issue of land ownership legitimate concerned

persons. A new and separate decision establishing the easement is

considered to be contrary to the law of the land. The possibility of easement

only applies to the converted land and not to the land already

transferred to the ownership of the beneficiaries. If it was applied

the opposite view and an easement would be implemented and subsequently, the

representation, there would be an administrative interference with property rights,

that finds no support in the law and is contrary to the Charter.



For all the above reasons, the Central Land Office in favour of a

the opinion of the regional court in Ústí nad Labem on abolition of the provisions of § 9 para.

5 of the law of the land.



The design of the regional court in Ústí nad Labem on abolition of the provisions of § 9 para.

5 of the law of the land is based on the provisions of § 64 para. 4 of law No. 182/1993


Coll. and article. 95 para. 2 of the Constitution, for the appellant at the same time demonstrates that the

This provision, according to which it should be, the solution is in the

contrary to the article. 11 (1) 4 of the Charter. As the proposal has been duly filed, is

at the same time given to the competence of the Constitutional Court for its consideration.



The contested provision is one of those within the meaning of § 151n civil

code and the provisions of the following (in particular section 151o (1))

specify the options for the establishment of easements (section 9, paragraph 5, of the law on

soil: "If it is necessary, can land the authority to establish or

Cancel on the transferred real estate easement, or save the other

measures for the protection of the environment or important interests of other

owners. "). As to the determination of the institution responsible to decide on the establishment,

Alternatively, annulment of easements. In the context of decision-making

restitution claims it is entitled to set up a land Office or Cancel to

the property, which is the subject of restitution, the easement. The law in this

the context provides the land Office wide discretionary

permissions when points out-with regard to the definition of the conditions the establishment or

cancellation of the easement-found that the land Office is may

set up or cancel, if it is necessary. According to

the opinions of the Civil Division of the Supreme Court is nothing to prevent

to land Office decided in a single decision the approval of the agreement on

the release of the property and establishing (or cancel) the easement on this

the agreement issued by the real estate (R 16/1996). This opinion does not preclude the

or easement separate decision of the land Office,

Therefore, additionally. Because the law of the land at the same time does not confer explicitly

Land Office to decide on the scope of compensation for restrictions

ownership of the material burdens arise doubts about the constitutionality of this

editing.



It is common ground that the decisional practice of the Constitutional Court understands

the context of the protection of ownership referred to in article restitucemi. 11 of the Charter

primarily as a protection of property rights already established and

the existing. Just a dispute about ownership, in which the existence of a

ownership only detected or even konstituována, constitutionally protected

is not and cannot be. If this is the case when the land Office decides on the

a single decision about the approval of the agreement, or decide on the ownership of the

authorised persons and at the same time establishing (or cancel) the factual

the burden on the restituované property, the ownership of the legitimate

persons up to the decision of the land Office and its origin in a

a moment with the emergence of easement. In this case, obviously cannot

go about the alleged violation article. 11 of the Charter, because at the time of deciding on the

restrictions of ownership of this title to the beneficiary still

does not indicate. Break the law on the protection of the rights of a non-existent (though

non-existent only for now) is conceptually impossible. In addition, it is

common ground that a remedy of certain property injustices under the restitution

legislation carries with it-with regard to the length of the so-called. the vesting period and

a number of changes in majetkověprávních relations-certain load and

problems that often prevents the issue of stuff, sometimes permit renewal

of property rights only to a limited extent. This is the case even if the

establishment of easements land by the authority when deciding on the

ownership of or in connection with the decisions on the approval of the agreement on the

the release of things.



The other problem can be making a decision on the establishment of or cancellation of right in rem

the burden by itself, without the context of ruling on the ownership of the things

or for the approval of its release, very often even if

to the issue of property has occurred and the procedure for the Constitution of the easement

been completed. In this case, the land Office

in circumstances where the person concerned has already become the owner of the case; its

decision undoubtedly limits its already constituted the right of ownership.

Similar situations are in the legal order of the Czech Republic regulated at multiple

places, therefore the land Office set up options, anchorage

an easement in the soil is not unconstitutional. The situation, when the law on the

the soil at the same time provides that land Office has to decide on compensation for

restrictions on ownership of the material burden is to be solved with the use of article.

11 (1) 4 of the Charter. According to this article, you can limit the right of ownership

only for the replacement. In doing so, the principle that the individual provisions of the Charter of

are directly applicable law and the rights contained therein may be

claim directly with reference to their wording. The only exceptions are the basic

the rights that the Charter lists in the article. paragraph 41. 1 use the links on the

specific articles of the Charter. For these exceptions, it is provided that the relevant

You can claim the rights only within the limits of laws that this provision

are carried out. Conversely means that all of the other rights can be

the claim of right and by law cannot exceed the limits that are set out in

The Charter. Because the right to compensation for restriction of property rights is not

listed among the exceptions, you may rely on the rights of the owner concerned

refund directly with reference to the article. 11 (1) 4 of the Charter, without

It was absolutely necessary in terms of constitutional guarantee this right no

yet regulation is less legal force.



Comparison of different assumptions for the easement

the land registry office according to the law of the land on one side and building

authority pursuant to Act No 50/1976 Coll., on the other hand, the

the plaintiffs allege, is not possible and specific. Both the legislation

have been accepted in quite different historical periods: construction law

took effect in 1976, IE. at a time when the Czech (Czechoslovak)

the legal order was missing on the constitutional level, the principle of compensation for grounded

restriction of ownership rights; was included only in the civil code.

In addition, in this period there was no possible contracting establishment

loads. The law of the land already has been approved for the effectiveness of the Charter, which of the

the constitutional perspective articulates the basic rules not only for the protection of

basic human rights, but also for application in concreto of the laws of

lower legal force. Practical experience shows that the authorities

In contrast, little use of the possibility to establish an easement, which then leads to the

disputes between property owners and these disputes are hard to legally

due to the narrowness of the managable legal conditions under which the Court has

the ability to establish an easement (the Court may establish an easement only

the conditions of § 135 c of paragraph 1. 3 and § 142 paragraph 2. 3 of the Civil Code). The establishment of the

easement in connection with decision-making authority about the land

ownership of land is a most efficient and allows you to take into account the

all of the circumstances identified in the proceedings (in other proceedings, it would be necessary

these circumstances only to discover again). In fact, that the law of the soil itself

upon the competence of land offices to decide on compensation for restrictions

ownership of the material can be seen as a burden, but

solvable, problem, that does not interfere with the constitutional plane.



For these reasons, the Constitutional Court came to the conclusion that the contested provision

§ 9 para. 5 of the law on land is not contrary to the Charter of fundamental rights and

freedoms, and therefore rejected the proposal.



The President of the Constitutional Court:



JUDr. Kessler v. r.



The rights to bring the different opinions on the findings in the Protocol on the acts and

on its connection to the decision, stating their name pursuant to section 14 of the Act

No. 182/1993 Coll., on the Constitutional Court, judges JUDr. Pavel Holländer

and JUDr. Antonín Procházka.