![PDF ikona](fileadmin/Default_theme/Images/filetypes/pdf.png)
HEADNOTES
Art.
11 para. 1 of the Charter guarantees to everyone the right to own
property and accords each owner’s property right the same content and
the same protection. The Charter does not provide, however, that
absolutely no restrictions may be placed upon the right of property.
Art. 11 para. 3 manifestly permits restrictions upon property rights.
The legislature may, by statute, place restrictions on property rights
on the grounds of protecting the rights of others and of protecting the
public interest, in particular of public health, nature, and the
environment. In view of the obligation to preserve the essence and
significance of property rights (Art. 4 para. 4 of the Charter), in so
doing property rights may not be restricted beyond a proportional
degree.
This interpretation is in conformity also with the protection of property under Art. 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. Stated briefly, the European Court of Human Rights adjudges, in accordance with this provision, whether restrictions on the enjoyment of possessions (property rights) pursues a legitimate aim, whether it is in conformity with domestic law, and whether it is proportional in relation to the legitimate aim that is pursued.
A decision, pursuant to § 88 para. 1 lit. b) of the Construction Act, ordering the removal of a structure put up without a construction permit on the another’s plot of land without the owner’s permission, pursues a legitimate aim consisting in the interest in maintaining construction discipline, in the protection of the environment, and in the protection of the rights of the owner of the plot of land. Laying down the duty to remove a “black” and “unauthorized” structure is an interference that was proportionate to the aims pursued, for it could not have been accomplish by other measures. It is not a sanction which could be possible as an alternative in addition to a fine for a delict against the Construction Code, rather it is a measure the aim of which is to return the land to its original condition.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court decided in a panel in the matter of the constitutional complaint of P.A., represented by JUDr. J. S., an attorney, against the 30 April 2002 judgment of the Regional Court in Hradec Králové, No. 30 Ca 11/2002-25, with the participation of this court as a party to the proceeding and the City Hall of the City of Hradec Králové and the Regional Office of the Hradec Králové Region as secondary parties to the proceeding, as follows:
The constitutional complaint is rejected on the merits.
REASONING
I.
In
his timely submitted constitutional complaint, which also in other
respects fulfills the requirements prescribed in Act No. 182/1993 Coll.,
on the Constitutional Court, as subsequently amended, the complainant
requested that the judicial decision mentioned in the heading be
quashed.
The complainant
stated that the contested decision rejected on the merits his action
against the 6 December 2001 decision of the District Office in Hradec
Králové , Department of Regional Development, No. La/RR2/212/01, in
which the District Office upheld the 30 March 2001 decision of the first
instance body, the City Hall of Hradec Králové, the Section for
Construction and Transportation, No. Sb1/735/2000/Mu (correctly No.
SD1/735/2000/Mu), which ordered the complainant to remove the
recreational cottage on the plot of land, parcel no. 355/10 and 355/1 in
cadastral district S.
The
complainant reasoned his complaint to the effect that the decision of
the County Office in Hradec Králové, as well as the decision of the City
Hall of Hradec Králové, were issued on the basis of improperly
conducted administrative proceedings and in conflict with the
constitutional act which guarantees human rights and freedoms.
According to the complainant, the administrative bodies did not conduct
themselves in accordance with the Construction Act and the Construction
Code; they did not accord the complainant the opportunity, if necessary,
to submit the documents required for the approval inspection of the
reconstruction of the recreational structure. In the complainant’s view
the building was only reconstructed, therefore that process could not
have resulted in its legal and factual termination and the construction
of a new building. In addition, the administrative bodies did not even
sufficiently provide the complainant with the required advice as to
which documents he should submit to the administrative body, and by
which deadlines. Not even the Regional Court in Hradec Králové cured
the illegal situation called forth by the improper decisions of the
administrative bodies. Their factual conclusions find no support in the
admitted evidence.
The
complainant asserts that, in consequence of the contested judgment, his
constitutionally-guaranteed rights, protected by Art. 11 of the Charter
of Fundamental Rights and Basic Freedoms (hereinafter the “Charter”),
were seriously violated. In his view, there is no dispute concerning
the ownership of the cottage, it has stood on the given spot for 66
years, and its reconstruction, with a larger floor-plan but not one
detrimental to the environment, even if carried out without the prior
consent of the competent bodies, does not give grounds for such a basic
decision as the removal of the structure.
II.
The
Constitutional Court requested be sent to it the court file, 30 Ca
11/2002, the file from the City Hall of Hradec Králové, the Section for
Construction and Transportation (hereinafter “Construction Office”), and
the file from the County of in Hradec Králové, from which it
ascertained the following.
On
4 May 1999, it came to the attention of the Construction Office during
an on-site inspection on a parcel of land, No. 355/10 and 355/1 in the
cadastral territory, that a cottage was under construction on that
parcel without a proper construction permit. A day later the Office
called upon the owner of the structure (that is, the complainant) to
cease the construction work, at the same time it initiated a proceeding
on the removal of a structure, called upon the complainant to
demonstrate by 30 June 1999 that the construction of the cottage was in
harmony with the public interest, especially with territorial planning
documentation, aims and designs of the territorial planning, and that he
also submit a consent to the construction given by the owner of the
plot, the consent of the state administrative body competent in the
sector of forest husbandry, and the position of the Office for the City
of Hradec Králové, unit of the main architect, for a supplemental
construction permit (notification and request no. OV/1668/99/Mu, č.l.
30-31, the 31 May 1999 Construction Office communication on the
application for a supplemental construction permit, OV/2146, 2184/99/Mu,
č.l. 24). During an on-site investigation on 28 May 1999, the
Construction Office discovered that the complainant had ignored its
request to cease work and had continued in the construction to the point
where it was nearly completed. Therefore, in its 9 June 1999 decision
(no. OV/1668/99/Mu, č.l. 22), it ordered him to cease all construction
work. In the meantime, the complainant formally requested a
supplemental construction permit.
In
its 8 February 2000 request, No. SD1/735/2000/Mu, č.l. 15, the
Construction Office repeatedly called upon the complainant to submit to
the Construction Office, by 31 March 2000, an application for a
supplemental construction permit for the recreational cottage (including
the detailed prescribed requirements as to content) and to attach the
prescribed documents, among other things demonstrating the right in the
plot of land, documentation, the layout of the situation, construction
drawings, the position, consent, and assessment of the affected state
administrative body. It also stated that should the complete
application with required documents not be submitted by the prescribed
deadline, the Construction Office shall decide to order the structure’s
removal.
In its 30 March
2001 decision, No. SD1/735/2000/Mu, č.l. 4, the Construction Office
ordered the complainant to remove the recreational cottage, seeing as he
did not succeed in demonstrating that he met the conditions laid down
in § 88 para. 1 lit. b) of Act No. 50/1976 Coll., on Territorial
Planning and the Construction Code (the Construction Act), as amended in
the decisive period (hereinafter “Construction Act”). The complainant
brought an appeal against this decision, however, in its 6 December 2001
decision, the County Office in Hradec Králové rejected the appeal on
the merits.
By his action
before the Regional Court in Hradec Králové, the complainant sought the
review of legality of this decision. He stated in his action that the
contested decision was issued on the basis of an improperly conducted
administrative proceeding and in conflict with the law. He asserted
that he is the uncontested owner of the recreational cottage at issue.
Due to the age of the original wooden cottage, it was necessary to
reconstruct it which, in his word, encompassed also its modernization.
He acknowledged his error in not timely requesting a permit for the
reconstruction of the building, however, he alleges that he acted in
good faith and that the adapted building, in its appearance, did not
disrupt the countryside, rather it represented an improvement in it. In
his view, the administrative bodies did not accord him the opportunity,
if necessary, to submit the documents required for the approval
inspection of the cottage, and did not even sufficiently provide him
with the required advice as to which documents he should submit, and by
which deadline. He considers the fact that the cottage now takes up an
additional 14 square meters not to be decisive from the perspective of
the protection of the forest land. He asserted that the building has
stood on that spot for 66 years and that the reconstruction of it
according to a larger floor plan cannot constitute grounds for a
decision so basic as the removal of the structure. Thus, the removal
constitutes a marked interference with his right to property as
protected by Art. 11 of the Charter. He considers that a sanction
consisting in the removal of the structure to be disproportionately
severe and that a proportionate fine would have sufficed as a lawful
sanction.
In its judgment
contested here, the Regional Court rejected on the merits the
complainant’s action. In reasoning its judgment, it stated that it was
indisputably proven that the case did not involve the modification of
the existing structure of a recreational cottage, rather the
construction of an entirely new, original structure: the original
building was demolished and in place of it a new structure appeared, one
of a different size, employing a different construction method, and
made of different materials, all of which requires a construction
permit. According to the Regional Court the new construction was
carried out without a construction permit, and that without regard to
the 5 May 1999 request to cease construction work or the 9 June 1999
decision. In the Regional Court’s view, there is no doubt that the
action was in bad faith. The Regional Court referred to the wording of §
88 para. 1 lit. b) of the Construction Act, according to which the
Construction Office shall order the owner of a structure put up without a
permit to remove the structure. It shall not order such removal if the
owner of the structure can prove that the structure is in harmony with
the public interest, especially with the territorial planning
documentation, the aims and designs of the territorial planning, etc.
In this regard, the court declared that the structure is in conflict
with the territorial plan of the City of Hradec Králové, in conflict
with the 16 April 1996 generally binding ordinance of the City of
Hradec Králové, No. 4/1996, on Creating the Nature Park Orlice, that
is, in conflict with the aims and designs of the territorial planning.
Further, the structure was built upon another person’s plot of land and
the owner of the structure did not succeed in obtaining a positive
standpoint on the construction from the side of the bodies protecting
nature and the countryside and the state administrator of the forests.
The court further made reference to the fact that the administrative
complaint contained no objection to a concrete violation of the
Construction Act.
In its
statement of views on the constitutional complaint, the Regional Court
in Hradec Králové referred to the reasoning in its judgment and
emphasized that this case did not involve the reconstruction of an
existing cottage, rather the construction of an entirely new one. It
considered the complainant’s assertions on this point to be clearly
opportunistic.
In its
statement of views on the constitutional complaint, the City Hall of
Hradec Králové proposed that the Constitutional Court reject the
constitutional complaint on the merits. The complainant had the
opportunity to prove that the construction is in conformity with the
public interest; he was requested to submit the necessary documents,
however he did not submit any of them. Accordingly, in conformity with
the Construction Act, the Construction Office, ordered the removal of
the structure. The Construction Office also fulfilled its duty to
advise by its requests of 5 May 1999 and 31 May 1999, as well as its 8
February 2000 request to submit an application for a supplemental
construction permit, in which was stated in detail what should be in the
application and which annexes should be submitted, as well as the
relevant deadlines. The new cottage takes up 1/3 more space than the
original cottage, and the owner of the plot of land did not give his
consent. In the view of the City Hall, the construction was
intentionally carried out without a construction permit, and the owner
of the structure disregarded the Construction Office’s requests to cease
construction work. It cannot be the case that the property rights of
the owner of the structure were violated, as the construction of the
structure on a plot of land belonging to someone else, without that
owner giving his consent at the start of construction, constitutes on
the part of the owner of the structure the abuse of his rights to the
detriment of the rights of the owner of the plot of land.
In
its statement of views on the constitutional complaint, the Regional
Office of the Hradec Králové Region stated that it is in total
disagreement with it. It emphasized that the builder constructed an
entirely new recreational cottage without a construction permit, on top
of that on land which is protected and does not even permit the building
of recreational cottages.
The
Constitutional Court sent the above-cited statements of views of the
parties and secondary parties to the complainant’s attention. In his
rejoinder, the complainant pointed to the administrative body’s evident
bias against him personally, as well as to the manner in which it
conducted itself, and informed the Constitutional Court that he persists
in his objections.
As
all parties and secondary parties agreed to dispense with an oral
hearing (§ 44 para. 2 of the Act on the Constitutional Court), no
hearing was held.
III.
The
complainant asserts that the contested judgment, which upheld the
decision of the administrative body ordering him to remove the
recreational cottage, constitutes an unconstitutional encroachment upon
his right to property in conflict with Art. 11 of the Charter.
By
way of preface, the Constitutional Court would state that there is no
dispute concerning the fact that the complainant constructed the
recreational cottage without a construction permit, that it was an
entirely new structure, and that the only thing it had in common with
the original cottage is that they were built on the same general
location. The Constitutional Court considers that, in the best case,
the complainant’s assertions concerning the alleged “adaptation” of the
original wooden cottage are entirely opportunistic. The documents from
the file and the complainant’s fragmentary assertions show without any
doubt that the original wooden cottage was completely demolished and
that, without a construction permit, an entirely new cottage was put up
on approximately the same spot. Moreover, it was made of different
material, a different approach to construction was employed, a cellar
and a second floor were added, and it even took up one third more
surface area than the original structure. In addition to this, the
Constitutional Court learned that the complainant continued in the
construction work despite repeatedly being called upon to desist, so
that he essentially completed it. Further, the structure was
constructed on the grounds of a nature park proclaimed for the purpose
of the protection of the character of a region having a significant
concentration of things of aesthetic and natural value. On top of that,
the structure was constructed on someone else’s plot of land without
the owner’s consent.
Immediately
after the illegal situation was ascertained the Construction Office
initiated a proceeding on the removal of the structure, of which the
complainant was informed. At the same time, in conformity with the
Construction Act, the complainant was repeatedly advised of the
possibility to request a supplemental construction permit, of the what
should be submitted with the request, and by when it should be
submitted, and the deadline was extended for him several times.
However, the complainant did not fulfill the conditions required by law
for a supplemental construction permit; therefore, the Construction
Office ordered its removal.
Under these circumstances the constitutional complaint can be viewed in two different ways.
First, based on the context of the proceeding in which the removal was ordered. Pursuant to § 88 para. 1 lit. b) of the Construction Act, the Construction Authority “shall order the owner of a structure, erected without a permit or in conflict therewith, to remove the structure, and shall not order the removal of the structure should the constructor prove . . . ” etc. In other words, by inveighing against the decision ordering him to remove the structure, he is in essence seeking to have granted his supplementary request for a construction permit, despite the fact the he has not demonstrated that he meets the statutory requirements for such supplementary permit. Such a request is not, however, the object of protection of Art. 11 of the Charter. The fundamental right to own property should not be confused with the “right” to be successful in administrative proceedings and in court proceedings connected therewith.
First, based on the context of the proceeding in which the removal was ordered. Pursuant to § 88 para. 1 lit. b) of the Construction Act, the Construction Authority “shall order the owner of a structure, erected without a permit or in conflict therewith, to remove the structure, and shall not order the removal of the structure should the constructor prove . . . ” etc. In other words, by inveighing against the decision ordering him to remove the structure, he is in essence seeking to have granted his supplementary request for a construction permit, despite the fact the he has not demonstrated that he meets the statutory requirements for such supplementary permit. Such a request is not, however, the object of protection of Art. 11 of the Charter. The fundamental right to own property should not be confused with the “right” to be successful in administrative proceedings and in court proceedings connected therewith.
The
second perspective takes note of the impact the administrative decision
(affirmed by the contested decision) has had on the complainant’s
property sphere. From this perspective, there is no doubt that, by
ordering the removal of the structure, the complainant’s property right
in the structure has been interfered with, albeit from the perspective
of the construction laws this involves a “black” structure, and from the
perspective of the rights of the owner of a piece of land an
“unauthorized” construction. All that remains is to adjudge whether
such an interference is permitted under the constitutional law of the
Czech Republic.
Art. 11
para. 1 of the Charter guarantees to everyone the right to own property
and accords each owner’s property right the same content and the same
protection. The Charter does not provide, however, that absolutely no
restrictions may be placed upon the right of property. Although Art. 11
para. 3 does not specify grounds for placing restrictions on property
rights in a similar as is the case with other fundamental rights and
basic freedoms (compare, for example,. Art. 12 para. 3, Art. 14 para. 3,
Art. 16 para. 4, Art. 17 para. 4, Art. 19 para. 2, and Art. 20 para. 3
of the Charter), it manifestly permits restrictions upon property
rights.
According to Art. 11
para. 3 ownership entails obligations and may not be misused to the
detriment of the rights of others or in conflict with legally protected
public interests. Property rights may not be exercised so as to harm
human health, nature, or the environment beyond the limits laid down by
law. It follows from this provision that the legislature may, by
statute, place restrictions on property rights on the grounds of
protecting the rights of others and of protecting the public interest,
in particular of public health, nature, and the environment. In view of
the obligation to preserve the essence and significance of property
rights (Art. 4 para. 4 of the Charter), in so doing property rights may
not be restricted beyond a proportional degree.
This
interpretation is in conformity also with the protection of property
under Art. 1 of the Additional Protocol to the Convention for the
Protection of Human Rights and Fundamental Freedoms (promulgated
together with the Convention as No. 209/1992 Coll., hereinafter
“Additional Protocol”), according to which States may enforce such laws
as they deem necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or other
contributions or penalties. Stated briefly, the European Court of Human
Rights adjudges, in accordance with this provision, whether
restrictions on the enjoyment of possessions (property rights) pursues a
legitimate aim, whether it is in conformity with domestic law, and
whether it is proportional in relation to the legitimate aim that is
pursued.
The Constitutional Court affirms that the interference with the complainant’s property rights were manifestly undertaken in the interest of construction discipline and of the protection of the environment, which are without doubt public interests protected by statute, and finally also in the interest of the protection of the rights of others, specifically the property rights of the owner of the plot of land, which rights the complainant arbitrarily violated by building his “black” and “unauthorized” construction thereupon. Thus, the decision ordering him to remove the structure did pursue a legitimate aim. The Constitutional Court further declares that this decision was supported by substantive law [§ 88 para. 1 lit. b) of the Construction Act], and the Construction Office reached it in a proceeding that was conducted in conformity with the procedural rules, otherwise, neither in the administrative suit nor in the constitutional complaint did the complainant raise the infringement of a specific provision on proceedings (he limited himself to the mere assertion, in no way specified, that “the administrative proceeding was conducted improperly”, and to the incorrect assertion that the Construction Office did not sufficiently carry out its duty to instruct; see the requests and notices of the Construction Office of 5 May 1999, 31 May 1999, and 8 February 2000). Thus, the interference was manifestly carried out in conformity with law.
The Constitutional Court affirms that the interference with the complainant’s property rights were manifestly undertaken in the interest of construction discipline and of the protection of the environment, which are without doubt public interests protected by statute, and finally also in the interest of the protection of the rights of others, specifically the property rights of the owner of the plot of land, which rights the complainant arbitrarily violated by building his “black” and “unauthorized” construction thereupon. Thus, the decision ordering him to remove the structure did pursue a legitimate aim. The Constitutional Court further declares that this decision was supported by substantive law [§ 88 para. 1 lit. b) of the Construction Act], and the Construction Office reached it in a proceeding that was conducted in conformity with the procedural rules, otherwise, neither in the administrative suit nor in the constitutional complaint did the complainant raise the infringement of a specific provision on proceedings (he limited himself to the mere assertion, in no way specified, that “the administrative proceeding was conducted improperly”, and to the incorrect assertion that the Construction Office did not sufficiently carry out its duty to instruct; see the requests and notices of the Construction Office of 5 May 1999, 31 May 1999, and 8 February 2000). Thus, the interference was manifestly carried out in conformity with law.
The
duty to remove a “black” structure, which was not permitted even before
it was constructed, is the logical and inevitable consequence of a lack
of construction discipline, as well as the failure to respect the
statutory protection of nature, of the environment, and finally of the
property rights of others. In this sense, this was an interference that
was proportionate to the aims pursued, for it could not have been
accomplish by other measures. Laying down the duty to remove a “black”
and “unauthorized” structure is not a sanction which could be possible
as an alternative in addition to a fine for a delict against the
Construction Code; rather it is a measure the aim of which is to return
the land to its original condition. The decision to removal of the
structure is a consequence which, without more, is faced by the owner of
a structure if he fails to demonstrate in the proceeding that the
conditions for the granting of a supplemental license are fulfilled.
This consequence follows entirely unequivocally from the Construction
Act, as well as from the logic of the matter, so that the complainant
might, and should, have been well aware of it. Moreover, he was alerted
to the fact already during the course of the construction work, and the
failure to respect the calls to desist in building it only added to his
own loss.
Thus, the
complaint could not legitimately expect that he would not be ordered to
remove the structure nor that his “black structure” might even possibly
enjoy the protection which is accorded the peaceful enjoyment of
property by Art. 1 of the Additional Protocol to the Convention [see the
decision of the European Court for Human Rights in the matter of
Malhous v. the Czech Republic (2001), Poláček v. the Czech Republic
(2002), or Gratzinger v. the Czech Republic (2002)]. After all such an
expectation was founded neither on the wording of the law, nor the
case-law, nor even the approach taken by the deciding bodies, rather was
evidently founded solely on the complainant’s hope, in no way legally
tenable, that these bodies would not act consistently in relation to him
and that they would tolerate the existence of a “black structure”,
without regard to the law in force.
On
the basis of the above-stated facts, the Constitutional Court declares
that there has been no infringement of the complainant’s fundamental
right to the protection of his property under Art. 11 of the Charter and
Art. 1 of the Additional Protocol to the Convention and therefore,
pursuant to § 82 para. 1 of the Act on the Constitutional Court, has
rejected the constitutional complaint as not well-founded.
Notice: A Constitutional Court decision can not be appealed.
Brno, 8. April 2004
Notice: A Constitutional Court decision can not be appealed.
Brno, 8. April 2004