2004/04/08 - II. ÚS 482/02: Restrictions upon Property Rights

08 April 2004

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.
 

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

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