The Constitutional Court found no 95 / 2000 Coll.

Paragraph 78 (1) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, is hereby repealed on 31 December 2000.

The Regional Court in Hradec Králové suspended the action against the decision of the District Office in Pardubice, which was dismissed as an inadmissible appeal of the citizen against the approval decision of the City of Pardubice. In the action, the citizen argued that the new communication, partly built on the land which is its property, was approved for use in a situation where it exceeded the terrain so much that it made access to part of its land impossible, or that the land is accessible only from another place and via third parties. Furthermore, the other conditions laid down in the procedure for the location of the construction were not met. The construction was therefore, in the opinion of the citizen, linked to the defects which prevented the approval pursuant to § 81 (1) of Act No. 50 / 1976 Coll., on zoning planning and construction regulations (construction law), as amended, (hereinafter referred to as "building law '), which he repeatedly communicated to the building authority. However, he refused his comments, as well as the appellate body, on the ground that he was not a party to the approval procedure under Paragraph 78 (1) of the Construction Act.

The Regional Court in Hradec Králové, after the stay of proceedings, referred the case in accordance with Article 95 (2) of the Constitution to the Constitutional Court. The view that the provision of Paragraph 78 (1) of the Building Act, which is decisive for the assessment of the case, is contrary to Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), was justified as follows.

In Paragraph 78 (1), the Construction Act explicitly refers to only the builder, the owner and, where applicable, the user (s) as a participant in the approval procedure, if known at the time of the initiation of the procedure. Before the amendment made by Act No. 83 / 1998 Coll., amending and supplementing Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, and amending and supplementing certain other laws, i.e. at the time applicable to the case under consideration, the wording of that provision was such that only a builder or user (operator) was designated as a party to the proceedings, if known at the time of the initiation of the procedure. It is therefore clear that the legislature was aware of the inadequacy of the regulation at the time, but the amendment extended the participation in the approval procedure only in that it took into account the fact that another person other than the owner of the construction can be the builder - for example, the tenant (§ 58 (3) of the construction law). However, even the amended version of the law does not remember that it is also possible for a person different from the owner of the land to be a builder. Although the owner of the land is a party to the building permit procedure, the exclusion from the approval procedure loses the possibility that he may object directly to any failure to respect his requirements and comments in the building permit procedure. Such a situation also occurred in a particular case where the communication located on the land owned by a citizen, who had given his consent to the construction, was included as a condition of such a solution of the exits from the roads to adjacent land that would allow him to manage them.

In the view of the Court, the land owner is in an unequal position when, without reasonable grounds, he is granted fewer rights than the builder. This means that the owner of the land which meets the requirements of the builder and agrees to the construction (since the construction could not be started without this consent) loses the opportunity to participate in the procedure in which, inter alia, the State authority is to be qualified to assess whether the construction was carried out in accordance with the documentation. In addition, such an arrangement means that the owner of the land is also excluded from the right to seek judicial protection because, if he is not a party to the administrative proceedings, he is not even actively authorised to bring an administrative action [Paragraph 250 (2) of the Civil Code (hereinafter referred to as "o.s. ')]. Such a situation is, in the view of the Court, contrary to the principle of equality in rights under Article 1 of the Charter.

In the observations of the Chamber of Deputies of the Parliament of the Czech Republic, the wording of the explanatory memorandum to § 78 to 80 of the Building Act, which underlines the need for a derogatory definition of participants in the approval procedure from the general arrangements for participation under § 14 (1) of Act No. 71 / 1967 Coll., on Administrative Procedure (Administrative Regulation), it is stated as a reason that the approval procedure must take place in such a way as not to unduly delay the start of use of the construction. Therefore, the principle of concentration of the management and the approval procedure should be applied immediately for works carried out by the supplier following the surrender and takeover of the construction.

In addition, The Chamber of Deputies points out that the contested provision of Paragraph 78 (1) needs to be understood in the context of the whole part of the Second Construction Act - the Construction Regulations. In fact, the procedure for the approval procedure is always preceded by a procedure for which legal regulation places emphasis on the protection of the rights and interests of persons who may be affected by the intended construction. The construction procedure shall be carried out according to the planning documentation discussed and approved and shall result in a decision authorising the construction. The co-operation procedure is, in contrast to the previous one, a procedure designed to verify that the criteria which the construction office has identified in the previous one, that is to say, the permit procedure (or the zoning decision) have been met. The owner of the land, who has the opportunity to comment on the case, shall always take part in these proceedings. Since the approval procedure mainly concerns checking compliance with the conditions laid down by the final decision of the building office, it is primarily the responsibility of the public authority to verify compliance with the decision. The extension of the range of participants in the approval procedure therefore does not consider the legislator to be effective as it could delay the use of completed buildings. In addition, it is recalled that the law allows the construction office to invite persons other than specifically designated parties to proceedings, depending on the nature of the case. The House of Deputies' statement concludes with the view that the contested provision of the building law is not a regulation threatening or directly restricting fundamental human rights or freedoms.

In his observations, the Senate of the Parliament of the Czech Republic expressed doubts about the alleged contradiction of the contested provision of the building law with Article 1 of the Charter. It further states that the owner of the land is a party to the building permit procedure and has sufficient space in this procedure to make use of his comments. These comments will become part of the building permit. The construction office performing the state administration pursuant to § 81 of the Building Act examines, inter alia, whether the conditions laid down in the zoning decision and in the building permit were complied with when the construction was carried out. This concept should sufficiently guarantee the protection of the rights of the owner of the land, which is not a builder, without the owner necessarily having to participate in the approval procedure. Therefore, the Senate also did not find any reasons why it did not agree with the amendment when discussing the draft Act No. 83 / 1998 Coll., which also amended the provisions of Paragraph 78 (1) of the Building Act. It therefore leaves it to the discretion of the Constitutional Court to assess the alleged contradiction of this provision with the constitutional order.

In particular, the Ministry of Local Development, whose competence concerns the construction procedure, pointed out in the opinion requested by the Constitutional Court that for certain buildings the building permit was preceded by a territorial decision on the location of the building, which is the result of an administrative procedure involving, in addition to the applicant, other participants. The owner of the land on which the construction is located and implemented shall also be a party to this proceeding. It therefore has sufficient scope to effectively defend its rights and legitimate interests, in the proceedings of first instance and of appeal, but also by using other means provided by the legal order.

According to the opinion of the Ministry, the construction law respects the principles of the relationship between general and specific legislation, according to which specific legislation is adopted where it is required by the very substantive nature of the relations governed. The approval decision shall authorise the use of the construction for the intended purpose and, where necessary, the conditions for use of the construction shall be laid down. This declaratory act is the result of an administrative procedure in which (pursuant to Paragraph 81 (1) of the Building Act) the construction office is obliged to examine whether the construction was carried out in accordance with the documentation verified in the Construction Procedure and whether the conditions laid down in the Territorial Decision and the Building Authorisation were complied with. It is also the responsibility of the construction office to examine whether the actual implementation of the construction or its use will not jeopardise public interests. The finding of these facts does not depend on the parties. If the builder has acted in accordance with the law, he is entitled to the building approval and cannot be imposed in the approval decision on conditions which go beyond the scope of the building permit. From this point of view, the purpose of the approval procedure is not to repeat or extend its requirements beyond that of the owner of the land which has already been definitively decided on in the construction procedure. According to Section 120 (2) of the Civil Code, the construction is not part of the land; therefore, the construction carried out on a foreign land remains in the possession of the builder or his legal successors after the approval. These persons must fulfil all obligations that the building law links to the property of the building. They are responsible for, for example, the technical condition of the construction, bear the costs of its maintenance and disposal, they are ordered and the necessary modifications and security work are carried out on the construction, they are required to keep the documentation of the construction, they are ordered by the construction office to obtain documentation of the actual implementation of the construction or of the building. The construction law does not impose any such obligations on the owner of the land on which the construction is located; it is not the owner of a collapsed building, it has no rights to it and therefore its approval cannot be restricted, it is further stated in the opinion of the Ministry. For these reasons, the owner of the building was included in the scope of the approval procedure in cases where another person is a builder. For example, if the lessee of the building makes modifications or superstructures with the consent of its owner (lessor), this does not change the ownership of the building or the obligations of its owner. The status of the owner of the land on which the foreign building is being collapsed cannot therefore be compared with that of the owner of the merged building. Moreover, the construction law regulates the rights of the parties in cases where the construction was carried out contrary to the building permit. Not only does it penalise such conduct by applicable fines [§ 105 (2) (b) and (3) (a) and § 106 (2) (b) and (3) (a)], but in the procedures in which such changes are decided, it grants the status of participant and other persons whose rights and legitimate interests or obligations would be affected by the authorisation. The protection of their rights is ensured and they are not in an unequal position against the builder.

According to the opinion of the Ministry, the proposal of the Regional Court in Hradec Králové also needs to be argued that it only assesses in isolation the provisions of paragraph 1 (78) of the Building Act and ignores the provisions of paragraph 2, which ensures participation and protection of rights in the housekeeping proceedings and other persons. In cases where the construction was carried out with minor deviations from the documentation verified in the construction procedure and the construction office merged the procedure for their approval with the approval procedure, the parties to the proceedings are also those to whom the position in the construction procedure was based. Changes which are greater than irrelevant may also lead to the removal of the construction according to § 88 (1) (b) of the Building Act. The heading of the parties to this procedure is defined in Section 97 (1) of the Building Act and the owners of the land and buildings are explicitly included in it.

These facts lead the Ministry to conclude that there are no grounds for the annulment of Paragraph 78 (1) of the Building Act as it does not contradict Article 1 of the Charter. In the event of the annulment of this provision, only Paragraph 14 of the Administrative Rules would be given to the group of participants in the approval procedure. Such a situation is considered by the Ministry, in view of the purpose of the approval procedure, to be unacceptable, unnecessarily bureaucratic administrative proceedings, burdening public administration with unjustified expenditure and not contributing to the protection of law.

The appellant responded to those observations and comments by a reply stating in particular that it could not be accepted that the approval procedure was merely a verification procedure to which the owner of the land built by a foreign construction would have had no say. The appellant pointed out that there will almost always be a number of changes of different importance during construction. Decree No. 132 / 1998 Coll., implementing certain provisions of the Construction Act, states in § 32 (1) (c) that the Building Office shall draw up a protocol in the framework of the approval procedure, which shall include a comparison of the actual implementation of the completed construction with the project documentation verified by the Building Office and a list of identified deviations, deficiencies and unfinished works. According to Section 81 (4) of the Building Act, a procedure for the modification of the construction can be linked to the approval procedure (according to Section 68) if the actual implementation does not deviate substantially from the documentation. However, neither the law nor the implementing rules provide for "non-material derogation ', and this indefinite legal concept is then applied to a particular condition on the basis of the free discretion of the building office. Therefore, it depends solely on its discretion whether it will take into account the changes as being irrelevant only or whether it will order them to proceed, such as the removal procedure. The construction office is therefore always faced with a number of possible situations in a particular case, and if it is to draw adequate conclusions from them, it cannot, according to the appellant's view, do without any interaction with the owner of the land. Therefore, the appellant considers that the allegation that the building is being built together cannot be affected by the rights and obligations of the owner of the land to be unacceptable. At the end of the reply, the appellant points out that the proposal to abolish Paragraph 78 (1) of the Building Act does not follow the introduction of a situation in which the group of parties would be defined by the general provision of Section 14 of the Administrative Regulation, but rather the creation of conditions for amending that provision.

After considering the content of the proposal, the parties' observations and the expert opinion of the Ministry of Local Development, as well as the parties' comments made at the hearing on 22 March 2000, the plenary of the Constitutional Court concluded that the application should be complied with for the following reasons.

First of all, the Constitutional Court was forced to ask whether the specific definition of the heading of the parties to a particular public procedure precludes the general definition of the parties to the administrative procedure under Paragraph 14 (1) of the Administrative Regulation. The plenary of the Constitutional Court then replied positively to this question, and in this regard the plenary of the Constitutional Court corrected the opinion expressed in the I. ÚS 279 / 95 published under No. 73, Sv. 8 Collection of finds and resolutions of the ÚS CR. In fact, any other interpretation would make certain administrative procedures not transparent and often unlimited in time. Consequently, the general definition of a party to an administrative procedure may only be applied in cases where the special arrangements clearly do not preclude that.

That conclusion on the ratio of the general and specific definitions of the parties to the administrative procedure must necessarily lead to the conclusion that the legislature must insist that, when defining the participation specifically, it does not exclude entities for which the possibility of intervening in their rights can reasonably be assumed by the nature of the proceedings. As regards the approval procedure in question, it must be accepted that it is a matter of the sovereign discretion of the construction office, whether it will be established that the conditions of the zoning decision and the permit decision have been fulfilled. It then allows the use of the construction for the intended purpose and, if necessary, lays down the conditions for use of the construction. If the deficiencies are identified, they shall set a reasonable time limit for their removal. It is not intended to issue a decision on coexistence with regard to deficiencies that would endanger the health and safety of persons or prevent the proper and uninterrupted use of the construction for the intended purpose. In the event of findings of shortcomings preventing use, the construction office shall set a time limit for their removal and suspend the procedure. It is already apparent from this description of possible factual situations that the owner of the land on which the construction is based can only rely on the public authority protecting not only the interests of the public but also its interests. In the view of the Constitutional Court, it seems undeniable that the admission of the owner of the land could not seriously complicate the proceedings and, where appropriate, unduly prolong the proceedings. First of all, such participation would be effective for practical reasons, because it seems impossible to expect anyone who asks for a housewarming to draw attention to something that does not bother him. The view of the State authorities may, of course, be different from that of the owner of the land, or of another person concerned, without the need to act on the part of that authority for intent or negligence. In other words, if the construction office collapses something that it should not have, or should have, with a statement of minor defects and the deadlines for their removal, there is no legitimacy to appeal or to call for any legal proceedings. For these reasons, therefore, the Constitutional Court also asked whether the owner of the land on which the construction is made may be affected by the decision of approval in his subjective rights. In other words, the fact that the owner of the land is excluded from the administrative procedure and, as a result, also from the law on judicial protection, the Constitutional Court considers that the legislature, which has a constitutional dimension, is an error.

Such errors may in principle be remedied in the light of the applicable legislation in a dual way. Either by amending the provisions of Paragraph 250 (2) (a), which would confer a legitimacy for bringing an administrative action not only to the parties to the administrative proceedings, or by direct deregulation of the provision of part of a specific substantive provision of public law in which the participation is defined in a manner contradictory to those principles. The Constitutional Court considers that a second procedure is clearly more rational, that is to say, the deregulation of a specific provision of substantive public law, which allows (as a rule provided for by the subsequent active activity of the legislator) the protection of the rights of certain persons already in administrative proceedings. In a number of cases, the path of the first, that is to say the mere recognition of the right to bring an administrative action, could mean that a possible annulment of a judicial decision could be given at a time when the situation could not often be altered, or it could only be rectified at the cost of disproportionate sacrifices or losses on the part of another, and that a judicial statement could be more academic.

In this context, the Constitutional Court considers it appropriate to add that, in the practice of the First Public Administrative Court, protection of the so-called special interest (e.g. the special status of owners of land adjacent to public goods, such as communications, can already be observed in administrative proceedings. In the words of the then case-law, "a fine distinction is required in concreto, if a private person is asked for a really special sacrifice for the benefit of the whole." In the view of the Constitutional Court, it is hardly acceptable that, at the time of the dominance of fundamental human rights and freedoms, cogent legislation should define the position of certain bodies in public proceedings more adversely than that of the judicial case-law in the pre-war period. Moreover, it cannot be disregarded that the tendency to appear precise and detailed treatment de facto excludes interpretation which could in a particular case find a solution closer to the principle of decency and rationality.

The argument that the law allows the construction office to invite persons other than participants (see the observations of the Chamber of Deputies) does not change the fact that such invitations do not make them parties to the proceedings with all the consequences described.

That unfavourable position of certain entities is enhanced by the definition of bodies actively authorised to bring an administrative action pursuant to § 250 (2) o.s. The practical impact is that although Article 36 (1) The Charter gives everyone the right to claim the rights set out in the procedure of his or her court or other authority and paragraph 2 of that Article defines the range of persons entitled to apply to the courts in administrative matters in such a way that any "who claims that he or she has been shortened on his or her rights by a decision of a public authority 'may, in some cases, in this case specifically in the case of a clearance decision, arise in a situation where, even if the impact of the decision on the rights of third parties is not apparent, they will not have any means to reverse such a decision (with the exception of an initiative to review of a decision outside the appeal procedure under Article 65 of the Administrative Rules, which is not a legal right). In other words, the cogent regulation makes it irrevocably impossible to implement the principle of" let everyone guard their rights, "which the Constitutional Court has repeatedly recalled (e.g. Found No 32, Sv. 13, Collection of finds and resolutions of the CR).

For all the reasons set out above, the plenary of the Constitutional Court adopted a decision repealing the provisions of Paragraph 78 (1) of the Construction Act in the event of a conflict with Article 36 (1) and (2) of the Charter. At the same time, the Constitutional Court decided to defer the enforceability of its decision, aware that a positive intervention by the legislator (whether simply by adding a range of participants to the land-owner's approval procedure or by more general arrangements) is necessary to remedy the unconstitutional situation.