The Constitutional Court found no 96 / 2000 Coll.

The date of publication of this finding in the Collection of Laws repeals the provisions of Section 139 (c) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended.

On 20 May 1999 Ms M. lodged a constitutional complaint against the order of the Regional Court in Hradec Králové of 4 March 1999 No 30 Ca 3 / 99-19. By this decision, the court suspended the procedure for its application for review of the decision of the District Office in Chrudim, which confirmed the decision of the Department of Construction and Urban Planning of the City Office in Hlin. In its administrative action, the complainant stated that it did not agree with the decisions which subsequently authorised the construction of standard garages on the land adjacent to its land. Although the procedure was initially initiated to remove the garage (so-called black buildings), an additional permit was finally granted for the construction of the garages, it was not taken into account that it would not have access to its own property and would not be able to handle it as it originally intended, i.e. to donate it to the grandson for the construction of the house. The second applicant's objections were similar, and the third claimed that he had not been invited to the construction procedure at all, even though he was the owner of the land which was separated from the land intended for the construction of the garage only by the creek.

The Regional Court in Hradec Králové stopped the proceedings on the grounds that, pursuant to Paragraph 250 (2) of the Civil Code (hereinafter referred to as the "o.s. '), only those who were a party to the administrative proceedings already in place (whether or not they were actually treated) were authorised to bring an action in the administrative justice. Although it follows from the provisions of Sections 88 and 97 (1) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act) (hereinafter referred to as the" Building Act') that the parties to the construction removal proceedings are, inter alia, persons who have ownership or other rights to and construction on neighbouring land, where their rights may be directly affected by the decision, but what is understood as "neighbouring land 'is defined by the construction law in § 139 (c), by meaning only" land which has a common border with the land subject to administrative proceedings under that law and by construction on those lands'. Since it was found that, between the land of the applicants and the parcels on which the construction of the yard was subsequently authorised, the parcel was still owned by the municipality, it is not a neighbourhood within the meaning of that provision of the construction law, and therefore the applicants were not parties to the administrative proceedings and are therefore not authorised to bring the action. In the view of the Court, even the fact that their land is only 40 cm from the border of the land on which the construction was carried out cannot change that. For this reason, the application procedure was terminated pursuant to § 250d (3) o.s.

In the light of the above, the complainant, together with a constitutional complaint, submitted a proposal to repeal § 139 (c) of the Building Act. The Fourth Chamber of the Constitutional Court, after stating that the contested order is based on that provision of the building law, decided by order of 8 October 1999, sp. zn. IV. ÚS 248 / 99, on the suspension of proceedings on a constitutional complaint and the referral of the application for annulment of that provision of the building law to the plenary of the Constitutional Court.

In its proposal to abolish the legal provision, the appellant stated that the provision of § 139 (c) of the Building Act was supplemented by an amendment made by Act No. 83 / 1998 Coll. and that this amendment reduced the participants in the construction proceedings to the owners of the land bordering only. This reduction excluded a range of persons who are entitled to feel affected by construction in their rights. Thus they were also excluded from the right to challenge a building decision in an independent court. The appellant submits that it considers such a restriction on the parties to the construction procedure to be unconstitutional, since there is no dispute that any party whose rights may be affected by the proposed construction should be restricted or, where appropriate, revoked. In addition, the contested provision directly encourages abuse, since if the owner of the land on which a controversial construction is to be set up, he transfers, for example, a belt in a minimum width to someone else (e.g. the municipality), thereby separating himself from the neighbour, excluding the former neighbour from the building process and thereby preventing him from applying any objections already in the construction procedure and also excluding him from the right to apply to an independent court. For those reasons, the complainant considers the contested provision to be contradictory to Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), as well as to the right to judicial protection under Articles 36 and 38 of the Charter, or to the rights arising from Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention') and Article 1 of the Additional Protocol thereto.

The Chamber of Deputies of the Parliament of the Czech Republic stated in its observations that the concept of "neighbouring land and buildings on them 'is in the construction law in conjunction with several provisions. Since it follows from Section 140 of the Building Act that, where the Construction Act expressly provides otherwise, Act No 71 / 1967 Coll., on Administrative Procedure (Administrative Order) cannot be applied, it is clear that, as regards the definition of the parties to individual procedures under the Construction Act, it is necessary to rely on that Act and not on the Administrative Order. The purpose of defining the concept of" neighbouring land and buildings' was to eliminate the disproportionate and undesirable number of participants in the construction process. It is therefore a legal definition of the concept and not an intention to exclude from the proceedings persons whose interests may be affected by it. In addition, the Act allows the construction office to invite persons other than participants to the proceedings, even if they are obliged to properly assess and deal with their comments in the context of the procedure. Any owner of a building or land whose property rights are directly affected may then be called for protection through a court, enabling him to enjoy his fundamental right enshrined in the Charter. The nature of his procedural capacity in the ongoing administrative (construction) procedure is no longer decisive, but the nature of the infringement of his rights. In this context, therefore, in the Chamber of Deputies' view, the regulation of Paragraph 139 of the Construction Act is not an amendment directly affecting or restricting fundamental human rights or freedoms. At the end of its submission, the Chamber of Deputies confirmed that Act No. 83 / 1998 Coll., amending Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, and amending and supplementing certain other laws, was approved by the necessary majority of the members of the legislature, signed by the relevant constitutional authorities and duly declared in the Collection of Laws, while at the same time expressing its view that the legislature was acting in accordance with the Constitution of the Czech Republic, the constitutional order and our legal order, but it is at the Constitutional Court to assess the constitutionality of the contested provision of the law and to give a decision in connection with the proposed proposal.

The Senate of the Parliament of the Czech Republic, at the invitation of the Constitutional Court, stated that one of the main reasons for the extensive amendment to the Construction Act, implemented with effect from 1 July 1998 by Act No. 83 / 1998 Coll., was an attempt to reduce the administrative complexity of certain procedural acts and procedures related to construction proceedings. A number of changes and simplifications aimed at the formally bureaucratic side of this regulation were therefore made in the part of the Act governing the construction rules. In order to achieve this objective, the Act was supplemented by an interpretation of the concept of "neighbouring land ', thus specifying the list of participants in the construction proceedings referred to in Sections 59 and 97 of the Building Act. The intention to define the precise number of participants as owners of only neighbouring land and buildings was carried out mainly in order to simplify the course of the construction process by determining the number of participants thus defined according to the status of the property register. This method should not trigger the need for further searching of owners of other land. This clear definition of participants should ensure a definitive range of participants in the building process and should be reflected positively in the legal certainty and legal power of the decision. The Senate also expresses doubts as to whether the complainant's right of ownership was infringed to the extent protected by the Charter in the present case. The complainant is neither limited in its right to own nor discriminated against in relation to other owners, since its position is the same as that of other owners whose land does not border with another land. This is neither an expropriation case nor a restriction on property rights. It is possible that the complainant is in some way disturbed in the exercise of its right of ownership and could therefore be subject to Article 1 of the Additional Protocol to the Convention on Intervention in the Peaceful Use of Property. However, this assessment depends on the specific circumstances of the case, since Article 11 of the Charter, as well as its other provisions, regulates relations between public authorities and individuals and not between individuals. The complainant's argument that the provisions of the building law on the definition of neighbouring land and the resulting identification of the participants in the building procedure can be easily circumvented and thus exclude the possibility of effective defence of certain owners states that the amendment to the construction law in question has entered into Section 32 of the construction law, including the land-use decisions and the decisions on the division or consolidation of the land. By requiring a territorial decision by the competent building authority to divide or consolidate the land, there is a guarantee that there will be no speculative division or consolidation of the land for the benefit of individual landowners. Such division or consolidation should always be carried out in accordance with the objectives and objectives of spatial planning or to ensure access to land and buildings. The Senate did not find any reasons for this amendment to the building law to be unapproved.

The opinion of the Ministry of Regional Development states that the construction law, as a standard of public law, obliges anyone who wishes to build to have a decision on the location of the construction and building permit, except for statutory exemptions. If someone violates the statutory obligation and performs the construction without a building permit and without notice, the construction office shall order it to be removed. Removal shall not be ordered only if the builder proves that the construction works are in conformity with public interests, in particular with the planning documentation, objectives and intentions of the zoning, general technical requirements for construction, technical requirements for construction works, interests protected by specific regulations, and if the builder requests an additional permit in the removal procedure and provides supporting documents and documents requested by the construction office within the prescribed period and scope as for the application for a building permit. The definition of the group of parties in the construction law [§ 34 (1), § 59 (1) (b) and § 97 (1)] is also linked to the definition of the concept of "neighbouring land and buildings on them 'in § 139 (c) of the construction law. For the purposes of proceedings under the Construction Act, this term was explicitly defined by Act No. 83 / 1998 Coll. The amendment was based on a steady interpretation and decades of legal and judicial practice, that the neighbouring land is a land which has a common border with the land on which to build. That interpretation was not disputed by the Constitutional Court in its resolution of 10 March 1996 sp. zn. IV. ÚS 53 / 95, which rejected a constitutional complaint lodged by property owners located in Austria against the decision of the former Ministry of Economic Affairs of 3 June 1994 No. MH-482 / 94 concerning the building permit for spent fuel storage in Dukovany and the order of the Supreme Court in Prague of 30 December 1994, sp. zn. 6 and 121 / 94, which brought an action for the complaint against that decision to be brought. For reasons of greater legal certainty, this consistent interpretation was explicitly expressed in the law. This does not reduce protection from interference in the rights and rights of protected interests and obligations in the procedures under the building law. The law of property and other rights and interests of natural and legal persons different from the builder and other parties to the proceedings protects the building law itself by requiring a permit (additional permit) for construction. The rights of such persons are also protected by the related public law regulations (namely, provisionally when assessing the admissibility of the construction at all and the impact of the proposed construction before its implementation), by the fact that the construction office cannot place or authorise the construction without the consent or agreement of the public authorities which defend the public interest under those rules. The monitoring of public interests in the procedures conducted by the building authorities under the building law is given protection against interference in the rights and rights of protected interests above the permissible level enshrined in public law (Section 4 (1) of Decree No. 132 / 1998 Coll., implementing certain provisions of the building law) and persons who are not parties to the proceedings, including those who do not have ownership or other rights to or construction on neighbouring land. The permissible degree of interference in the rights and rights of protected interests and obligations is determined by public standards and consists of certain harassment, which is a necessary consequence of multiple coexistence. The nature and subject matter of substantive legislation in administrative law - the diversity of situations that they have to deal with - objectively requires adequate procedural solutions, including the definition of the heading of the parties to the proceedings, i.e. also persons to whom the law grants public subjective neighbourly rights. A range of persons who, prior to the location and authorisation of the construction, may object in public law proceedings conducted by the construction office, nor may they have the breadth granted by the Civil Code in the private sphere (each against each), where protection against existing interference in the exercise of property rights may be invoked above reasonable levels (§ 127 of the Civil Code). The repeal of the provisions of § 139 (c) of the Building Act would make it difficult to define the heading of the parties to proceedings conducted by the Building Office. It would be aimed at conferring the legal status of a party to proceedings for the location of a building, building procedure, proceedings under § 85 to 96 of the building law closer to an unlimited, unlimited and indefinite circle of persons who would argue that decisions could be affected by their rights and legally protected interests or obligations. This would create legal uncertainty for both the builder and those persons who have been granted a right or obligation by decision and the construction office. Moreover, it would necessarily entail delays in the proceedings and an increase in its costs. Therefore, the Ministry of Local Development does not recommend the proposed repeal of § 139 (c) of the Building Act.

The appellant's proposal seeks to abolish the provisions of § 139 (c) of the Building Act, which is a legal definition of the concept of "neighbouring land and buildings on them 'for the purposes of the Building Act. From a legislative point of view, it can be concluded that the use of so-called legal definitions is certainly justified. However, it is necessary to respect (and this is consistent with generally theoretical conclusions - cf. Knapp, V.: Law theory, C. H. Beck, Prague 1995) that they must be used with measure and always after considering their advantages and disadvantages in a particular situation, i.e. only if they can reliably consider that the definition is necessary in the present case to eliminate any confusion without, however, at the same time threatening to trigger another and without causing the undesirable excessive rigidity of the rule. Even at this visual angle, the effects resulting from the legal definition of de Hotlata in § 139 (c) of the Building Act had to be assessed.

The definition of "neighbouring land and buildings on them" was inserted into the building law by an amendment implemented by Act No 83 / 1998 Coll. and is legally relevant in relation to those provisions of the building law which define the headings of the parties.

The construction process is a summary of several types of management, the most important of which are territorial management (Sections 32 to 42), the permit procedure for construction, changes in construction and maintenance work (Sections 54 to 70), the removal procedure (Sections 88 to 97) and the expropriation procedure (Sections 108 to 116). In so doing, the participation of persons having ownership or other rights to and construction on neighbouring land shall be permitted in all such proceedings (Sections 34, 59 and 97), with the exception of expropriation proceedings, subject to the common condition that a specific decision may affect their rights, protected interests or obligations. The problem that arose in practice before the amendment was who to consider as "the neighbor concerned." The practice - as the Ministry of Regional Development also points out in its opinion - already bowed before the amendment to the fact that only the owner or user of the limiting land is such a neighbour. [As an example, the judgment of the Regional Court in Ostrava 22 Ca 104 / 94 published in Law No 4 / 95, p. 220 et seq., under which the neighbouring land under Paragraph 34 (1) of the Building Act is only a parcel which has a common border with the land to which the territorial decision relates (limiting land). At the same time, the Court stated that, according to § 250 (2) o.s., it is not legitimate to bring an administrative action where the administrative authority, in addition to the law, has granted the status of party to the proceedings].

However, it should be noted that, prior to the amendment, there were already views in the literature that this practice was contrary to good manners when, for example, a neighbour who had been divided by a six-foot stream or a foot path from the land on which it was intended to be built was excluded from the possibility of claiming his legitimate objections. At the same time, it was stated that the constitutionality of such a procedure is at least questionable (see Doc. JUDr. P. Breakdown, CSc.: On some procedural aspects of the construction legal regime, Bulletin Building Law No 3 / 1996). Therefore, even before the amendment, it can be noted that the subsidiary use of the definition of participation is not excluded under the administrative order (§ 14 (1)), which is significantly wider, arguing that the exclusion of the application of the administrative order as provided for in § 140 of the Construction Act, i.e. "unless expressly stated otherwise ', should be interpreted strictly, whenever such an interpretation would be closer to real life. However, it is clear from the amendment and the legal definition of the concept of" neighbouring land and buildings' that the legislator excluded such considerations, since, in the present wording of the building law, a broader and more favourable interpretation of the "neighbour 'would have hit at least the rules of formal logic.

At this point, it is also to be recalled that the practice of the First Public Supreme Administrative Court ("NSS '), which, even using the case law of the former Supreme Administrative Court of Austria, interpreted the concept of" neighbour' in the construction procedure much more liberal. For example, in the finding of 22 June 1938 (God. A 14314 / 38), the NSS stated that the neighbor is not only the one whose real estate is directly related to the construction site, but also the owner of a more remote real estate, especially the land opposite the designed construction over the road, if the project can have a construction-police reflex on its real estate. In this case, the NSS has granted the complainant the right to appeal in administrative proceedings. So is the finding of God. A 9764 / 32 reasoned by the NSS that, according to the building order, the neighbors are not only owners of the property directly adjacent to the construction site, but also owners of the buildings more remote, if these are in such relation to the construction site that the construction can have effects on the interests of the owner of the building that benefit from the protection of the building order. It should be noted, however, that the NSS also had established case-law that not every objection made by a neighbour can be regarded as eligible for judicial protection ("the administrative court is called upon to protect only subjective public rights' - Boh. A 7679 / 29).

It is therefore clear that the current status of the definition of the participants in the building process at a time when human rights are or are to be respected is significantly worse for "neighbours" than for the early century. However, this condition is not only given by the contested provision of § 139 (1) (b). (c) the construction law, but also by defining the active legitimacy to bring an administrative action pursuant to Article 250 (2) of the EC Treaty, it follows that not everyone "who claims to have been shortened on his rights by a decision of a public authority" can appeal to the court. The applicant must have been a party to the administrative proceedings (namely de minimis, not de facto). However, in view of the specific nature of the administrative process, it is a situation where, by far, not all persons who may be affected by a final administrative decision in rights or obligations may be involved in legal proceedings.

It is clear that the reason for the inclusion of the legal definition in the construction law in question was to strengthen the principle of speed and economy of the relevant procedures under the construction law, by a firm closure of a circle of persons who claim participation with reference to ownership or other rights to and construction of neighbouring land. However, it cannot be understood from the point of view of the Constitutional Court that a closed legal definition, which makes it absolutely impossible for the parties to be considered by the owners of neighbouring land other than those which have a common border with the land which is the subject of the proceedings (i.e. also the owners of the land "beyond the creek '," beyond the path', "beyond the apparent bagued area owned by another person '), whose rights may be affected by the proceedings, limits the scope for administrative discretion of the administrative authorities where it is clear that, despite the absence of a common border, the rights of the non-border may be affected by the non-border.

The contested provision, by defining the term "neighbour" directly in the law, takes the possibility for the administrative authority to treat as a party to the proceedings also a person who can clearly be affected by the decision given in the building procedure in his rights, including those of constitutionally protected rights, such as the right to peaceful use of property, or property law (Article 1 Additional Protocol to the Convention, Article 11 of the Charter). The fact that such a person can be brought to proceedings (but not as a participant) under Paragraph 59 (3) of the Construction Act is insufficient as, in view of the dictation of § 250 (2) (a), the contested provision excludes such a person from the right to apply to an independent court. Thus, in that sense, the contested provision of Paragraph 139 (c) of the Construction Act is clearly contrary to Article 36 (2) of the Charter, since it excludes from the right of access to the courts and judicial protection those who not only claim that an administrative decision may be affected in their rights but where such a matter may be quite obvious.

The Constitutional Court is aware of possible interpretative problems in that direction, "to where" - to what extent or distance - the so-called neighbouring land, if the condition of a common border does not apply, can reach. However, it remains to be noted that the assessment of this issue will always be a matter of individual cases (probably taking into account the nature of the intended buildings and the possible adverse effects thereof), both at the level of the decision-making practice of the construction authorities and at the level of the decision-making on the review of these decisions within the administrative judiciary. However, the difficulty of such an assessment alone cannot be sufficient to justify the opposite procedure, which would consist (and thus is the case) in devising a legal definition which, although not causing any interpretative problems, may reduce the scope for the protection of constitutionally guaranteed rights.

For the reasons set out above, the application for annulment of § 139 (c) of the Building Act for its contradiction with Article 36 (2) of the Charter was granted and the contested provision was annulled on the date of the publication of this finding in the Collection of Laws (§ 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court).

For the sake of completeness of the Constitutional Court's reference to the Ministry of Local Development to the order of the Constitutional Court of 10 March 1996 sp. zn. IV. ÚS 53 / 95 adds that, in that case, specific to the fact that it concerned the construction procedure, the object of which was the construction not standard, played a role in the assessment of the involvement of the complainants at the time and the spatial scope of the construction law.