Decided 8 April 2004 – II. US 482/02
                              
             “Restrictions upon Property Rights”

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.

JUDGMENT
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 Kralove, 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  Kralove
and  the  Regional  Office of the Hradec Kralove  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  Kralove  ,
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 Kralove,
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 Kralove, as
well  as  the  decision of the City Hall of Hradec  Kralove,
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 Kralove 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
Kralove,  the  Section for Construction  and  Transportation
(hereinafter “Construction Office”), and the file  from  the
County  of in Hradec Kralove, 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   Kralove,  unit  of  the  main  architect,   for   a
supplemental construction permit (notification  and  request
no.  OV/1668/99/Mu, c.l. 30-31, the 31 May 1999 Construction
Office  communication on the application for a  supplemental
construction permit, OV/2146, 2184/99/Mu, c.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, c.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,
c.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,
c.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 Kralove rejected
the appeal on the merits.
      By  his  action  before the Regional Court  in  Hradec
Kralove,  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 Kralove,  in
conflict  with the 16 April 1996 generally binding ordinance
of  the City of Hradec  Kralove, 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 Kralove 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 Kralove 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 Kralove  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), Polacek  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