IV. ÚS 512/01

If  a  court  decision which has become final  establishes  the
right  of  a  person  to whom property has been  restituted  to
conclude an agreement with an obligated person on issuing  real
estate, that right must be evaluated as “another right to  land
or  buildings”  under § 59 para.1 let. b) of  Act  No.  50/1976
Coll. (the Building Code). Therefore, the entitled person is  a
party  to  proceedings to permit or remove a  building  on  the
neighboring parcel of land.



   A panel of the Constitutional Court decided in the matter of
a  constitutional complaint by H.S. against the decision of the
Prague Regional Court of 31 July 2001, file no. 45 Ca 148/2000-
31,  the  decision of the Beroun City Office of 20  July  1999,
file no. 2237/99-Pch, the decision of the Beroun City Office of
15  September  2000,  file no. Výst.:  2932/2000-Pch,  and  the
decision  of  the Beroun District Office of 16  November  2000,
file  no.  2473/2000/RR, with the participation of  the  Prague
Regional  Court, as a party to the proceedings and  the  Beroun
City Office, building department, with its registered office at
Husovo  nám.  68,  Beroun,  and  the  Beroun  District  Office,
regional  development division, with its registered  office  at
Politických vězňů 20, Beroun, as secondary parties,
as follows:

The  decisions  of the Prague Regional Court of 31  July  2001,
file no. 45 Ca 148/2000-31, and the decision of the Beroun City
Office of 20 July 1999, file no. 2237/99-Pch, are annulled.

In  the  part  where  the petitioner sought  annulment  of  the
decision  of the Beroun City Office of 15 September 2000,  file
no.  Výst.:  2932/2000-Pch,  and the  decision  of  the  Beroun
District Office of 16 November 2000, file no. 2473/2000/RR, the
constitutional complaint is denied.


                           Reasoning

By  petition delivered to the Constitutional Court on 21 August
2001,  supplemented  by  a  filing  of  9  November  2001,  the
petitioner  sought  to have the Constitutional  Court  issue  a
judgment annulling the decision of the Prague Regional Court of
31  July 2001, file no. 45 Ca 148/2000-31, the decision of  the
Beroun  City  Office  of  20 July 1999,  file  no.  2237/99-Pch
(originally issued under file no. 2254/99-Pch), the decision of
the  Beroun  City Office of 15 September 2000, file no.  Výst.:
2932/2000-Pch,  and the decision of the Beroun District  Office
of  16  November 2000, file no. 2473/2000/RR, as well  as  “any
final building approval decisions”.

     The contested decision of the Prague Regional Court of  31
July  2001  stopped proceedings to review the decision  of  the
Beroun City Office, building department, of 20 July 1999,  file
no. 2237/99-Pch, which, in response to an application by J. B.,
owner  of  the real estate neighboring the real estate co-owned
by the petitioner, permitted building of the restaurant U M.  –
expansion  of  garden  in Beroun 3, and  interim  use  of  this
building. The proceedings were stopped on the grounds that  the
petitioner   (the   plaintiff)  was  not   a   party   to   the
administrative proceedings at the time the administrative  body
made its decision, as she was not the owner of neighboring real
estate, and also on the grounds that the complaint was directed
against a decision of the first level, which can not be subject
to review by a court, because it is not, under § 247 para. 2 of
the  CPC,  a decision which, after exhaustion of due  means  of
appeal which are permitted for it, went into legal effect.  The
reasoning  of  the cited decision indicates that  the  regional
court  also reviewed the possibility of applying § 250b of  the
CPC,  but concluded that the petitioner could not have  been  a
party  to  the proceedings at a time when she was  not  yet  an
owner of the neighboring real estate.

     The  contested decisions of the Beroun City Office  of  15
September  2000,  file  no. Výst.: 2932/2000-Pch,  and  of  the
Beroun   District  Office  of  16  November  2000,   file   no.
2473/2000/RR,  denied,  as a final decision,  the  petitioner’s
petition  to  renew proceedings in the matter of  the  building
permit  for the restaurant U M. – expansion of garden in Beroun
3, and interim use of the building.

     The  petitioner stated that she is a co-owner of 23/24  of
real  estate, i.e. building no. 4, land parcel no. 229 and land
parcel  no. 189/1 in the registration area Beroun. She acquired
1/24 co-ownership of the real estate in restitution proceedings
under  Act No. 87/1991 Coll., on Extra-Judicial Rehabilitation,
on  the basis of a decision of the Beroun District Court of  29
April 1998, file no. 7 C 80/92-167, ordering the city of Beroun
to  conclude an agreement on issuance of real estate  with  the
petitioner  and  two other plaintiffs. The decision  went  into
effect on 18 September 1998.

     The petitioner recapitulated the course of the proceedings
and   stated   that  the  administrative  court,  by   stopping
proceedings, violated her constitutionally guaranteed right  to
judicial protection, enshrined in Art. 36 and Art. 38  para.  2
of   the  Charter  of  Fundamental  Rights  and  Freedoms  (the
“Charter”).  She  also  claimed that  the  Beroun  City  Office
violated her property right enshrined in Art. 11 para. 1 of the
Charter.  She  is of the opinion that she should  have  been  a
party  to the building permit proceedings in question,  because
she  is  a  person  who, at the time of  the  decision,  had  a
substantive (or other) right to the neighboring parcel of  land
and  building  on it, under § 59 para. 1 let.  b)  of  Act  No.
50/1976   Coll.,  the  Building  Code,  as  amended  by   later
regulations, and these rights could have been directly affected
by  the  building  permit.  The Beroun  City  Office,  building
department, undoubtedly knew from the restitution dispute being
conducted before the Beroun District Court under file no.  7  C
80/92, that the petitioner, together with two other plaintiffs,
sought  the  issuance  of  the real  estate  neighboring  those
concerned  by the building permit proceedings. The decision  of
the Beroun District Court of 29 April 1998, file no. 7 C 80/92-
167,  ordering the town of Beroun to conclude an  agreement  on
the  issuance  of  real estate with the plaintiffs,  went  into
effect  on  18  September  1998,  but  the  legal  effects   of
registration in the real estate register did not begin until 20
August 1999, although the court, as the issuer of the document,
was   required  to  send  the  decision  to  the  real   estate
registration  office within 30 days after it went into  effect.
It can not be held to the petitioner’s detriment that the entry
was  not made in the real estate register until 20 August 1999.
The  petitioner believes that the Prague Regional Court did not
address  the matter in detail. It only stated in the  reasoning
of  the  contested decision that, in connection with the effect
of the entry as of 20 August 1999, and under the gift agreement
with  the  effect  of  the  entry as of  30  August  1999,  the
petitioner  could not have been a party to the  proceedings  at
the  time  of  the  decision. However, it  did  not  take  into
consideration  the cited decision of the Beroun District  Court
and  its effect on the circle of parties to the building permit
proceedings.

     The  petitioner  pointed  to  the  Constitutional  Court’s
judgment in the matter under file no. IV. ÚS 131/2000, and  the
judgment  of  the Plenum of the Constitutional Court  published
under  no. 95/2000 Coll., which annulled § 78 para.  1  of  the
Building Code. She is of the opinion that the laws in effect do
not  permit implementing the principle “let everyone watch  his
rights”, and pointed to § 250 para. 2 of the CPC, § 65  of  the
Administrative Procedure Code, and the judgment published under
no.  32  in  volume  13  of  the Collection  of  Judgments  and
Resolutions of the Constitutional Court of the CR.

     The  Prague Regional Court, as a party to the proceedings,
in  its statement on the constitutional complaint, referred  in
full  to  the reasoning of the contested decision and  proposed
that  the  constitutional  complaint  be  denied  for  lack  of
grounds.

    The Beroun City Office, building department, as a secondary
party   to   the   proceedings,  in  its   statement   on   the
constitutional  complaint  of 11 December  2001  stated,  among
other  things,  that  a  decision which  had  been  subject  to
administrative  review, i.e. the decision of  the  Beroun  City
Office  of  20  July 1999, file no. 2237/99-Pch, was  correctly
issued  under  file  no. 2254/99-Pch. This inadequacy  occurred
through  a  typographical error, which the building office  was
supposed  to  correct under § 47 para. 6 of the  Administrative
Procedure  Code.  It  also recapitulated  the  building  permit
proceedings.  The  statement  says,  in  particular,  that  the
building  office  was familiar with the Beroun  District  Court
decision on the obligation to conclude an agreement to issue  a
thing  with  the  petitioner  and  two  other  plaintiffs,  and
therefore  they  were  recognized as parties  in  the  original
proceedings,  opened  on  16 June 1999.  It  was  only  in  the
subsequent proceedings, opened under § 88 of the Building Code,
i.e. in proceedings on removing a non-permitted structure, that
the   building  office  obtained  data  from  the  real  estate
register,  and  after finding that the petitioner  was  not  an
owner  of  any of the neighboring parcels of land or buildings,
did not “include” her as a party to the proceedings.

     The Beroun District Office, regional development division,
in  its  statement  on the constitutional complaint,  presented
facts  concerning the petitioner’s appeal against the  decision
of the Beroun City Office, building department, of 15 September
2000,  file  no.  2932/2000-Pch, which denied her  petition  to
permit  renewal  of  proceedings in the  matter  of  permitting
building adaptations and permitting interim use of the building
“Restaurace U M. – expansion of garden on parcel no. 231/1  and
parcel no. 232, real estate registration area Beroun”.

     The Constitutional Court determined from the files of  the
Prague  Regional Court, file no. 45 Ca 148/2000  that,  on  the
basis  of the Beroun District Court decision of 29 April  1998,
file no. 7 C 80/92-167, ordering the city of Beroun to conclude
an agreement on the issuance of real estate with the plaintiff,
on  15  June  1999 the restituees concluded with  the  city  of
Beroun  an  “Agreement on Issuance of a Thing under  Act  87/91
Coll., on Extra-Judicial Rehabilitation”, and, as indicated  by
part  V. of the agreement, the will of the obligated party  was
replaced by the cited decision. On the basis of this agreement,
the  Beroun Real Estate Registration Office permitted an  entry
of  rights in the real estate register, with legal effect as of
20 August 1999.

     The  Constitutional Court, after familiarizing itself with
the  assembled  documentation for the decision  and  took  into
account the consent of the parties to the proceedings to decide
the matter without a hearing, concluded that the constitutional
complaint must be granted in part, for the following reasons.

     The  substance  of  the constitutional  complaint  is  the
petitioner’s disagreement with not being treated as a party  to
the  building permit proceedings which led to the  issuance  of
the contested decision of 20 July 1999, permitting construction
on  parcel no. 231/1, 232 in the real estate registration  area
Beroun,  even  though the building office, during the  building
permit  proceedings, had sufficient knowledge that,  under  the
Beroun District Court decision of 29 April 1998, file no.  7  C
80/92-167,  which  went into effect on 18 September  1998,  the
defendant city of Beroun was required to conclude with her  and
two other plaintiffs and agreement on issuance of a thing, i.e.
the  neighboring  parcel of land, no. 229 and no.  189/1,  real
estate  registration  area  Beroun. The  building  office  even
confirmed this in its above mentioned statement.

     From  a  constitutional law viewpoint, the main  issue  is
evaluating  the  question  of whether  or  not  conduct  by  an
administrative   court   (and  the   preceding   administrative
proceedings), which derived the petitioner’s participation,  or
non-participation, in administrative proceedings only from  the
fact that at the time of the administrative proceedings she was
not  yet the owner of neighboring real estate, and did not take
into  account a fact sufficiently known to the deciding  public
bodies,  i.e.  that the cited decision of the  Beroun  District
Court  required the city of Beroun to conclude an agreement  on
issuance  of the specified real estate with the plaintiffs,  is
compatible with the constitutional right to judicial review  of
lawfulness  of a decision of an administrative body,  enshrined
in Art. 36 para. 2 of the Charter.

     Under  §  59  para.  1  let.  b)  of  the  Building  Code,
participants of building permit proceedings include persons who
have property or other rights to neighboring parcel of land and
buildings on them, which rights may be directly affected  by  a
building  permit. The meaning of “other rights  to  parcels  of
land  and buildings” is demonstratively defined in the Building
Act  in § 139 let. f). Thus, this can undoubtedly include other
rights,  whose substance and importance must be evaluated  case
by case.

     Thus,  in  the  petitioner’s case an it was  necessary  to
evaluate whether her right to conclude an agreement on issuance
of  real  estate  should or should not have been  considered  a
right  in this category. In the Constitutional Court’s opinion,
in  the  particular given circumstances, the term “other right”
under  §  59  para. 1 let. b) of the Building Code  had  to  be
interpreted  so that the petitioner’s right to restitution,  or
to conclusion of an agreement on issuance of real estate, was a
right of that type and that intensity. The building office  had
sufficient knowledge on the city of Beroun’s failure to fulfill
its  obligation  to conclude an agreement on issuance  of  real
estate, arising from the restitution decision which had been in
effect for almost a year. The administrative court should  have
taken  this as a starting point when, under § 250b para.  2  of
the CPC, it evaluated whether the petitioner was or should have
been a party to the building permit proceedings. Insofar as the
petitioner  was  not  granted the status  of  a  party  to  the
building  permit  proceedings in these  circumstances,  or  the
court agreed with the opinion of the administrative bodies that
she  should not have been a party, there was a violation of her
constitutional  right to judicial review of  an  administrative
decision,  established in Art. 36 para. 2  of  the  Charter  of
Fundamental Rights and Freedoms, as well as her right  to  have
state  power  exercised in a manner prescribed by law  (Art.  2
para. 3 of the Constitution). It is evident from § 3 para. 2 of
the  Administrative  Procedure Code that administrative  bodies
are  required  to act in proceedings in close cooperation  with
citizens  and to always give them an opportunity to effectively
defend  their  rights  and interest,  in  particular  to  state
positions  on  the grounds for a decision and to present  their
petitions.  Basically  this is a statutory  expression  of  the
rules of “elementary politeness and good morals”, without which
any fair process, including administrative decision making, can
not be imagined. Therefore, the petitioner should have been  at
least invited to the building permit proceedings as a so-called
“other person” under § 59 para. 3 of the Building Code, or  the
building  permit  proceedings should have been suspended  until
registration of her property right in the real estate  register
(in  this  case it was a matter of one month, as  the  building
permit  was issued on 20 July 1999 and her property  right  was
entered in the real estate register on 20 August 1999).  It  is
apparent  from  the  files presented that  the  proceedings  on
removal  of or subsequent permission for a building took  place
suspiciously quickly, and from other circumstances as well  one
can  deduce an attempt to circumvent the rights of known future
owners of the neighboring parcel of land through a sequence  of
individual  steps  that would eliminate their participation  in
the building permit proceedings.

     For  the above mentioned reasons the Constitutional  Court
granted  the constitutional complaint in the part which  sought
annulment  of the decision of the Prague Regional Court  of  31
July  2001, file no. 45 Ca 148/2000-31 and the decision of  the
Beroun City Office of 20 July 1999, file no. 2237/99-Pch.

     In  the part requesting annulment of the decision  of  the
Beroun  City  Office  of  15 September 2000,  file  no.  Výst.:
2932/2000-Pch,  and the decision of the Beroun District  Office
of  16 November 2000, file no. 2473/2000/RR, the Constitutional
Court  found  the  constitutional complaint to be  inadmissible
under  §  43 para. 1 let. e) a § 75 para 1 of Act No.  182/1993
Coll.,  on  the  Constitutional  Court,  as  amended  by  later
regulations, because the petitioner did not contest  the  cited
decision  through an administrative complaint under Part  Five,
Chapter Two of the CPC, and thus did not exhaust all procedural
means  which the law provided her for protection of her rights.
If  the  petitioner  was of the opinion that an  administrative
complaint  is not admissible against such a decision,  or  that
its  acceptance  for review on the merits by an  administrative
court   is   problematic,  she  should  have  filed  a   timely
constitutional   complaint  against   the   decision   of   the
administrative appeals body. In this regard, it would  also  be
possible to reject part of the statement of claim due  to  late
filing  (§  43 para. 1 let. b) of the Act on the Constitutional
Court).  In  addition, it is evident that if the Constitutional
Court  were  to  annul  the  original administrative  decision,
review of proceedings on re-opening proceedings would lose  all
meaning.

Instruction: A decision of the Constitutional Court can not  be
appealed.

Brno, 19 April 2002