The Constitutional Court of the Slovak Republic (“Constitutional Court”) decided in its award dated January 26, 2011 that certain provisions of Act 669/2007 Coll. on non-recurring extraordinary measures applicable during preparation of certain construction of motorways and expressways (“Extraordinary Measures Act”), as amended, are at variance with the Constitution of the Slovak Republic (“Constitution”) and with Protocol No. 1 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol”).
More than three years after the motion was filed it is now clear that neither the state nor any other entity can build motorways and expressways on land it does not own, since the provisions of the Extraordinary Measures Act enabling such construction are at variance with the principle of equal legal contents of ownership title, so putting the owners of affected land plots at a disadvantage as compared to other landowners.
Non-compliance of provisions of the Extraordinary Measures Act with the Constitution
In its award, the Constitutional Court ruled that the following provisions of the Extraordinary Measures Act are at variance with the Constitution and the Protocol:
- the provision enabling builders (in this particular case the National Motorway Company - or the state) to state in their building permit application, apart from a list of the concerned land plots, only information on whether, as of the date of building procedure commencement, the ownership title or other title to the land plots has been acquired, or whether the act necessary to acquire such title has been carried out.
- the provision setting forth that the building permit application must contain annexes such as deeds proving the builder’s ownership title or other title to the land, and that the application can also contain deeds certifying the commitment to acquire ownership title or other title to the land (in particular copies of executed purchase agreements, exchange agreements, donation deeds and agreements on future agreement), or deeds proving the impracticability of acquiring the ownership title or other title by way of a contract, such as deeds of pending inheritance proceedings or other proceedings entertained before courts or administrative bodies.
Among other things, the Constitutional Court also dismissed the wording of the Extraordinary Measures Act because the phrase referring to “the impracticability of acquiring” was rather “vague, indefinite, and not fulfilling the quality and anticipation criteria of a statute interfering with title in the way required by the Constitution and the Convention“.
The Constitutional Court said that there might occur a situation in which formal owners remain owners of the land, but are in fact unable to exercise their title in full (they become mere holders of the nominal title), and a structure that would otherwise be regarded as unauthorized (thus a structure lacking the title to be erected on third-party land) is temporarily “legalized” in the building procedure by enabling construction of a fixed structure without the builder holding a legal title to the land plot, proof of which was “deferred” until the occupancy procedure.
Further, the sequence of the building and expropriation procedures has been disturbed, in particular because formal expropriation or purchase of land was not completed before the start of construction work on third-party land, which would constitute de facto expropriation. Moreover, the passing of the Extraordinary Measures Act merely created an illusion that one can build on third-party land relying on later expropriation of the land. Switching the sequence of the expropriation and building procedures was definitively rejected by the Constitutional Court as the expropriation procedure need not necessarily result in expropriation of the property.
While putting an end to the continuing controversy over the constitutionality of the provisions of the Extraordinary Measures Act, the award prompted new debate about options to indemnify owners affected by construction of road infrastructure, as the National Motorway Company confirmed that the act had been applied in practice.
Mgr. Nina Dubovská is a senior associate and JUDr. Katarína Kováčová is a junior associate with Ružička Csekes s.r.o. in association with members of CMS.
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