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NEW ACT SEEKS TO INCORPORATE CONSTITUTIONAL COURT’S RULING

Parliament amends highway building law

WHEN Robert Fico’s government adopted a law in December 2007 providing for extraordinary measures to speed up highway construction in Slovakia it raised protests among land owners, opposition political parties and other groups of citizens. A group of opposition MPs challenged the law before the Constitutional Court in early 2008 and parts of the law were ruled unconstitutional in January 2011. The Slovak parliament amended the law on February 3, 2012, with an effective date of March 1, in the expectation that the original unconstitutional provisions have been remedied.

Highway construction continues in Slovakia. (Source: TASR)

WHEN Robert Fico’s government adopted a law in December 2007 providing for extraordinary measures to speed up highway construction in Slovakia it raised protests among land owners, opposition political parties and other groups of citizens. A group of opposition MPs challenged the law before the Constitutional Court in early 2008 and parts of the law were ruled unconstitutional in January 2011. The Slovak parliament amended the law on February 3, 2012, with an effective date of March 1, in the expectation that the original unconstitutional provisions have been remedied.

The Transport Ministry stated that it believes the amendment will enable the state to continue to obtain ownership rights or other rights to continue building highways and dual carriageways even where the construction process had been launched without fully obtaining these rights under the provisions of the old law. The amendment also provides for compensation to owners of property on which highways have been built or are being built based on the concept of the “usual rent” that could have been charged for its use.

“By these [provisions] we want to restore the equilibrium between public and private interests that was violated by the [previous] law’s unconstitutional regulations,” said Transport Minister Ján Figeľ after adoption of the amendment, as quoted by the SITA newswire.

Timotej Braxator, a lawyer at the Noerr firm, welcomed adoption of the amendment.

“In general, we assess the adoption of the recent amendment to the law as a positive move by the legislature through which it is apparently intended to resolve outstanding issues that arose after the Constitutional Court declared certain parts of the original wording to be unconstitutional in January 2011,” Braxator told The Slovak Spectator.

Braxator commented that the amendment corrects the broader context of the law, removes certain privileges and exemption regulations that favoured the state as the builder of highways and prejudiced affected property owners, and introduces broader notification and information duties to achieve a higher degree of transparency during the highway construction process.

The amendment also seeks to properly compensate owners of buildings and land whose property was used for certain highways but which had not been properly expropriated by the state, Braxator said. This compensation is to be based on the amount of usual rent that could have been charged from the time of the premature use of the property. A property owner must claim this rent before February 28, 2013 or the right to compensation will be lost.

“It can be expected that this compensation right will trigger a number of disputes between property owners and highway builders (in most cases public authorities) if no agreement is reached on the amount of usual rent,” Braxator told The Slovak Spectator. “Moreover, the amendment does not provide any compensation to owners whose property was not expropriated but only burdened with an easement or other encumbrance for construction purposes.”

In general, Braxator said, the amendment reflects the ruling made by the Constitutional Court and is aimed at rectifying certain legal irregularities and consequences resulting from actions taken by public authorities on the basis of the law’s original wording.

A group called the Civic Initiative for Fair Expropriation also welcomed the amendment and the possibility of receiving retroactive compensation but Richard Drutarovský from the initiative was still critical of the slow pace of the Constitutional Court that took more than three years to issue a ruling as well as the sluggish action by the current government in amending the law.

“Politicians who sharply criticised the law verbally were not able to [quickly] change the law after they came to power,” Drutarovský told The Slovak Spectator, adding that this undermined the trust of citizens in the state’s ability to equally protect everyone’s constitutional rights, including small landowners.

The amendment was prepared by MP Ondrej Dostál and other deputies from the Civic Conservative Party (OKS) who sought to not only deal with the parts of the law that were ruled unconstitutional but also several other regulations in the law that restricted land owners from fully participating in construction proceedings, such as shortened time periods for expressing opinions and submitting appeals, and less available information.

“These regulations were not unconstitutional but they did represent unjustified interference by the state into the rights of citizens,” Dostál told The Slovak Spectator, adding that the amendment his party drafted removed most of these regulations from the law on highway construction and brought its procedural rules as close as possible to the standards of the basic construction law.

Dostál thinks parliament’s adoption of the amendment has met the legislature’s duty toward citizens.

“But not by five minutes before twelve but more like two hours after twelve,” Dostál stated, recalling that the opposition centre-right parties had roundly criticised the law when it was adopted and after they took power in June 2010 they could have started legislative action to amend the law without waiting for the ruling of the Constitutional Court. Because the government was not taking any action, he and his colleagues from OKS prepared the amendment last spring. Because the draft bill was postponed again and again, it was finally adopted only on February 3 this year.

“Parliament failed to meet its task to change the law within six months from publication of the ruling by the Constitutional Court,” Dostál stated. “But it is certainly good that it was adopted.”

A little history

The original law became effective in February 2008 and permitted highway construction to start on land in which ownership rights had not been settled. Rather than requiring the state to settle all ownership questions before receiving a licence to proceed with construction, the law only required the state to settle all ownership rights by the time the highway construction was completed and approved.

The procedures under the law were used during construction of the Tekovské Nemce to Nitra stretch of the R1 dual carriageway as well as parts of D1 highway, the D2 highway border crossings to Hungary in Čunovo and to the Czech Republic in Brodské, the D3 highway in Žilina with a border crossing to Poland in Skalité, and parts of the R1 and R6 dual carriageways, the SITA newswire wrote.

A group of MPs from opposition parties challenged the law before the Constitutional Court in January 2008 and the court declared some parts of the law unconstitutional on January 26, 2011.
The court essentially stated that neither the government nor any other entity can begin building highways or roads on land that is not fully owned by the builder.

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