U-I-224/00

Reference no.:
U-I-224/00
Objavljeno:
Official Gazette RS, No. 50/02 and OdlUS XI, 73 | 09.05.2002
ECLI:
ECLI:SI:USRS:2002:U.I.224.00
Act:
Public Roads Act (Official Gazette RS, No. 29/97) (ZJC), Art. 85 Land Registry Act (Official Gazette RS, No. 33/95) (ZZK), Art. 137

Basic Property Law Relations Act (Official Gazette SFRJ, Nos. 6/80, 20/80 - corr. 36/90 and Official Gazette RS, No. 4/91) (ZTLR), Art. 25.2
Operative provisions:
Art. 85 of the Public Roads Act (Official Gazette RS, No. 29/97), is annulled. Art. 137 of the Land Registry Act (Official Gazette RS, No. 33/95), is annulled. Art. 25.2 of the Basic Property Law Relations Act (Official Gazette SFRJ, Nos. 6/80, 20/80 - corr. 36/90 and Official Gazette RS, No. 4/91), is not inconsistent with the Constitution provided that it is interpreted in such manner as determined in the reasoning of this decision. The petitioner bears the costs of the proceedings before the Constitutional Court.
Abstract:
Art. 137 of the Land Registry Act (hereinafter ZZK) and Art. 85 of the Public Roads Act (hereinafter ZJC) are inconsistent with Arts. 2, 14.2, 23, 33, and 69 of the Constitution. From the review of the interference with the property right in the discussed case it is obvious that pursuant to Art. 69 of the Constitution a statute cannot have direct expropriation effects. Therefore, every ex lege statutory expropriation would be contrary to Art. 69 of the Constitution notwithstanding the fact that the legislature explicitly determined such expropriation of the property right in a statute. If the statute cannot have direct expropriation effects, it also cannot abolish the possible expropriation effect of an executive regulation (e.g. an act on the categorization of a road which would run on a private land, as in the petitioner's case). Thus, the Constitutional Court annulled Art. 85 of ZJC and Art. 137 of ZZK. Establishing the unconstitutionality and the annulment of the mentioned provisions does not mean that the legislature may not regulate substantive relations regarding the lands already used for the construction or reconstruction of roads by a special regulation which would consider the mentioned circumstance and at the same time guarantee the constitutional protection of the property right provided that sound reasons and material possibilities for such regulation exist.

Provided that the conditions to deprive or limit the property right in the public interest exist, expropriation claimants may request it under the conditions determined by the legislation regulating this field. This means that the expropriation claimant as a public law person cannot remedy on the basis of Art. 25.2 of the Basic Property Law Relations Act (hereinafter ZTLR) their omission of a legal conduct necessary to fulfill the conditions for the admissibility of an interference with the property right as to real estate. The interpretation of Art. 25.2 of ZTLR, which would have the effect of expropriation, would be following the above-mentioned inconsistent with the principles of a State governed by the rule of law (Art. 2 of the Constitution). Thus, the Constitutional Court determined that the provision of Art.

25.2 of ZTLR is not inconsistent with the Constitution provided that it is interpreted in a manner such that it does not apply to the regulation of the public law relations that are determined by the regulations on expropriation. Therewith the Constitutional Court did not review the constitutionality of the stated provision as regards the regulation of civil relations between a landowner and a constructor.
Password:
Constitutional Court, temporary injunction, statute, dismissal.
Roads, public roads.
Roads, acquisition of land.
Roads, compensation.
Property in public domain, public roads.
Decision-making procedure of the Constitutional Court according to the principle of linking-issues.
Right to private property.
Property, entry in the land register.
Property, expropriation.
Exercise and limitation of rights.
Principle of proportionality.
Public interest/public benefit.
Principles of a State governed by the rule of law.
Principle of equality before the law.
Principle of legal certainty.
Costs of proceedings.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 2, 14, 15, 23, 33, 69
Constitutional Court Act (ZUstS), Arts. 21, 34, 43
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Martin Černe, Grivac
Date of application:
25.08.2000
Date of decision:
09.05.2002
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN02531