DECISION No. 5 OF MARCH 21, 1996 ON CC No. 4/96
The Constitutional Court ruled in favour of the motion by a group of Members of Parliament challenging the constitutionality of Art. 28 para 1 of the Cultural Monuments and Museums Act (CMMA) providing that the buying, selling, exchange or donation of non-portable cultural monuments between owners and physical persons or legal entities shall require the consent of the National Institute of Cultural Monuments (NICM) when the monuments have world or national importance, and of the respective municipal council for all other monuments.
The Constitutional Court ruled that Art. 28 para 1 of the CMMA contravened the provisions of Art. 17 paras 1 and 3 of the C. Curtailing a fundamental right of an owner who shall be free to dispose of his or her property right essentially curbs that right. In a market economy environment and civil society that the Constitution provides for and guarantees the Government shall not intervene by its institutions nor shall the municipalities intervene in civil relations and dictate the terms of a transaction including the party to a transaction.
By the same decision the Constitutional Court ruled on the anticonstitutionality of the provision of Art. 30 of the CMMA reading that "non-portable monuments of culture that are owned by physical persons or legal entities can be subject to compulsory purchase if they have great value as historic monuments or are of great importance for the national cultural development. The compulsory purchase shall be proposed by the Minister of Culture in compliance with the procedure of compulsory purchase for government and public needs."
The Constitutional Court did not find a Constitution text providing for and therefore allowing compulsory purchase of private property for public needs. The contrary view of Parliament to the text of Art. 30 of the CMMA is essentially an addition to the Constitution text (Art. 17 para 5) which is inadmissible. It is evident that the possibility of compulsory purchase of a cultural monument owned by physical persons or legal entities for public needs as this text provides for mismatches the compulsory purchase alternative that the Constitution provides for. The provision of Art. 17 para 5 of the C. shall not be violated nor shall the scope of application be extended by a law.