Abstract
Almost everyone perceives in some way the quality of the public space in which they move every day. However, the buildings that make up the streets, squares and other spaces have a very significant impact on their experience. However, these are not owned by the observer alone, but usually by a single owner or group of owners. It is thus a typical externality. Although we do not own buildings, the way in which ownership is exercised affects us deeply. This phenomenon is not new to the law and the exercise of property rights has been restricted in the name of various objectives. However, these objectives have mostly been clearly graspable and measurable. It is irrelevant whether these were dangerous emissions from factories or neighbourly rights of a private nature. In the case of public space, the situation is different. Its quality is largely a subjective matter and its definition is as complex as the way it is measured. In my work, I thus help myself by narrowing it down a bit and focusing mainly on visual smog. It is the one behind most of the negative externalities in the relationship between private property and the perception of users of the space around them.
I believe that visual smog needs to be seen in the light of the parable of the "tragedy of the commons". The aim of most advertisements, banners and other messages is to gain the attention of passers-by. The more the public space is so cluttered, the more garish and distracting the message must be. And as in the case of a meadow damaged by overgrazing, there is a simple solution - regulation. By the nature outlined above, the restriction cannot be seen as disproportionate, as there is almost none. It is merely the setting of a limit ending the merry-go-round of attention-seeking. The formal aspect of the restriction may thus be more problematic. That is, whether the constitutional order permits the recognition of a subjective category, such as the quality of public space, as a public interest in the name of which property rights can be restricted. In my thesis I elaborate why Article 11 provides this possibility. In the next section, I then address the possible regulation of visual smog not through the lens of property protection, but through the ideal of the rule of law. Specifically, Article 4 of the Charter, which allows the imposition of an obligation only by law. It is clear, however, that the regulation of public space will rest mainly on sub-legal norms. The answer to the question of how to define the subjective and abstract value of public space in law, so that regulation is both functional and spares the legal certainty of the addressee, will be crucial.
All this should result in defining the space in which the legislator can move if he decides to improve the dismal state of most of our public space.