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Application For Annulment Of The Second, Third And Fourth Sentences Of Paragraph 10 Of The Law On Rail Systems

Original Language Title: návrh na zrušení druhé, třetí a čtvrté věty § 10 zákona o dráhách

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144/2002 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 6. March 2002 in plenary on the proposal of the High Court

in Prague on the cancellation of the second, third and fourth sentences of paragraph 10 of Act No. 266/1994

Coll., on rail,



as follows:



The proposal complies with the, and the second, third and fourth sentences of paragraph 10 of Act No. 266/1994

Coll., on rail, with effect from 31 December 1999. 12.2002, shall be deleted.



Justification



(I).



On 2 February 2005. 4. The Constitutional Court was a proposal for the Senate of the Supreme

Court in Prague (Panel 6) of 28 September. 3.2001 for annulment of the second, third and

the fourth sentence of section 10 of Act No. 266/1994 Coll., on rail systems. According to the article. 95 para.

2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the Court shall, as a General

If there is a conclusion that the law to be applied in solving the case, it is in the

conflict with the constitutional law. In the proposal, signed by the President of the

Senate JUDr. Bohuslav Hnízdil President, it is stated that the High Court leads

under SP. zn. 6 and 44/98, proceedings of administrative action, the Prosecutor's Office of JUDr. In s. against the

the respondent Ministry of transport and communications, in which the applicant seeks the annulment of

Furthermore, the decision of the defendant and indicated the Office Overhead Prague as

the administrative authority of first instance. The subject of the proceedings before the Supreme Court in

Prague was the fact that the rail authority ordered the claimant to Prague from

their forest land has removed a source of threat to the felling of four tracks

trees. He did so after, when on one of the trees, the land

the plaintiff fell to the tracks, rammed a passenger train. The railway authority said that

There is a risk of recurrence of the emergency, which has been confirmed by the local investigation

(I) an expert's report, which found that there was a tree to fall

normal weather conditions. The owner of the land against this

the decision claimed that 4. 11.1997 the administrative authority of the first

instance has ruled. By decision of 4 December 2002. 11.1997 No. 1112-DÚ -97/S/Su

the rail authority ordered the Czech spring eliminate the source of danger on the

the cost of the applicant, which has not complied with its previous call for cutting 4

trees on his land. The Ministry of transport and communications on 12 June 2006. 1.1998

under no. 16 178/98-0210 appeal against this decision, the applicant

rejected and the contested decision confirmed. The High Court in Prague

discussion of administrative action in the matter came to the conclusion that section 10 of the Act

on rail, according to which administrative authorities act, is inconsistent with the

the constitutional order of the Czech Republic, if the authorised railway administrative Bureau

order the owner or operator of a source threat to his

delete, or decide to eliminate the source of the threat at the expense of

its owner or operator. Therefore, in accordance with § 109 paragraph. 1

(a). (c)) code of civil procedure the matter before the Constitutional Court with the

a proposal for the abolition of the provision in its sentence, the second, third and

the fourth.



The High Court in Prague argues in its proposal as follows: If the owner of the

or operator of the source of threats to challenge the authority of overhead

the obligation to remove the source of the threat, the law also store

the corresponding obligation to take care of your property, especially land, and

the construction, so that the risk of threats was the lowest, which

the law on rail does not. In this reality, the applicant considers that there is a contradiction

with the article. 2 (2). 3 and article. 4 (4). 1 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter"). The law on rail or other law governing the obligations of the

property owners in fact indicates that the owner of the property is

be obliged to make their real estate interventions to protect the foreign land,

buildings or facilities, or these interventions suffer and bear their

costs. It saves the owner of the railway authority, when it prompts you to fulfill this

non-existent obligations, and if the invitation is not accepted, shall decide on the

the implementation of the intervention at the expense of the owner. However, section 10 of the Act on

Railway Act does not give the Administration discretion: the words "shall order" and

"Decides to" obligation of the authority when you discover the source of the threat to the runway

proceed only as described above. By such restrictions

ownership of the owner of the "threats", which has no legal basis

and for the replacement is not performed if the owner alone shall bear the costs.



The obligation imposed by the contested provision, it is stored in the public

interest and does not serve to protect private rights. Eliminate the source of the threat

the track should not therefore be carried out on the cargo owner's threats.

By modifying the rights and obligations of the owners of adjacent real estate deals

civil code in section 127. This obligation, however, is private

nature and does not constitute authority to deal with the situation by issuing administrative office

the administrative act imposing duties of the landlord.



II.



Representation of the Chamber of deputies of the Parliament of the Czech Republic



The Constitutional Court in accordance with § 42 para. 3 and 4 and section 69 of Act No.

182/1993 Coll., on the Constitutional Court, as amended, the

the proposal to represent the Chamber of Deputies and the Senate of the Czech

Republic and asked for a written opinion and the Ministry of transport and

joints. In the Chamber of deputies of the Parliament of 15 March 2000. 6.2001,

signed by its President, Prof. Ing. Václav Klaus, CSc.,

stated that the Mission of the contested statutory provisions is the protection of

the transport route of the track (in particular rail, overhead lines and

signalling or alarm devices) from various sources

the disruption, which in many cases occur just on real estate in

the protection zone of the runway (sections 8 and 9 of the law on rail systems), which is the implementation of

certain activities shall be limited to the need for the safe didn't interfere

operation of the track. In the opinion of the Chamber of deputies by law on rail systems

provides the necessary degree of prevention, in order to avoid the formation of resources

the threat of the track. The obligation of the operator or the owner of the threats

the track is in accordance with art. 4 (4). 1 of the Charter imposed by law. Railway

the administrative authorities, in whose scope is to detect threats track,

they are established in accordance with article 6(1). paragraph 79. 1 of the Constitution. The impugned legislation

is a traditional public service Institute, which contained already the law No.

86/1937 Coll. and n., on the railways (Railway Act), and then, in principle,

i took over the legislation of the postwar period. Similar provisions

also include some other laws from the fields of transport and energy.

The Chamber of Deputies acted in the belief that the law is in accordance with the

the constitutional order of the Czech Republic, and has concluded that the leaves on the constitutional

Court to examine the matter, and issued the award.



Expression of the Czech Senate



The Senate of the Parliament of the Czech Republic on 22 November. 6.2001 expressed its

the President of the doc. JUDr. Petr Pithart, who noted that the law on rail

was amended four times so far, none of the novel, however, did not touch

the provision which is the subject of a proposal of the High Court in Prague. The Senate

as the second Chamber of the Parliament to discuss all four amendments, in

discuss the second of them, later published in the collection of laws under the

No 23/2000 Coll., on its 12. meeting held on 9 April. 12.1999 dealt with the

by the contested provision. Adopted the amendment to it and returned the draft

the amendment to the Railway Act, which the House of representatives, however, when his

the Senate has not adopted the proposal discussion again and continued his

originally approved wording. The Senate proposed paragraph 10 Add a new paragraph

providing that the owner of the land on which it is found the source of the threat

railways, responsible for the damages caused by this source just in case

the creation and operation of this source itself has raised, and not when, if

It took place under natural forces or incidents. A proposal from the

It was based on the principle of the determination of the obligation to make the necessary arrangements

to prevent the risk of damage as a result of this body, whose meetings

(action or inaction) by any damages incurred. Also

The Senate concluded its statement by stating that it is up to the Constitutional Court, in order to

the present proposal of the High Court in Prague to assess and definitively

decided about it.



The opinion of the Ministry of transport and communications of the Czech Republic



The Ministry of transport and communications (hereinafter referred to as "the Ministry") in its

opinion of 26 April. 6. the 2001 proposal for a high court in Prague said,

that the operation of railways, railway transport and related services

represent the complex mechanics of structures and equipment, whose purpose is to

create the necessary technical base meeting the strict security

criteria. The State shall implement them through one of its fundamental

the tasks, which is to create the conditions to ensure the transport needs and

transport services on the appropriate level of quality necessary to guarantee

safety parameters. This obligation arises not only from the

the Act itself, where for example. in section 20 imposes on the owner of the tracks

to care for its development and modernization to the extent necessary to ensure the

transport needs of the State, but also from the relevant Community legislation,

in the context of the harmonisation of our rule of law with the law of

EC agrees to incorporate in its regulations of the Czech Republic. The ownership of the

the track is associated with a number of specific obligations, which are justified by the

the special nature of the subject matter of this property.




To a particular track could be operated safe railway transport,

must be respected, certain guarantees of safety. This objective is used

both rail systems as defined in the law on the special legal institutions of the circuit

the track as a special territory intended for the location and maintenance of the railways and, secondly,

runway protection zone, where it is justified by the specific arrangements of the activities (§ 9

the law on rail systems), which can be exercised only with the consent of

overhead administrative office and under the conditions laid down by it. The operation of the railways

However, you may be at risk, damaged or disturbed by the source, that is not possible,

generally defined in advance, the result of which cannot be directly determined by law

a specific duty to the owners or operators of these resources. Is

Here, however, the public interest in order for the mechanism and its operation

was not threatened. This public interest is, in the opinion of the Ministry of

no doubt an ancestor of proprietary. After making the necessary

expert findings that reveal the source of the threat to the operation of the railways, it is not

possible to make do with private resources to resolve the dispute, IE. Sue

the protection in the courts, as the public interest in maintaining the safety of the

the operation of railways requires operational action by issuing an administrative act

imposing the operator or owner of the immediate threat sources

obligations to eliminate this condition. Referred to surgery is listed

in the second sentence of § 10 of the law on rail systems. The Ministry further

invoked article. 11 (1) 3 of the Charter, while reiterating the principle of

"ownership commits" and stated that the individual cannot be down

provisions of the law on rail from the context, the concepts and objectives of the entire Bill.

Railway transport is operated with the participation of public budgets, and this is the

It reflects the significant public element. Annulment of the contested provisions

According to the Ministry resulted in not only the load State

the budget, but also the advantage of private property at the expense of the protection of

public goods in public interest.



III.



The Constitutional Court in accordance with § 68 para. 2 of the Act on the Constitutional Court

examined whether the Act for which the appellant argues that the unconstitutionality of the

the provision was adopted and issued within the limits of the Constitution laid down the competence and

constitutionally prescribed way. From the observations of the Chamber of Deputies

Parliament of the Czech Republic, as well as from relevant sent to Council

publications and data on the course of the vote, it is clear that the law on rail was

received and issued by the constitutionally prescribed manner and within the limits of the Constitution

provided for competencies while observing the quorums set out in article. paragraph 39. 1 and 2

Of the Constitution.



Substantive examination of the application and after considering all the circumstances, concluded the constitutional

the Court decision challenged provisions of the Act to repeal, although for reasons of

not entirely coterminous with the opinion of the appellant.



The provisions of § 10 of the law on rail, whose second, third and fourth sentence

the High Court in Prague proposes to repeal the so-called governs the "the source of the threat

the track ", which it defines as the source of the disruption, damage or interference

the operation of railways, railway transport, railway telecommunication devices and

leadership and railway security equipment, which detects the railway Board

Office (first sentence). The contested provisions (second, third and fourth)

the following verbatim as follows:



"When you discover the source of danger to the operator or the owner orders the source

the threat to its removal. If the operator fails to comply with or owner resources

threat, railway administrative Bureau decides to eliminate the source of danger to

its costs. Appeal does not have suspensory effect.



The content of these provisions is therefore the right and the duty of the administrative overhead

the authority to determine and order the removal of the source of threats and, in the case

failure to decide on its removal at the expense of the operator or

of the owner. Fourth sentence no longer just withdrawing this decision have suspensive effect.

Navrhovatelova no constitutional argument relies mainly on the view that the

the law on rail systems nor any other law governing the obligations of owners

real estate does not impose the obligation of landlord to preventive

measures to prevent the emergence of possible threats to a foreign land, buildings

or equipment, or the obligation to tolerate interference to protect them and to bear

the cost of removing them.



With the navrhovatelovým the view that the Railway Act or any other law

the owner of the property does not delete the source of threat to the obligation to

railways, cannot be accepted. Runway protection zone (60, 100 m from the axis of

edge of the track on both sides) has fully established whether publicly owned

the specific mode in which the rights of the owners of adjacent properties in

the general interest of the vastly more limited than is the case with the forest Act (§

9 of the law on rail-comparably eg. with § 23 para. 3 and 4 of the German

the law on railways of 27. 12.1993, as amended).

According to § 9 para. 1 of the law on rail tracks in the protection zone can be set up

and operate the building and carry out further listed activities only

the consent of the administrative authority of overhead and under conditions set by,

While paragraph 2 of the same provision allows the operators of the railways and

carriers to enter on a foreign land for the purpose of solving other

the obstacles restricting the operation of railway transport. Of section 10 of the Act on

rail systems then follows the obligation of operator or the owner of the source

the threat to remove this source of threat.



Also navrhovatelovu the opinion that nor other legislation do not constitute

the corresponding obligations and limitations of the owners, cannot regard. Because

the diversity of possible threats to the operation of the railways are essential

the General provisions of the civil code. The Constitutional Court therefore draws attention to the

the following legislation:



and) section 127 of the civil code, according to which the owner of the things

must abstain from anything would seriously undermine the exercise of the rights of another, for example. (I)

modifications of the land, vegetation on the land, but for example. even light (which would in

the case could significantly reduce the visibility of the signal

the device tracks).



(b)) the provision of section 415 of the civil code, which instructs each Act

so, in order to avoid the damage, and the comment of the civil code

(Jehlička, plum and al., civil code, comment, 3. Edition 1996

C. h. Beck) p. 251-252, States that "everyone is obliged to act

so, in order to avoid the damage ", and therefore" nepočínání so it is

lack of compliance with their legal obligations and the Expo is illegal. It is therefore

each responsible for damage that occurs as a result ". This concept

conforms to European law. In German law, for example. can disrupt their

the obligations of the entities to conduct and omissions-eg. by

hosted your property in a good state. The land owner cannot

get rid of the liability eg. behind the trees on his land claim that is

He dug, and that grew up themselves.



(c)) the provision of section 417 of the Civil Code provides for the obligation of directly

anyone the damage threatens to "act in a manner appropriate to the circumstances

the threat "so that the damage has been averted, in recognition of the fact that the existence of

sources of danger does not arise until the regulation to eliminate it. Regulation

only discovers that the source of the threat no longer exists and that it has not yet been

deleted. An exhaustive list of threats by definition is not possible, therefore,

the railway is the administrative authority which possesses the necessary expertise,

to remind the obligation of the owner himself. Under section 419

the civil code then the one who backed the imminent damage, has the right to

pay reasonably incurred costs.



Access to the law on rail systems to protect the public interest in the safe operation

in our order is not unique.



Thematically the nearest law on rail systems is the modification of Act No. 13/1997 Coll.

on the road, as amended by Amendment No 102/2000 Coll., Amended

the text of this Act distinguishes liability for endangering road

transport and restricts the removal of threats at the expense of the owner or

the operator, in cases where this risk arises from the hearing

owners of land in the neighbourhood of the communications themselves.



Also, Act No. 50/1976 Coll., on zoning and the building code

(the building Act), as amended, confers on the building

the Office of law order in the public interest to make the necessary adaptations to the

the construction of the building owner, and the owner of land. Mandated adjustments is

the owner shall be obliged to perform at their own expense (article 94, paragraph 1, § 94

paragraph. 4). According to § 94 the Building Authority orders in the public interest under the conditions

paragraph 1, the owner of the construction implementation of the urgent security

work, or. referred to in paragraph 2 shall ensure their immediate execution on the

the cost of the owner.



Certain restrictions on the exercise of property rights include other laws, such as

for example. forest law, energy law, the top law, water law, law on

the environment, the law on fire protection. It is natural that

democratic State in post-Communist phase of development increasingly is committed to

protection of freedom of ownership, which was the old regime suppressed, respectively.

substantially curtailed. However, this does not mean that any restriction of the exercise of

of property rights is a product or a relic of the Communist regime.

The Czechoslovak railway law, i.e. the law on railways no 86/1937 Coll.


and n., whose text is reminiscent of the Austrian and German legislation in

These issues, regulates in § 102 and 103 of the so-called. the forbidden zone and fire

zone, and identifies a number of restrictions on the exercise of ownership rights in this space

in section 102 paragraph. 1 and 2, § 104 paragraph. 1, 2 and 3 and section 105 of the use

the land around the track. In accordance with § 105 para. 1 "Land around the track must not

to be used so that this should result in slumping of the soil, the falling of

stones, dropping objects on the track, the track or any other zatopování

the threat of the track and its operation. The Railway Administration may explicitly

indicate the parcels concerned. ". In accordance with paragraph 2 of the same provision

"If the land around the track in a manner that is prohibited by paragraph

1, the railway administration shall be entitled to may be the necessary measures to

the runway has not been compromised; ... The implementation of such measures can be

saved and the railway undertaking on the account of the user of the land. ".



Edit the current law of the Czech Republic on rail, however, is in a particular

the range of comparable even with the editing of other European States. How

the legislature in the explanatory memorandum to the law, and the Ministry in their

the observations point to the Council directive on the development of the community's railways

from 29. 7.1991, as amended by the directive of the European Parliament and of the Council No.

2001/12/EC, which also apply to ensure safe policy

railways and railway transport. In Germany, for example. § 23 para. 3 and 4

Federal law on railways of 27. 12. in 1993, in the version in force

regulations, according to which the infrastructure manager and the carrier shall be entitled to the

the protection zone of the runway to enter on a foreign land, and even for the purpose of

removal of sources of threat to public transport. Railway law of the land

Baden-Wurtemberg from 8. 6. the 1995 provides in § 5 of the protective measures that

the owners and holders of land adjacent to the runway must tolerate measures

necessary to protect the railways from the effects of nature, such as snow

drifts, falling stones, závaly, floods. The person concerned shall be entitled to

necessary measures in conformity with the appropriate Office to perform alone. According to the

paragraph 2 of the vegetation and fences, as well as stacks, heaps, and other devices, which

are tightly linked with the plot, must not endanger the safety and

the fluidity of rail transport. At the written request of the competent authority must

be at the expense of the deleted. The Swiss law on railways of the

20.12. 1957 in § 21 para. 1 also in urgent cases

the railway undertaking was also on the premises of third parties alone measures to

averting the danger. Under paragraph 2, the cost of removal of the source

the risk shall be borne by the owner or operator of the land belonged to him, without

a claim for compensation. From this principle, however, there is an exception: If the

source of threat trees, bears the cost of removing a threat to railway

the firm, unless the fault of another person. Slovak adjusting these

the questions is almost identical with the adjustment of the Czech.



The current section 10 of the law on rail systems affects in a comparable way

those cases in which the track has compromised service activities

or omission of the owner, or operator of the source of threats and thus

violation of the obligations of the owner under section 127, respectively, § 415-420a

of the civil code and Article 4a, and sections 8-10 of the law on rail systems. If

This obligation to the adjacent property owner,

found under section 10 of the law on rail railway or railway administrative authority to

owner or operator of the source of the threat and ordered its removal-

If they do not-decided to eliminate the source of danger to his

costs. While the law cannot define all the steps, tasks,

ways of behaviour and actions of the owner of the adjacent real estate, which is considered

due to the variety of specific situations needed, assumes

However, the owner of the property myself-aware of its obligations-watching on

your parcel items and going on, which could endanger the operation of the railways, and

takes care of removing them. Failure to meet this obligation may not be

only the venue (e.g., discontinuation of the tree in the wrong place), but also

omissions (e.g., leaving the tree itself without the intervention of the owner of the

wrong place grew up). The right to order the administration overhead

the owners of the necessary measures. decide on the removal of the source of threats

its cost is only a necessary operational guarantee of priority protection

the safe operation of railways, and the eminentního of the public interest.



In such cases, it is appropriate for the provisions on the removal of threats

at the expense of the owner or operator of land which has not complied with

the regulation on its removal. Even this "advantage" is in the public interest

for the protection of property rights of the owners of rights, compensated by a certain

that protects them from the zvůlí of the administrative authorities, and that the fact that reimbursement of the costs

and the damage caused by the necessary measures to eliminate the source of the threat

the track shall be dealt with in accordance with the principle of proportionality. The basic meaning in the

this direction is the provision of section 419 of the civil code (referred to by the

§ 9 para. 2 of the law on rail systems), according to which "who backed the imminent damage,

has the right to claim reasonably incurred costs and damages,

by doing so he suffered, even against it, in whose interest it acted, not more than

to the extent corresponding to the damage, which was averted. ". Comment to

Civil Code stresses that the right to damages and

incurred costs continues to, in whose interest the body

acted (Jehlička, plum and al., civil code, comment, 3rd Edition

1996, c. h. Beck).



On the other hand, however, can be thought of as well as a variety of other situations. Such,

that would be a specific obligation to prevent the owner of the real estate

in the area of the protection zone of the runway (operator or the owner of the source

threat) over his real options and its subsequent responsibility for source

threats in violation of the principle of proportionality. This is not only about

the situation of "vis maior" (a condition caused by events that could not have

the owner of the effect). Always it is necessary to carefully assess each case with

taking into account all the circumstances. The law on rail systems in such access

the provision excludes this year, when the stores at a flat rate to the administrative

the authority to issue a decision on the removal of threats to the cost of its

the owner or operator.



The Constitutional Court notes that for example. the cited law the Federal rail

Baden-Wurtemberg, while on the one hand allows the railway or railway Office

decide on the removal of crops, fences, heaps, stacks, and other

items that are not tightly linked with the plot, at the expense of the owner, the

the other hand, provides for a right to adequate compensation for those owners

or users that will be imposed restrictions, which are a burden

unreasonable, unfair and unacceptable to the other (section 4, paragraph 4,

of the Act). In paragraph 5 of the same law, imposes an obligation to tolerate the interventions on

the track protection against natural influences such as drifts, falling stones,

závaly, etc., and in these cases it is for the affected owners

adequate monetary compensation for land damage. The responsibility for the

the source of the threats to the owner of the land may exempt also, if

the specific mode in the protection zone of the runway problems on your property

properly cared for.



From this it can be seen that the adjustment of the Czech law on rail is too austere,

unambiguous and undifferentiated, so lump the provisions of § 10 of the

eliminate the source of threat to the runway at the expense of this resource

does not affect, mutatis mutandis, those cases where payment cannot be after the owner of the land

those costs justified by demand.



In conclusion it can be said that the Constitutional Court respects the instantiation of the social

binding pursuant to article ownership. 11 (1) 3 of the Charter and article. 1 (1). 2

The additional protocol to the Convention on the protection of human rights and fundamental

freedoms, according to which the right to the protection of property shall not preclude the right of a State

to enforce such laws as it deems necessary to control the use of

property in accordance with the general interest. Such laws also apply in

The Czech Republic, even if the restriction of the use of property in accordance with the General

interested in the civil code and other laws and are not due to the

the diversity of circumstances, nor can they have-the nature of the inventory of individually

concretized the obligations, but the duties generally

formulated, but reasonable interpretable.



At the same time, however, as regards the flat-rate nature of the provisions on the Elimination of

threats at the expense of its owner or operator,

The Constitutional Court, than the navrhovatelovu regard to opinion. Czech law on

rail systems yet on this issue does not allow such an adjustment, which would have been

appropriate to the diversity of circumstances relating to the costs of the removal

threats of the track. Because other provisions of the second sentence, the third and

Fourth, in paragraph 10 of the law on rail systems would be after the cancellation of the words "at his expense" in the

the third sentence has lost the necessary clarity and consistency, to annul the constitutional

the Court, the contested sentence in its entirety, and the overall balanced

a new adjustment.



Of all of the above reasons, the Constitutional Court decided, as in the operative part

stated. Effectiveness of award to 31. 12.2002 is intended to enable the new legislative


adjustment, in particular whether or not adequately judge the obligation of compensation

the costs associated with the removal of threats of the track.



The President of the Constitutional Court:



JUDr. Kessler v. r.