The Constitutional Court found no 144 / 2002 Coll.

On 2 April 2001, a motion was submitted to the Constitutional Court by the Senate of the Supreme Court in Prague (Chamber 6 A) of 28 March 2001 to repeal the second, third and fourth sentences of Section 10 of Act No. 266 / 1994 Coll., on Railways. According to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the general court will do so if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional law. The application, signed by the President of this Chamber by JUDr. Bohuslav Hnehdil, states that the Supreme Court is conducting proceedings for the administrative action of the applicant JUDr. V. S. against the defendant, the Ministry of Transport and Communications, to which the applicant seeks the annulment of the subsequent decisions of the defendant and of the Railway Office of Prague as the administrative body of the first instance. The subject of the proceedings before the Supreme Court in Prague was the fact that the Railway Office of Prague ordered the applicant to remove from its forest land the source of the threat to the runway by cutting down four trees. He did so after a passenger train hit one of the trees that fell off the plaintiff's property. The Railway Authority stated that there was a risk of recurrence of the emergency situation, which was confirmed by the local investigation as well as by an expert opinion which found that the tree fell under normal weather conditions. The owner of the land objected to this decision, which was decided by the administrative authority of the first instance on 4 November 1997. By decision of 4.11.1997 No 1112-97-DÚ / S / Su, the Railway Authority ordered Czech Railways to remove the source of the rail hazard at the expense of the applicant, who failed to comply with his previous call for cutting down 4 trees on his property. The Ministry of Transport and Communications of 12.1.1998 under No 16 178 / 98- 0210 rejected the applicant's appeal against that decision and confirmed the contested decision. The Supreme Court in Prague, when discussing an administrative action on the subject, concluded that Section 10 of the Railway Act, according to which the administrative authorities acted, is contrary to the constitutional order of the Czech Republic, insofar as it empowers the railway administration to order the owner or operator of the source of the danger to the runway to remove it or decide to remove the source of the threat at the expense of its owner or operator. Therefore, in accordance with § 109 (1) (c) of the Civil Code, the case was brought before the Constitutional Court with a motion to repeal the provision in question in its sentence of second, third and fourth.

The Supreme Court in Prague argues in its proposal as follows: If the owner or the operator of the railway source is obliged to remove the source of the threat, the law must also impose an appropriate obligation on him to take care of his property, in particular land or construction, so that the risk of the source of the threat is as low as possible, which the Railway Act does not do. In this respect, the appellant sees a conflict with Articles 2 (3) and 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). The Railway Act or any other law governing the obligations of owners of real estate does not provide that the owner of the real estate is obliged to intervene on his real estate to protect a foreign land, construction or installation, or to bear those interference and bear their costs. This shall be imposed on the owner by the Railway Authority when it invites him to fulfil this non-existent obligation and, if the call is not complied with, he shall decide to intervene at the owner's expense. However, Paragraph 10 of the Railways Act does not give the administration the option of discretion: it "orders" and "decides" the Authority's obligation to proceed only in the aforementioned way when determining the source of the rail risk. This results in such a restriction on the ownership of the owner of a "source of danger 'which does not have legal basis and is not made for compensation if the owner himself bears the costs.

The obligation imposed under the contested provision shall be imposed in the public interest and shall not serve to protect private law. The removal of the hazard source of the runway should therefore not be carried out on the cargo of the owner of the hazard source. The Civil Code in § 127 deals with the modification of the rights and obligations of the owners of neighbouring properties. However, this obligation is of a private nature and does not give rise to the power of the administrative authority to deal with the situation by issuing an administrative act imposing on the property owner an obligation.

The Constitutional Court, in accordance with § 42 paragraphs 3 and 4 and § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, sent the proposal in question to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and requested the written opinion of the Ministry of Transport and Communications. In the Chamber of Deputies of 15 June 2001, signed by its President, Prof. Ing. Václav Klaus, CSc, it is stated that the mission of the contested legal provisions is to protect the railway infrastructure (mainly railway superstructure, overhead line and signalling or signalling equipment) from the various sources of danger which occur in many cases precisely on the property in the railway protection zone (§ 8 and 9 of the Railway Act), where the implementation of certain activities is limited in order not to conflict with the need for safe operation of the railway. In the Chamber of Deputies' view, the Railways Act provides for the necessary level of prevention in order to avoid the emergence of sources of rail risk. In accordance with Article 4 (1) of the Charter, the obligation of the operator or the owner of the railway hazard source shall be imposed by law. The railway administrations whose responsibility is to identify the sources of the rail threat shall be established in accordance with Article 79 (1) of the Constitution. The contested legislation is a traditional public body, which already contained Law No 86 / 1937 Coll. on Railways (Railway Act), and was then essentially taken over by the legislation from the post-war period. Similar provisions include some other laws in the field of transport and energy. The Chamber of Deputies acted in the belief that the law was in accordance with the constitutional order of the Czech Republic, and concluded that it left it to the Constitutional Court to examine the matter and issue the relevant finding.

On 22 June 2001, the Senate of the Parliament of the Czech Republic was expressed by its President, Dr. Petr Pithart, who stated that the Railways Act had been amended four times, but none of the amendments touched on the provision which is the subject of the motion by the Supreme Court in Prague. The Senate, as the second Chamber of Parliament, discussed all four amendments and, in the context of the discussion of the second one, later announced in the Collection of Laws under No 23 / 2000 Coll., addressed the contested provisions at its 12th meeting of 9 December 1999. He accepted the amendment and returned the draft amendment to the Railways Act to the Chamber of Deputies, which, however, did not accept the Senate proposal in its renegotiation and maintained its original text. The Senate proposed to add a new paragraph to Paragraph 10 stating that the owner of the land on which there is a source of danger to the runway is responsible for the damage caused by that source only if the creation and operation of that source itself has triggered and not if it has been caused by natural forces or random events. The proposal was based on the principle of establishing the obligation to carry out the necessary measures to prevent damage to the entity whose actions (activities or inaction) could cause any damage. The Senate also concluded its observations by stating that it is up to the Constitutional Court to examine and finally decide on the proposal of the Supreme Court in Prague.

The Ministry of Transport and Communications (hereinafter referred to as "the Ministry '), in its opinion of 26 June 2001 on the proposal of the Supreme Court in Prague, stated that the operation of the railway, railway transport and related services constituted a complex mechanism of construction and equipment, the purpose of which is to create a necessary technical base meeting strict safety criteria. Through them, the State performs one of its fundamental tasks, which is to create conditions for the provision of transport needs and transport services at an appropriate quality level for the necessary guarantees of the prescribed safety parameters. This obligation arises not only from the Railway Act itself, where, for example, in Section 20, the railway owner is obliged to take care of its development and modernisation to the extent necessary to ensure the transport needs of the State, but also from the relevant Community legislation, which, in the context of the harmonisation of our legal order with EC legislation, obliges the Czech Republic to translate into its legislation. The ownership of the runway is linked to a number of specific obligations, which are justified by the particular nature of the object of that ownership.

In order to operate safe rail transport on a particular runway, certain safety guarantees must be respected. For this purpose, the specific legal institutes of the railway circuit defined in the Railway Act as a special territory intended for the location and maintenance of the railway and, secondly, the railway protection zone where a special mode of activity (Section 9 of the Railway Act) is justified, which can only be carried out there with the consent of the railway administration and under the conditions laid down therein. However, the operation of the runway may be jeopardised, damaged or disrupted by resources which cannot be defined in advance in general, which means that a specific obligation on the owners or operators of such resources cannot be laid down directly by law. However, there is a public interest in ensuring that the runway mechanism and its operation are not jeopardised. This public interest is undoubtedly superior to property law in the Ministry's view. Following the implementation of the necessary technical findings, which will reveal the source of the danger to the operation of the runway, it is not possible to manage the dispute by private legal means, i.e. seeking protection in court, as the public interest in maintaining the safety of the runway requires operational intervention by issuing an administrative act imposing on the operator or owner of the source of the risk to the immediate obligation to remove that condition. The said operation is listed in the second sentence of Section 10 of the Railway Act. The Ministry further referred to Article 11 (3) of the Charter, highlighting the principle of "ownership obligations' and stating that the individual provisions of the Railway Act cannot be removed from the context, concept and objectives of the whole law. Rail transport is operated with the participation of public budgets, thereby projecting a significant public element. According to the Ministry, the annulment of the contested provisions would result not only in a burden on the State budget but also in an advantage on private ownership at the expense of the protection of public goods in the public interest.

The Constitutional Court first examined, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, whether the law in respect of which the appellant objects to the unconstitutionality of its provisions had been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. It is clear from the observations of the Chamber of Deputies of the Parliament of the Czech Republic, as well as from the relevant parliamentary press and voting data sent, that the Railways Act was adopted and issued in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the provisions laid down in paragraphs 1 and 2 of Article 39 of the Constitution.

After a substantive examination of the proposal and considering all the circumstances, The Constitutional Court's decision to abolish the contested provisions of the law, even if for reasons not entirely identical to the appellant's opinion.

Paragraph 10 of the Railways Act, the second, third and fourth sentences of which the Supreme Court proposes to abolish in Prague, regulates the so-called "source of rail hazard ', which defines as sources of danger, damage or interference with the operation of railways, railway transport, telecoms and lines and safety installations, which are identified by the railway administration (sentence 1). The contested provisions (second, third and fourth sentences) are worded as follows:

"When determining the source of the threat, the operator or owner shall order the source to remove it. If the operator or owner of the source does not comply with the threat, the Railway Administration shall decide to remove the source of the threat at its expense. The appeal against this decision shall not have suspensory effect. '

The content of these provisions is therefore the right and obligation of the Administrative Office to identify and order the removal of the source of the threat and, in the event of failure to comply, decide to remove it at the expense of the operator or owner. The fourth sentence only removes the suspensive effect of this decision. The appellant's constitutional legal argument is based primarily on the view that neither the Railways Act nor any other law governing the obligations of property owners imposes on the property owner an obligation to take preventive measures to prevent the possibility of a threat to a foreign land, construction or installation, or an obligation to maintain interference with their protection and to bear the costs of their removal.

The appellant's view that neither the railway law nor any other law imposes an obligation on the owner of the property to remove the source of the rail hazard can be accepted. The rail protection zone (60 or 100 m from the axis of the extreme track on both sides) has a fully specific public regime in which the rights of owners of adjacent properties in the general interest are incomparably more limited than those of the Forest Act (§ 9 of the Railway Act - comparable to, for example, § 23 (3) and (4) of the German Railway Act of 27.12.1993, as amended). According to Article 9 (1) of the Railways Act, the construction and operation of structures and the activities listed below may be carried out only with the consent of and under the conditions laid down by the railway operator and the carriers in order to remove other obstacles to the operation of railway services. It follows from Section 10 of the Railways Act that the operator or the owner of the source of the threat is obliged to remove this source of danger.

Also, the appellant's view that other legislation does not create adequate obligations and restrictions on owners cannot be attested. The general provisions of the Civil Code are essential given the diversity of possible threats to the operation of the railway. The Constitutional Court therefore points out the following legislation:

(a) Paragraph 127 of the Civil Code, according to which the owner of the case must refrain from anything that would seriously jeopardise the exercise of other rights, such as land modification, by growing on the land, but also by light (which in the present case could significantly reduce the visibility of the runway signalling equipment).

(b) Paragraph 415 of the Civil Code, which instructs everyone to do no harm, whereas the commentary of the Civil Code (Hedlička, Pluška et al., Civil Code, commentary, the third edition of 1996, C. H. Beck) states in p. 251 - 252 that "everyone is obliged to do so so so as not to do so," and therefore "not to do so is not to fulfil his legal obligation and is to do so illegal. Therefore, everyone is responsible for the damage resulting from it '. This concept corresponds to European law. In German law, for example, entities may breach their obligations by acting and omission - for example, by failing to keep their assets in good condition. The owner of the land cannot lose responsibility, for example, for trees on its land by claiming that they have not planted them and that they have grown themselves.

(c) Paragraph 417 of the Civil Code provides directly for the obligation of anyone who is at risk of harm to "take action in a manner appropriate to the circumstances of the threat," in order to prevent the damage from being avoided, in the knowledge that the existence of the source of the threat will not arise until a regulation to eliminate it. The regulation merely finds that the source of the threat already exists and has not yet been removed. A taxing list of sources of threat and priori is not possible, therefore it is up to the administrative authority, which has the necessary expertise, to recall an obligation which the owner does not perceive himself. According to Section 419 of the Civil Code, those who avert the impending damage are entitled to compensation for the costs effectively incurred.

The approach of the Railway Act to protecting public interest in safe operation is not unique in our order.

The closest to the Railway Act is the adaptation of Act No. 13 / 1997 Coll., on Road, as amended by Amendment No. 102 / 2000 Coll. The amended version of this law differentiates the liability for road transport threats and limits the removal of the source of the threat to the costs of the owner or operator to cases where such a risk arises from the behaviour of land owners in the neighbourhood of communication itself.

Also Law No. 50 / 1976 Coll., on zoning and construction rules (construction law), as amended, confers on the building office the right to order in the public interest the necessary modifications on the construction of the building owner and similarly the owner of the land. The owner is obliged to make the required adjustments on his cargo (§ 94 (1), by analogy with § 94 (4)). Under Paragraph 94, the construction office shall, in the public interest, under the conditions of paragraph 1, order the owner of the construction to carry out urgent security work, or in accordance with paragraph 2, to ensure that it is carried out immediately at the expense of the owner.

Certain restrictions on the exercise of property rights include other laws such as forest law, energy law, upper law, water law, environmental law, fire protection law. It is natural for a democratic state in the post-communist phase of development to take greater care to protect the freedom of ownership that was suppressed by the old regime, or significantly rectified. However, this does not mean that any restriction on the exercise of property rights is a product or relic of the Communist regime. The Czechoslovak Railway Act, i.e. the Railway Act No. 86 / 1937 Coll. b and n., which by its text resembles Austrian and German legislation on these issues, regulates the so-called forbidden zone and fire zone in Sections 102 and 103 and provides for a number of restrictions on the exercise of property rights in this area in Sections 102 paragraphs 1 and 2, and in Sections 104 paragraphs 1, 2 and 3 and in Section 105 on the use of land in the vicinity of the railway. According to Section 105 (1) "Land in the vicinity of the runway must not be used in such a way as to result in landslides, stonework, track falls, track flooding or any other danger to the runway and its operation. The Railway Administration may expressly designate the parcels concerned. '; According to paragraph 2 of the same provision" Where land is used around the runway in a manner prohibited by paragraph 1, the Railway Administration shall be entitled to order the necessary measures to ensure that the runway is not compromised;... The implementation of such a measure may also be imposed on the railway undertaking on behalf of the land user.';

However, the adaptation of the current Railway Act of the Czech Republic is to some extent comparable to that of other European states. Both the legislator in the explanatory memorandum to the law and the Ministry in their observations refer to the Council Directives on the development of the Community's railways of 29.7.1991, as amended by Directive 2001 / 12 / EC of the European Parliament and of the Council, which also cover the principles of ensuring the safe operation of the rail and rail transport. In Germany, for example, Sections 23 (3) and (4) of the Federal Railway Act of 27.12.1993, as amended by the regulations in force, under which the railway operator and the carrier are entitled to enter foreign land in the railway protection zone, including in order to eliminate sources of public transport risk. The Railway Law of the Land of Baden-Würtemberg of 8 June 1995 states in Section 5 on protective measures that owners and holders of land adjacent to the railway must abide by the measures necessary to protect the railway from the effects of nature, such as snow drapes, falling stone, bays, floods. The person concerned shall be entitled to take the necessary measures in accordance with the competent authority itself. According to paragraph 2, crops and fences, as well as stacks, piles and other installations which are not firmly linked to land, shall not jeopardise the safety and continuity of rail transport. At the written request of the competent authority, they shall be eliminated at the cost of the operation concerned. The Swiss Railway Act of 20.12.1957 also allows, in Paragraph 21 (1), the railway undertaking itself to take action to avert danger on third party land in urgent cases. According to paragraph 2, the costs of eliminating the source of danger shall be borne by the owner or the operator of the land without having been entitled to compensation. However, there is an exception to this principle: if trees are the source of the threat, the costs of eliminating the threat shall be borne by the railway undertaking unless it proves the fault of another person. The Slovak version of these issues is almost identical to the Czech version.

The current regulation of Section 10 of the Railways Act affects in a comparable manner precisely those cases where the operation of the railway has been compromised by activities or omissions of the owner or operator of the source of the danger, thereby violating the obligations of the owner pursuant to Sections 127 and 415-420a of the Civil Code and § 4a, as well as Sections 8-10 of the Railway Act. If the owner has omitted this obligation to the runway of the adjacent property, under Section 10 of the Railways Act, it is for the railway authority to order the owner or operator of the source of the danger to remove it and, if he does not, decide to remove the source of the danger at his expense. In so doing, the law cannot define all the individual steps, acts, behaviour and behaviour of the owner of adjacent properties which it considers necessary, given the diversity of specific situations, but assumes that the owner of the property himself - aware of his duty - is pursuing on his property objects and acts that could jeopardise the operation of the runway and is responsible for their removal. Failure to fulfil this obligation may not only be an action (e.g. planting a tree in an inappropriate place), but also an omission (e.g. leaving a tree that has grown itself in an inappropriate place without any fault). The right of the railway administration to order the owner of the necessary measures, or to decide to remove the source of the threat at his or her expense, is only a necessary operational guarantee of priority protection for the safe operation of the railway and hence an eminent public interest.

In such cases, provision should be made to eliminate the source of the threat at the expense of the owner or operator of the land which did not comply with the removal order. This "advantage 'of public interest, in order to protect property rights, is also compensated by certain rights of owners, which protects them from the will of the administrative authorities, by covering the costs and damage incurred by the necessary measures to eliminate the source of rail risk in accordance with the principle of proportionality. Paragraph 419 of the Civil Code (referred to in Article 9 (2) of the Railways Act) is of fundamental importance in this respect, according to which" He who averted the imminent damage has the right to compensation for the costs he has incurred and to compensation for the damage he has suffered and against whom he has acted, to the maximum extent appropriate to the damage which he has suffered.' The commentary on the Civil Code underlines that the right to compensation and costs incurred is also directed towards the one in whose interest this body acted (Hedlička, Švestka et al., Civil Code, commentary, 3rd edition 1996, C. H. Beck).

On the other hand, however, many other situations can be envisaged. Such as would be a specific obligation to prevent the owner of the property in the area of the railway protection zone (operator or owner of the source of the threat) above its real possibilities and its consequent responsibility for the source of the threat, contrary to the principle of proportionality. This is not just a "vis mail" situation (an event situation that the owner could not have had an influence on). Each case must always be carefully assessed taking into account all its circumstances. The Railways Act excludes such an approach in an incriminated provision when imposing a flat-rate decision on the removal of a source of danger at the expense of its owner or operator.

The Constitutional Court notes that, for example, the cited railway law of the Land of Baden-Würtemberg allows, on the one hand, to decide on the removal of soils, fences, piles, stacks and other objects which are not permanently linked to the land at the expense of the owner, on the other hand, the right to adequate compensation for those owners or users who are subject to restrictions which are disproportionate to others unequal and unacceptable (§ 4 (4) of the Law). Paragraph 5 of the same Act imposes an obligation to allow interference to protect the runway from natural influences such as drapes, falling stones, boulders, etc., in such cases the affected owner of the land is entitled to adequate monetary compensation for the damage suffered. Responsibility for the source of the threat may also be waived by the owner of the land if the specific regime in the railway protection zone has prevented him from taking proper care of his property.

It is clear from this that the regulation of the Czech Railways Act is too rough, unambiguous and undifferentiated, so that the flat-rate provision of Section 10 on the elimination of the railway risk source at the expense of the owner of this source does not adequately affect those cases where the owner of the land cannot reasonably be required to pay those costs.

In conclusion, the Constitutional Court respects the clarification of the social commitment of ownership under Article 11 (3) of the Charter and Article 1 (2) of 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 does not prevent States from adopting laws which they consider necessary to regulate the use of property in accordance with the general interest. Such legal arrangements also apply in the Czech Republic, although restrictions on the use of property in accordance with the general interest in the Civil Code and other laws do not - and in view of the diversity of circumstances they cannot - have the nature of the inventory individually specified obligations, but are generally formulated but reasonably interpretable.

At the same time, however, as regards the flat-rate nature of the provision to eliminate the source of the threat at the expense of its owner or operator, the Constitutional Court has no choice but to attest to the appellant's opinion. The Czech Railways Act does not yet allow such an adjustment as would be appropriate to the diversity of circumstances associated with the cost of eliminating the source of rail risk. Since the other provisions of the second, third and fourth sentences in Section 10 of the Railways Act would lose the necessary clarity and consistency after the abolition of the words' at its expense 'in the third sentence, the Constitutional Court would abolish the contested sentences in their entirety and thus allow for a balanced overall new regulation.

For all the above reasons, the Constitutional Court decided as stated in the operative part. The effectiveness of the finding on 31 December 2002 is intended to allow for a new legislative regulation, which would in particular adequately differentiate between the obligations to compensate for the costs associated with the removal of the source of rail risk.