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Show The liberal- democratic state, however, limits police power to protect its citizens from its misuse. Objections against the restriction of construction have been raised on this basis. It is argued that the construction of a home in an avalance area does not represent immediate danger to public safety and order. On closer analysis, it becomes clear that the true nature of avalanche danger is not recognized in such an argument. Avalanche danger can only be minimized by the use of preventive measures and according to presently existing legal interpretations, such measures are within legal limits. According to Voigt, the following reasons were given by Hatschek: " Should we wait until the lawmaker declares certain aspects of human activity illegal? If so, then the police would always be too late to prevent disaster. It also would be very difficult for the lawmaker to establish norms for regulating police power, if the police would not occasionally use power where no regulations exist." Can the construction of a home in an avalanche zone be considered as illegal? By searching through lawbooks, I could find the avalanche zone only once. In this instance, the question was debated, " Against whom should the police act in case of a natural catastrophe?" Muller gives the following example: " Let us imagine the poor mountain farmer from whose mountain pastures rockslides and avalanches endanger the traffic routes below. Here certainly exists an illegal condition of property which should be prevented by the police, if the means could be found to do so." Muller's investigations clearly showed that the local police has the right to intervene. First, we cite an older document: " The police are a public- governmental institution within the state. It is the arm of justice which is responsible for the maintenance of law and order. It must continuously and systematically observe all existing conditions and events, which relate to the order of things. It also must prevent any threat to law and order that is in the making, regardless of whether these threats are released by the forces of nature or if they are a result of human activities." Law experts, who do not understand the nature of avalanche danger, have depended mostly on Federal Court interpretations of police duties, where the word " immediate" is stressed. The following remarks are cited from Muller: " Serious danger, which is immediate, and obviously directed against the lawful execution of executive power or in public against the legal rights of people, such as their lives, their health, and their property should, according to circumstances and with the use of appropriate methods which are directed against the cause of danger, be prevented. In Switzerland, this should be the unquestionable and basic police duty of the state, which must be executed even if the appropriate laws do not exist." The author of this cumbersome statement probably had in mind a comprehensive definition of police duties, in case of police intervention. The defense against danger caused by natural events, which has not been included in this definition, should be part of such a general interpretation. It is clear that the presence of " immediate danger" cannot be required in this case, since without the preventive activities of the police, avalanche control would be ineffective. The question of who is authorized to compile avalanche zoning maps must now be discussed. We have seen that as a rule, the community council 17 |
