On The Proposal For The Abolition Of General Conclusions. Decree Of Jirkov

Original Language Title: ve věci návrhu na zrušení části obecně záv. vyhlášky města Jirkova

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=66398&nr=20~2F2008~20Sb.&ft=txt

20/2008 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court ruled Plenum, composed of Stanislav Balik, Frantisek
Duchon, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, | || Pavel Rychetský (rapporteur) and Miloslav Vyborny on the proposal of the Minister of the Interior
Mgr. Bublan to annul Art. 3 generally binding ordinance
Jirkov no. 4/2005, the local public security
order in public spaces

Follows:

The petition is denied.
Reason


I.
Recap draft


First A petition under Article. 87 paragraph. 1 point. b) Constitution of the Czech Republic (
as the "Constitution"), § 64 par. 2 point. g) of the Act no. 182/1993 Coll., on the Constitutional Court
, as amended, and pursuant to § 124 Sec. 3 of Law no.
128/2000 Coll., on Municipalities (Municipal Establishment), amended
delivered to the Constitutional court June 13, 2006, the then Interior Minister
Mgr. Frantisek Bublan (hereinafter "petitioner") sought the issuance of a judgment
that the provisions of Art. 3 generally binding regulations of the city Jirkova
no. 4/2005, to protect public order in public places on
(hereinafter referred to as "generally binding decree")
day of its publication in the Collection of Laws repealed.

Second The petitioner stated that the city council approved Jirkova 13th April 2005
generally binding ordinance, which took effect after the fulfillment
conditions stipulated by law on 6 May 2005. The Ministry of Interior
concluded that the contested provisions of the generally binding
ordinance is in conflict with the law. Given that discuss this fact with
secretary of the village did not result in redress and the city expressed a willingness to keep
generally binding ordinance in effect, the Ministry of Interior
administrative proceedings to suspend its effectiveness. Decision ref. No.
ODK-508 / 1- 2006, which was issued May 26, 2006, was suspended
effectiveness of the contested provisions of the generally binding decree.
This decision came into force on 29 May 2006.

Third The contested provision requires that owners or users of public green land register Jirkov
obligation to maintain greenery in the form of regular
cuts, at least 2 times a year, including the obligation to poke weed in
deadlines. According to the petitioner by the contested provision contravenes Article
. 11 par. 4 of Fundamental Rights and Freedoms (
"Charter") that sets out general obligation for landowners.
Concept of public greenery can in fact subsumed under the concept of public space
according to § 34 municipal system, which includes relevant
land regardless of ownership, including land in private ownership
. The petitioner also objected to the vagueness of the term "user
public green" because it includes not only those who use public green
legally certain way (eg. Under contract), but also
any other person who uses public green another way.

Fourth The petitioner also claimed that the decree regulates the issue
been modified, specifically the provisions of § 3 para. 1 point. a) Law no.
326/2004 Coll., on phytosanitary measures, which establishes the obligation referred
natural and legal persons to identify and reduce the occurrence and spread of harmful organisms
so that no damage to other persons, not
harm the environment or endanger human or animal health, and
provisions of § 73 para. 3 of this Act, under which the municipal authorities with extended powers
dealt with offenses relating to § 3 para. 1
point. a) Law on Plant Health Care, in case of the occurrence and spread of weeds
as a pest that spreads from uncultivated land
unkempt and non-agricultural land and which threaten the environment
or human or animal health. This issue is governed by the petitioner
also § 47b paragraph. 1 point. d) of the Act no. 200/1990 Coll., on
misdemeanors, as amended, based on which
offense committed by a person who does not maintain cleanliness and order on its or his
use of land so that disrupt the appearance of the village, and § 58 para. 2
municipal establishment, according to which the legal entity or natural person who is
entrepreneur commits an administrative offense if it does not maintain cleanliness and order
on land owned or uses, so that they disrupt the appearance
village.


Fifth The petitioner concludes that the contested provision regulates
issue that is already regulated by applicable law, does not fall within
municipal jurisdiction, requires individuals and legal entities
duties without legal authorization, which puts him at odds with | || Czech Constitution and the law on municipalities, which is why it proposed to cancel
.

II.

The proceedings and the recapitulation of the observations of the parties

6th According to § 69 para. 1 of the Constitutional Court proposal was sent
party. City Jirkov expressed filing delivered to the Constitutional Court
July 17, 2006 disagreement with the proposal to repeal the contested provision
. In the first place, the city Jirkov commented on the procedural aspect
proposal, giving argued that while the opening of proceedings took place in the case
ordinance as a whole, the decision to suspend the
applies only to the contested provision. Further argued
failure to announce the extension of the deadline for the decision (it was issued within a period longer than five months
) pursuant to § 49 para. 2 of Act no. 71/1967 Coll., On administrative
procedure (administrative order) .

7th City Jirkov disagreed with the objection vagueness of the term "user
public green", pointing to eg. To § 3 para. 1 of the
plant care or § 58 para. 2 municipal system, which used a similarly notion
without specified legal title to such
use. According to the party ie a legal or natural
person whose usufruct title may take various forms (rent, loan).

8th To the objection that the contested provision regulates the issue, which is
already regulated by the relevant laws and does not fall within the scope
separate city, town Jirkov said that the petitioner cited legislation
true nature of matter governed by the contested provisions of the regulation does not address.
Pointed out the meaning of the contested regulation, the owners or users of public green
maintain regular mowing
approximately the same terms as the implementing organization providing these services at
land owned by the city, and for this reason to
maintain a certain aesthetic level of public green areas in the city. The relevant provisions of the Act on the Protection of the phytosanitary
this purpose do not follow
obligation to reduce the incidence of pests and weeds, given the location of the land
covered by the contested provision, not meaning. Also
provisions of § 47b of the Act on Offences and § 58 para. 2 municipal system
pursue other purpose. Indeed applies to situations where
failure to maintain cleanliness and order leads to disruption of the appearance of the village (town), a concept
too general to be incident on the purpose of the contested regulation.

9th City Jirkov concluded that the issue of "maintenance" of public green so
to ensure a certain aesthetic level at a given territory is
be dealt with by issuing generally binding ordinances pursuant to § 10
point. c) municipal establishment. City Jirkov considers that the municipality has the right
within its independent powers to impose obligations
dictate or prohibit any activity. According to the party was a sense
adoption of the contested provisions to ensure regular maintenance and protection of public greenery and ensure
meet the legitimate interests and needs of city residents on his
purity, and thus create good living conditions. On the contrary, its purpose was not to resolve
prevent pest or deal
cases where due to failure to maintain cleanliness and order in the occupied lands
distorting the appearance of the city.

10th At the conclusion of its statement, the city Jirkov confirmed that
generally binding decree is in force and is not considering a change or cancellation, and
suggested that the Constitutional Court of the contested provisions of the ordinance is not distracting.

11th With effect from 1 July 2006, following the adoption of the Law no.
234/2006 Coll., Amending Act no. 128/2000 Coll., On Municipalities (Municipal
Establishment), as amended, Act no. 129/2000 Coll., on
regions (regional establishment), as amended, Act no.
131/2000 Coll., on the capital city of Prague, as amended, the Act
no. 182/1993 Coll., on the Constitutional court, as amended,
Act no. 22/2004 Coll., on local referendums and amending certain laws, and
Act no. 312/2002 Coll. of Local Government officials and

Amending certain laws, as amended by Act no. 46/2004 Coll., The Act to intervene
change in the person of the petitioner. Offeror no longer
Minister of the Interior, but the Ministry of Interior, with which the Constitutional Court continues
as the petitioner act.

12th The petitioner - Ministry of Interior - in the reply received
Constitutional Court on 1 September 2006 has expressed disagreement with the caveat that there is lawlessness
decision to suspend the contested provisions
decree. He noted that the administrative procedure was initiated by the Ministry of Interior
for reasonable suspicion of the existence of conflicting
generally binding ordinance of the law, and identify any inconsistencies then
own pending. According to the petitioner can not, in fact, that
illegality justifying the application of the supervisory jurisdiction of the Ministry of Interior
was found with a single provisions of the decree, seen
inaccuracy process supervisory authority. The petitioner also stated that the alleged
exceeded the indicative period prescribed by the Administrative Code for the issuance
decision does not in itself result in lawlessness
decision of the Ministry of Interior.

13th As regards the reasons for the annulment of the decree remained petitioner to its original
arguments and held that the obligation of regular mowing
public green stored private owners can not be determined
generally binding ordinance issued under § 10 of the Municipalities Act, nor | || basis of other legal authorization. The purpose of the contested regulation pursuant to § 10
Municipalities Act not only to protect "certain [moreover undefined]
aesthetic level of public green areas in the city", as stated city Jirkov.
Possible negative effects associated with the use of land (
spreading weeds, and other pests, or failure to maintain cleanliness at the property in such
intensity that will undermine the appearance of the village) According to the petitioner
punishable under special regulations .

14th The Ombudsman, who has been in accordance with § 69 paragraph
. 2 of the Law on the Constitutional Court received 22 June 2006
copy of the petition to annul the decree, not communicated within the statutory period of ten days, that
enter the proceedings. Therefore it has the status of intervener.

15th Since the hearing, the Constitutional Court with the consent of the parties
dropped according to § 44 par. 2 of the Constitutional Court, because the
hearing could not be expected to clarify the matter.

III.

Wording of the contested legislative provision

16th The contested. Article 3 generally binding decree no. 4/2005,
to ensure public order in public spaces
is:

"Article 3

Measures to ensure the protection of green areas in urban and other public green
(public green) 1)

First Owners or users of public parks in the city Jirkov cadastral
are required to maintain greenery in the form of regular cuts. The frequency of mowing is
least 2x a year, with:

) First mowing must be done to 25.5. relevant year

B) the second and optionally further mowing depending upon vegetative condition.

Second Raking of grass made cuts will be made within three days after mowing and garbage
after mowing than the day following nahrabání.

Third Definition of public parks in the city cadastre Jirkov on which
duties imposed pursuant to para. 1 and 2 of this provision is presented in graphical form
as Annex 2 of this generally binding ordinance, like dark designated
place.
________________________
1) § 3 para. 3 Reg. no. 190/1996 Coll., which implements Act no. 265/1992 Coll., on registration
ownership and other rights in rem in immovable property, as amended. "

IV.

Locus standi of the appellant

17th Draftsman - Interior Minister - was under § 64 par. 2 point. g)
Constitutional Court Act, in force at the time of submission of the proposal,
entitled to submit a proposal to repeal another law municipalities within the meaning of Article
. 87. 1 point. b) of the Constitution. As the Constitutional Court in its judgment
Pl. US 9/04 of 25 January 2005 in the municipality Lipník regulation on construction
announcement caps (N SbNU 13/36 139, 90/2005 Coll .; Part IV.
Justification), § 64 para. 2 point. g) of the Constitutional Court
valid at the time of the application, nesvazovalo locus standi Interior Minister
other conditions. Interior Minister was therefore at the time of launch

Management powers endowed with an original design to repeal legislation
municipalities, essentially regardless of the conduct of the surveillance
under the then valid Law on Municipalities.

18th This quality in this proceeding held the procedural successor,
petitioner, Ministry of Interior, according to settled case
Constitutional Court for active standing in a proceeding on abstract norm control
research (and decisive) at the time of initiation of proceedings
(see eg., paragraph 25 of judgment Pl. US 8/06 of 1 March 2007;
promulgated under no. 94/2007 Coll.). It is therefore not in the essential things that § 64 para. 2
point. g) the Constitutional Court Act in the wording effective from 1 July 2006
(as revised by Act no. 234/2006 Coll.) has locus standi
Interior Ministry determines the fulfillment of conditions stipulated in the laws governing local government
. This provision could turn out just
proceedings brought by the Interior Ministry after July 1, 2006, the Constitutional Court
But his interpretation at the moment in any way prejudge, because
proceedings on generally binding regulations of the city was Jirkova | || commenced before that date.

19th The deadline according to § 49 para. 2 of Act no. 71/1967 Coll., On
administrative proceedings (administrative order), and therefore not at this time nor
terms of locus standi of the petitioner no meaning. The Constitutional Court
affirm the appellant that failure disciplinary deadline does not
unlawfulness of the decision to suspend the generally binding regulations
moreover in these proceedings, the Constitutional Court does not review the decision to suspend the effectiveness
generally binding regulations, but this legal right
prescription. For the same reason, the Constitutional Court did not address nor the caveat that
decision to suspend the contested provisions of the ordinance is
illegal on the grounds that the original proceedings were initiated in relation to all provisions
generally binding regulations; This objection is indeed quite
obviously groundless, as correctly notes the petitioner.

V.

Rating Constitutional Court

20th Constitutional Court to assess compliance of the contested provision
generally binding regulations with the Constitution and laws regularly vote called.
Test four steps [cf.. Judgment Pl. US 63/04 of 22 March 2005 in the case
generally binding decree of Prostejov on compensation for environmental damage
in occupation of public green spaces (N 61/36 SbNU 663, promulgated under no. 210/2005
Coll.) and others]. To use this test in the proceedings on abstract review of norms
Constitutional Court notes that the trait for a review of regulations
local governments had issued covered
is an expression and consequence of the constitutional guarantee of local self-government (Art. 8 | || Constitution) and the specific constitutional authority of local governments in
defined areas of the material scope make law (Art. 104, paragraph. 3
Constitution).

21st The Constitutional Court will therefore examine successively, (1.)
whether the municipality had jurisdiction to issue the contested provisions of generally binding regulations, (2nd) whether
municipality, in issuing the contested provisions of the generally binding decree
not move outside the legally defined powers scope (whether
acted ultra vires) (3rd) whether the municipality when issued abused
Act conferred powers and jurisdiction and finally (4th) whether the municipality
adoption of the contested provisions clearly acted unreasonably. Moreover, the Constitutional
court must examine whether the contested generally binding ordinance
meets the general criteria imposed on legislation, ie. Whether its provisions
using customary interpretive approaches and some
mutually nerozporná.
VA


22nd Under Article. 87 paragraph. 1 point. b) Constitution, the Constitutional Court of
repeal of other laws, including generally binding municipal ordinances
issued in their independent jurisdiction, if they are in conflict with the constitutional order or the law
. In proceedings to annul the legislation
according to § 68 par. 2 of the Constitutional Court is obliged
Constitutional Court also examine whether the contested legislation was passed within the bounds of constitutionally provided competence and
issued a constitutional manner. The procedure for reviewing legislation
municipalities examines the Constitutional Court
these formal criteria in the first step of the test - he therefore consists in determining whether
municipality issued regulations in its competence and its corresponding form
prescribed by law, whether it has done so by the competent authority and
manner that the law prescribes.


23rd According to Art. 104 Sec. 3 of the Constitution
representative bodies of local government units within their jurisdiction issue generally binding decrees
. The Constitutional Court has repeatedly emphasizes in its decisions
[eg. Judgment Pl. US 18/94 of 18 November 1994 (N 50/2 SbNU 93;
promulgated as no. 231/1994 Coll.), Finding sp. Nos. Pl. US 5/99 of 17
August 1999 (N 112/15 SbNU 93; promulgated as no. 216/1999 Coll.), The last time
sp. Nos. Pl. US 62/04 dated 17 May 2005 (N 108/37 SbNU 409;
promulgated as no. 280/2005 Coll.), Sp. Nos. Pl. US 32/05 of 10 January
2006 (N 5/40 SbNU 45, promulgated under no. 196/2006 Coll.), Sp. Nos. Pl. US
38/05 dated 19 September 2006 (promulgated as no. 520/2006 Coll.) And Pl.
US 34/06 of 20 February 2007 (published as no. 128/2007 Coll.)] That municipalities are
provisions of Article. 104 Sec. 3 of the Constitution empowered to (an original)
norm creation. The Constitutional Court, however, this conclusion in a number of its judgments
qualified the amendment that the imposition of a generally binding decree must be
community as expressly authorized by law.

24th The Constitutional Court notes that this doctrine formulated
at the beginning of its activities at a time when, after forty years of totalitarianism
system hierarchically built on the principle of national committees
Soviets had to be the concept of constitutional guarantees of local governments in the legal
the Czech Republic again and patiently explored and promoted.
In addition, the Constitution of the Czech Republic will not find a more concrete outlines
rights to self-government; The Constitution eg. Not contain definition of areas
in which the right to autonomy of local governments can apply
(as opposed to eg. The Austrian Constitution, cp. Art. 118.
3 B-VG) and entrusts these questions exceptions statutory framework (cf. Art.
104 paragraph. 1 of the Constitution). The legislature in the early 90s of the last century
while the laws regulating local government has not designated sufficient
substantive areas in which the village could become independent powers in the form
issue their own legislation applicable [cf. eg.
§ 16 and later also § 17 of Act no. 367/1990 Coll., on municipalities (municipal administration)
with which many adjustments applied throughout the '90s of the 20th century], and
often approached to solve this problem by special statutory authorizations
designed just like the statutory authorization required
Art. 79 par. 3 of the Constitution for the adoption of lower legal regulations
executive authorities (see, for example, mentioned § 17 of law no. | || 367/1990 Coll., or such. § 50 para. 4 of the Act no. 202/1990 Coll., on
lotteries and other similar games, or from a later period § 96 of the Act no. 258/2000
. on protection of public health). The Constitutional Court therefore this
period and given legal status, having been simultaneously confronted with
of cases of flagrant crossing the competence of municipalities and unacceptable risk
particularisation Czech law (cf..
Contents of many rulings of that the Constitutional court had in this period
judge and the issuing of the many communities appropriated
power of the Parliament in the field of regulation of criminal law, freedom of speech
etc.), had formulated the doctrine of restrictive content of the right to territorial || | autonomy in the above sense.

25th The Constitutional Court now, starting from the knowledge gained in their own
activity, concluded that after fifteen years of existence, the Constitution of the Czech Republic
containing the constitutional guarantee of the right to autonomy already
contents of this right stabilized and became
part of a broader legal awareness. The Constitutional Court is not far in large numbers
confronted with a flagrant crossing competencies of municipalities as
Constitutional Court in the nineties. Today applicable law on municipalities
no. 128/2000 Coll. already contains a substantive definition of the areas in which municipalities can
issue generally binding regulations (§ 10 of the Municipalities Act);
permissible limit for the implementation of local government clarified and rich
jurisprudence of the Constitutional Court. The Constitutional Court in the sense of judgment Pl. US 11/02 of 11
June 2003 (N 87/30 SbNU 309, promulgated under no. 198/2003 Coll.)
Registers a shift in the legal environment and the treatment of the principle of constitutional guarantees of territorial autonomy and
Therefore, leaving behind the current restrictive interpretation of Article
. 104 Sec. 3 of the Constitution.

26th The Constitutional Court notes that the provisions of Article. 104 Sec. 3 of the Constitution
must continue to interpret the existing line of Constitutional Court

So that municipalities are directly by the provisions of the Constitution empowered to make law
as an issue generally binding decrees. The logical consequence of this
interpretation, then, is that unlike extradition legislation
delegated powers within the meaning of Article. 79 par. 3 of the Constitution, whose diction
explicit statutory authorization required to issue generally binding
decrees within their competence, even though they are stored
obligations municipality has no further legal empowerment need (s
subject to the imposition of taxes and fees in relation to Art. 11 Sec. 5 of the Charter)
because, by definition, not a legal regulation without establishing legal obligations.

27th The Constitutional Court notes for the sake of completeness, it is not a legal opinion in the case law of the Constitutional Court
entirely new and unpredictable, comp. eg.
judgment Pl. US 63/04 of 22 March 2005 (N 61/36 SbNU 663;
promulgated under no. 210/2005 Coll.) Regarding the generally binding regulations of the city of Prostejov
compensation for environmental damage in the occupation of public greenery , finding Pl. US
57/05 dated 13 September 2006 (promulgated as no. 486/2006 Coll.) In the case
generally binding regulations Novy Bor town of pyrotechnics and fireworks
, finding Pl. US 69/04 dated March 8 (promulgated as no. 161/2007 Coll .;
paragraphs 46, 50-53) regarding the generally binding regulations of the city of Usti nad Labem
to protect public order in, and | || especially judgment Pl. US 30/06 dated 22 May 2007 (promulgated under no.
190/2007 Coll.) Regarding the generally binding regulations of the city Isle of local
dog fee.

28th Parties examining constitutional and legal conformity of the adoption process
contested legislation, the Constitutional Court in paragraph 34 of the judgment Pl. US 55/05
dated 16 January 2007 (published as no. 65/2007 Coll.), Stated that if the petitioner
defect in the legislative process explicitly objected, not
with the principles of procedural economy need this
issue in detail in the detailed evidence sufficient to investigate and formal verification
during the legislative process of the available resources. This conclusion applies mutatis mutandis to proceedings
repeal of other laws than laws.

29th Because the petitioner did not, they would generally binding ordinance of the city
Jirkova been adopted and published in an orderly manner under the Act on
municipalities, and not the city Jirkov course, nothing of the sort asserted restricted
Constitutional Court to verify the process of adopting the contested general
binding decrees of the documents submitted by the applicant. The presented copies
contested generally binding decrees and resolutions of the city council
Jirkova dated 13 April 2005 that the contested ordinance was approved
required number of votes and that was after the statutory period
published on the official board. There is nothing to suggest that the general
binding decree was not valid and effective.

30th The contested generally binding ordinance of the city Jirkova first step
test successfully overcome, since the contested legislation was adopted in the form
generally binding regulations, the competent authority for -
city council Jirkova - and in accordance with the prescribed procedure
receiving generally binding regulations (see above, paragraph 29) concerning the regulation of local
matters of public order and the protection of public green spaces, areas
prima facie fall under municipal jurisdiction [§ 10 point. a)
c), § 35 para. 1 and 2 of the Law on Municipalities]. Issuance of the ordinance
Jirkov no. 4/2005, including the contested provision was the case
jurisdiction of the municipality.
VB


31st The Constitutional Court in the next section focuses in detail on the question of whether a municipality
when issuing the contested ordinance did not act ultra vires, ie.
Acted outside the substantive scope of the law defined for it. As the Constitutional Court
noted above, municipalities are Art. 104, paragraph. 3 directly constitutionally mandated to
norm creation, within the limits of their jurisdiction and in this area has no specific
explicit statutory authorization to normative regulation of certain
phenomenon need.

32nd Determine the limits of municipal jurisdiction confided
Constitution Act (art. 104, paragraph. 1 of the Constitution), which is de lege lata already cited the law on municipalities
. That in § 10 sets out three areas in which the municipality is without legal authorization
issue generally binding regulations, and in the field, respectively.
for the purpose of securing local matters of public order, counting the
even setting the conditions for the organization, conduct and termination of public

Accessible sporting and cultural enterprises [point. a) and b)]
in the region, respectively. for the purpose of maintaining the cleanliness of streets and other public spaces
, environmental protection, public green [point. c)] and
in the field, respectively. in order to adapt the use of equipment serving the village
public needs [point. c) in fine]. Special laws may provide additional
substantive areas in which the community can realize its regulatory authority
[point. d)].

33rd For all this limited substantive areas then apply common
condition that it must be a matter of interest municipality and its citizens (§ 35 paragraph
. 1 of the Municipalities Act). In other words, they must always go on local
matter [cf.. paragraph 19 of the judgment Pl. US 30/06 dated 22 May 2007
(promulgated as no. 190/2007 Coll.)], And not a matter of regional or national importance
which regulation is entitled under the law or regions
administrative offices as state administration (§ 35 para. 1 of the Act on municipalities
). According to § 35 par. 3 point. a) establishment of municipal further community must
at issue generally binding ordinances follow the law. The legislature here
somewhat clumsy manner formulated granted - the legislation municipalities
will not get into conflict with the norm of higher legal force, if
generally binding regulations of the law (principle of lex superior derogat inferior).

34th Answering the question whether the municipality did not exceed its statutory
scope that normalizes an area reserved to statutory regulation,
envisages identifying the purpose and objectives of the regulation of the Act, on the one hand and
generally binding regulations on the other. If they do not overlap,
can not automatically say that the community must scale the particular matter of
because it is already regulated by the law. Neither private
statutory regulation does not exclude, without further regulation through
generally binding municipal ordinances if the objects and purposes of regulation differs
(cf. Judgments. Nos. Pl. US 41/04 of 15 December 2006 (
promulgated under no. 20/2007 Coll.), concerning noise ordinance the city of Chomutov, Pl.
US 4/05 of 6 March 2007 (promulgated as no. 129/2007 Coll.) in the case
decree of the town of Usti nad Labem on environmental protection and public
green and Pl. ÚS 42/05 dated 8 March 2007 (promulgated as no. 162/2007 Coll
.) regarding the Decree of the statutory city Kladno to ensure public order during
providing hospitality activities and organizing public
productions).

35th In this case, the petitioner claims that the contested provision regulates
issue which is already covered by other legislation such as the performance of the state administration
, and refers to § 3 para. 1 point. a) and § 73 par. 3 of the
plant care and in addition to § 47b paragraph. 1 point. d)
law on misdemeanors. City Jirkov this objection prevents pointing to different purposes
Protection Act phytopharmaceuticals, § 47b of the Act on Offences and
§ 58 para. 2 of the Law on Municipalities and contends that the contested provisions
generally binding decree watched
different objectives (to ensure regular maintenance and protection of public green,
ensure that we satisfy the legitimate interests and needs of city residents on its purity and aesthetic appearance
, and thus create good living conditions).

36th City Jirkov in the contested provisions of generally binding decrees
substantive areas according to § 10 letter. c) of the Municipalities Act;
this fact is apparent both from the content of the contested provision, as well as the explicit reference to § 10
point. c) of the Municipalities Act in the introduction of the Decree. The Constitutional Court therefore
primarily dealt, with what purpose the municipality in the substantive protection
environment and public green areas in accordance with § 10 point. c) of the Act on Municipalities
ever watch that only to protect public green areas within the meaning
protection of plants as biological organisms, or whether the protection of public
green may involve broader or other objectives, eg. improving
the aesthetic appearance of towns and villages, as the city Jirkov.

37th The Constitutional Court agrees Jirkov the Municipalities Act, this interpretation does not preclude
. Should the protection of the environment and public
greenery in § 10 point. c) of the Municipalities Act narrowly interpreted only in terms of protection
plants as living organisms growing in public spaces
, then aim and object of regulation § 10 point. c) of the Act on Municipalities
completely overlaps with the aims and objects of regulation of the Law on Environmental
environment, the Act on nature and landscape protection and other laws in the field

Environmental protection and in this sense the definition of the material
areas to protect the environment, green areas in urban and other public
greenery in § 10 point. c) from the outset was empty categories, since there was no village
would be to regulate virtually no space. Such an intention
legislators apparently did not.

38th Protecting plants as biological organisms
against harmful organisms and diseases, against the introduction of organisms harmful to plants or plant products
to the Czech Republic from other countries
against their spread in the Czech Republic and protection against the introduction of such
harmful organisms into the territory of other countries, etc. is subject to a control order
Act on phytosanitary care (cf. § 1 of the Act).
Basically, this law deals with "hygiene"
vegetation, which must necessarily be dealt with at national level by law.
On the contrary, the object and purpose of regulation according to § 10 letter. c) of the Municipalities Act
was confined to the protection of plants as living organisms, but includes
(primarily) the protection of public green, depending on local conditions and
interests of the residents of the community who, through their council
and it received generally binding regulations implement and enforce its
idea of ​​the form and quality of living space, which is immediately
surrounds and has a direct impact on their physical and mental health and wellbeing
their housing. If a municipality can issue a decree specifying the conditions, in order
cleanliness of public spaces [§ 10 point. c)], while the purity is not only
categories hygienic, but undoubtedly aesthetic, not
rational reason why, for the protection of public greenery legitimate aim
regulation limited to the hygienic aspect. Then § 10
point. c) allows municipalities to impose obligations on this stretch without them
could be accused of an attempt to scale the areas that are already covered by special laws
.

39th City Jirkov declared that the object and purpose of the contested regulation
. Article 3 generally binding ordinance is just that and differs from
object and purpose of regulation of the Law on Plant Health Care:
community has not established duty cuts (primarily) from
prevent the spread of pests, weeds, fungi, etc., but because
improve the aesthetic appearance of public green which is an important part
environment to live in an urban area.
Constitutional Court finds the reasons set out above, that the city Jirkov watched
contested provisions legitimate aim within substantively defined area in which it can
without legal authority to impose a generally binding decree
obligations.

40th The fact that the Ministry of Interior argument is odd, and that the object and purpose of regulation
law on plant care and § 10 point. c) of the Act on
communities differ, evidenced by the fact that the Interior Ministry said provisions of §
3, paragraph. 1 point. a) and § 73 par. 3 of the Act on phytosanitary care (see
recital 4) affects the spread of weeds and pests of uncultivated land
unkempt and non-agricultural land, which is not usually
concourse with public green, while
contested generally binding ordinance regulating limited to public green and duty cuts
attempt to expand on the grounds that the nature of public space
do.

41st As for the argument provisions of § 47b paragraph. 1 point. d)
Act on Offences and § 58 par. 2 of the Municipalities Act, the Constitutional Court notes,
that even these provisions do not exclude the regulation contested generally binding decree
. The difference object and purpose of the regulation is clear at first glance
that, while the contested provisions of the generally binding decree
obliges only the owners and users of public parks in
public spaces, the cited provisions of the Offences Act and the Act on
municipalities impose obligations on owners of land in the district
village. Also varies facts of the offense under § 47b paragraph. 1 point.
D) of the Act on Offences, respectively. § 58 par. 2 of the Municipalities Act and § 46 paragraph
. 2 of the Offences Act in conjunction with Art. 3 generally binding ordinance
city Jirkova: not every breach of the obligation to perform mowing and clean up after mowing
disrupt the appearance of the village, respectively. cause dirt and clutter on the land
owner or user. Can not a priori under the abstract review of norms
eliminate overlapping of these facts. Questions may collision

These offenses and administrative offenses must be addressed in individual cases
according to the specific circumstances of the case.

42nd The Constitutional Court finally under this test step cope with
petitioner's objection that the contested provisions impermissibly interferes
property rights under Art. 11 par. 4, because the land
which are classified as public
space may include not only land owned by the municipality, but also the land in private ownership
, and also because the interference with property rights by virtue of Article.
11 par. 4 allowed only in the public interest,
basis of law and for compensation.

43rd The Constitutional Court interprets the concept of public greenery due to § 10 point. c) and
§ 34 of the Municipalities Act as greenery located in public spaces
[see, eg. paragraphs 13, 21 and 33 of the judgment Pl. US 38/05 of
19th September 2006 (promulgated as no. 520/2006 Coll.), concerning the decree of the town of Kopřivnice
public green]. The contested provision generally binding regulations of the city
Jirkova to a non-public green, ie.
greenery located in public places does not apply;
this provision does not impose any obligation on the owners or users of land, which are not
public squares.

44th The judgment Pl. US 21/02 of 22 March 2005 (N 59/36 SbNU 631;
promulgated as no. 211/2005 Coll.), The Constitutional Court has already addressed the issue
pursuant to § 34 of the Municipalities Act defining the concept of public space
with the constitutional guarantee of property rights under Art. 11 of the Charter.
He stated in it that the space meets the legal character of public space is public space
ex lege. Removing the premises owned by private entities and
meet the legal characteristics of public spaces
public concourse regime would lead to a substantial
more difficult or preclusion of legal regulation of social relations on which the
municipality as a public corporation public interest ( eg.
permission to store based on the rulings of the obligation to protect
local public order, protect the environment and maintaining cleanliness
). In this sense, it is not and can not be unconstitutional, if
mode of public spaces are also subject to some
premises owned by private persons, but on the contrary, rigorous
universal concept of indiscriminate property owners
private and public character. Establishing the obligation
owner or user of the land, which is a public place, in
substantively defined area of ​​municipal jurisdiction [§ 10 point. c)
Law on Municipalities] is not possible without further viewed as a forced limitation
property rights under Art. 11 par. 4. The Constitutional Court therefore
this objection does not consider it justified. In addition, the Constitutional Court in this
findings also noted that Art. 11 Sec. 3 of the Charter shows that
property right is not absolute and unlimited nothing
legal dominion over things, but to fulfill and simultaneously also performs and other functions.
Constitutional and legal system of the Czech Republic is based both on the principle that ownership
committed and is restricted legally protected public interests, both from
possibility of state intervention in the regulation of property rights in the public, respectively.
General interest. If such an adjustment in the public interest occurs
not a hit in the equality of different owners.

45th The Constitutional Court concludes that the city Jirkov the adoption of the contested provisions
generally binding decree find itself outside the legally defined
substantive area under municipal jurisdiction and was not ultra vires.

46th The Constitutional Court notes that in its judgment Pl. US 38/05 of 19 September
2006 (promulgated as no. 520/2006 Coll.) Criticized a similar provision
decree Kopřivnice public greenery imposing the duty cuts
differently. Similarly, to assess the provisions of the Decree Těrlice in judgment Pl.
US 44/06 dated April 3, 2007 (promulgated as no. 189/2007 Coll.).
Kopřivnická and Těrlická decree, although unlike now under consideration
Jirkov decree imposing an obligation of maintenance of greenery in the form of cuts on
other than public spaces, which itself was based
derogational reason, the Constitutional Court has stated and that the provisions
Kopřivnice decree laying down an obligation to extend cuts in
regulated by law, specifically § 3 para. 1 point. a) and b) and § 73 para. 5

Act on phytosanitary care (see eg. Paragraph 22 of the judgment Pl. US 38/05,
paragraph 25 of the judgment Pl. US 44/06). It is obvious that the current findings
Constitutional Court expressed a different legal opinion on the issue of imposing the
perform mowing public green, but it is a consequence of the change in the legal opinion of the nature
generally binding regulations and explicit statutory requirement
mandate as described in paragraph 26, and the consequence of the requirement to distinguish
object and purpose of regulation is generally binding regulations pursuant to § 10 of the
municipalities and laws with which generally binding ordinance can get
due to proximity or the similarity of the subject and the object of regulation in a collision.

V. C and V D

47th The Constitutional Court also considered the question of whether the city Jirkov
when issuing the generally binding decree law did not misuse of powers and scope
. Nothing like the petitioner claimed, nor
Constitutional Court did not find any clues that might indicate that the city Jirkov
issuing the generally binding decree followed the law
neaprobované illegitimate goals and was led by irrelevant considerations.
Constitutional Court found nothing that could challenge the reasonableness of the contested
generally binding regulations in the extreme extent required by him (cf. Paragraphs 22 and 23
judgment Pl. US 57/05 of 13 September 2006 in Case
generally binding regulations of the city of Novy Bor to protect local public
fine and paragraph 34 of judgment Pl. US 30/06 of 22 May 2007 in the case
generally binding ordinance of the city of Isle of local dog fee) .

48th The Constitutional Court only recapitulates the obligation imposed by the contested
provision is determined by all owners and users of public green
without exception, that is. Jirka and the city itself if the owner or user
public green spaces, and there is no indication that the city Jirkov
wanted this provision, some owners or users of public green
advantage or disadvantage others vice versa.
Pursued by the contested provision - to protect public green areas and improve the quality of life in
environment, including its appearance - is a legitimate goal and law
aprobovaným a fixed duty mowing and cleaning after mowing to such a goal can rationally
lead.

V. E

49th The Constitutional Court finally dealt with whether the contested generally binding ordinance
meets the general criteria imposed on legislation
arising from the concept of democratic rule of law pursuant to Art. 1 paragraph. 1 and Art. 2
paragraph. 3 and 4 of the Constitution, ie. Whether its provisions, using the common
certain interpretive approaches and mutually nerozporná, lest
violated the principle of legal certainty and there would be a risk of violating the ban
arbitrariness on the part of public authorities .

50th The Constitutional Court points out that, especially from smaller communities can not be expected
that its legislation will be formulated in the same quality as they would be able
formulation of legal standards, since municipalities generally do not have
knowledgeable legislators. On the other hand, however, can not be the case
legislation municipalities admit that their provisions are worded so vaguely
or incomprehensibly, that the recipient of such standards
been able to anticipate their application and was not able to adjust according
that his behavior.

51st The Constitutional Court is primarily engaged in explicit objection
petitioner that the term "user of public green" as the addressee
obligations laid down by the contested provision is legally very uncertain, because
According to the petitioner by the user can be either a legal or physical || | person who uses public green legally intended manner (eg.
on contract basis), as well as any other person who uses public green
"different way."

52nd The Constitutional Court concur with this objection. Do not make problems when interpreting the concepts of user
land, respectively. the person using the site, which are
different variations in the legal system fairly frequent, as evidenced by
petitioner cited the provisions of § 3 para. 1 point. a)
Act on phytosanitary care ( "land owner or object or person
is used on other legal grounds"), § 47b paragraph. 1 point. d)
Act on Offences ( "one who does not maintain cleanliness and order on its or his
use of land"), § 58 par. 2 of the Municipalities Act ( "... a person ... to
land owned or used "), then neither the term user
public green areas can not be described as too vague and uninterpretable make it

Led this reason to annul the contested provisions of the ordinance.
Petitioner nor offered the Constitutional Court in practice realistically imaginable
example where, in the contested provision would be affected
another person who uses public green "in another way".
Addressee specified obligations is therefore probably a person who uses a public green
based on any legal ground (by way of lease, loan), and if you would like
town Jirkov waive the obligation for another "user", had
would in individual cases your progress kidnap arguments.
Is not the task of the Constitutional Court in order to pre-empt the bizarre and wild interpretations
otherwise easily understood terms.

53rd Concerning the provision of Article. 3. 1 point. a) the words "The frequency of mowing
least 2x a year" and Art. 3, paragraph. 1 point. b) or the Constitutional Court
(beyond the argument of the appellant) did not find that these provisions were
prima facie vague. Although the decree only the first cut
clearly and definitely states that must be made by 25 May
respective year, while the second and any further mowing the owners and users of public green
adjusted depending on closer || | unspecified vegetative condition, but it is not uncertainty
such intensity (particularly with regard to the proposition expressed in paragraph 50) that
not due to local conditions, village-size city Jirkova
rational interpretations překlenutelná. As in the previous case
would Jirkov town had attempted other than a strict interpretation of the provisions imposing an obligation
further cuts to kidnap arguments, and if the city
Jirkov wanted to apply this provision arbitrary šikanózním way can be
defend against such a procedure in misdemeanor proceedings and review
decisions on offense in the administrative courts.

54th The Constitutional Court therefore petition under § 70 par. 2 of the Constitutional Court
dismissed in its entirety, since the repeal of Article. 3
generally binding ordinance of the city Jirkova no reason not found.

Chairman of the Constitutional Court:

JUDr. own hand