179/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided in plenary on 23 December 2005. August 1994 relating to

the design of the head of the district authority in Olomouc, Czech Republic for annulment of the Decree of the city

Olomouc from 13 June 2005. March 1991 about modifying the terms of the sale, distribution,

and the pursuit of objects of pornographic and erotic nature in the city

Olomouc, Czech Republic



as follows:



Decree of the town Olomouc about modifying the terms of the sale, distribution, and

the pursuit of objects of pornographic and erotic nature in the city

Olomouc, Czech Republic of 13 October. March 1991 is repealed on the date of publication of the finding in

The collection of laws.



II.



Justification



Head of the district authority in Olomouc designed by the cancellation of the Decree of 13 December 2005.

3.1991, adjusting the terms of the sale, distribution and operation objects

pornographic and erotic nature in Olomouc with

on the grounds that it is contrary to the provisions of section 205 tr. Cust., as

while avoiding the ingeruje into relationships, governed by law. At the same time stated that

due to bezvýslednému negotiations with the Office of the city of Olomouc has suspended from

§ 62 para. 1 the Act. No. 367/1990 Coll., as amended, its

performance and turned on the Parliament, which, however, he said that from the 1. January

1993 the new Constitution, according to which the repealing other laws,

Thus, even the municipal decrees, decisions of the Constitutional Court.



From the contents of the Olomouc city přípisů of 16 May. 5.1994, 11. 7.1994, 29. 7.

1994, as well as from the extract from the resolution of 15. the meeting of the Council of the city of Olomouc,

held on 12 June 2006. 3.1991, it follows that the Council of the city of Olomouc has released a decree of

modify the terms of the sale, distribution and operation objects

pornographic and erotic nature in Olomouc and recommended

The Olomouc City Council approved and posted on the sites

the usual. From the minutes of the 3. the meetings of the Municipal Council of the city of Olomouc,

to be held on 26 April. 3.1991 and referred to přípisů follows that the

the Decree was approved in the form of a resolution, when 60 members out of a total

the number of Councillors was 70 for the design and 2 abstained,

While the Decree was posted up 13. 3.1991 for a period of 15 days. It can therefore be

consider that the Decree was adopted constitutionally prescribed manner [§ 45

(a). l), § 36 odst. 1 (b). (f)), § 38 paragraph 1(a). 5, § 44 para. 6 of the Act. No.

367/1990 Coll., as amended; § 68 para. 2 of the Act. No.

182/1993 Coll., on the Constitutional Court] and reads as follows:



DECREE



about modifying the terms of the sale, distribution and operation objects

pornographic and erotic nature in Olomouc



article. 1



1. Natural and legal persons may sell, distribute and operate

the case of pornographic and erotic nature only, under the conditions

laid down by this Decree, and that if this activity nespáchají

the offence under section 205 of the Criminal Code No. 140/1961 Coll. in 175/1990

SB.



2. Goods under paragraph 1(a). 1 for the purposes of this order means a recurring and

non-periodic press, audiovisual records, images, widgets, or

other objects and activities that can its content and character

undermine the morality of people under the age of 18 years or cause public offence

(the things).



article. 2



1. Prohibits the sale, distribution, operation and access to these things



a) in public spaces (squares, streets, subways, class,

car park) city of Olomouc



(b) persons under the age of 18 years).



2. the sale, distribution and the operation of these things can take place

exclusively in special shops or other solid devices

designed for this purpose.



article. 3



1. Natural and legal persons must in the sale, distribution, and

the operation of these things follow the following conditions:



and things may not be) publicly advertised, displayed in a shop window, etc.



(b)) distribution, dissemination and operation of these things may not take place

persons under the age of 18 years.



article. 4



Infringements of the provisions of this order will be punished according to the law on

provincial offences Act No. 200/1990 Coll. [§ 47 para 1 (b), (g))].



article. 5



This Decree shall enter into force on 1 January 2000. 4.1991.



In Olomouc on 13 November. 3.1991



According to the provisions of article. 87 para. 1 (b). (b)) of the Constitution of the Czech Republic shall act

The Constitutional Court repealing other laws, or their

individual provisions, if they are in conflict with the constitutional law, law

or international agreement under article. 10 of the Constitution. Pursuant to section 67 para. 2 of the Act.

No. 182/1993 Coll. stops proceedings before the Constitutional Court, if

the expiry of the constitutional law or law, or if it becomes

for the Czech Republic the binding international treaty under art. 10 of the Constitution, with the

which is the law, other legislation or their individual provisions,

whose annulment is sought, in violation of. It follows that the

The Constitutional Court in the case of an application pursuant to section 64 of Act. No. 182/1993 explores

compliance of the law, other legislation, if necessary. their provisions, only

with the constitutional laws, laws and international treaties under article. 10

The Constitution in force at the time of the proceedings.



In the light of the above, the Constitutional Court reviewed the contested Decree

regarding the terms of the sale, distribution and operation objects

pornographic and erotic nature in the city of Olomouc and came to the

the conclusion that it is not a separate area of competence of the community, even if it were

about meeting the needs of citizens, as a separate scope is bound to

only the management, maintenance and operation of the devices that are in the

the ownership of the village [cf. section 14, paragraph 1, point (a). p) Cust. No. 367/1990 Coll., on

as amended], while the contested Decree is in the article. 1 specified

both natural persons and legal persons, without distinction between them,

that is,. that is contrary to section 16 para. 2 and § 14 para. 1 (b). p) Cust. No.

367/1990 Coll., as amended. Moreover, it is contrary to section 205

tr. of Act, which governs as a separate criminal offence

the crime being the expansion of pornographic works, to which the Decree on the contrary

in the article. 1 authorizes, while at the same time, indirectly, is contrary to the provisions

section 13 of the tr row, which falls within the competence of the Court and not the authorities of the municipality

to decide whether a crime has been committed. For the article. 2 contested

the Ordinance, which prohibits the sale, distribution and operation of things

pornographic in nature, can then be noted a contradiction with article. Article 17(1). 4

The Charter of fundamental rights and freedoms ("the Charter"). Article. Article 17(1). 1

Although the Charter regulates the freedom of expression and the right to information, but

at the same time in the paragraph. 4 their legal limit permitted, IE. not

podzákonnou the norm, such as the Decree. Regarding the article. 3 the contested Decree

the same is true, what in the article. 1 of the Decree, namely, that the intended both to natural

and legal entities is contrary to § 14 para. 1 (b). p), § 16 para.

2 of the Act. No. 367/1990 Coll., as amended, and article. 4 (4). 1

Of the Charter, since it imposes obligations which may be imposed only on the

under the law. Moreover, it is contrary to section 205 tr. Act., when the barriers to the

extends or paraphrasing merits of the crime of endangering

morality. Finally, in the article. 4, which is considered a violation of the contested Decree

for the offense, it can be noted the contradiction with section 2 of the Act. No. 200/1990 Coll., on

and its subsequent amendments, according to which the offence just such conduct,

that is in the law on Offences Act or another Act expressly committed an offence

is marked, which means that the offence cannot be what for him, even if

indirectly, by determining the penalty marks the Ordinance, as the podzákonná standard.



Decree of the Council of the city of Olomouc from day 13. 3.1991 is, therefore, contrary to section

14. 1 (b). p), § 16 para. 2 of the Act. No. 367/1990 Coll., as amended by

amended, § 205 tr. Cust., § 13 tr row., § 2, § 47 para. 1, §

paragraph 47. 2 of the Act. No. 200/1990 Coll., as amended, with art. 4

paragraph. 1, art. Article 17(1). 1, 4, of the Charter.



Beyond the scope of this decision of the Constitutional Court States that he understands the motives of the city,

that led to the publication of a notice and which consisted in an attempt to limit the sale of

and the expansion of objects moving on the edge of morality, but

that does not meet the degree of social danger of the offence or

the offense at a time when that was particularly current and when the city did not have warranties,

that the legislature will be on the situation (cf. date 1. 1. in 1992, when

the amendment came into force of section 205 of the Act made tr. by Act No.

563/1991 Coll.). But the fact remains that it has done so in a way that

First, the scope of the separate city and exceeds the extra content in the

Basically it states the definition of the constituent elements of criminal acts and

the offense, which is for the reasons stated in the previous paragraphs

inadmissible.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.