In The Matter Of The Application For Revocation Generally Binding Decrees The Village Jivka

Original Language Title: ve věci návrhu na zrušení obecně závazné vyhlášky obce Jívka

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=42182&nr=194~2F1994~20Sb.&ft=txt

194/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided in plenary session on 4 July 2003. October 1994 on the draft

the head of the District Office in Trutnov to repeal generally binding decrees

the municipality of Jivka of 14 June March 1994 on the financing of the costs of children in kind,

attending elementary school,



as follows:



The Decree of the Municipal Council of the municipality for the financing of the substantive Jivka

the costs of children who attend elementary school, of 14 July. March 1994

shall be repealed on the date of publication of this finding in the collection of laws.



II.



Justification



4 March. 7.1994 was the Constitutional Court delivered a draft of the district

Office in Trutnov to repeal generally binding decrees, by day 14. 3.

1994 published by the Municipal Council in Jívce and which bears the name "Decree

The municipal authority in Jívce on the financing of the costs of children in kind, which

attending the primary school ".



The text of the decree is as follows:



The Municipal Council, the municipal authority in Jívce, issued on the basis of the law

the municipalities no 367/1990 Coll., as amended, and in the laws, regulations and

decrees, this generally binding Decree:



Article. (I).



Municipal Office in Jívce ensures the operation of the primary school in Jívce in the range

1. to 4. vintage. From the school. the year 1994/95 in the range of 1. up to 4. vintage.



Article II.



For the children who attend the 1. up to 4. year of the ELEMENTARY SCHOOL is therefore locally appropriate

the school. Parents who choose to give their child to another school, however,

must reckon with the fact that they bear the costs incurred by the municipality where the child

attends school.



Article. III.



Article II. This order does not apply to children with permanent residence in the foreward.

Jivka. These children attend school for them because of the traffic, the better.

The Decree shall apply from the 1994/95 school year.



Article IV.



It was approved by the municipal authority in the Jívce of the day: March 7, 1994, approved by the

The municipal government: 14. March 1994 posted on the Municipal Board:

March 16, 1994, Captured from the Board: April 1, 1994.



In the opinion of the appellant, this decree that imposes on parents of children,

attending elementary school in other municipalities than their permanent

stay, the obligation to pay the related substantive costs, contrary to the

by the law. For this reason, the district authority said the letter of 21 April. 3. the 1994

the Mayor of the municipality, that Decree was issued without authorization in a generally binding

legislation and that contradicts the provisions of § 14 paragraph in particular. 2 of the Act

No. 564/1990 Coll. on State administration and self-government in education, as amended by

Act No. 190/1993 Coll. Under this provision is to cover the

financial base cost substantially bound to the municipality, in which the child has a permanent

stay and this obligation cannot be transmitted to the parents of children.



The draft also notes that the Municipal Council adopted at the meeting on

28.3. 1994 resolution, which remained in force, the decree in question

on the grounds that it considered good, addressing the lack of children in the

the local school. District Office in Trutnov therefore 20 March. 5. the 1994 suspended

within the meaning of the Act on municipalities the performance of this order, with the caveat that

If the Council fails to remedy, will be brought to the constitutional

of the Court. Whereas, in the legal time limit of 30 days to remedy the

There, he handed the head of the District Office proposal to repeal generally

binding decrees. The Constitutional Court notes that the proposal meets the requirements

prescribed by Act No. 182/1993 Coll., on the Constitutional Court.



The Municipal Council has expressed to the proposal on the basis of the constitutional challenges

of the Court. In the representation of 8. 8.1994, signed by the Mayor of the village, in the

basically repeated the arguments previously communicated to the District Office, IE. that

the Decree was issued in order to encourage parents to give children in the local

school and not to schools in surrounding communities. If the village was paid by the

non-investment costs for children who may attend the local school,

She would have the funds to actually twice and neúčelně would

increased costs on the municipal budget. The observations also contains

the requirement that the decision was made after oral proceedings, which they want to

to attend.



For an opinion on the present issue also has been applied for

The Ministry of education, youth and sports. In the expression of this

Ministry of 7 July. 9.1994, States that the legislation does not provide for

the obligation that the learner must perform compulsory education in its place

regular stay and that citizens have at basic and secondary schools

the right to free education. Transfer the obligation payment of financial base

the cost to parents of children considered to be clear violations of the law No.

564/1990 Coll.



According to the article. paragraph 79. 3 of the Constitution, the local authorities may, on the basis of, and

within the limits of the law to issue legislation if they are to do so by law

empowered. In his article. paragraph 104. 3 then the Constitution authorizes the municipal

the City Government to issue generally binding decrees. These decrees, however,

must be in accordance with the laws and generally binding legal regulations

issued by the central State administration bodies for their implementation. Enumeration

the autonomous scope of municipalities included in the provisions of § 14 paragraph. 1 of the law

The CZECH NATIONAL COUNCIL No. 367/1990 Coll., on municipalities, as amended, contains

under the letter n) among other tasks in the field of education, with the exception of the performance

the State administration. The CZECH NATIONAL COUNCIL Act No. 564/1990 Coll. on State administration and self-government

in education, as amended by Act No 190/1993 Coll., section 2 provides that

Self-Government in education perform municipality and School Board. The performance of the Government

the third part is modified (§ 14-17) of the Act. For the assessment of the contested

generally binding decrees, it is then important to particular provisions of § 14 paragraph.

2, according to which a municipality with the approval of the school authority and shall be repealed;

pre-school establishments, primary schools and educational facilities serving them.

This provision was the law No. 190/1993 Coll. amended so that, if the

the child holds the school attendance in a school set up by different municipalities, agree with both

the village on the conditions of the implementation of compulsory schooling. In this case,

the municipality of residence of the child shall be borne by the municipality where the child attends school, her

non-capital costs attributable to the child. For the case under consideration is also

the essential provisions of § 14 paragraph. 3, according to which the municipality manages the basic

the school, in particular, that secures the investment expenditure and non-investment

costs in addition to salary, textbooks, educational AIDS and the needs of the

financed by the State, unless otherwise provided by law.



After examining the content of the decrees in question and other evidence submitted, the

and the opinions of the Constitutional Court stated that the municipality, with the will to apply Jivka

their self-governing responsibilities in the area of basic education, the Act released

tagged as a decree. This Decree is decided, the Municipal Council of the municipality

in the prescribed manner. After the page was in accordance with the procedural

UST. section 16 of the Act on municipalities, though the Decree, approved by the municipal

the Municipal Board on 14 July. 3. in 1994, was posted on the official notice board from 16.

3. in 1994 to 1. 4. the 1994 that pays for the school year 1994/95. From

the formal aspects of the decree is missing the signature of the Deputy Mayor or

Another Councilor, as prescribed by the ust. § 52 paragraph. 3 of the Act on municipalities (this

the fact, however, the proposal I can think of).



According to the article. paragraph 87. 1 (a) (b)) of the Constitution the Constitutional Court decides on the abolition

other legal regulations or their individual provisions. It must be

Therefore, the Act of law not by name, but such an act of State

Administration or Government, in which they are contained mandatory rules

the behavior of, i.e.. the Act of a normative nature. The Constitutional Court therefore dealt with the

First, the question of whether the Decree of the Municipal Assembly of such a nature

has. It is common ground that some of the provisions of the decree are rather a kind of

Notice that in the school year 1994/95 will be in the village works 1. up to

4. year of elementary school. At the same time, however, lays down the rules for the

the operation of the schools, which have a normative character. Primarily

is in conflict with applicable law introduced the concept of "locally

the appropriate school ". Such a concept of Act No. 29/1984 Coll. on the system of

primary and secondary schools (the School Act). Parents is then given by

information, which is not in accordance with the law, and that would not

different municipalities could not be realized, i.e.,. parents who decide to

put your child to another school "... must reckon with the fact that the benefits in kind shall be borne

the costs incurred by the municipality where the child attends school. If you would

such a practice was implemented, it would be inconsistent not only with Act No.

564/1990 Coll. (with ust. section 14 (2) of this law), but broken,

the provisions of section 4 of the Education Act, as amended, and in the

the text of the finding of the Constitutional Court of the CZECH REPUBLIC, published under no. 49/1994 Coll.

Such a practice is made for a particular group of citizens required

schooling partly pecuniary interest and would violate one of the basic

the rights guaranteed to citizens-the right to free education in the basic

schools (article 33, paragraph 2, of the Charter of fundamental rights and freedoms).



However, you can understand the reasons for which the Municipal Council to issue

the contested act, must be concluded that the funds, which the municipality

used in order to keep the school in the village, are illegal and unconstitutional.

Therefore, regardless of the fact that not all the provisions of the decree can be
considered the provisions of the normative nature of the Constitutional Court

the conclusion that in the interests of legal certainty, it is necessary to repeal a decree throughout

the range.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.